Citation Nr: 1328437 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 04-04 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from August 1953 to May 1955. He also subsequently served with the Army National Guard of Puerto Rico until 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In that decision, the RO determined that new and material evidence had not been received to reopen the Veteran's previously denied service connection claim for bilateral hearing loss. In July 2007 and April 2010, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. In April 2012, the Board reopened the Veteran's service connection claim for bilateral hearing loss, based on the submission of new and material evidence, and remanded it for additional development to include the providing a VA examinations. In February and May 2013, the Board again remanded the claim for clarification of the examination results. The Board finds that the AOJ substantially complied with the 2007, 2010, 2012, and 2013 remand orders with respect to the claim decided herein; no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required; Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As noted in prior Board decisions, the Veteran has raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU). An October 2012 memorandum by the AMC appears in the record that refers this issue to the RO. However, as the claims file still does not reflect adjudication of the claim for TDIU, the Board will again REFER it to the Agency of Original Jurisdiction (AOJ) for appropriate action. The Board notes that, in addition to the paper claims file, there is a paperless claims file associated with the Veteran's claim. An August 2013 review of the documents in such file reveals additional VA treatment records that have been considered by the AMC in October 2012, March 2013, and July 2013 supplemental statements of the case. The remaining records in the virtual file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 The evidence of record does not show that the Veteran's currently manifested bilateral hearing loss has been chronic and continuous since service, or that it is etiologically related to his period of active military service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active service, and may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's 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 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA 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. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a February 2003 letter, sent prior to the initial unfavorable rating decision, generally advised the Veteran of the evidence and information necessary to substantiate his service connection claim for hearing loss as well as his and VA's respective responsibilities in obtaining such evidence and information. Letters sent to the Veteran in January 2011 and April 2012 informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Moreover, the 2011 and 2012 letters again advised the Veteran of the evidence and information necessary to substantiate a claim for service connection. Although the 2011 and 2012 letters were issued after the initial rating decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that VA can cure such a timing problem by readjudicating the Veteran's claim following the issuance of a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the 2011 and 2012 letters were issued, the Veteran's claim was readjudicated in supplemental statements of the case issued in February 2012, October 2012, March 2013, and July 2013. Therefore, any defect with respect to the timing of the VCAA notices has been cured. Relevant to the duty to assist, VA and private treatment records, as well as records from VA examinations conducted in November 2002 and May 2012, with March and July 2013 addendums, have been obtained and considered. However, the Board notes that, although the Veteran's May 1955 separation examination report is associated with the record, no other treatment or examination records from his active duty service or subsequent reserve service are associated with the claims file. Although the Veteran has reported receipt of treatment from the VA Medical Center (VAMC) in Huntington immediately following service as well as receipt of disability benefits from the Social Security Administration (SSA), those records also have not been associated with the claims file. These records are missing from the claims file, but there is documentation that the AOJ has made all appropriate attempts to recover them. In specific regard to the Veteran's active duty treatment records, the AOJ made multiple inquiries to confirm that the Veteran's record were lost as the result of fire. In November 2000 and April 2008 letters, the AOJ also notified the Veteran as to the status of these records in accordance with 38 C.F.R. § 3.159 (d). The AOJ also took appropriate steps to recover records of treatment and examination generated during the Veteran's National Guard service, to include contacting the Medical Records Section of the Puerto Rico National Guard. A formal finding of unavailability was issued and the Veteran was advised of the status of his reserve records in a December 2011 letter. In regard to the records of treatment that the Veteran contends occurred at the Huntington VAMC in 1995, the AOJ directly contacted the VAMC and requested a full search, but received a negative response-the Veteran was advised in June 2009 that those records could not be located. The AOJ also made appropriate inquiries to the SSA to obtain copies of any pertinent records generated in regard to the Veteran's claim for disability benefits, but was advised by SSA that his folder had been destroyed. The AOJ notified the Veteran in an April 2008 letter that his SSA records could not be obtained. When, as here, service records are lost or missing through no fault of the Veteran, VA has a heightened duty to consider the applicability of the benefit of the doubt rule and to assist a claimant in developing a claim. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board finds that VA has met this heightened duty. As multiple inquiries have been made to obtain the outstanding records and the AOJ has both been informed that no such records are available and has appropriately informed the Veteran - and the Veteran has not indicated that he possesses any copies of the outstanding records - the Board also finds that any further efforts to obtain these records would be futile. Neither the Veteran nor his representative have identified any additional, outstanding records pertinent to the claim herein decided that have not been requested or obtained. Further, he submitted a November 2012 form to VA requesting expedited processing of his claim - the form included an attestation that he did not have any additional evidence regarding his appeal. Therefore, the Board finds that VA has satisfied its duty to assist. Additionally, the Veteran was afforded a VA audiological examination in May 2012 with addendum opinions issued in March and July 2013. The Board finds that the VA examination, read with the addendum opinions, is adequate to decide the issue. In this regard, the Veteran contended through his authorized representative in an April 2013 brief that the March 2013 addendum opinion did not provide a rationale for the opinion, and in response a second addendum opinion was requested pursuant to a May 2013 Board Remand. The Board notes that collectively, the VA examiner clearly stated that the opinions were based on review of the claims file and analysis the medical evidence therein. Further, the opinions rendered regarding the relationship between the Veteran claimed hearing loss and reported acoustic trauma sustained in service were plainly rendered based on the examiner's medical training and clinical experience. The Board notes that this examiner interviewed and examined the Veteran and also provided the 2012 opinion; the examiner's ultimate opinions considered all of the pertinent evidence of record. Moreover, the examiner's opinions offer clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. The Board remanded this case in June 2007, March 2010, April 2012, February 2013, and in May 2013 in order for the AOJ to provide the Veteran with additional notice, determine whether or not he desired a hearing, ensure that all identified and available records were associated with the claims file, afford him examinations, and further develop the claim by assisting him in gathering any additional evidence that he may identify. The record reflects that he has been provided legally adequate notice, that VA inquired as to whether or not he desired a hearing, that the AOJ made all appropriate efforts to obtain outstanding records and informed the Veteran of the status of missing record, and that the Veteran was afforded an examination in May 2012, with addendum opinions issued in March and July 2013. The AOJ also issued June 2009, February 2012, October 2012, March 2013, and July 2013 supplemental statements of the case reflecting readjudication of the claim after each remand. Therefore, the Board finds that the prior remand directives have been substantially complied with such that no further action is necessary in this regard. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. Factual Background The Veteran's initial claim for hearing loss/ear trouble was filed in August 1995. On a subsequent formal application form filed in November 1995, the Veteran indicated that he had been treated for hearing loss at Menonita Hospital since 1990 and by Dr. E.V., since 1993. The file does not contain the Veteran's complete STRs. The only STR on file consists of the Veteran's May 1955 separation examination report which indicates that clinical evaluation of the ears was normal and that hearing was 15/15. In a letter issued to him by VA in November 2000, the Veteran was advised that his records may have been destroyed in a 1973 fire occurring at the National Personnel Records Center (NPRC). In February 2002 an attempt to obtain any STRs was made, and in April 2002, a response from NPRC was received indicating that the records were fire related and that no STRs or SGOs (Surgeon General Officer's records) were available. An additional search for records was made in September 2007. In April 2008, a response from the National Personnel Records Center was received indicating that the records were fire related and that none were available. In 2009, clinical records dated prior to 1957 were sought; a reply from NPRC revealed that no such records were available. Another search made in 2010 failed to yield any records. A formal finding of unavailability of service treatment and personnel records from the Puerto Rico National guard was made in January 2012. Records indicated that the Veteran was treated for external otitis with swelling of the ear canal in October 1974. He was treated for otitis media in January 1984. In July 1985 and July 1986 he was again treated for symptoms of left ear pain and swollen ear canal, diagnosed as external otitis. In December 1998, the Veteran underwent a VA audiological evaluation revealing bilateral hearing loss meeting the threshold requirements for a VA disability (as defined under 38 C.F.R. § 3.385). In March 1999, the Veteran underwent a VA audiological evaluation which revealed mild to severe mixed type hearing loss of the right ear, and moderately severe to severe mixed hearing loss of the left ear. VA records dated in 2000 reflect that the Veteran's medical problems included hearing loss. In February 2002, he was seen for hearing aid repair. An audiology assessment was conducted in August 2002, at which time a history of supperative otitis media was noted and the Veteran complained of having hearing loss and tinnitus for many years. Mixed hearing loss and reduced speech recognition was shown bilaterally. In a November 2000 lay statement, the Veteran indicated that when he went to see Dr. V. in 1974, he was told that he had an ear perforation and hearing loss. In November 2002, the Veteran underwent a VA ear examination. Diagnoses of otitis media based on CT scan findings, and left Eustachian tube dysfunction, were made. A VA audio examination was also conducted in November 2002. The Veteran complained of progressive hearing loss and tinnitus since 1955 and gave a history of 18 months of artillery noise exposure and 19 years of monthly exposure to infantry noise while in the National Guard. Testing revealed hearing impairment meeting the threshold requirements of 38 C.F.R. § 3.385. A VA record dated in 2006 shows an assessment of hearing loss and mentions a finding of tympanic membrane refraction. In September 2008, the Veteran underwent an audiological assessment. He gave a history of hearing loss for many years. Left ear severe to profound sensorineural hearing loss was assessed, as was moderate to profound, mixed hearing loss of the right ear. A complete hearing aid fitting was recommended. The file contains a December 2008 certification from Dr. L.M.C., made in conjunction with the Veteran's request for some type of disability benefits. The doctor described the Veteran's handicap as bilateral hearing loss and indicated that this began in 2002 or 2003, and had been treated in 2008. In an April 2012 decision, the Board reopened the Veteran's service connection claim for bilateral hearing loss and remanded it to obtain an examination and opinion. The Veteran was afforded VA audiological examination in May 2012. The examiner opined that it was less likely as not (less than 50 percent probability) that the Veteran's bilateral hearing loss was related to his military service. The examiner explained that an audiogram in the file from 12/18/1998 through 9/10/2008 evidenced bilateral hearing loss (moderate to severe in the right ear and severe to profound mixed hearing loss in the left ear). The examiner mentioned that the Veteran reported having middle ear problems in the left ear since 1953 while he was in active duty. The examiner noted that there was no evidence of hearing loss or middle ear problems in the file attributable to military service during of the period of active duty, even after being exposed to high intensity noise levels. The examiner further explained that according to the medical evidence, middle ear pathology can cause hearing loss and the degree of hearing loss can change during time. It was stated that current evaluation, revealed moderate to severe sensory hearing loss in the right ear and severe to profound mixed hearing in the left ear, and that the mixed hearing loss could be related with middle ear pathology like middle ear effusion or other type of middle ear condition. The examiner noted that in this case, there is no evidence in the file that showed that the Veteran's hearing was affected by military noise exposure during his active duty period, also mentioning that the normal aging process must be considered since it can also result in irreversible hearing loss due to damage in inner ear structures. The examiner opined that it was reasonable to conclude that the hearing loss is less likely than not related to the military noise exposure. In a Remand issued in February 2013, the Board pointed out that the May 2012 VA audiological examiner failed to note that the Veteran was treated for external otitis in October 1974 and left ear pain in July 1985. It was further observed by the Board that the May 2012 VA audiological examiner's opinion that the Veteran's bilateral hearing loss was not related to his military service was inadequate, because the opinion is based on an inaccurate premise; explaining that 38 C.F.R. § 3.385 did not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. See Hensley v. Brown, 5 Vet. App. 155 (1993). In light of such findings by the Board a supplemental medical opinion was requested. A supplemental opinion was issued in March 2013. In that opinion the examiner rendered conflicting opinions, indicating both that "hearing loss is at least as likely as not related to the military noise exposure" and "the claimed condition was less likely than not [] incurred in or caused by the claimed in-service injury, event, or illness." In that opinion, while the examiner discussed the Veteran's contentions of exposure to acoustic trauma in active duty service from 1953 to 1955, the examiner did not address the Veteran's contention that he also was exposed to additional noises during his reserve service that could have caused or aggravated hearing loss (see November 2002 VA audiology examination - noting that the Veteran reported "19 years of monthly exposure to infantry noise while in the National Guard."). In a Remand issued in May 2013, the Board determined that since the March 2013 opinion contained conflicting opinions and did not address whether or not any noise exposure during the Veteran's reserve service may have caused or aggravated hearing loss, another opinion was warranted. The Board requested that the RO should return the claims file to the May 2012/March 2013 examiner for an addendum opinion and indicated that the RO should only arrange for further examination of the Veteran if that examiner is unavailable, or if further examination of the Veteran was deemed necessary. In July 2013 another supplemental medical opinion was provided, based on review of the claims files. The VA examiner opined that it was less likely as not (less than 50 percent probability) that the Veteran's bilateral hearing loss was related to military noise exposure. The examiner explained that an audiogram in the file from 12/18/1998 through 9/10/2008 evidenced bilateral hearing loss (moderate to severe in the right ear and severe to profound mixed hearing loss in the left ear). It was also noted that a VA evaluation of May 2012, showed moderate to severe sensorineural hearing loss in the right ear, and severe to profound mixed hearing loss in the left ear. The examiner mentioned that the Veteran reported having middle ear problems in the left ear since 1953 while he was in active duty. The examiner noted that there was evidence in the claims file of a history of external and middle ear infections since October 1974, but no evidence of hearing loss or middle ear problems in the file attributable to military service during of the period of active duty, even after being exposed to high intensity noise levels. Analysis The Veteran has claimed that he has hearing loss, for which service connection is warranted. He maintains that this condition is related to acoustic trauma sustained during his period of active service and his reserve duty. At the outset, it appears that the Veteran's STRs in this case are unavailable, except for a May 1955 separation examination report. In such a case, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of- the-doubt rule, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board must point out, however, the O'Hare precedent does not raise a presumption that the missing medical records would, if they still existed, necessarily support the claim. Case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when a veteran's medical records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Generally, in order to prevail on the issue of service connection, there must be evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for organic diseases of the nervous system, such as hearing loss, may additionally be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). With respect to the hearing loss claim, the provisions of 38 C.F.R. § 3.385 define disability due to impaired hearing. For the purpose of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Hickson element (1) evidence of currently manifested hearing loss has been presented. Specifically, upon VA audiological evaluations conducted between at least 1998 and 2012, bilateral hearing disability as defined under 38 C.F.R. § 3.385, was shown. With regard to Hickson element (2), the Veteran has reported experiencing acoustic trauma in conjunction with his service in the United States Army. Even acknowledging and establishing for purposes of this decision that the Veteran sustained acoustic trauma in service, the Board points out that acoustic trauma and noise exposure sustained in service are not, in and of themselves, disabilities subject to service connection under VA regulations. The Board notes that absolutely no hearing deficit was demonstrated in either ear as shown by the 1955 separation examination report, no matter what form that hearing examination took. In fact, a hearing disability as defined under 38 C.F.R. § 3.385, was not initially shown until decades thereafter. A chronic disease need not be diagnosed during the presumptive period under 38 C.F.R. § 3.307(c), but if not, there must then be shown by acceptable medical or lay evidence, characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). In this case, since bilateral hearing loss meeting the threshold requirements of 38 C.F.R. § 3.385 was not initially shown until approximately 1998 or 1999, more than 40 years after the Veteran's separation from service; service connection on a presumptive basis is not warranted. 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, 160 (1993). In this case, the Veteran has reported having a decades long history of hearing loss. However, nowhere in the file has there been either credible lay or clinical presented revealing chronicity and continuity of hearing loss since 1955, when the Veteran was discharged from service. With regard to the decades-long evidentiary gap between active service and the earliest post-service findings of bilateral hearing loss, the lack of any evidence of continuing complaints, symptoms, or findings for many years between the period of active duty and the first evidence of bilateral hearing loss is itself evidence which tends to show that hearing loss has not been chronic and continuous since service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim on a direct basis). In a November 2000 lay statement, the Veteran indicated that when he went to see Dr. V. in 1974, he was told that he had an ear perforation and hearing loss. While the file does reflect that the Veteran was treated for external otitis with swelling of the ear canal in October 1974, there was no mention of hearing loss at that time. The Court has held that hearsay medical evidence, as transmitted by a lay person, is not adequate because the connection between what a physician said and the lay person's account of what the physician purportedly said is simply too attenuated and inherently unreliable to constitute competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). See also Kirwin v. Brown, 8 Vet. App. 148, 153 (1995). Moreover, as to this lay evidence there is no way to confirm that any actual hearing disability for VA purposes was shown at that time, and moreover, the Board has reason to question the reliability of the Veteran's remote recollections offered decades after 1974. In addition, the Veteran's assertions of long-term hearing loss were not presented until decades after his discharge from service and only after he filed a service connection claim in 1995. As such, there is reason in this case to question the credibility of the lay information provided by the Veteran as to the onset, chronicity and continuity of his claimed hearing loss. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor). Based on the total absence of any indications of hearing loss meeting the threshold disability requirements of 38 C.F.R. § 3.385 until over 40 years after the Veteran's discharge from service, coupled with the absence of credible lay evidence or any clinical evidence revealing evidence of hearing loss between 1955 and 1990 (as reported by the Veteran himself regarding his earliest treatment), chronicity and continuity of hearing loss since service is not established. 38 C.F.R. § 3.303(b) (2012). The critical issue in this case is whether the Veteran's currently manifested bilateral hearing loss is related to noise exposure sustained during service. The requirement of an evidentiary showing of an etiological relationship has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit, which has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between the veteran's service and the disability claimed. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Essentially, this is the third Hickson element. Although the Veteran was not treated for or diagnosed with bilateral hearing loss during service or for many years after his discharge, the Board notes that the question is whether this condition is nevertheless at least as likely as not etiologically related to service or any incident therein, to specifically include acoustic trauma sustained in service. 38 C.F.R. § 3.303(d). The record contains three medical opinions addressing this matter. Among the 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. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In opinions issued in May 2012, March 2013 and July 2013, a VA examiner consistently concluded that it was less likely as not (less than 50 percent probability) that the Veteran's bilateral hearing loss was related to military noise exposure. The examiner explained that an audiogram in the file from 12/18/1998 through 9/10/2008 evidenced bilateral hearing loss (moderate to severe in the right ear and severe to profound mixed hearing loss in the left ear). It was also noted that a VA evaluation of May 2012, showed moderate to severe sensorineural hearing loss in the right ear, and severe to profound mixed hearing loss in the left ear. The examiner mentioned that the Veteran reported having middle ear problems in the left ear since 1953 while he was in active duty. The examiner noted that there was evidence in the claims file of a history of external and middle ear infections since October 1974, but no evidence of hearing loss or middle ear problems in the file attributable to military service during of the period of active duty, even after being exposed to high intensity noise levels. Age was also noted as a factor in one of the opinions. These opinions are found to carry significant weight, as they were based on a comprehensive review of the lay and clinical evidence on file dated from the Veteran's period of service, forward; and were supported by clinical evidence and facts pertaining to this specific case. After carefully reviewing this evidence, the Board finds no adequate basis to reject these competent medical opinions which are unfavorable to the Veteran, based on a rational lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Moreover, the file does not contain any competent medical evidence which rebuts the 2012 and 2013 VA opinions or otherwise diminishes their probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). In addition, the lay assertions from the Veteran as to the etiology of his bilateral hearing loss (service related due to acoustic trauma sustained therein) are beyond his competence as a lay person to make and are not consistent with the objective evidence of record, which does not establish continuity and chronicity of hearing loss since service or a nexus between currently manifested hearing loss and acoustic trauma sustained in service. See Davidson v. Shinseki, 581 F.3d 1313, (Fed Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Overall, the evidence is not in relative equipoise, as there is evidence of normal hearing acuity at separation from service in 1955, and a more than 40-year gap between the Veteran's discharge from service and initial indications of bilateral hearing loss meeting the threshold requirements of 38 C.F.R. § 3.385. Moreover, the most probative evidence of record addressing the etiology and onset of the Veteran's hearing loss weighs against service incurrence. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The benefit sought on appeal is therefore denied. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs