Citation Nr: 1329397 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 11-09 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to a compensable disability rating for right ear hearing loss. REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran had active service from March 1966 to June 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. The claims file was subsequently forwarded to the RO in Detroit, Michigan. The Veteran testified at a September 2011 hearing by the undersigned Veterans Law Judge sitting at the RO. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. In a final rating decision issued in September 1982, the RO denied a claim for service connection for left ear hearing loss. 2. Evidence added to the record since the prior final denial in September 1982 is neither cumulative nor redundant of the evidence of record at that time and raises a reasonable possibility of substantiating a claim for service connection for left ear hearing loss. 3. There has been no demonstration by the most probative competent medical evidence, or competent and credible lay evidence, of record that the Veteran has left ear hearing loss that is related to service. 4. There has been no demonstration by the most probative competent medical evidence, or competent and credible lay evidence, of record that the Veteran has tinnitus that is related to service. 5. During the claim and appeal period, the Veteran's right ear hearing loss has been manifested, at worst, by Level I hearing acuity in both ears. CONCLUSIONS OF LAW 1. The September 1982 rating decision is final; new and material evidence has been received to reopen a claim of entitlement to service connection for left ear hearing loss. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. Left ear hearing loss was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. Tinnitus was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 4. The criteria for a compensable disability rating for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA) VA has duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court issued a decision that established new requirements with respect to the content of the VCAA notice for reopening claims. In the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant with 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. In correspondence dated in October 2009, VA informed the appellant of what evidence was required to substantiate his claim to reopen, claims for service connection, as well as the claim for an increased rating, and his and VA's respective duties for obtaining evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Kent v. Nicholson, 20 Vet App 1 (2006). It also notified him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. In Pelegrini, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was completed prior to the initial AOJ adjudication denying the claims, the timing of the notice complies with the express requirements of the law as found by the Court in Pelegrini. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his post service medical records, and the Veteran's lay statements. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record. The Veteran was provided a VA examination in November 2009 to determine the current nature and etiology of his hearing loss and tinnitus. The Board finds that the VA examination was adequate to decide the claims on appeal because the examiner was provided with an accurate history, the Veteran's history and complaints were recorded, the examination report set forth detailed examination findings to include nexus opinions with adequate bases for the opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) The report also provided sufficient detail to determine the current severity of the Veteran's service-connected right ear hearing loss. Thus, further examination is not necessary regarding the issues on appeal. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Finally, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board Travel Board hearing, the VLJ noted the elements of the claims that were lacking to substantiate the claims for service connection and increased rating. The VLJ solicited information as to any pertinent potentially available outstanding evidence. The Veteran was assisted at the hearing by an accredited representative from the Marine Corps League. The representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disabilities are related to his symptoms during service. They also asked questions to draw out the current state of the Veteran's right ear hearing loss disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Factual Background The Veteran asserts that he has left ear hearing loss and tinnitus as a result of noise exposure during active duty. In his January 2010 notice of disagreement, he claimed that hearing loss in both ears and tinnitus are a result of the initial damage caused by exposure to noise while working around loud jet engines. He further claimed that his tinnitus was a secondary effect of this hearing damage and that he did not complain of tinnitus until just recently because he did not even know what it was. He also claims that the severity of his service-connected right ear hearing loss is much more severe than currently evaluated. At his September 2011 hearing before the Board, the Veteran testified that his primary military occupational specialty (MOS) was aircraft structural mechanic and he worked on jet airplanes and did a lot of jet engine work. He wore hearing protection only sometimes and there were occasions when he did not wear hearing protection while the engine was running. He also reported exposure to noise from rocket and bomb explosions while serving in Vietnam during the 1968 Tet Offensive. While in Vietnam, he did sheet metal work and continued to do engine work. After his bomb dump blew up and they had no place to get away from the jet engine noise, he was constantly exposed to the noise. After separation from service, the Veteran was told that he had left ear hearing loss on private audiology evaluation approximately 10 years after service. The Veteran further testified that he noticed ringing in his ears while serving in Vietnam, but he did not mention it to anybody because he did not know what tinnitus was. As to the functional impact of his hearing loss, the Veteran testified as to his impaired ability to communicate or hear others due to his hearing loss. He had difficulty hearing the alarms at home and hearing over the telephone. On the Veteran's October 1965 enlistment examination, pure tone thresholds, in decibels, were noted as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT -10 (5) -10 (0) -10 (0) / 5 (10) 10? (20?) LEFT -5 (10) -5 (5) -5 (5) / -10 (- 5) 10? (20?) (Note: Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO) -American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) (The pure tone thresholds at the 6000 Hertz level appear to be 10, in both ears, but the numbers are stricken out in handwriting and it is not clear if they reflect the examiner's actual findings. Therefore, the Board added question marks next to the numerical values.) His May 1969 separation examination report noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 10 10 10 10 55 LEFT 20 20 10 10 10 25 After separation from service, on November 1971 audiological evaluation, pure tone thresholds, in decibels, as reported in ISO units, were as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 10 10 0 25 40 50 LEFT 10 10 0 15 30 20 The Veteran underwent a VA examination in January 1972. The VA examiner noted that the Veteran's hearing was impaired as he had to ask people to repeat. The examiner further noted that there was no ringing but that the Veteran had been on a jet line for three years. On present complaints, it was noted that "ears do not ring but hearing is impaired." The diagnosis was deafness in high frequency. On June 1982 private audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 15 30 60 LEFT 20 15 20 30 40 The Veteran was afforded another VA examination in August 1982. He complained of hearing loss in both ears since service and occasional tinnitus. He stated that he was exposed to jet engine and machinery noise in service. He related that his wife complained a lot about his hearing and stated that his hearing condition had progressed recently. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 / 55 LEFT 5 10 10 / 40 The diagnosis was high frequency neurosensory hearing loss, bilaterally. On private September 2008 audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 25 70 75 LEFT 10 15 25 60 65 Word recognition scores were 96 percent, bilaterally. The Veteran was provided a VA audiology examination in November 2009. The VA examiner indicated that the Veteran's claims file was reviewed. After reviewing the audiometric test results from the Veteran's enlistment and separation examinations, as well as his post-service evaluations in November 1971, June 1982, and August 1982, the examiner noted that there was change in hearing sensitivity during military service in the right ear only at 6000 Hertz. The Veteran reported having bilateral hearing loss since military service and constant bilateral ringing for many years. The type of military noise exposure was noted as jet aircraft. As to civilian work history, the Veteran reported working in manufacturing and as a parts inspector from 1969 to 1976, then in manufacturing as a serviceman and in assembly for 11 years; he travelled on the road installing book binding equipment. As to recreational use, he reported target shooting once a year and deer hunting for a total of 5 to 6 years and riding a snowmobile three times. He used home power tools, such as drills, saws, and chainsaws a few times a year. The Veteran started using hearing aids in November 2008. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 20 85 80 LEFT 5 15 25 80 70 Word recognition scores were 94 percent in the right ear and 92 percent in the left ear. The diagnosis was bilateral sensorineural high-frequency hearing loss with noise-induced configuration. The examiner noted that tinnitus was as likely as not symptoms associated with the hearing loss and that hearing loss had no significant effect on occupation or usual daily activities. The examiner opined that current left ear hearing loss was consistent with the Veteran's history of occupational industrial noise exposure in civilian life from the time of his June 1969 separation from military service. In reaching this conclusion, the examiner noted that the Veteran had normal hearing sensitivity in his left ear on service separation examination. A temporary threshold shift of 15dB was seen in his left ear at 6000 Hertz compared to his enlistment audiogram; however, his subsequent November 1971 audiogram showed normal hearing sensitivity in his left ear. The examiner stated that research studies have shown that hazardous noise exposure has an immediate effect on hearing, and it is usually temporary at first; it does not have a delayed onset nor is it progressive or cumulative. As to tinnitus, the Veteran complained of constant bilateral tinnitus likened to the sound of cicadas. He reported the onset was many years ago. It interfered with his ability to hear. The examiner noted that the Veteran denied having any tinnitus at his January 1972 evaluation. He reported having occasional tinnitus at his June 1982 evaluation. The examiner further noted that while the greater the hearing loss the greater the possibility of one experiencing tinnitus, all of the Veteran's left ear hearing loss and all of disabling degree of right ear hearing loss occurred after his military service separation and that his first report of tinnitus occurred in June 1982, which was over 12 years after his military separation. Based on the foregoing, the examiner opined that the Veteran's bilateral tinnitus was less likely than not caused by or a result of his history of military noise exposure and that his bilateral tinnitus was more likely than not caused by his history of occupational noise exposure in civilian life. Law and Analysis New and Material Evidence Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A ] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108 ]." 38 U.S.C.A. § 5103A (f) (West 2002). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. Material evidence means existing 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that all due process, to include VA's duty to assist, has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Bernard v. Brown, 4 Vet. App. 384 (1993). The Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). A February 1972 rating decision granted service connection for the Veteran's right ear hearing loss. Although it appears that in June 1982, the Veteran filed a claim for entitlement to a compensable disability rating for service- connected right ear hearing loss, the RO issued a rating decision in September 1982 denying service connection for left ear hearing loss on the basis that the evidence did not show a service-incurred hearing loss involving the left ear. The RO notified the Veteran of the decision, as well as his appellate rights, later in the same month. The Veteran expressed disagreement with the denial of an increased rating for the service-connected right ear hearing loss, and the RO issued a letter dated in April 1983 which again informed him of the denial of service connection for left ear hearing loss. The Veteran did not perfect an appeal of the denial of service connection for left ear hearing loss, and he did not submit documentation constituting new and material evidence within the one-year period following the notice of that decision. Thus, it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The Veteran filed a claim for hearing loss in both ears in September 2009. The December 2009 rating decision on appeal denied reopening of the claim for service connection for left ear hearing loss finding that the evidence continued to show this condition was not incurred in or aggravated by military service. As noted, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Board must first consider whether new and material evidence has been received to reopen the claim before it is addressed on the merits, regardless of the RO's actions. See 38 U.S.C.A. §§ 5108 , 7105 (West 2002); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); VAOPGCPREC 05-92. With these considerations, the Board has reviewed the record, with particular attention to the additional evidence and contentions received since the final September 1982 rating decision. After reviewing the record, the Board finds that the additional evidence and contentions received since the final rating decision are new and material within the meaning of 38 C.F.R. § 3.156(a). Evidence submitted and obtained since the September 1982 rating decision includes a September 2008 private audiology evaluation report and a November 2009 VA compensation and pension audiology examination report; and lay statements from the Veteran and representative during his September 2011 Board hearing. On the November 2009 VA examination, the Veteran reported having bilateral hearing loss since military service. During his September 2011 hearing before the Board, the Veteran presented detailed testimony as to his military duties that involved extensive noise exposure from jet engines, as well as noise exposure from rocket and bomb explosions while serving in Vietnam. The representative argued that service connection for the Veteran's left ear hearing loss is warranted given the Veteran's extensive military noise exposure and the proximity of the left ear to his service-connected right ear. Without addressing the merits of this evidence, the Board finds that it addresses the issue of whether the Veteran has left ear hearing loss related to service, and it is presumed credible for the limited purpose of reopening a claim. Justus, 3 Vet. App. at 512-13. Thus, this evidence is both "new,' as it has not previously been considered by VA, and "material," as it raises the reasonable possibility of substantiating the Veteran's claim. The Board thus finds that new and material evidence has been received to reopen the claim of entitlement to service connection for left ear hearing loss since the September 1982 rating decision. On this basis, the claim of entitlement to service connection for left ear hearing loss is reopened. Left Ear Hearing Loss and Tinnitus Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). The continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus"). Certain chronic disabilities, such as hearing loss and tinnitus, as organic diseases of the nervous system, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (2012). Based on a thorough review of the evidence of record, the Board finds that a preponderance of the evidence is against a grant of service connection for left ear hearing loss and tinnitus. The medical evidence shows current left ear hearing loss disability for VA purposes, as defined under the provisions of 38 C.F.R. § 3.385, and a current diagnosis of tinnitus. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Neither left ear hearing loss nor tinnitus was diagnosed within one year of service discharge and therefore, they may not be presumed to have been incurred in service. 38 C.F.R. §§ 3.307, 3.309. Furthermore, the evidence does not support a finding that there is a nexus between the Veteran's current left ear hearing loss disability or tinnitus and his exposure to loud noise in service. Service treatment records are negative for any complaints, treatments or findings of tinnitus. While some degree of left ear hearing loss, per Hensley, was noted at 6000 Hertz on examination for separation from service, in May 1969, the Board finds that such finding was temporary (acute and transitory) as left ear hearing was normal at 6000 Hertz on audiological evaluation in November 1971. The Veteran has presented his own lay statements in support of his contention that his current left ear hearing loss and tinnitus are related to acoustic trauma that he experienced in service. Despite the slight upward threshold shifts demonstrated on audiological between the entrance and separation examinations, there has been no clinical finding that such shift was clinically significant so as to represent the onset of a permanent left ear hearing loss, in light of the November 2009 VA audiology examiner's findings and opinion. As for there being an in-service injury, the Veteran argues that he experienced in-service noise exposure associated with his service that primarily involved working on a jet line. His statements are competent evidence that he was exposed to loud noise during service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Additionally, the Board has no reason to doubt the credibility of the Veteran's statements regarding military noise exposure. In this regard, the Board finds that such statements are consistent with the circumstances of his service, as his DD Form 214 reflects his military occupational specialty was aircraft structure mechanic. 38 U.S.C.A. § 1154(a) (West 2012). However, there is no indication that such exposure resulted in any injury to the Veteran's hearing in his left ear. The November 2009 VA examiner opined that the Veteran's current left ear hearing loss was not related to his military service but it was consistent with his history of occupational industrial noise exposure in civilian life subsequent to his separation from military service. In support of this opinion, the examiner stated that despite the temporary threshold shift of 15 dB in his left ear at 6000 Hertz compared to the Veteran's enlistment audiogram, his subsequent November 1971 audiogram showed normal hearing sensitivity in his left ear. The examiner further stated that research studies have shown that hazardous noise exposure has an immediate effect on hearing, and it is usually temporary at first; it does not have a delayed onset nor is it progressive or cumulative. The Board therefore finds the evidence of record is not supportive of a finding that the Veteran incurred any left ear hearing loss during his active service. Similarly, the examiner opined that the Veteran's bilateral tinnitus was less likely than not caused by or a result of his history of military noise exposure and that his bilateral tinnitus was more likely than not caused by his history of occupational noise exposure in civilian life. In reaching this conclusion, the examiner noted that the Veteran denied having any tinnitus at his January 1972 evaluation and later he reported having occasional tinnitus at his June 1982 evaluation. The examiner further noted that while the greater the hearing loss the greater the possibility of one experiencing tinnitus, all of the Veteran's left ear hearing loss and all of disabling degree of right ear hearing loss occurred after his military service separation and that his first report of tinnitus occurred in 1982, which was over 12 years after his military separation. The Board finds that the medical opinion provided by the November 2009 examiner is well-reasoned and convincing, therefore attaches significant probative value to this opinion as to the relationship of the Veteran's current left ear hearing loss and tinnitus to his military noise exposure. The Veteran has reported that he experienced ringing in his ears since he was serving in Vietnam and that it continued ever since that time. The Board acknowledges that tinnitus, by definition, is "subjective," as its existence is generally determined by whether or not the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). However, as the November 2009 VA examiner pointed out, the January 1972 VA examination specifically noted that "ears do not ring but hearing is impaired." The first evidence of record showing the Veteran's complaints of ringing in his ears was in August 1982, approximately 12 years after separation from service. While the Board does not doubt the sincerity of the Veteran's competent statements as to the onset of tinnitus in service, these statements lack credibility and the contemporaneous evidence is more probative as memory fades over time. Specifically, the Board finds that the contemporaneous evidence where the Veteran reported no ringing in ears in January 1972 is more probative than his later assertions made during the course of filing a claim for benefits. To the extent that the Veteran asserts that his current left ear hearing loss and tinnitus are related to his active duty service, the Board finds that as a layman, his statements are not competent evidence on the etiology of these disorders. In certain unique instances lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson, 581 F.3d at 1316. However, in this case, the Board finds that whether the Veteran's in-service noise exposure led to his current left ear hearing loss and tinnitus is not readily identifiable as it may have been caused by other factors. The etiology issue therefore does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent etiological opinion in this matter. Moreover, substantial weight is given to the opinion of the November 2009 VA examiner who specialized in the field of audiology. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). There is no medical evidence of record showing that the Veteran's current left ear hearing loss and tinnitus were a result of his military service, and the Board may not accept unsupported lay speculation with regard to medical issues. The Board has considered the benefit of the doubt doctrine when making these findings, but the preponderance of the evidence is against the Veteran's claims for entitlement to service connection for left ear hearing loss and tinnitus. 38 U.S.C.A. 5107(b) (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Ear Hearing Loss Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for right ear hearing loss was granted in a February 1972 rating decision and a noncompensable disability rating was assigned effective from November 26, 1971. The Veteran filed his present claim for a compensable rating for right ear hearing loss in September 2009. The December 2009 rating decision denied his claim for a compensable disability rating for right ear hearing loss. The Veteran filed a timely notice of disagreement in January 2010 and perfected his appeal in April 2011. The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (cycles per second). The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI in order to evaluate the degree of disability from bilateral service-connected defective hearing. An examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations must be conducted without the use of hearing aids. 38 C.F.R. § 4.85. A report of private audiometric findings in September 2008 reflects a right ear puretone threshold average, at 1000, 2000, 3000, and 4000 Hertz of 48 decibels, without demonstration of deafness in the left ear. However, there was no indication that the speech discrimination percentage for the right ear was obtained by utilizing the Maryland CNC word list. As such, those findings are not useful for rating purposes. A November 2009 VA audiological examination revealed a right ear puretone threshold average of 49 decibels, at 1000, 2000, 3000, and 4000 Hertz, without deafness in the left ear, and right ear speech discrimination ability of 94 percent using the Maryland CNC word list. Applying the rating criteria to the clinical findings from the November 2009 audiological evaluation results in Level I hearing acuity for each ear. See 38 C.F.R. § 4.85, Table VI. Applying these numeral designations to Table VII, with a numerical designation of Level I for each ear, results in a noncompensable disability rating for right ear hearing loss. 38 C.F.R. §§ 3.383, 4.85(f), (h) (2012). Thus, a compensable disability rating is not supported by the evidence of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When the pure tone decibel loss values are 55 or greater at 1000 Hertz, 2000 Hertz, 3000 Hertz, and 4000 Hertz in either ear, or 30 or less at 1000 Hertz and 70 or more at 2000 Hertz, the criteria for exceptional patterns of hearing impairment must be considered. 38 C.F.R. § 4.86(a) and (b) (2012). However, none of the examination results dated during the appeal period reflect an exceptional pattern of hearing impairment in either ear; as such, the criteria in 38 C.F.R. § 4.86(a) or (b) do not apply. Generally, evaluating a disability using either the corresponding or an analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service- connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, the Rating Schedule contemplates then the Veteran's disability picture, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the noncompensable rating inadequate. The Veteran's service- connected right ear hearing loss is evaluated as an impairment of auditory acuity pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by his disability. Id. When applying the results of the relevant audiological examinations to the tables set forth in the regulations, the Veteran's service-connected right ear hearing loss was assigned numeric designations of Level I for each ear on both the September 2008 and November 2009 audiology examinations. The Veteran reported impaired ability to communicate or hear others. He also reported difficulty hearing the alarms at home and hearing over the telephone. There was no indication that the Veteran's occupational or social functionality was otherwise impaired. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by the currently assigned rating. Compensable ratings are provided for certain manifestations of bilateral hearing loss, but the evidence demonstrated that those manifestations were not present for any distinct period during the rating period. The criteria for the current noncompensable rating reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that the schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.85, Diagnostic Code 6100; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating for compensation purposes based on individual unemployability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Specifically, the November 2009 VA examination report noted that the Veteran's right ear hearing loss had no significant effects on occupation. Accordingly, the Board concludes that a claim for a TDIU has not been raised. Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning a compensable evaluation to the Veteran's right ear hearing loss, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER New and material evidence having been submitted, the claim for entitlement to service connection for left ear hearing loss is reopened and, to that extent only, the appeal is granted. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to a compensable disability rating for right ear hearing loss is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs