Citation Nr: 19169307 Decision Date: 09/06/19 Archive Date: 09/06/19 DOCKET NO. 09-36 475 DATE: September 6, 2019 ORDER Service connection for right ear hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran’s right ear hearing loss is not linked to disease or injury incurred or aggravated in active service. 2. The Veteran’s tinnitus is not linked to disease or injury incurred or aggravated in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. § § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. § § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1970 to September 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board remanded the claims for service connection for right ear hearing loss and tinnitus in January 2013 and August 2016. It denied the claims in a July 2017 decision. In a December 2018 decision, the United States Court of Appeals for Veterans Claims (Court) vacated the Board’s decision, and remanded the matter for further proceedings consistent with its decision The Veteran testified at a hearing before the undersigned in July 2012. A transcript is of record. . Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link (“nexus”) between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss and tinnitus as organic diseases of the nervous system, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptomatology after service if the condition is noted during service (or in a presumptive period) but not shown to be chronic at the time. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for sensorineural hearing loss and tinnitus (as organic diseases of the nervous system) if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. § § 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). Right Ear Hearing Loss and Tinnitus The Veteran states that his hearing loss and tinnitus were caused by acoustic trauma due to noise exposure during active service, including from jet engine noise. (July 2012 Board Hearing Transcript.) For the following reasons, the Board finds that service connection is not established. The record shows that the Veteran has a current right ear hearing loss disability. In this regard, impaired hearing is defined as a disability for VA compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The April 2013 VA examination report reflects puretone threshold results from audiometric testing that satisfy the criteria for a hearing loss disability in the right ear. The Veteran’s tinnitus is also established based on the diagnoses of this condition in the VA treatment records, and his competent and credible report of experiencing tinnitus, which he has described as a “sizzling” or “hissing” sound. (April 2013 VA Examination Report; September 2004 VA Audiological Evaluation.) See Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is a disability that can be established based on lay statements alone). The Veteran describes in-service noise exposure from aircraft engines while serving as a military policeman, gunfire from weapons training, and heavy machinery as a duplicating specialist. (July 2012 Hearing Testimony; April 2013 VA Examination Report.) For the purposes of this decision, the Board accepts these statements as establishing in-service noise exposure. At the July 2012 Board hearing, the Veteran testified that he experienced hearing loss and tinnitus during active service, and that these symptoms continued to occur after service up to the present. In a June 2005 statement, the Veteran wrote that he did not seek treatment for his hearing problems during service because they were not severe enough to complain about. The Board finds these statements are not credible. In its December 2018 decision, the Court found that the Board erred in its July 2017 decision “by relying on a lack of medical treatment” to find the Veteran’s statements not credible. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). The Board has carefully reviewed its July 2017 decision, and does not see where it based its credibility findings on an absence of treatment. The Board continues to find that the Veteran’s statements regarding the onset of his hearing loss and tinnitus lack credibility, not because of an absence of treatment, but because his statements are in conflict with other, more probative evidence, including other statements he has made, as will be explained in the following paragraphs. In general, there must be a proper foundation for drawing adverse inferences against the credibility of testimony from silence in the record. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). Such a foundation may be established by finding that the fact being claimed would ordinarily have been recorded in the available records had it occurred. Id.; Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Thus, the Board may not rely on an absence of treatment without explaining “why the appellant would reasonably have been expected to report his symptoms to medical providers.” Fountain, 27. Vet. App. at 273. As just stated, the Board does not base its credibility findings in this case on the absence of treatment or other evidence, but because of inconsistencies and conflicts between the Veteran’s statements and other evidence in the file that the Board finds more probative and reliable, including other statements made by the Veteran, as shown below. Before discussing such evidence, a review of basic principles governing the Board’s evaluation of lay testimony seems helpful. In determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In Madden v. Gober, the United States Court of Appeals for the Federal Circuit (Federal Circuit) addressed the Board’s authority to evaluate the quality of lay testimony in a case involving the issue of whether service connection was warranted on a presumptive basis for a chronic disease that manifests to a compensable degree within a year of service separation. 125 F.3d 1477 (Fed. Cir. 1997). The appellant argued that once he submitted competent lay testimony that his claimed disorder manifested within the prescribed time period, the burden shifted to the agency to rebut that testimony with contrary evidence. Id. at 1480. The Federal Circuit rejected the interpretation of section 3.307 that the Board had no authority to assess the quality of the appellant’s lay evidence, and reject or discount it only on the basis of rebuttal evidence proffered by the agency Id. In this regard, the Federal Circuit noted that “lay evidence which is in fundamental conflict with other lay evidence and is, for that reason, found not credible in a given case, is surely suspect.” Id. While the Federal Circuit was interpreting section 3.307, its holding clearly applies to the Board’s authority to evaluate lay evidence in general, as it added that the appellant’s interpretation of that section would “deprive the Board of its authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.” Id. at 1481. Applying the above law to the facts at hand, the Board finds the Veteran’s statements are not credible regarding the in-service manifestation of his hearing loss and tinnitus. As an initial matter, the Veteran’s testimony that his hearing loss and tinnitus manifested in service is competent, as impairment of hearing and tinnitus are physical symptoms, and as such are within the province of firsthand experience. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Regarding his statement that he did not seek treatment during service because he did not feel his hearing loss or tinnitus was severe enough to warrant medical attention, the Board certainly finds it plausible that an individual might have hearing loss or tinnitus but not seek treatment for it, especially if the symptoms were mild at the time. Thus, as the Veteran states he did not seek treatment during service, the Board does not expect to find records of treatment, and its credibility determination does not turn on the absence of treatment. The sole fact that the Board cannot, and does not, draw negative inferences as to the credibility of the Veteran’s statements from the absence of evidence does not end the inquiry, or mean that the Board must accept his statements as sufficient to establish that his hearing loss or tinnitus manifested in service. Preliminarily, under the combat presumption, satisfactory lay or other evidence that a disease or injury was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). As the Veteran did not have combat service, the combat presumption does not apply to his statements. See Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996). In the September 1972 separation report of medical history, the Veteran denied a history of hearing loss or ear trouble. The Board finds this report more probative than the Veteran’s later statements made in the context of supporting this claim. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Moreover, the Veteran’s September 1972 separation examination report includes an audiogram showing puretone thresholds for the right ear of 20 decibels at 500 Hertz, 25 decibels at 1000 Hertz, 15 decibels at 2000 Hertz, 10 decibels at 3000 Hertz, and 5 decibels at 4000 Hertz. The report indicates that the Veteran’s hearing was clinically evaluated as normal. As discussed in more detail below, the November 2016 VA medical opinion finds the Veteran’s hearing to be normal at separation, and states that the Veteran’s denial of hearing loss in the report of medical history is consistent with his normal hearing on testing at separation. Further, a February 2006 VA treatment record notes the Veteran’s report of having hearing loss and tinnitus for “several years.” The Veteran’s service had occurred more than thirty years earlier at that point. While “several years” is a timeframe that is somewhat open-ended, it does not equate to or suggest a period spanning decades. Finally, with respect to tinnitus, a September 2004 VA treatment record reflects that the Veteran reported a sudden onset of tinnitus three months earlier. That statement clearly conflicts with his later testimony that his tinnitus manifested during service. Because the former statement was made in the context of seeking treatment, it is more probative than the Veteran’s hearing testimony. While it only pertains to the Veteran’s tinnitus, it also casts yet further doubt on the credibility of the Veteran’s statements regarding the history of his hearing loss. Notably, an October 1984 VA treatment record reflects that the Veteran complained of being “hard of hearing” in the right ear. He stated that it felt like there was “something in it.” The diagnosis on examination was impacted cerumen. VA treatment records dated in April 1994 and May 1994 also show treatment for wax build-up in the right ear. A May 1994 record notes that following irrigation to remove the wax, the Veteran reported, “I can hear.” There is no subsequent report of hearing loss until the September 2004 VA treatment record, in which the Veteran reported sudden tinnitus that started approximately three months earlier in both ears, and also reported trouble hearing in noise. Because the October 1984 VA treatment record does not show sensorineural hearing loss, but rather suggests he had transient hearing loss due to cerumen impaction, it does not support a finding of an earlier onset of hearing loss. If anything, the May 1994 record, in which the Veteran states that he could hear following irrigation of his right ear to treat his ear wax, suggests that apart from those times when the Veteran’s right ear hearing was limited due to cerumen impaction, he did not experience hearing loss as late as 1994. Even if the October 1984 record did show sensorineural hearing loss in the right ear—although the Board finds it does not—it would not alter the Board’s conclusion regarding the credibility of the Veteran’s statements, as this record is dated more than twelve years after the Veteran’s separation from service, and does not suggest that his hearing loss had been present prior to that time. In any event, the May 1994 record in which the Veteran stated that he could hear following removal of the wax strongly supports a finding that this was a temporary symptom at the time attributable to the ear wax. In sum, the Veteran’s denial of a history of hearing loss at separation, which the November 2016 VA examiner found was consistent with his normal audiometric testing results at separation, his statement that he had experienced hearing loss and tinnitus for “several years”—as opposed to a longer timeframe—in the February 2006 VA treatment record, which is dated more than thirty years after his service, and his report of a sudden onset of tinnitus in 2004, all conflict with his later testimony that he experienced hearing loss and tinnitus during and continuing since service. Based on these conflicts and inconsistencies, the Board finds the Veteran’s testimony not credible regarding the in-service onset of his hearing loss or tinnitus. See Caluza, 7 Vet. App. at 511; Madden, 125 F.3d at 1480. Therefore, it is not probative, and is outweighed by the service treatment records and VA treatment records discussed above, which together strongly support a finding that the Veteran’s sensorineural hearing loss and tinnitus did not manifest in service, or until many years after service separation. The Veteran has not submitted any evidence supporting his statements. In the November 2016 VA opinion, the examiner stated that the Veteran’s wife attested to the Veteran’s hearing loss and tinnitus being present since service. The Board’s January 2013 remand also states that the Veteran’s wife provided evidence of continuity of symptoms after service. In its current review of the record, the Board finds no such testimony from the Veteran’s spouse. She submitted a written statement which discusses the challenges caused by the Veteran’s hearing problems, but does not state that she observed, or that the Veteran complained about, hearing loss or tinnitus during or ever since service. (March 2013 VA Form 21-4138.) It is also not evident from the record that the Veteran’s spouse knew him at the time of his service or shortly thereafter. In this regard, the Veteran indicated that he had never been married in a December 1972 application for VA education benefits. Moreover, there is a divorce decree showing that he had been married to a different individual from 1989 until 1993. Of course, neither document rules out the possibility that the Veteran and his spouse knew each other during or shortly after his period of service. But there is no indication in the record that such was the case, and therefore no indication that the Veteran’s current spouse would be able to provide testimony based on her own experience of the Veteran during service or in the first few years following separation. Moreover, even if the Veteran’s spouse had known him during or shortly after service, because probative evidence of record shows that the Veteran’s hearing loss and tinnitus did not manifest during service or until a number of years following service separation, a bare assertion from the Veteran’s spouse that his tinnitus or hearing loss has been present since service would lack credibility for the reasons discussed above with respect to the Veteran’s testimony, or at least would not be sufficient to counterbalance the more probative evidence in the form of contemporaneous records showing a later onset of hearing loss and tinnitus, as discussed above. In any event, the Board finds no such statement from the Veteran’s spouse in its current review of the record. The sole fact that the Veteran’s hearing loss disability did not manifest until a number of years after service separation does not preclude service connection. In this regard, the Court held that section 3.385 of the regulations, which defines the criteria for establishing a hearing loss disability, does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. Hensley, 5 Vet. App. at 159. “Therefore, when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Id. at 160. The Veteran has not submitted competent evidence supporting a link between his current hearing loss disability or tinnitus and his period of service, including in-service noise exposure. Because the Veteran is not shown to have a medical background or expertise, he is considered a lay person in the field of medicine. Lay testimony is competent as to matters capable of lay observation or within a person’s first-hand experience, and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. Id; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board must determine on a case by case basis whether lay testimony is competent on the matter at issue, or whether medical evidence is required. Davidson, 581 F.3d at 1316; Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). In this case, whether the Veteran’s hearing loss and tinnitus may be linked to service is a determination that requires medical evidence, as a cause-and-effect relationship cannot be observed through the senses alone given the length of time that elapsed between the Veteran’s service and the onset of his hearing loss and tinnitus a number of years later. Thus, the Veteran’s unsupported lay opinion is not competent evidence on this issue, and therefore lacks probative value. See Layno, 6 Vet. App. at 470-71. The preponderance of the competent and probative evidence weighs against a link between the Veteran’s current right ear hearing loss and tinnitus and in-service noise exposure. His July 1970 enlistment audiogram shows puretone thresholds in the right ear of 10 decibels at 500 Hertz, 20 decibels at 1000 Hertz, 15 decibels at 2000 Hertz, and 5 decibels at 4000 Hertz. (His puretone threshold at 3000 Hertz was not recorded.) The September 1972 separation audiogram shows puretone thresholds for the right ear of 20 decibels at 500 Hertz, 25 decibels at 1000 Hertz, 15 decibels at 2000 Hertz, 10 decibels at 3000 Hertz, and 5 decibels at 4000 Hertz. Because a puretone threshold of 25 decibels at 1000 Hertz may be indicative of some hearing loss, as stated in Hensley, 5 Vet. App. at 157, the Board requested a VA audiologist to comment on that issue. In the November 2016 VA medical opinion, the audiologist found a comparison of the separation audiogram with the enlistment audiogram did not show hearing loss. The examiner explained that the enlistment audiogram showed a puretone threshold of 20 decibels at 1000 Hertz, and that a difference of 10 decibels or less was within normal test/retest variability. For the same reason, the examiner found that the 10-decibel difference between the puretone threshold of 10 decibels at 500 Hertz recorded at enlistment, and the puretone threshold of 20 decibels at this frequency recorded at separation, did not represent hearing loss. The November 2016 VA examiner opined that it is less likely as not that the Veteran’s current hearing loss or tinnitus was linked to his in-service noise exposure. The examiner explained that there must be evidence of a persistent change in hearing during service greater than normal test/retest variability consistent with noise-induced hearing loss if military noise exposure is considered the etiology or cause of hearing loss. The examiner also noted that noise exposure would affect the frequencies from 3000 Hertz to 6000 Hertz, and that no effect would be expected at 500 or 1000 Hertz. The enlistment and separation audiograms do not show changes at these higher frequencies. Finally, the examiner stated that according to the Institute of Medicine (IOM), there is an insufficient scientific basis to conclude that a permanent hearing loss directly attributable to noise exposure will develop long after such exposure. In this regard, as stated by the examiner, the IOM found that based on current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was unlikely. The examiner concluded that based on the evidence she reviewed and the conclusions of the IOM, there was no evidence that the Veteran’s current hearing loss was caused by or the result of his active service, including noise exposure. With regard to tinnitus, the November 2016 VA examiner explained that when there are no changes in hearing attributable to noise exposure from a specific episode or period of exposure, it was less likely than not that tinnitus would be due to that exposure. Similarly, in the April 2013 VA opinion, the examiner explained that in the absence of a change in hearing due to noise exposure, it was less likely that the Veteran’s tinnitus is due to noise exposure during active service. The examiner found that the Veteran’s tinnitus more likely has the same etiology as his hearing loss. Thus, because the Veteran’s hearing loss was not linked to active service, his tinnitus also necessarily could not be linked to active service. In sum, the examiner found that the lack of a significant puretone threshold shift between enlistment and separation, the Veteran’s normal hearing during service, the normal puretone thresholds at the frequencies from 3000 Hertz to 6000 Hertz, and the fact that the Veteran’s hearing loss and tinnitus did not have their onset until years after service separation, together supported the conclusion that the Veteran’s hearing loss and tinnitus were less likely than not related to in-service noise exposure. The VA medical opinions are probative, as they represent the conclusion of a medical professional specializing in audiology that is based on review of the Veteran’s medical history, and are supported by a specific explanation that is consistent with the credible evidence of record and sufficient for the Board to make an informed decision. In its December 2018 decision, the Court held that the Board erred in its July 2017 decision by not discussing the VA Adjudication Procedures Manual (M21-1) in its reliance on the November 2016 VA medical opinion. The M21-1 is not binding on the Board. Overton v. Wilkie, 30 Vet. App. 257, 263 (2018); Gray v. Sec’y of Veterans Affairs, 875 F.3d 1102, 1108 (Fed. Cir. 2017); see 38 C.F.R. § 19.5. However, “the Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases,” and “must make its own determination before it chooses to rely on an M2-1 provision as a factor to support its decision. Overton, 30 Vet. App. at 264. According to the Court’s December 2018 decision, the 2006 IOM report’s conclusion that it is unlikely that noise exposure would produce delayed-onset hearing loss, which was cited by the VA audiologist in support of her November 2016 opinion, is adopted by a provision in the M21-1. The Board has reviewed the M21-1, and finds no provision regarding a delayed onset of hearing loss, or citation to the 2006 IOM report. Nevertheless, assuming there is such a provision, or that it existed at the time of the Board’s July 2017 decision, the Board is not relying on the M21-1, either directly or indirectly via the November 2016 opinion, in finding that the November 2016 opinion constitutes probative evidence weighing against service connection. The sole fact that the VA examiner may have relied in part on a medical treatise regarding noise exposure and hearing loss that is also mentioned in the M21-1, or at least whose conclusion regarding a delayed onset of hearing loss is adopted by the M21-1, does not mean that the Board is basing this decision on the M21-1 provision. Instead, it bases this decision on the VA examiner’s opinion, which is informed to some extent by a medical treatise the examiner consulted in formulating the opinion whose conclusion is also apparently cited in the M21-1. The Board notes that the IOM is part of the National Academy of Sciences (NAS), which is a private, non-profit agency that is charged with providing independent and objective advice to the nation on matters related to science and technology. 36 U.S.C. Chapter 1503; http://www.nasonline.org/about-nas/. The fact that the M21-1 and the VA examiner both (according to the Court) cite to findings of a well-known organization statutorily charged to “investigate, examine, and report on any subject of science or art” to the United States Government pursuant to 36 U.S.C. § 150303 hardly seems surprising, and does not mean that the VA examiner was relying on the M21-1 in citing the IOM report, or that the Board was basing its decision in whole or in part on the M21-1 by relying on the VA medical opinion. It was within the discretion of the VA examiner to consult and base her conclusions on that report as applied to the facts of the Veteran’s case, in addition to the lack of a significant puretone threshold shift between entrance and separation. The Veteran has not challenged the report itself, and the record does not reasonably raise the issue of whether the examiner’s reliance on that report was misplaced or undermines the probative value of her opinion. See McCray v. Wilkie, 2019 Vet. App. (No. 17-1875). Finally, in its December 2018 decision, the Court found that the Board did not provide an adequate statement of reasons or bases in relying on the November 2016 VA examiner’s opinion without addressing the holding in Hensley that normal hearing at separation does not preclude service connection for hearing loss. 5 Vet. App. at 159. The Board finds that the November 2016 VA examiner’s opinion that the Veteran’s hearing loss was less likely than not related to in-service noise exposure based in part on his normal hearing at separation, and the Board’s reliance on that opinion, does not conflict with the Court’s holding in Hensley. In Hensley, the Board decision at issue had denied service connection for hearing loss because audiometric testing at separation showed that the appellant’s hearing was normal at the time. The Court held that section 3.385 of the regulations, which defines when hearing loss constitutes a disability for VA compensation purposes, does not preclude an award of service connection for a hearing loss disability when hearing is within normal limits at separation. Hensley, 5 Vet. App. at 159. In other words, the Court was interpreting section 3.385, and found that, as a matter of law, the definition of a hearing loss disability in that section did not preclude an award of service connection solely on the basis that audiometric findings at separation were within normal limits. Notably, the Board decision at issue in Hensley was not based on a medical opinion. Instead, it was based solely on the normal audiometric findings at separation. In this case, it was a VA audiologist who determined that normal hearing at separation, as shown on audiometric testing, and a delayed onset of hearing loss supported the conclusion that it was less likely than not that the Veteran’s current hearing loss was related to in-service noise exposure. Hensley does not prevent a medical professional from basing a medical opinion on normal hearing at separation, even if it prohibits the Board from basing its own decision, independent of medical evidence, on normal hearing at separation. The Board’s reliance on a medical opinion that is based on normal hearing at separation does not equate to the Board determining of its own accord that normal hearing at separation is sufficient to conclude that the criteria for service connection are not satisfied. The latter scenario is the only issue that was addressed in Hensley. Moreover, and in the alternative, the November 2016 VA opinion was not based solely on normal audiometric testing at separation. It was also based on the lack of a significant puretone threshold shift between enlistment and separation, as well as the fact that noise exposure would have affected the frequencies from 3000 Hertz to 6000 Hertz; the separation audiogram showed normal hearing at those frequencies. Accordingly, the November 2016 VA medical opinion, and the Board’s reliance on it, does not conflict with the Court’s holding in Hensley that section 3.385 of the regulations does not preclude service connection for hearing loss when hearing is within normal limits at separation. In a June 2005 statement, the Veteran wrote that each doctor he had seen told him that his hearing problems were due to loud noises such as weapons firing and aircraft. There is no such statement by a medical professional of record. The Veteran’s statement as to what medical professionals purportedly told him cannot be relied on as competent medical evidence, as he may have misremembered, misunderstood, or misrepresented what he was told. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (finding that a lay person’s account of what a physician purportedly said, filtered through lay person’s sensibilities, is too attenuated and inherently unreliable to constitute medical evidence). The November 2016 VA medical opinion carries more weight than this statement, as the VA opinion is direct medical evidence the Board can review, and is supported by an adequate explanation. In sum, based on the November 2016 and April 2013 VA medical opinions, the Board finds that the preponderance of the evidence weighs against a link between the Veteran’s current right ear hearing loss and tinnitus and his period of service, including in-service noise exposure. The Veteran has not submitted any competent evidence supporting relationship between his in-service noise exposure and his right ear hearing loss or tinnitus. The Board is not aware of any procurable data or evidence at this juncture that might help substantiate the claim. The Veteran ultimately has the responsibility to present and support the claim. 38 U.S.C. § 5107(a). In order for a reasonable doubt to arise and be resolved in favor of the claimant, there must be an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim; the doubt must be within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. The record contains no competent or probative evidence supporting a link between the Veteran’s hearing loss or tinnitus and his in-service noise exposure. However, it does contain probative evidence weighing against such a link. Accordingly, the Board finds that the criteria for service connection on a direct basis for the Veteran’s hearing loss or tinnitus are not satisfied. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). As discussed above, the credible and probative evidence of record shows that the Veteran’s hearing loss and tinnitus were not noted in service or within a year of service separation. Consequently, the criteria for service connection for hearing loss or tinnitus as chronic diseases on a presumptive basis, or based on chronicity or continuity of symptomology, are not satisfied. See 38 C.F.R. §§ 3.303(b); 3.307. As the preponderance of the evidence is against the Veteran’s claims for right ear hearing loss and tinnitus, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.