Citation Nr: 1322960	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  06-22 779	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in St. Louis, Missouri



THE ISSUE

Entitlement to service connection for left ear hearing loss.



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

Jebby Rasputnis, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 1970 to November 1971.  His awards and decorations include the Air Medal and the Combat Infantryman Badge.

This appeal to the Board of Veterans' Appeals (Board) arose from a March 2005 rating decision in which the RO, inter alia, denied service connection for bilateral hearing loss.  The Veteran perfected a timely appeal as to that denial.  T

In March 2011, the Board issued a decision denying service connection for right ear hearing loss on the basis that the Veteran did not have a current right ear hearing loss disability.  The Board also remanded the claim for service connection for left ear hearing loss.  After accomplishing further action, the AMC issued a November 2011 supplemental statement of the case (SSOC), reflecting continued denial of service connection for left ear hearing loss, and returned the matter to the Board for further appellate consideration.  

In March 2012, the Board again remanded the claim for service connection for left ear hearing loss as the AMC/RO did not substantially comply with the terms of the March 2011 Remand.  After completing the requested development, the AMC continued to deny the claim for service connection for left ear hearing loss (as reflected in a May 2012 SSOC) and returned the matter to the Board for further appellate consideration. 

As a final preliminary matter, the Board again notes, as noted in the May 2011 decision, that the record raises what appears to be a request to reopen a previously denied claim for posttraumatic stress disorder (PTSD).   As this matter had not been adjudicated by the RO, it was deemed not properly before the Board, and referred to the RO for appropriate action.  As the claims file does not reflect that this issue has yet been addressed by the RO, the Board again refers this matter to the RO for appropriate action. 



FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the matter herein decided have been accomplished.

2.  The Board accepts the Veteran's assertions of noise exposure in service as credible and consistent with the circumstances of his service.

3.  Although the Veteran currently has left ear hearing loss to an extent recognized as a disability for VA purposes, the most persuasive opinion evidence to address the question of whether there exists a medical nexus between current hearing loss disability and in-service noise exposure weighs against the claim.  


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.307, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). 

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. 
§ 3.159(b) (1).

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b) (1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.  

In this appeal, a December 2004 pre-rating letter provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA.  After the initial rating decision, a March 2006 letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman.   The information in the December 2004 and March 2006 letters was provided again to the Veteran in letters mailed in April 2009, June 2011, and March 2013.  

After issuance of each of these letters, and subsequent opportunities for the Veteran to respond, SSOCs were issued in November 2010, November 2011, and May 2012.  Given these subsequent readjudications, the Veteran is not shown to be prejudiced by the timing of the post-rating notice.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). 

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided.  Pertinent evidence associated with the claims file consists of service records, VA and private treatment records, the report of a VA examination conducted July 8, 2009, an expert opinion dated October 2012, and VA medical opinions dated July 15, 2009, August 2010, July 2011, and April 2012. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim.  However, review of the paperless claims processing system did not reveal additional medical evidence pertinent to the claim herein decided.  Also of record and considered in connection with the appeal are various statements by the Veteran and by his representative, on his behalf.  The Board finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required.  

The Board further notes that this claim was remanded in February 2009, April 2011, and March 2012 for the RO to assist the Veteran with development of his claim, to include as regards procuring additional VA treatment records, obtaining a VA examination, and obtaining clarifying VA medical opinions.  Additional VA records were added to the claims file and an examination was provided in July 2009.  Although the resulting medical opinion required clarification and subsequent August 2010, July 2011, and April 2012 opinions also required clarification, the October 2012 expert opinion provides a sufficiently reasoned medical opinion based on review and analysis of pertinent evidence.  As such, the Board finds that all requested development was substantially (italics added for emphasis) accomplished on remand, so there was compliance with these remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation under Stegall v. West, 11 Vet. App. 268, 271 (1998) when the examiner made the ultimate determination required by the Board's remand). 

As mentioned, on multiple remands, the AMC sought a VA examination and three addenda/clarifying opinions.  The Board also obtained an expert opinion in October 2012.  The Board finds that the results of the VA examination, read in combination with the subsequent VA opinions and expert opinion, are adequate to decide the issue.  The initial examiner interviewed and physically examined the Veteran; the addenda were based on additional reviews of the record; and the expert's opinion was based on the results of the examination, review of the record, and treatise evidence.  The expert's proffered opinion also is supported by thorough rationale, relying on and citing to the records reviewed.  

In summary, the duties imposed by the VCAA have been considered and satisfied.  Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549   (Fed. Cir. 1998).

II. Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Such a determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2012).

If a chronic disease becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  Sensorineural hearing loss is considered an organic disease of the nervous system, which is subject to presumptive service connection under 38 CFR 3.309(a).  See VA Adjudication Procedure Manual, M21-1MR III.iv.4.B.12.a. 

For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when 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).


The United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to establishing service connection on the basis of continuity of symptomatology (in lieu of a medical nexus opinion) is limited to disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

For VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran underwent audiometric testing on enlistment examination in January 1970.  The recorded pure tone thresholds, in decibels, were as follows:

Hertz
500 
1000
2000
3000
4000
Left Ear
10
0
-5
n/a
0

He did not report any ear trouble on an accompanying self report of medical history.

During service, the Veteran served in Vietnam.  Based on his awards and decorations, VA recognizes that he engaged in combat with the enemy. VA Adjudication Procedures Manual, M21-1MR, Part IV, subpart ii, 1.D.13.e.

He underwent additional audiometric testing on separation examination in November 1971.  The recorded pure tone thresholds, in decibels, were as follows:

Hertz
500 
1000
2000
3000
4000
Left Ear
10
10
10
n/a
10

Concurrent with the examination, the Veteran completed another self report of medical history and again denied any ear problems.  Although comparison of the Veteran's audiometric results from the time of enlistment and time of separation reflect some change, the Board notes that the threshold for normal hearing is from 0 to 20 decibels; only higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

In August 1995, the Veteran was examined, generally, after a cardiac event.  The examining physician noted that his ears were normal.  In January 1996, the Veteran was afforded a VA examination in regard to other claims for compensation.  The examination report states that his ears were normal.  A February 1996 VA treatment note also reflects normal ears.  However, VA treatment notes reflect diagnosis of sensorineural hearing loss as well as presbycusis in November 1996.  See Godfrey v. Brown, 8 Vet. App. 113, 120 - 21 (1995) (noting that presbycusis is a "lessening of hearing acuteness resulting from degenerative changes in the ear that occur especially in old age."); see also Dorland's Illustrated Medical Dictionary, 1534 (31st ed. 2007) (defining presbycusis as "a progressive, bilaterally symmetric sensorineural hearing loss occurring with age.").

VA treatment notes document a finding of left ear moderately severe high frequency sensorineural hearing loss in October 2003.  A February 2004 auditory evoked potential evaluation reflects no retrocochlear pathology.  Subsequent VA treatment notes continue to document sensorineural hearing loss and reference the prior diagnosis of presbycusis.

In November 2004 correspondence to VA, the Veteran contended that he experienced hearing loss as a direct result of his in-service exposure to mortar and grenade sounds without hearing protection.  In May 2009, the Veteran wrote to a Senator and VA later received a copy of the correspondence.  In the letter, the Veteran contended that he had experienced hearing loss ever since service.

As noted above, the Veteran underwent VA audiological evaluation in July 2009.  The examiner observed that the Veteran's past noise exposures included his combat service in Vietnam as well as occupational exposures in factories and while working construction.  Audiometric testing revealed the following pure tone thresholds, in decibels:


Hertz
500 
1000
2000
3000
4000
Left Ear
15
25
35
60
75

He had speech recognition (Maryland CNC) of 94 percent on the left.  The evaluating audiologist diagnosed mild to severe high frequency sensorineural hearing loss in the left ear.  However, the examiner opined that, because his left ear hearing was measured within normal limits at the time of enlistment and the time of separation, it was less likely than not that the current left ear hearing was related to service.

In later July 2009, the Veteran's claims file was reviewed by a different VA examiner.  The examiner noted that the Veteran worked, after service, in a factory that made hinges, a factory that made shoes, and performing concrete work, but denied any noise exposure associate with those jobs.  The examiner noted that the Veteran's entrance and separation examinations showed hearing within normal limits.  Although acknowledging that the Veteran's left ear displayed worse hearing acuity than the right ear as the result of an unknown cause, the examiner opined that no current hearing loss was attributable to service.

VA obtained another VA medical examiner's review and opinion in August 2010.  The August 2010 auditory examiner again observed the Veteran's military and medical histories, acknowledging that he had been exposed to loud noises in service.  The examiner also noted that his audiometric testing results were "slightly worse" at the time of his separation from service than they had been at time of enlistment.  However, the examiner observed that the threshold shift was so slight that the Veteran would not have noticed it.

In November 2010, the Veteran submitted a copy of two pages, 782 and 783, from the 18th edition of The Merck Manual, Section 8, Chapter 85.  The pages state that hearing loss can be congenital in nature or it can be acquired, to include as the result of acoustic trauma.  In cases of hearing loss due to acoustic trauma, "loss typically occurs at 4kHz and gradually spreads to the lower and higher frequencies."  Id., p. 782.

VA forwarded the Veteran's claims file to another audiologist in July 2011 in order to obtain another clarifying medical opinion as to the etiology of left ear hearing loss.  The examiner again noted review of the claims file and summarized the Veteran's military and medical histories.  Like the last examiner, this examiner noted a "slight variation in thresholds from entrance to exit" in service.  The examiner stated that those changes were "negligible" and observed that such minor changes do not always reflect actual change in hearing, but can represent changes in patient attention, environmental factors, or equipment differences.  Based on the minimal nature of the change, the audiologist opined that no current hearing loss was attributable to service.

Yet another VA audiologist reviewed the Veteran's claims file in April 2012.  The examiner acknowledged the Veteran's combat service and his presumed in-service noise exposure.  However, as his hearing was well within normal limits at time of enlistment and separation, the audiologist opined that he did not experience any acoustic damage in service despite his exposure to loud noises.

The Veteran wrote to VA in April 2012 and expressed disagreement with the medical opinions of record.  He also stated that he was told by a medic at the time of his discharge that he showed signs of early hearing loss.  He also reported that his hearing test at the time of separation was done in an open room with the machine sitting on a desk and, as such, he believed it was "impossible to say if the machine had a current calibration... or if it was recording correctly."

Subsequently, the Board sought an expert opinion on the issue of whether or not the Veteran's left ear hearing loss resulted from his presumed in-service noise exposure.  The expert wrote a detailed opinion in October 2012 that reflects review of the claims file, as shown by summaries of the Veteran's service records, claims history, post-service employment, and post-service treatment history.  The opinion letter states that the expert recognized that the Veteran's in-service exposure to acoustic trauma had been conceded, but observes that he was not diagnosed with hearing loss until many years after service.  The expert explained that acoustic trauma "does not result in delayed onset hearing loss."  In support of that explanation, the expert cited to treatise evidence from the Institute of Medicine (Noise in Military Service - Implications for Hearing Loss and Tinnitus, 2006) and the American College of Occupational and Environmental Medicine (Noise Induced Hearing Loss, 2002).

The expert observed that, despite the shift in the Veteran's acoustic thresholds from enlistment to separation, his hearing was within normal limits at both times.  He also observed that the Veteran's claims file reflects that he worked in construction for approximately a decade, filed multiple claims for service-connected compensation in between his separation and his filing of the claim for hearing loss, and was not diagnosed with hearing loss for many years after service.  Based on those facts as well as the treatment history and treatise evidence, the expert opined that current left ear hearing loss was less likely than not related to the Veteran's active military service.

In various written statements submitted to the Board, the Veteran, through his authorized representative, has contended that, by virtue of combat service, VA is required to concede that he experienced actual injury to the left ear during service.  However, in the April 2011 decision, the Board accepted the Veteran's assertions of significant in-service noise exposure as credible and consistent with the circumstances of his combat service based on his military occupational specialty (MOS) as light weapons infantry and his receipt of combat awards.  See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  As such, his exposure to in-service acoustic trauma (i.e. loud noise) has already been conceded.  Although the medical evidence of record also plainly reflects that the Veteran has left ear hearing loss as recognized by VA regulation, neither that diagnosis nor the Veteran's presumed in-service acoustic trauma, are determinative of the question of nexus to service, which generally requires competent medical evidence.  See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996).  

As noted above, under the provisions of 38 C.F.R. § 3.303(b) and Walker, a claimant can establish service connection for hearing loss on the basis of  continuity of symptomatology in lieu of a medical nexus opinion.  See Walker, 708 F.3d 1331.  However, 38 C.F.R. § 3.303(b) provides that "when the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim."  Here, as explained below, there is no such showing of continuity after discharge.  Moreover, there is no competent medical evidence linking the Veteran's current left ear hearing loss to his in-service experiences. 

The Veteran's claims file reflects audiometric test results showing decrease in his left ear hearing acuity from service entrance to separation.  Although his hearing was still within normal limits at time of discharge, the absence of diagnosable hearing loss at the time of separation from service is not necessarily fatal to a claim for service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Instead, as noted by the United States Court of Appeals for Veterans Claims (Court):

[W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385... For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes.

Hensley, 5 Vet. App. at 159.  

However, this case is distinguishable from Hensley.  In May 2009 and April 2012 statements, the Veteran contended that he had experienced hearing loss ever since service.  Although laypersons are competent to report on matters observed or within their personal knowledge (Layno v. Brown, 6 Vet. App. 465, 470 (1994)), as well as to report a continuity of symptomatology (Charles, 16 Vet. App. at 370), such report must be weighed against the medical and other evidence.  Cf. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006).  Here, the Veteran's current assertions as to noticeable in-service hearing loss and as to continuity of symptoms-advanced in connection with a claim for monetary benefits-are not consistent with contemporaneous or subsequent evidence.  Specifically, he denied any ear trouble at his time of discharge and medical professionals observed no ear trouble until November 1996, approximately 25 years after service.  

Not only is that contemporaneous evidence considered more reliable than recollections made many years after the fact (see Curry v. Brown, 7 Vet.App. 59, 68 (1994)), but the record reflects a lengthy period with no documention of any complaints or diagnosis of hearing loss.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).  The passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  Further belying the Veteran's contention that he noticed a decrease in his hearing at the time of his separation from service is the competent medical opinion proferred by the August 2010 auditory examiner that such slight threshold shifts would not result in noticeable hearing change.  

The Board also finds it significant that in this case, none of the six medical professionals who reviewed the record and considered the Veteran's assertions rendered an opinion that was even equivocal - all of the clinicians issued opinions that weigh against the claim.  The 2012 expert's opinion reiterated the collective reasoning of the other clinicians that the in-service shift was too insignificant to demonstrate actual loss of hearing.  The expert also discussed general medical principles as to the development of hearing loss and cited to multiple treatises to support his opinion.  Significantly, neither the Veteran nor his representative has presented or identified any competent, contrary evidence or opinion that supports the claim other than a general article on hearing loss.  Each of the clinicians, including the 2012 expert, rendered an opinion based on consideration of the facts of the case as well as scientific principles.  The expert specifically noted that there was no evidence of hearing loss for many years after service and there was not a scientific basis for delayed onset hearing loss due to acoustic trauma.

In this case, the Board finds the October 2012 expert's opinion-to the effect that there is less likely than not a relationship between the Veteran's left ear hearing loss and his service-persuasive evidence on, and dispositive of, the medical nexus question.  See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).  See also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion)).  In so finding, the Board also notes that the expert's opinion is supported by five other competent medical opinions of record.  The expert, and each of the other opining clinicians, provided a rationale that showed consideration of the Veteran's history and the evidence of record.  Further, the rationales underlying the opinions are reasonable and consistent with the evidence of record.

As indicated above, the lack of a hearing disability in service does not preclude service connection for later-diagnosed hearing loss.  The Board observes however, that Hensley relies on the existence of a significant in-service upward shift in measured threshold levels from enlistment to separation.  Hensley, 5 Vet. App. at 159, 161.  Here, audiologists have consistently described the difference between the Veteran's entrance and separation audiometric results as slight or negligible.  Further, comparison of the Veteran's entrance and separation audiometric testing results reveal only one threshold shift of more than 10 decibels and that shift occurred at 2000 Hz.  However, according to evidence (from The Merck Manual) submitted by the Veteran himself, hearing loss due to acoustic trauma generally occurs first at 4000 Hz.  The July 2011 audiologist also observed that such minimal shifts could result from sub-par testing environments and the Veteran himself alleged that his exit examination was conducted in an open room with a machine that may not have been calibrated or properly working.  Interestingly, rather than support the claim, collectively, this evidence tends to weight against the claim by suggesting that the November 1971 record may not reflect an accurate measure of the Veteran's auditory acuity or of any shift in pure tone thresholds at that time.  

Thus, there is no credible, persuasive evidence of continuity of symptomatology, whereas there are multiple probative medical opinions-in particular, the expert opinion-on the question of nexus that weigh against the claim.  On these facts, the Veteran cannot establish service connection on the basis of continuity of symptoms.  

Finally, as regards any direct assertions by the Veteran and/or his representative that the Veteran's hearing loss is medically related to his in-service noise exposure, the Board finds that such assertions, without more, provide no basis for allowance of the claim.  As indicated above, the claim under consideration turns on the complex medical matter of whether there exists a medical nexus between current hearing loss disability and service-a matter within the province of trained professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994).  As neither the Veteran nor his representative is shown to be other than a layperson without the appropriate medical training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on the medical matter on which the claim turns.  See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998).  See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  As lay assertions in this regard have no probative value, the Veteran simply cannot controvert the opinion of the VA audiologist, or otherwise support his claim, on the basis of lay assertions, alone.

For all the foregoing reasons, the Board finds that the claim for service connection for left ear hearing loss must be denied.  In reaching the conclusion to deny the claim, 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 in this appeal.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


	
ORDER

Service connection for left ear hearing loss is denied.



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs