Citation Nr: 1321722 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 12-19 658 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received to reopen a claim seeking service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant (the Veteran) is represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from November 1951 to May 1954. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2010 rating decision of the RO in Portland, Oregon. Although the RO reopened the claim and adjudicated it on the merits, the Board must first examine whether the evidence warrants reopening. This is significant to the Board because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In September 2001 correspondence addressed to the RO, the Veteran asserted that a July 1956 RO rating decision that denied service connection for an ear disability was founded on clear and unmistakable error (CUE). The issue of CUE in the July 1956 rating decision was not immediately adjudicated or acknowledged by the RO; however, in the August 2010 rating decision, the RO also rendered a decision on that claim and found that there was no CUE in the July 1956 rating decision. In addition to the denial of reopening of the claim seeking service connection for hearing loss, and the denial of CUE, the August 2010 rating decision also denied reopening of a claim seeking service connection for an ear disability (otitis externa), and denied reopening of a claim seeking service connection for tinnitus. The notice of disagreement addressed only the denial of reopening of the hearing loss and tinnitus claims. The RO subsequently granted service connection for tinnitus, resolving the appeal as to that issue. The statement of the case addressed only the issue of service connection for hearing loss, and the VA Form 9 referred specifically to the hearing loss issue, and did not address the matters of CUE or service connection for otitis externa. Accordingly, the Board does not have jurisdiction over those matters. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In an unappealed September 2002 rating decision, the RO denied service connection for bilateral hearing loss. 2. The evidence associated with the claims file subsequent to the RO's September 2002 rating decision relates to the unestablished fact of nexus necessary to substantiate the claim; it is neither cumulative nor redundant of evidence already of record; and it raises a reasonable possibility of substantiating the claim. 3. The Veteran was exposed to loud sounds during active service. 4. Symptoms of an organic disease of the nervous system manifested by hearing loss were not chronic in service. 5. Symptoms of an organic disease of the nervous system manifested by hearing loss were not continuous after service. 6. No current chronic disability manifested by hearing loss is related to service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim seeking service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012). 2. Bilateral hearing loss was not incurred in service; an organic disease of the nervous system manifested by hearing loss is not presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (CAVC) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Certain specific conditions are considered chronic diseases under VA Law. These include the following: Anemia, primary; Arteriosclerosis; Arthritis; Atrophy, progressive muscular; Brain hemorrhage; Brain thrombosis; Bronchiectasis; Calculi of the kidney, bladder, or gallbladder; Cardiovascular-renal disease, including hypertension. (This term applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1-year period will be given the same benefit of service connection as any of the chronic diseases listed); Cirrhosis of the liver; Coccidioidomycosis; Diabetes mellitus; Encephalitis lethargica residuals; Endocarditis. (This term covers all forms of valvular heart disease); Endocrinopathies; Epilepsies; Hansen's disease; Hodgkin's disease; Leukemia; Lupus erythematosus, systemic; Myasthenia gravis; Myelitis; Myocarditis; Nephritis; Other organic diseases of the nervous system; Osteitis deformans (Paget's disease); Osteomalacia; Palsy, bulbar; Paralysis agitans; Psychoses; Purpura idiopathic, hemorrhagic; Raynaud's disease; Sarcoidosis; Scleroderma; Sclerosis, amyotrophic lateral; Sclerosis, multiple; Syringomyelia; Thromboangiitis obliterans (Buerger's disease); Tuberculosis, active; Tumors, malignant, or of the brain or spinal cord or peripheral nerves; Ulcers, peptic (gastric or duodenal)(A proper diagnosis of gastric or duodenal ulcer (peptic ulcer) is to be considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; in short, where the preponderance of evidence indicates gastric or duodenal ulcer (peptic ulcer). Whenever possible, of course, laboratory findings should be used in corroboration of the clinical data. 38 C.F.R. § 3.309(a). Where one of the above chronic diseases is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and any of the chronic diseases listed above becomes manifest to a degree of 10 percent within 1 year from date of termination of such service (for Hansen's disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years), such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372(Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336(Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The CAVC has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303(2007); Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. Sept. 14, 2009). The Veteran is seeking to reopen a claim seeking service connection for bilateral hearing loss. The Veteran asserts that he was exposed to loud sounds during service and that this resulted in bilateral hearing loss. Following the Veteran's separation from service in May 1954, the Veteran filed a claim for service connection for an ear condition in May 1956. The claim did not mention hearing loss. The RO denied the claim in a July 1956 rating decision. The Veteran next filed a claim in May 2001, specifically noting hearing loss. The RO denied a claim for hearing loss on the merits in a September 2002 rating decision. At the time of the September 2002 decision, the medical evidence of record consisted of service treatment records, private medical records, VA outpatient records, and a VA examination dated in July 2002. Private treatment records from Eastman Kodak from June 1951, just prior to service, reveal the lower half of the left ear drum was covered by an exudate. There was subtle redness, but no tenderness or fever. The ear was treated with Betadine. The service records showed no record of treatment in service for any ear condition, and no record of complaint of decreased hearing acuity. The examination at service separation revealed that a whispered voice hearing test was performed, and the Veteran scored 15/15, the same score as recorded at enlistment. On standard voice testing at separation, the Veteran scored 30/15, as compared to 15/15 at enlistment. Post service medical evidence of record in September 2002 included records from Eastman Kodak, where the Veteran was employed after service. A June 1954 examination revealed that the Veteran's ear drums were described as "dull" but hearing was "OK." In August 1954, the Veteran was treated for a furuncle within the right external auditory canal. In June 1955, the Veteran was seen for difficulty hearing in the left ear since swimming "a few days ago." The examiner noted an external and canal ear infection with tympanic membrane involvement. The Veteran was treated for flare ups of this infection for the following year. The Veteran was involved in an motor vehicle accident in March 1956 and sustained a concussion. An examination in March 1956 showed that the Veteran's hearing was found to be essentially normal. An external ear examination was clear. The post-service private treatment records include audiograms taken in March 1956, November 1958, June 1960, and November 1962. In March 1956, puretone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 -10 -10 -10 -10 LEFT -5 -10 -5 -10 0 In November 1958, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 -10 -10 -10 -10 LEFT -10 -10 -10 -10 -5 In June 1960, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 -10 -10 -5 -10 LEFT -5 -5 -10 -10 -10 In November 1962, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 -5 -10 0 -10 LEFT -10 -5 -10 -10 -5 A September 2001 private examination included pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 40 50 LEFT 20 20 30 35 45 A July 2002 VA examination included pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 25 40 40 LEFT 10 20 25 45 45 Speech recognition ability was 96 percent in the right ear and 96 percent in the left ear. The VA examiner acknowledged exposure to four-inch cannons, helicopters, small planes, and shelling. Importantly, the examiner noted that the post-service audiograms from Eastman Kodak showed better than normal hearing, including in the frequencies where one would expect to see some noise exposure hearing loss. The Veteran disputed ever having had audiograms taken while at Eastman Kodak. The examiner found it "difficult to credit" the Eastman Kodak audiograms because it is rare to find an individual without noise exposure to have hearing as acute as the Veteran's appears to be. The examiner noted that, on the other hand, there is no motivation for someone to enter numbers on an audiogram unless they were indeed tested. The examiner concluded that the onset of hearing loss was "up for dispute." The Veteran's assertions of record in September 2002 included his May 2001 claim, in which he reported that he lost his hearing in 1952, and that a post-service examination in June 1954 showed a hearing loss, and that his physician recommended that he file a claim for disability compensation. The claim was denied in September 2002 based on the normal post-service audiograms and the negative July 2002 nexus opinion. The RO appears to have acknowledged noise exposure during service. Although notified of the RO's decision and of his right to appeal, the Veteran did not initiate an appeal of that decision (see 38 C.F.R. § 20.200 (2012)); moreover, he did not submit new and material evidence within one year of that decision. Therefore, the decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2012). In Buie v. Shinseki, 24 Vet. App. 242 (2010), the CAVC vacated and remanded an earlier effective date claim (not at issue in this case) because the Board did not discuss the application of § 3.156(b) in its decision, but instead focused on the question of whether statements submitted within the appeal period following a rating decision satisfied 38 C.F.R. § 20.201 and were notices of disagreement. Buie, Vet. App. at 252. Essentially, the CAVC indicated that, because the statements were submitted within one year of the corresponding RO decision, the Board should have considered whether the statements included the submission of new and material evidence. Id. In this case, no evidence was received within one year of the September 2002 rating decision. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156. In Shade v. Shinseki, 24 Vet. App. 100 (2010), the CAVC held that 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the CAVC found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. The Veteran applied to have the previously denied claim reopened in April 2010. Regarding applications for reopening filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last disallowance on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996), overruled on another basis by Hodge v. West 155 F.3d. 1356 (Fed. Cir. 1998). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The evidence received since the September 2002 rating decision includes additional private treatment records submitted by the Veteran, including a nominally positive nexus opinion, a May 2012 VA examination report and nexus opinion, and additional written assertions made on the Veteran's behalf. A September 2010 letter from B.N.H., M.D. provides an opinion that the Veteran's hearing loss is more likely than not due to the Veteran's time in the service, specifically noise exposure and bone trauma. As evidence relating the Veteran's hearing loss to service was an unestablished fact at the time of the September 2002 rating decision, the Board finds that September 2010 letter from B.N.H. is new and material evidence, as it is neither cumulative nor redundant of evidence previously of record, and as it raises a reasonable possibility of substantiating the claim. New and material evidence having been found, the Board will now address the merits of the reopened claim. Although hearing loss per se is not a chronic disease entitled to any presumption of service connection under 38 C.F.R. §§ 3.307(a)(3), 3.309(a), See Godfrey v. Derwinski, 2 Vet. App. 352, 354 (1992), Cromley v. Brown, 7 Vet. App. 376, 378 (1995), sensorineural hearing loss is considered an organic disease of the nervous system. Therefore the presumption of service connection and the provisions regarding chronicity and continuity of symptomatology must be addressed. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As set out above, while there appears to be a pre-service episode of a left ear infection in June 1951, the service entrance examination reveals normal clinical findings for hearing, ears, canals, drums, and external ears. Accordingly, the Veteran is deemed to have been in sound condition at enlistment regarding his hearing. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). Service treatment records reveal no treatment in service for ear problems of any sort, and clinically normal hearing at service separation. While the Veteran now asserts that he was never provided a service discharge examination, the examination report is in the claims file, dated May 18, 1954, and contains the correct name and identifying information for the Veteran. In the absence of any reasonable explanation from the Veteran as to why there would be a completed examination report but no corresponding examination, the Board finds that the examination report is an accurate reflection of the Veteran's physical condition at service separation. Thus, to the extent that there were symptoms of sensorineural hearing loss in service, symptoms of sensorineural hearing loss were not chronic in service. When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran has reported that he was exposed to loud sounds, including gunfire, helicopters and other aircraft. The Veteran's daughter has provided a detailed account of the Veteran's in-service assignments and his exposure to noise, as this information was related to her. The Board finds that these descriptions are credible and consistent with the Veteran's service. The Board also notes that VA has acknowledged the Veteran's exposure to noise during service and has granted him service connection for tinnitus based on such exposure. The fact that the Veteran was exposed to loud noise is not in dispute. As set out in detail above, post-service records from Eastman Kodak reveal that the Veteran's hearing was normal when examined in March 1956, November 1958, June 1960, and November 1962. In addition to audiometry findings, those reports also indicate that, during each examination, the Veteran's ear canals and drums were found to be normal, providing highly probative evidence against the Veteran's claim. The Veteran again disputes that his hearing was ever examined by Eastman Kodak, or at least he reported to the July 2002 VA examiner that he does not remember ever having an audiogram done at Eastman Kodak. However, there is a direct conflict in the Veteran's assertions on this point: In September 2001, the Veteran asserted that his hearing was examined by Dr. N.A. at Eastman Kodak in 1954, and that this testing showed a 25 percent hearing loss. This is certainly inconsistent with his assertion that his hearing was "never" examined. Once again, the record contains completed examination reports on the above dates, and each report includes audiometric results. While the Veteran is competent to report whether he had his hearing examined, the Board must weight this assertion against the presence of completed examination reports. The Veteran's recollections of events from decades ago are not consistent. The Board also acknowledges some uncertainty by the July 2002 examiner as to the March 1956, November 1958, June 1960, and November 1962 audiograms, based on what the examiner believed to be the unlikelihood of such hearing acuity in an individual who had noise exposure. Nevertheless, the July 2002 VA examiner's opinion on this point was ultimately inconclusive. The Board finds the completed examination reports in March 1956, November 1958, June 1960, and November 1962 to be the most persuasive evidence of record as to whether audiograms were actually performed. In addition to the audiometric readings themselves, the examinations in November 1958, June 1960, and October 1962 include a narrative summary page on which the examiner reported in November 1958 and October 1962 "[y]our audiogram was normal," and in June 1960, "[y]our hearing test was essentially normal." The Veteran has offered no reasonable explanation for the existence of the reports other than the Board's conclusion that the examinations were actually performed. Thus, the Board finds that, while the Veteran is competent to report whether the March 1956, November 1958, June 1960, and November 1962 examinations were performed, his account is not accurate. While the Veteran has asserted that a 1954 examination at Eastman Kodak shows a 25 percent loss of hearing, this too is not accurate. There is no audiogram of record from 1954; and, while the examiner performed an examination of the ears and made a notation of dull drums, there is no finding consistent with a 25 percent hearing loss, or any hearing loss for that matter. The examiner's notation appears to be that the Veteran's hearing was otherwise OK. While the Veteran is competent to relay information conveyed to him by a medical professional, the Board finds that it is unlikely that a medical professional would have described verbally such an important detail and yet not have recorded it on the examination report. The Board also notes that the Veteran's account is not consistent with the contemporaneous records. The Veteran's statements are not consistent with the facts that acccured in the 1950's: The Veteran's initial May 1956 claim did not mention hearing loss, but mentioned only the ear condition, which had been diagnosed at the time as otitis externa. If the Veteran (as he now contends) had been recently informed that he had a 25 percent reduction in hearing acuity, it is reasonable to expect that he would have reported such a finding, or included a claim specifically for hearing loss. In fact, the record reflects no assertion as to perceived loss of auditory acuity until the May 2001, more than 40 years later. The fact that the Veteran described an ear condition, but did not describe "hearing loss", when read in the context of his then-recent (post-service) treatment for otitis media, is construed against his current assertion that he was experiencing "hearing loss" at that time. Thus, while the Veteran is competent to relate information provided to him by a medical professional, in this case, the Board finds that his account is not accurate. His recollection of events from one-half century ago is simply not consistent with the record in this case, which is highly detailed and provides significant evidence against this claim from both service and private sources. There is, in fact, no manifestation of sensorineural hearing loss within a year of service separation, and the Board finds the audiometry readings in March 1956, November 1958, June 1960, and November 1962 to be persuasive evidence regarding the lack of manifestation of sensorineural hearing loss within a year of service separation and the lack of continuity of symptomatology after service. The evidence demonstrates that the Veteran has a current hearing loss disability for VA purposes. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A March 2010 private audiology report reveals pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 30 45 60 65 LEFT 25 30 50 60 60 A VA examination was obtained in May 2012. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 55 60 65 LEFT 30 35 45 55 60 Speech recognition ability was 86 percent in the right ear and 94 percent in the left ear. Tympanometry readings were normal for each ear. The examiner diagnosed sensorineural hearing loss in each ear. Turning to the question of etiology, the Board has found that the July 2002 VA examination did not result in a conclusive opinion regarding etiology. A September 2010 letter from B.N.H., provides the opinion that the Veteran's hearing loss is more likely than not due to the Veteran's time in the service, specifically noise exposure and bone trauma. Following an acknowledged review of the claims file, the May 2012 VA examiner noted that the Veteran had been in close proximity to firing of weapons, including a 4-inch gun, without hearing protection. The examiner opined that the diagnosed hearing loss was not at least as likely as not caused by or a result of an event in military service. The rationale was that the Eastman Kodak audiograms indicated that the Veteran's hearing loss started sometime after 1962. Here, the Board finds that the May 2012 VA opinion is more persuasive than the opinion of B.N.H. While the VA examiner based her opinion on the clinical records reflecting the Veteran's hearing acuity after service, B.N.H. did not address or acknowledge this crucial evidence. To the extent B.N.H.'s opinion is based on the Veteran's account that he experienced symptoms of hearing loss in service, the opinion is based on a factual basis which the Board has found to be inaccurate. Accordingly, the Board attaches no probative weight to the opinion of B.N.H. In contrast, the VA opinion reflects an understanding of the pertinent evidence and includes a discussion of that evidence in the rationale. As the Board has found no relationship between the Veteran's service and a current hearing loss disability, the Board concludes that service connection for bilateral hearing loss is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The CAVC issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the Veteran submitted his application to reopen service connection for bilateral hearing loss in April 2010. He was sent a letter in June 2010 which advised him of the information and evidence necessary to substantiate the claim. That letter also advised him as to how disability ratings and effective dates were assigned in the event of a successful claim seeking service connection. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Since the June 2010 letter was sent to the Veteran prior to the adjudication of the claim in August 2010, there exists no error in the timing of this notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the CAVC held that, in the context of an application for reopening, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. Id. at 11-12. The CAVC elaborated that VA is required, in response to an application to reopen, to look at the bases for the denial in the prior decision and send a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. The June 2010 letter informed the Veteran of the date and bases of the previous denial of his claim. The Veteran was also informed of the appropriate definitions of new and material evidence and of the evidence needed to substantiate the underlying claim. Therefore, the letter provided the notice required by the Kent decision. In short, VA has complied with its duty to notify the Veteran in this case. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's written assertions. The Veteran identified private records from the Sonus Hearing Center in July 2010, and the RO requested those records in August 2010. The records were received later that month. In addition, the Veteran was afforded VA examination to address the etiology of the Veteran's hearing loss. This examination is adequate because it was performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The resulting opinion is accompanied by a rationale that is consistent with the examination and the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). ORDER Reopening of the claim seeking service connection for bilateral hearing loss is granted. Service connection for bilateral hearing loss is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs