Citation Nr: 1638104 Decision Date: 09/28/16 Archive Date: 10/07/16 DOCKET NO. 14-23 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1966 to August 1968, with subsequent service in the Army National Guard from March 1981 to June 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. A prior (March 2005) final rating decision denied service connection for bilateral hearing loss and tinnitus. In the March 2013 rating decision, the RO reopened the hearing loss claim and denied it on de novo review. Irrespective of the RO's action, the Board has a jurisdictional responsibility to determine whether a previously denied claim is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the instant hearing loss claim is characterized as one to reopen. FINDINGS OF FACT 1. A March 2005 rating decision denied the Veteran's claims of service connection for bilateral hearing loss and tinnitus, finding essentially that there was no competent evidence linking his current diagnoses of bilateral hearing loss and tinnitus to military service; the Veteran did not appeal of those denials, and the March 2005 rating decision became final. 2. As to service connection for tinnitus, additional evidence received since the March 2005 rating decision is either cumulative of evidence previously considered or does not relate to an unestablished fact necessary to substantiate the claim. 3. As to service connection for bilateral hearing loss, evidence received since the March 2005 rating decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating such claim. 4. The Veteran's current right ear hearing loss disability is shown to have existed prior to entrance on active service in August 1966 and is shown not to have been aggravated beyond normal progress by service. 5. The Veteran's current left ear hearing loss is not shown to have had its onset during active military service; left ear sensorineural hearing loss (SNHL) was not shown to have manifested to a compensable degree within one year following the date of the Veteran's separation from service in August 1968; and a left ear hearing loss disability is not shown to be related to an injury, disease, or event in service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for bilateral hearing loss may be reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156 (2015). 2. New and material evidence has not been received, and the claim of service connection for tinnitus may not be reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156 (2015). 3. Service connection for right ear hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.385 (2015). 4. Service connection for left ear hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter dated in November 2012. In that letter, the Veteran was also notified of the type of evidence necessary to reopen the claims of service connection for bilateral hearing loss and tinnitus, namely, new and material evidence and what each of those terms - "new" and "material" - meant. Additionally, the Veteran was notified on what basis the claims were previously denied, and what evidence was needed to substantiate the underlying claims of service connection for bilateral hearing loss and tinnitus. See Kent v. Nicholson, 20 Vet. App. 1 (206). The Veteran was notified that VA would obtain service records, VA records and records of other Federal agencies; and that he could submit records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. Moreover, VA has made reasonable efforts to identify and obtain relevant records in support of the Veteran's claims. 38 U.S.C.A. § 5103A(a), (b), and (c). The Veteran was afforded the opportunity to testify at a hearing, but he declined a hearing. The RO has obtained the Veteran's service treatment and personnel records, and the Veteran has furnished various private medical records. It is noted that the Veteran's separation physical examination in 1968 (if indeed he underwent an examination) is not of record; as it appears that his complete service treatment records were forwarded to the RO by the service department, a remand and delay in this case is pointless. The Veteran has not identified any additionally available evidence for consideration in his appeal. In regard to a claim to reopen, the duty to assist by arranging for a VA medical examination or medical opinion does not apply unless the claim is, in fact, reopened. 38 C.F.R. § 3.159 (c)(4)(iii). As the claim for service connection for tinnitus is not reopened, a VA medical examination or medical opinion is not mandated under VA's duty to assist. In any case, despite the fact that the RO denied reopening his tinnitus claim, he was provided VA examinations in February 2013 and December 2015. As for the claim for service connection for bilateral hearing loss, the RO reopened that claim and provided medical examinations in February 2013 and December 2015. As the examinations contain the Veteran's medical history, findings, and an opinion with a rationale to support the conclusions reached in the opinion, the Board finds that the reports are adequate to decide the claim (both the claim to reopen and the claim on the merits). See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claims, no further assistance to the Veteran is required to comply with the duty to assist. II. Application to Reopen Claims of Service Connection Procedural History and Evidence Previously Considered A March 2005 rating decision denied the Veteran service connection for bilateral hearing loss and tinnitus on the basis that the evidence did not show that the Veteran suffered from service-related hearing loss (and that the evidence did not show that pre-existing hearing loss was aggravated beyond a normal progression during military service), and that the evidence showed current tinnitus was not service-incurred or service related. A letter dated in April 2005 notified the Veteran of the adverse determination and of his appellate rights. As he did not initiate an appeal of the RO decision, the March 2005 rating decision became final by operation of law; the claim may be reopened if new and material evidence is received. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 3.156. The evidence of record at the time of the March 2005 rating decision included the following. Service department records showed that the Veteran served on active duty in the Army from August 1966 to August 1968, which included a tour of duty in Vietnam, with a military occupational specialty MOS of field artillery crewman. He also served in the Army National Guard of Wisconsin thereafter with various periods of inactive duty for training and active duty training from March 1981 to June 2000 (his primary specialty there was cannon crewmember). An NGB Form 22, Report of Separation and Record of Service, indicates that the Veteran served in the Army National Guard of Wisconsin for 19 years, 2 months, and 17 days, with prior active federal service of 2 years. The Veteran also had prior "Reserve Component" service of 4 years, but an Army National Guard Current Annual Statement, prepared in October 2000 and showing a summary of his points earned toward retirement, reflects that from August 1968 to August 1972, the Veteran was in the United States Army Reserve Control Group (Annual Training and Standby), during which he earned no active duty points and which service was not creditable for retired pay. Service treatment records from the Army showed no complaints or diagnosis of hearing loss or tinnitus. At the time of an August 1966 enlistment examination, the ears were evaluated as normal. An audiogram reflected puretone thresholds in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz of: 10, 10, 60, 30, and 30 in the right ear; and 20, 15, 20, 20, and 35 in the left ear. An audiogram was conducted again the next day, it reflected puretone thresholds in decibels, at 500, 1000, 2000, and 4000 Hertz of: 0, 5, 10, and 40 in the right ear; and 5, 10, 20, and 30 in the left ear. His "PULHES" physical profile for hearing was "2" (reflective of some medical condition or physical defect that may require some activity limitations) at the time of enlistment. See Army Regulation 40-501; Hanson v. Derwinski, 1 Vet. App. 512 (1991); Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). On a Report of Medical History at that time, the Veteran denied any hearing loss or ear trouble. (It was noted his usual occupation for the past three years was a machine operator.) It is not known whether an audiogram was conducted at the time of his separation in August 1968, as there is no separation physical examination. During the time the Veteran served in the Army National Guard, he underwent an enlistment physical examination in 1981, as well as several periodic physical examinations. On a March 1981 Report of Medical History, the Veteran stated he was in good health and denied any history of ear trouble or hearing loss. At that time, a March 1981 audiogram reflected puretone thresholds in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz of: 5, 5, 5, 10, and 10 in the right ear; and 5, 5, 10, 15, and 15 in the left ear. On a March 1985 Report of Medical History, the Veteran again stated he was in good health and denied a history of ear trouble and hearing loss. A March 1985 audiogram reflected puretone thresholds in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz of: 15, 15, 50, 55, and 70 in the right ear; and 15, 10, 35, 50, and 60 in the left ear. On a July 1989 Report of Medical History, the Veteran reported a history of hearing loss. A July 1989 audiogram reflected puretone thresholds in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz of: 20, 20, 50, 65, and 60 in the right ear; and 15, 20, 40, 55, and 60 in the left ear. In December 1995, the Veteran again reported a history of hearing loss, and a December 1995 audiogram reflected puretone thresholds in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz of: 15, 15, 55, 65, and 65 in the right ear; and 10, 15, 40, 65, and 75 in the left ear. A December 1995 physical examination of the ears was normal. After service, the Veteran submitted his initial claim for service connection for bilateral hearing loss and tinnitus in October 2004. He indicated that his MOS in both the regular Army and in the Army National Guard was in artillery, and he asserted essentially that the performance of his job led to hearing loss. He submitted private medical records dated in September 2004 from Aurora Health Care, which showed severe bilateral hearing loss, and a medical history of severe ringing in one or both ears, sudden hearing loss, fluctuating hearing losses, and ear pain within the last 12 months was reported. An audiogram conducted in September 2004 reflected puretone thresholds in decibels, at 500, 1000, 2000, and 4000 Hertz of: 60, 70, 75, 95, and 90 in the right ear; and 80, 80, 90, 90, and NR (no result) in the left ear. The Veteran also underwent audiological testing by the VA in February 2005. The examining audiologist reviewed the claims file, noting the results of various audiograms in service and after service. The Veteran reported that he had noticed a gradual decrease in his hearing since serving in Vietnam. His role in artillery units on active duty and on National Guard duty were noted, as well as his civilian activities when he worked as a truck driver and a forklift driver. He related a history of an occasional ringing in his ears, occurring approximately one to two times a month and lasting for about 15 to 20 seconds. An audiogram reflected puretone thresholds in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz of: 75, 75, 90, 90, and 100 in the right ear; and 80, 65, 85, 90, and 100 in the left ear. The speech recognition scores, using the Maryland CNC word list, were 24 percent for both ears. The examiner concluded that as the test results were in conflict, any determination of whether or not the hearing loss was service-connected was "impossible." He stated that the Veteran's SRTs and puretone averages did not match (the results were not even close), which strongly suggested a "nonorganic component." Regarding tinnitus, he opined that it was "more than likely not service connected due to the fact that the [Veteran's] tinnitus is of short duration and infrequent which is not unlike that of the normal hearing population and would not appear to be related to noise exposure." Current Claims to Reopen As the unappealed March 2005 rating decision is final based on the evidence then of record, new and material evidence is required to reopen the claims. 38 U.S.C.A. §§ 5108, 7105. Where, as here, a claim of service connection has been previously denied, a subsequent claim of service connection for the same disability may not be considered on the merits unless new and material evidence has been presented. Whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdiction responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). "New evidence" means existing evidence not previously submitted to agency decision makers; "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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). For additional evidence to be new and material, it must relate to an unestablished fact necessary to substantiate the claim. Analysis The records received since the March 2005 rating decision consist of two VA examination reports and additional private treatment records. Private records from Aurora Health Care show that the Veteran underwent an audiogram in July 2012, the graph of which appeared to reveal puretone thresholds in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz of: 35, 40, 70, 80, and 80 in the right ear; and 30, 40, 65, 75, and 80 in the left ear. Hearing aids in both ears was recommended. Other private records show that an August 2004 audiogram was deemed invalid due to wax in both ears and that the Veteran should return later after the wax had been removed. In June 2013, he was re-tested, with his wax removed. On an audiogram, the graph revealed puretone thresholds in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz of: 30, 50, 55, 75, and 80 in the right ear; and 45, 40, 60, 75, and 85 in the left ear. Speech recognition scores were 64 percent for the right ear and 56 percent for the left ear. The "cause of impairment" was noted as "big guns in service of country." The same provider indicated in a January 2014 notation that the Veteran's hearing loss appeared to be noise-induced. The Veteran underwent audiological testing by the VA in February 2013. The examining audiologist reviewed the claims file. The results of an audiogram were invalid for each tested frequency (as noted, the Veteran could not be tested). The examiner explained that the reliability of thresholds was consistent with non-organic hearing loss bilaterally (versus bilateral organic hearing loss). She noted that ascending and descending thresholds varied beyond what is acceptable test-retest reliability bilaterally. Further, speech recognition thresholds were inconsistent with puretone responses bilaterally. The examiner stated that she was unable to provide a medical opinion regarding etiology of the Veteran's hearing loss without resorting to speculation because the reliability of test information was consistent with non-organic hearing loss and therefore an accurate idea of his hearing sensitivity could not be obtained. She noted the unfortunate absence of auditory testing at the Veteran's separation from service in 1968, as well as the military noise exposure and civilian noise exposure in jobs including bailer operator, machinist, forklift driver, and truck driver. Because there was no documentation of his hearing status following service in 1968 and because the available tests (such as in 1966, showing some hearing loss, and 1981, showing normal hearing) were variable, it was difficult to determine even with additional records which tests were accurate and which were not accurate. For example, the examiner indicated that if the March 1981 hearing test was accurate, then there would be documentation of normal hearing sensitivity well beyond the Veteran's active duty through March 1981; and if the March 1981 test was obtained with poor reliability, then the examiner stated that the Veteran's work noise history would still interfere with her ability to determine whether or not the Veteran's hearing changed over the course of service. Regarding tinnitus, the VA examiner noted that the Veteran was unsure of its onset. He reported about a minute of tinnitus occurring three times a week. She opined that she could not provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to speculation because she could not determine whether or not his hearing had changed during service, and whether or not a noise injury was present that would provide a nexus between military noise exposure and tinnitus onset. The Veteran underwent additional audiological testing by the VA in December 2015. An audiogram reflected puretone thresholds in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz of: 30, 40, 65, 75, and 85 in the right ear; and 25, 35, 55, 75, and 75 in the left ear. The speech recognition scores, using the Maryland CNC word list, were 68 percent in the right ear and 70 percent in the left ear. The puretone test results were deemed valid for rating purposes, and the word discrimination scores were found to be appropriate for the Veteran. The diagnosis was sensorineural hearing loss in both ears. In addressing the etiology of the hearing loss, the examiner undertook an extensive review of the claims file and provided a thorough explanation of rationale, with citation to medical studies and literature, to support the conclusion that the etiology of the current bilateral hearing loss could not be determined without resort to speculation. It was explained that the presence of bilateral hearing loss was not in dispute and that exposure to hazardous noise in service was conceded, but that on the basis of the facts in the record it was not possible to give an opinion as to whether the hearing loss was likely related to military noise exposure without speculation. The examiner created a table of the results of all the audiograms in the record (service, VA, and private, except he did not interpret the private audiogram graph of 2012), and noted the significant variability in hearing thresholds for both ears over the years. For example, the Veteran appeared to have entered service with hearing loss in 1966, but there was no audiogram available at the time of separation and the next available audiogram in 1981 showed normal hearing bilaterally. He stated that hearing did not typically improve over time. Then, there was hearing loss again on an audiogram in 1985, which was significantly worse than in 1966, and the audiograms in 2004 and 2005, which were even worse than that. However, audiograms in 2013 and 2015 showed that the hearing loss was not as severe as beforehand. He stated that hearing loss typically did not fluctuate as shown by the audiograms, and that it was therefore difficult to determine with any confidence what the Veteran's true thresholds were at the time of testing in the audiograms prior to 2015. The examiner stated that from the absence of a separation audiogram from active duty and the subsequent inconsistent audiograms, it could not be determined if there was any hearing loss at the time of separation. Further, he cited a medical study pertaining to the lack of any scientific evidence to support a delayed onset of hearing loss, finding that even though the Veteran was exposed to noise in service and currently had hearing loss, it did not mean there was a cause and effect relationship between the two. He concluded that without a separation audiogram, it could not be determined if the Veteran had hearing loss at separation, and thus it could not be ascertained without speculating whether his hearing loss was likely related to military noise exposure. The examiner commented about the 1981 military (National Guard) audiogram, stating that if it was considered valid, it was less likely than not that the current bilateral hearing loss was caused by or a result of military noise exposure. He reasoned that the audiogram showed the Veteran's hearing to be normal several years after separation, and that there was an insufficient scientific foundation to support the notion of permanent hearing loss (attributable to noise exposure) developing long after noise exposure. He also pointed out that there was conflicting evidence of the validity of the 1981 audiogram, due to the fact that the Veteran was shown to have hearing loss at his enlistment [in 1966] and that it was not typical for hearing to improve over time. Additionally, the examiner furnished comment with regard to the 2013 private audiogram conducted by a provider who implied that the Veteran's hearing loss was due to noise, explaining why such as opinion was inadequate (based on lack of training and certification, speculative opinions not based on objective evidence, absence of citation to medical research, and no review of the medical record). The examiner referenced a medical statistic from the National Institute on Deafness and Other Communication Disorders, stating that the Veteran's hearing loss configuration at the time of the private audiogram was consistent with presbycusis (age-related hearing loss), which the private examiner did not appear to consider. Regarding tinnitus, the examiner opined that an opinion on etiology could not be provided without resort to speculation. Building on the rationale in regard to whether the etiology of hearing loss could be ascertained, he explained that without a separation audiogram and with the great variability in results of the audiograms after service, it could not be determined if the Veteran had any significant hearing threshold shifts in service. And if it could not be determined if the Veteran had any noise injury to his hearing in service, it was not possible to determine if his tinnitus was likely related to service noise exposure without resort to speculation. He further found that it could not be determined if the Veteran had any significant hearing threshold shifts in Reserves due to the poor reliability of the audiograms (as they were so variable) and because the Veteran also worked a noisy civilian job while in the Reserves. The Board finds that the additional evidence received since the March 2005 RO rating decision in relation to the bilateral hearing loss claim is new and material, and such claim may be reopened. While much of the medical evidence is essentially duplicative of previous medical evidence of record in that it reflects continuing bilateral hearing loss, private medical notations in June 2013 refer to the cause of the hearing impairment as noise-induced from "big guns in service." Such an opinion provides the necessary element of a potential causal link (nexus) between the current hearing loss disability and an in-service event. The private medical evidence serves to show that the Veteran incurred hearing loss as the result of events or in the performance of duties during service, and such records are non-cumulative evidence that relates to an unestablished fact necessary to substantiate the claim, namely, a medical nexus linking the current diagnosis of bilateral hearing loss to the Veteran's service and acoustic trauma therein. With such evidence, there is a reasonably possibility of substantiating the claim. In other words, the additional evidence received, viewed in the context of the evidence already of record at the time of the March 2005 rating decision, raises a reasonable possibility of substantiating the claim. The RO previously denied the claim on the bases that there was no evidence that the Veteran had hearing loss related to service, and that the evidence did not show pre-existing hearing loss was aggravated beyond a normal progression during military service. However, the additional evidence includes competent medical evidence tending to show a potential relationship between the current hearing loss and the Veteran's noise exposure in service. As the additional evidence received is both new and material, the claim of service connection for bilateral hearing loss must be reopened. On the other hand, the additional evidence received in relation to the tinnitus claim is not new or material and, as such, the claim may not be reopened. That is, the additional evidence is essentially cumulative of evidence previously considered, and it could not reasonably substantiate the claim. While new in the sense that it was not previously reviewed by the RO in 2005, the additional records do not relate to an unestablished fact necessary to substantiate the claim (i.e., evidence that links current tinnitus to service or to an injury, disease, or event in service). Rather, the additional evidence is cumulative of the Veteran's prior assertions of having ringing in his ears (tinnitus) due to excessive noise exposure from serving in an artillery unit in service, both in active duty and in the National Guard. Regarding the evidence in the record reviewed by the RO in March 2005, there were no complaints or diagnosis of tinnitus in the service records, and the post-service records showed a history of ringing in his ears with a current diagnosis of tinnitus but without any evidence to relate the current tinnitus to the military or in-service noise exposure. In fact, a VA examiner opined against a relationship between tinnitus and service. Regarding the evidence added to the record since March 2005, the evidence merely discloses the ongoing nature of the Veteran's diagnosed tinnitus beginning many years after service discharge, and does not connect the cause of the tinnitus back to his service. The only evidence of a causal relationship between the current disability and military service is the Veteran's duplicative statements to the effect that in-service duties entailing excessive noise led to the development of tinnitus, but this assertion has been made before and was previously considered by the RO in March 2005. The two VA opinions that address the question of a relationship between tinnitus and military service both indicated that a conclusion regarding causation was not possible without resort to speculation. Thus, the record as it now stands is still missing any evidence of a relationship between the current tinnitus and military service. The basis for the initial denial of this claim in March 2005 was that the record was devoid of evidence showing that current tinnitus was service-incurred or service related. The evidence added to the file since that rating decision is likewise devoid of the element of service onset or service-incurrence. In other words, the additional evidence is cumulative, and as such under 38 C.F.R. § 3.156 it cannot constitute new and material evidence. The Board acknowledges the existence of a low threshold standard for reopening endorsed by the U.S. Court of Appeals for Veterans Claims in Shade v. Shinseki, 24 Vet. App. 110 (2010), but the Board finds that the additional evidence does not relate to an unestablished fact necessary to substantiate the claim. The additional evidence received since the RO's prior review in 2005 cannot reasonably substantiate the claim of service connection for tinnitus because evidence tending to show a current condition related back to service or the noise exposure therein was needed and such evidence has not been presented. In short, the evidence regarding tinnitus added to the record since the March 2005 RO rating decision is cumulative of evidence previously considered or could not reasonably substantiate the claim of service connection for tinnitus. As the additional evidence is not new and material, the claim of service connection for tinnitus may not be reopened, and the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). III. Claim of Service Connection for Bilateral Hearing Loss on De Novo Basis As the Board has determined that new and material evidence has been submitted with regard to the claim of service connection for bilateral hearing loss, it is necessary to consider whether the Veteran would be prejudiced by the Board proceeding to a decision on the merits regarding that issue. As noted in the VCAA section herein above, the RO has notified the Veteran in a November 2012 letter of the evidence necessary to substantiate the claim on the merits, and has provided the Veteran in the May 2014 statement of the case with the laws and regulations pertaining to consideration of the claim on the merits. After the RO reopened his claim in the March 2013 rating decision, the Veteran has been provided ample opportunity to submit evidence relating to his claim on the merits, which he did with the submission of private medical records in June 2014. He was also afforded VA examinations in February 2013 and December 2015, to address the questions that go to the merits of the claim. Given that the Veteran had adequate notice of the applicable regulations and has had the opportunity to submit argument and evidence on the merits of his claim in addition to undergoing examinations, the Board finds that he would not be prejudiced by its review of the merits of the claim at this time. Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. However, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence in the record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); see also 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. Stated another way, when a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve "veteran status" for purposes of that claim. See 38 U.S.C.A. § 101(2)-(24). A member of the National Guard serves in the federal military only when formally called into the military service of the United States. At all other times, a member of the National Guard serves solely as a member of the State militia under the command of a state governor. To have basic eligibility as a veteran based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service under 38 U.S.C.A. §§ 316, 502, 503, 504, 505. 38 C.F.R. § 3.6 (c), (d). Allen and Key v. Nicholson, 21 Vet. App. 54, 57 (2007). Hence, for the Veteran's service in the National Guard, only periods of federalized service are qualifying service for the purpose of VA compensation benefits. Where a veteran served 90 days or more of continuous, active service and a chronic disease, such as sensorineural hearing loss (SNHL) (as an organic disease of the nervous system), becomes manifest to a degree of 10 percent within one year from the date of separation from service, the disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in service. This may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptoms is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Notwithstanding the above, service connection may be granted for disability first diagnosed after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence.). Here, the Board has already summarized the relevant evidence in the decision herein above, in the discussion of whether new and material evidence has been received to reopen the claim. Next, the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. At the outset, it is noted that the Veteran seeks service connection for bilateral hearing loss based on excessive noise exposure during both his regular Army active duty service and his National Guard service from March 1981 to June 2000. However, military personnel records of his service in the Wisconsin National Guard do not show that he was in federalized service from March 1981 to June 2000; his inactive duty for training and active duty training during that period are non-federalized, and thus non-qualifying for VA compensation purposes. The only period of federalized (and qualifying for VA compensation benefits) service was from August 1966 to August 1968. In considering the service treatment records, bilateral hearing loss (under VA standards for hearing loss disability) was not shown to have had onset during service. There was no treatment or complaint related to hearing problems in service, and there is no separation physical examination to show that the Veteran had any hearing loss. However, it is noted that the August 1966 enlistment audiogram indicates right ear hearing loss in the middle to higher puretone thresholds, and that the Veteran's physical profile was listed as "2" for his hearing. In other words, with an explicit finding of defective hearing in the right ear on enlistment, the presumption of soundness does not attach with respect to right ear hearing loss, and the only benefit that can be awarded for that ear is for aggravation of the pre-existing hearing loss disability, by application of 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306. Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). The question whether there has been an increase in disability during service must be answered in the affirmative before presumption of aggravation attaches, so that presumption is unaffected by rule on service connection for increase in disability during service. Verdon v. Brown, 8 Vet. App. 529 (1996); see also Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). It is further observed that there is no separation physical examination available in the record. Thus, without any documentation during service of complaint or diagnosis of right ear hearing loss, and in view of the absence of any audiogram at separation in 1968, there is no evidence to demonstrate that the Veteran's right ear hearing loss at entrance in the military underwent an increase in severity during service. After his August 1968 discharge, there are no medical records in the file until the Veteran entered the Army National Guard in 1981, at which time he specifically denied any history of ear trouble or hearing loss on a March 1981 enlistment examination. Further, an audiogram at that time showed normal hearing in both ears. It is also notable that the Veteran has not specifically asserted any contentions to the effect that his pre-existing right ear hearing loss worsened during service. Nor has any private or VA examiner found that the Veteran's exposure to noise during service caused the pre-existing hearing loss in the right ear to be aggravated beyond normal progression during service. In fact, the VA examiner in December 2015 acknowledged that the Veteran appeared to have entered service in 1966 with hearing loss, shown on both the original audiogram and the re-test audiogram a day later, but concluded that it was not determinable if the Veteran had hearing loss at the time of separation without resort to speculation due to the absence of a separation audiogram [in 1968] and the inconsistencies in subsequent audiograms. In light of the foregoing evidence, although service records show that the Veteran's military duties likely potentially involved damaging noise exposure, the Board finds that the Veteran's current right ear hearing loss disability is shown to have pre-existed service and is shown not to have been aggravated beyond normal progress by service. In consideration of the Veteran's contentions, the service treatment records, and post-service evidence to include the interpretations of the military audiograms by an individual with specialized education, training, and experience, the Board concludes that service connection for right ear hearing loss, based on aggravation, is not warranted. 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. §§ 3.303, 3.306. Regarding left ear hearing loss, on the basis of service treatment records alone to include audiograms, inception of hearing loss (under VA standards for hearing loss disability) has not affirmatively been shown during service. Although service records show that the Veteran was likely exposed to noise exposure of some level, there was no complaint, finding, or diagnosis of left ear hearing loss at that time. Thus, service connection under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) is not established for the right ear. The Veteran is competent to describe hearing loss even though the symptoms were not recorded during service, but as the service treatment records lack the documentation of the combination of manifestations sufficient to identify the hearing loss and sufficient observation to establish chronicity during service, and as chronicity in service is not adequately supported by the service treatment records, then a showing of continuity of symptoms after service is required to support the claim. 38 C.F.R. § 3.303(b). However, the evidemce dones not establish continuity of symptoms after service to support the Veteran's claim. As previously noted, there is no showing of hearing loss at the time of his military separation in 1968, as a physical examination report and audiogram are not available. Moreover, the Veteran specifically denied any history of ear trouble or hearing loss in National Guard medical history reports in March 1981 and March 1985. The Veteran has provided conflicting statements that he experienced sudden hearing loss and fluctuating hearing loss (on private records in September 2004) and that he noticed a gradual decrease in hearing since serving in Vietnam (on a February 2005 VA examination report). Accordingly, the Board finds that any statements alleging continuity of symptoms cannot be afforded significant probative weight because they lack in credibility. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record). To be clear, the Board is not questioning the Veteran's honesty or moral character. The Veteran is attempting to recollect events that transpired a long time ago and the passage of time, along with the inconsistencies noted above, compels the conclusion that the Veteran is not an accurate historian as to these particular statements. See Caluza, 7 Vet. App. at 510-11. Furthermore, there are no medical records that document any hearing difficulties for many years after his service discharge in 1968. Thus, continuity of symptoms has not been established, either by the clinical record or by the statements of the Veteran. That is, the preponderance of the evidence is against the claim of service connection for a left ear hearing loss based on continuity of symptoms under 38 C.F.R. § 3.303(b). It is also noted that the documentation of a left ear hearing loss disability (under VA standards) did not come until nearly 17 years after service separation in 1968. Thus, it is well beyond the one year presumptive period for sensorineural hearing loss as a chronic disease (organic disease of the nervous system) under 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.307 and 3.309. Hence, service connection for left ear sensorineural hearing loss on a chronic disease presumptive basis is not established. The Board now turns to the question of whether service connection for left ear hearing loss may be granted on the basis that the disability was first diagnosed after service, considering all the evidence, including that pertinent to service under 38 C.F.R. § 3.303(d). As earlier noted, the Veteran's National Guard records beginning in 1985, private audiograms beginning in September 2004, and VA examinations beginning in February 2005 clearly show that he has current left ear hearing loss, according to VA standards of hearing loss disability. Along with this definitive medical evidence of current left ear hearing loss, the record contains the opinions of VA examiners in February 2005, February 2013, and December 2015, who reviewed the file, essentially conceded in-service exposure to noise as well as civilian noise exposure, but asserted that a determination as to whether there was an causal link between the existing left (and right) ear hearing loss and the Veteran's military service could not be made. The 2005 examiner stated that the Veteran's audiogram results did not match, thereby suggesting a nonorganic component. The 2013 examiner stated that the test information was unreliable (consistent with inorganic hearing loss) and on such basis an accurate depiction of his hearing sensitivity was unavailable; she also cited to the variability in audiogram results during and after service in explaining that it was difficult to determine which tests were accurate and which were not reliable. The 2015 examiner obtained valid test results showing left (and right) ear hearing loss but also found that based on the facts of record it would merely be speculative to assert whether the hearing loss was likely related to military noise exposure. The Board notes that service connection may not be based on resort to speculation or remote possibility. See 38 C.F.R. § 3.102. The Board is cognizant of the fact that in the past the Court has admonished it for relying on medical opinions that were unable to establish the required nexus between current disability and service, without resorting to mere speculation, as the reason for denying the Veteran's claim. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In Jones, the Court noted it was unclear whether the examiners were unable to provide the requested definitive medical comment on causation because they actually were unable to because the limits of medical knowledge had been exhausted or, instead, for example, they required further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. The Court in Jones acknowledged that there were instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained, or current medical knowledge yields multiple possible potential causes with none more likely than not the cause of the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"). The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. The Court has held that, once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence.... is essential for a proper appellate decision"). See, too, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, VA must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Therefore, it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. Daves v. Nicholson, 21 Vet. App. 46, 51 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. The examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. See Wallin v. West, 11 Vet. App. 509, 514 (1998). Here, the Board finds that the VA examiner in 2015 (and to a lesser extent, the VA examiners in 2005 and 2013) specifically identified the additional information that would facilitate a more conclusive opinion, namely a separation audiogram in 1968 and consistent, reliable audiograms thereafter. The former was not procurable because all service treatment records appear to have been obtained from the service department; the latter was also not procurable, because it is not possible to go back in time to re-test the Veteran at various intervals. Further, the record clearly shows that the examiner arrived at the speculative opinion after fully considering the Veteran's statements, reviewing his history, and physically evaluating him. Due diligence was employed in seeking the relevant medical information (i.e., valid audiologic test results) that would be instrumental in rendering an opinion on causation. Therefore, given that the examiner clearly considered "all procurable and assembled data," by obtaining all relevant tests and records that might reasonably illuminate the medical analysis, see Jones, 23 Vet. App. at 390, the Board sees no reason to remand this case for further development and relies on his medical conclusion (supplemented by the other VA medical opinions) to deny the hearing loss claim. In support of his appeal, the Veteran furnished private records, which reflect that at the time of an audiogram showing hearing loss in June 2013, a provider noted that the cause was related to "big guns in service." The same provider seemed to reiterate that opinion in a January 2014, wherein it was noted that the Veteran's hearing loss was noise-induced, but the provider did not differentiate whether hearing loss derived from military or the known civilian noise exposure. In any case, the Board finds the private notations are less probative than the opinion of the December 2015 VA examiner, generally for the same reasons cited by that examiner. In assessing the probative value of the medical opinions in the record, greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is also generally based on the scope of the examination or review, as well as the relative merits of the analytical findings, and the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). As explained by the December 2015 VA examiner, the private provider notations in June 2013 (and January 2014) are not based on a review of the entire record. Thus, there is no comment upon the variability of audiogram results over time and the impact of civilian job noise exposure. Further, it is not apparent that the private provider is an audiologist, with specialized training to furnish a medical opinion concerning the possible causes of hearing loss. There was also no citation to medical studies or literature to support the conclusion, as given by the VA examiner. Additionally, the private provider gave no rationale for the opinion, which was brief and conclusory. Given these reasons, the Board finds that the private medical opinion is outweighed by the 2015 VA examiner's opinion, which is thorough and detailed, based on a complete review of the record, and predicated on the significant facts of record. In other words, the VA medical opinion is highly probative evidence, which essentially opposes, rather than supports, the claim. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board notes that the Veteran's own statements can be used only to provide a factual basis upon which a determination could be made that a particular injury occurred in service, but not to provide a diagnosis or a medical opinion linking that in-service disease or injury to a current disability. Although he is competent to describe symptoms of hearing difficulty, see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of personal knowledge), hearing loss disability (as defined) is not a condition found under caselaw to be capable of lay observation, and the determination as to the presence of hearing loss therefore is medical in nature (i.e., not capable of lay observation). See Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Also, under certain circumstances, a layperson is competent to identify a simple medical condition, relate a contemporaneous medical diagnosis, or describe symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran is competent to describe symptoms of hearing loss, the diagnosis requires the application of medical expertise to the facts presented, which include the Veteran's history, symptoms, and audiometric testing as required under 38 C.F.R. § 3.385. For this reason, the existence and cause of a hearing loss disability under 38 C.F.R. § 3.385 is not a simple medical condition that a layperson is competent to identify. Where, as here, the determinative question involves a nexus or causation, where a lay assertion on medical causation is not competent evidence, competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion. 38 C.F.R. § 3.159. As a layperson, the Veteran is not qualified through education, training, and expertise to offer a medical diagnosis or an opinion on medical causation. See also, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). For these reasons, the Board does not find the Veteran's statements to be competent evidence to substantiate that the claim that his current left ear hearing loss either had onset during service or is related to an injury, disease, or event in service. In light of the foregoing, the preponderance of the evidence is against the Veteran's claim of service connection for left ear hearing loss, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107 (b). ORDER The appeal seeking to reopen a claim of service connection for tinnitus is denied. To the extent that a claim of service connection for right and left ear hearing loss is reopened, the appeal is granted. The appeal seeking service connection for right and left ear hearing loss, on a de novo basis, is denied. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs