Citation Nr: A23036498 Decision Date: 12/19/23 Archive Date: 12/19/23 DOCKET NO. 230418-341187 DATE: December 19, 2023 ORDER Entitlement to service connection for hepatitis C is granted. Entitlement to service connection for liver cancer is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss (BHL) is denied. FINDINGS OF FACT 1. The evidence is at least in approximate balance as to whether the Veteran's hepatitis C is related to his period of active-duty service in Vietnam. 2. The evidence persuasively shows that the Veteran's liver cancer was caused by his service-connected hepatitis C. 3. The competing evidence is in approximate balance regarding whether the Veteran's tinnitus first manifested in service and has been continuous since. 4. The weight of the probative evidence is persuasively against finding that the Veteran's BHL manifested in service or within one year of service or is otherwise related to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for hepatitis C have been met.??38?U.S.C. §§ 1110, 5107;?38?C.F.R. §§?3.102, 3.303. 2. The criteria for entitlement to service connection for liver cancer as secondary to the now service-connected Hepatitis C have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 4. The criteria for entitlement to service connection for BHL have not been 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 September 1967 to April 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2023 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). This appeal is being processed under the modernized review system as established by the Veterans Appeals Improvement and Modernization Act of 2017. 115 Pub. L. No. 55, 131 Stat. 1105. By way of background, the Veteran filed service connection claims for hepatitis C, liver cancer, BHL and tinnitus in August 2021. A March 2023 rating decision denied all four claims. The Veteran submitted an April 2023 VA Form 10182, Decision Review Request: Board Appeal, identifying the March 2023 rating decision. In the April 2023 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket, and a hearing was held by a Veterans Law Judge (VLJ) in August 2023. A transcript of the hearing testimony has been associated with the claims file. Therefore, the Board may only consider the evidence of record at the time of the March 2023 rating decision, as well as any evidence submitted by the Veteran or his representative at the August 2023 hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Board cannot consider (1) evidence submitted during the period after the AOJ issued the decisions on appeal and before the hearing, or (2) evidence submitted more than 90 days after the hearing. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection for a claimed disability on a direct basis, there must be competent evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established by evidencing a chronic disease in service, including tinnitus and sensorineural hearing loss, requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b), 3.309. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required. Id. The provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For VA purposes, impaired hearing is considered disabling 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. Service connection can be granted on a secondary basis if a Veteran has (1) a current disability, (2) a separate disability already subject to service connection, and (3) the first disability is proximately due to or the result of or aggravated beyond its natural progress by the service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A "baseline level of severity" of the non-service-connected condition must be established by medical evidence in order to award secondary service connection based on aggravation. 38 C.F.R. § 3.310(b). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency, "a legal concept determining whether testimony may be heard and considered;" and credibility, "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Board is also charged with the duty to assess the probative weight given to all evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter (which includes but is not limited to equipoise), VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776, 778 (Fed. Cir. 2021). Service connection for hepatitis C. Service connection for liver cancer. The Veteran contends his hepatitis C was caused by his service in Vietnam. Specifically, he claims that he was exposed to blood by other veterans on the battlefield as well as vaccinations with air guns. He added that his liver cancer was caused by exposure to Agent Orange and raw or undercooked fish that he had eaten with liver flukes in it. See August 2023 Hearing Transcript. Alternatively, he argues that his liver cancer is caused by his hepatitis C. In the March 2023 rating decision, the RO made favorable findings that the Veteran has confirmed diagnoses of hepatitis C and liver cancer, and that his liver cancer is secondary to his hepatitis C (hepatitis C was the primary nonservice-connected disability at the time) and that he has sufficient service to meet the minimum requirements for presumptive service connection. The RO also conceded his participation in a toxic exposure risk activity in Vietnam. The Board is bound by these favorable findings. See 38 C.F.R. § 20.801(a). Affording the Veteran, the benefit of the doubt, the Board finds that the evidence is at least in approximate balance as to whether the Veteran's hepatitis C is related to his period of active-duty service in Vietnam. The Board notes that service treatment records show no report or finding of hepatitis C or liver cancer. In August 2022, the Veteran submitted a private medical opinion from Dr. D.B. Dr. D.B. explained that the Veteran is under his care for hepatocellular carcinoma, and he has several risk factors, likely which came from his time of service in Vietnam. He explained that the risk factors include contraction of hepatitis C with chronic infection and exposure to dioxin (Agent Orange). He noted that dioxin exposure has a documented relationship to elevated cancer risk. He explained that the specific relationship between agent orange and elevated hepatocellular carcinoma risk is identifiable on an analysis of exposed populations (at least). He added that the Veteran's risks of hepatitis C were born of the occupational exposures and living conditions created at the time of the service. The Veteran underwent a VA examination in September 2022. The examiner noted review of the file and any conflicting evidence. The examiner also noted the Veteran's diagnosis of hepatitis C and liver cancer. The examiner provided a positive nexus opinion and concluded that it is more likely than not that his hepatitis C and hepatocellular carcinoma were due to service. She explained that the Veteran was never given a blood transfusion but was exposed to blood from other veterans on the battlefield as well as biomedical individuals giving vaccinations with air guns. She noted that the military stopped using these air guns due to blood exposure from veteran to veteran. She added that he was likely exposed to hepatitis C while in Vietnam. The RO requested an addendum VA medical opinion, which was provided by a different examiner in October 2022. The examiner determined that there is no nexus between the Veteran's claimed in-service injury, event, or illness and his current diagnosis of hepatitis C and hepatocellular carcinoma. He noted that the Veteran's diagnoses of hepatitis C and hepatocellular carcinoma were not found in service and no immediate objective post service medical record indicated treatment for chronic or ongoing liver condition. He concluded that the Veteran's hepatitis C and hepatocellular carcinoma are caused by high-risk post service behavior. However, the examiner did not explain what high risk post service behavior the Veteran engaged in. The RO requested another addendum VA medical opinion, which was provided by a different examiner in February 2023. The examiner noted review of the file and concluded that the Veteran has hepatocellular carcinoma that is a result of his chronic hepatitis C. The Veteran was afforded another VA examination in March 2023. The examiner concluded that the claimed conditions were less likely than not caused by the indicated toxic exposure risk activities after considering the potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. She explained that the medical records failed to provide any association and review of the preponderant medical literature fails to support any association. She added that the two conditions are not medically related. She explained that the medical literature does not support a medical relationship, and there is no pathophysiological process. During his August 2023 Board hearing, the Veteran explained that he has never used needles or drugs and that he received his first tattoo one year ago (after being diagnosed with hepatitis C). He added that he has never had any major surgeries or blood transfusions. He endorsed being exposed to the blood of other veterans on the battlefield, air gun injections, and eating raw or undercooked food while in Vietnam containing liver flukes. The Veteran's contention that he was exposed to blood from other veterans on the battlefield as well as vaccinations with air guns during his honorable period of service is credible and consistent with his circumstances of service. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). Therefore, the Veteran meets the in-service disease or injury requirement. As indicated by the Court in Andrews v. McDonough, VA recognizes various risk factors for hepatitis C, such as blood transfusions, tattoos or body piercings, puncture with non-sterile needles, high-risk sexual activity, and air gun injections. 34?Vet. App.?216, 225 (2021) (citing VA Adjudication Manual M21-1 III.iv.4.H.2.e). The Board finds that the evidence is at least in approximate balance, as there are conflicting medical opinions as to whether the Veteran's hepatitis C is related to his period of active-duty service in Vietnam. Ultimately, the Board affords the most probative weight to the September 2022 VA opinion finding that it is more likely than not that his hepatitis C and hepatocellular carcinoma were due to service. While the examiner did not provide a thorough rationale to accompany her opinion, the examiner need not explicitly lay out their journey from the facts to a conclusion in order for an opinion to be considered probative. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate). The September 2022 VA opinion is also supported by the August 2022 private opinion from Dr. D.B., the Veteran's treating provider, who also concluded that the Veteran's hepatitis C likely came from the occupational exposures and living conditions created in Vietnam. Reading the September 2022 VA examiner's opinion as a whole and in context of the evidence of record, the conclusion that it is more likely than not that his hepatitis C and hepatocellular carcinoma (caused by hepatitis C) were due to service is entitled to substantial probative weight. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Although the October 2022 VA examiner reached a different conclusion, the September 2022 examiner considered the Veteran's lay statements and facts of the Veteran's specific case. Moreover, the October 2022 VA examiner did not attempt to address the Veteran's lay statements regarding his exposure activities during service. In addition, the October 2022 examiner attributed the Veteran's hepatitis C to post-service exposure activities but did not explain what these activities were. Notably, the Veteran has denied any post-service risk factors for hepatitis C. Accordingly, the Board has weighed the evidence of record and finds that the evidence is at least in approximate balance as to whether the Veteran's hepatitis C is related to his period of active-duty service in Vietnam. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve reasonable doubt in the Veteran's favor and find that the evidence supports the grant of service connection for hepatitis C. See 38 U.S.C. § 5107. Finally, the Board notes that there is probative medical evidence in the file indicating that the Veteran's hepatitis C caused his liver cancer. Therefore, service connection for liver cancer as secondary to the Veteran's now service-connected hepatitis C, on a causation basis, is granted. 38 C.F.R. § 3.310(a). Service connection for tinnitus. The Veteran contends that his tinnitus is related to noise exposure from active-duty service. Specifically, he contends that he was exposed to loud noise in service associated with mortar attacks and loud artillery. He added that he once noticed blood coming out of his ears while running from a bunker. He stated the ringing in his ears started around the time of discharge. See August 2023 Hearing Transcript. Resolving reasonable doubt in favor of the Veteran, the Board concludes that the Veteran has a current diagnosis of tinnitus that began during active-duty service and continued thereafter. The March 2023 rating decision on appeal included favorable findings that the Veteran was found to have a diagnosis for tinnitus and the Veteran's military occupational specialty (MOS) duties of radio-relay operator exposed him to moderately hazardous noise. The Board is bound by these favorable findings. See 38 C.F.R. § 3.104(c). Thus, the Veteran meets the current disability and in-service disease or injury requirements. Turning to the third element, nexus, the Veteran was afforded a VA audiological examination in November 2021. The examiner concluded that the Veteran's tinnitus is less likely related to service. She explained that there is no report of complaints or treatment for tinnitus in the service treatment records or at separation. She noted that the first complaint of tinnitus is (this claim) 52 years post separation. She noted that the Veteran worked as a carpenter (1974-1988), then as a project construction manager and spent some time on the work sites (zoos, aquariums, parks). She noted he has ridden a Harley-Davidson motorcycle for one year. The examiner explained that although noise exposure is conceded and the relationship of noise exposure, auditory damage and tinnitus is well-established, auditory damage and tinnitus are not conceded based on noise alone. She explained that tinnitus related to noise exposure occurs at time of exposure, not latent onset. In addition, she stated that kidney cancer may cause tinnitus. The RO requested an addendum VA medical opinion to determine whether the Veteran's tinnitus was caused by his toxic exposure risk activity. An addendum opinion was provided in March 2023. The examiner concluded that tinnitus is not presumed by regulation to result from agent orange exposure. Furthermore, the examiner found that there is no competent medical opinion that relates tinnitus to Agent Orange exposure. During his August 2023 Board hearing, the Veteran explained that the ringing in his ears started around the time of discharge or shortly before. He testified that he got mortar attacked quite a bit, and the mortars going off and artillery going out caused the ringing. He added that the ringing comes and goes at different times. The Board finds that the evidence is at least in approximate balance as to whether the Veteran's tinnitus had its onset during service. The November 2021 examiner explained that the Veteran's service treatment records are silent for complaints of tinnitus and the Veteran denied ear trouble at separation. However, the November 2021 examiner did not consider the Veteran's lay statements during the examination that the ringing sound started during service or right after, between 1969 and 1970. The Veteran has noted that the ringing in his ears began during service (around discharge), and that those symptoms have continued to the present. Therefore, the Board finds the Veteran credible as to the statements of onset of tinnitus in service and continuity since service. Thus, after affording the Veteran the benefit of the doubt, the Board finds that the competent and credible evidence is in approximate balance as to whether the Veteran's tinnitus began during service and continued thereafter. As such, service connection for tinnitus is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for BHL. The Veteran contends that he has BHL as a result of noise exposure during service. The competent medical evidence of record shows that the Veteran's hearing loss in both ears meets the criteria for BHL for VA purposes. See September 2023 private audiological examination; see also 38 C.F.R. § 3.385. As noted above, in the March 2023 rating decision, the RO made a favorable finding that the evidence shows that a qualifying event, injury, or disease had its onset during his service. His MOS of radio-relay operator exposed him to moderately-hazard noise. The Board is bound by this favorable finding. See 38 C.F.R. § 20.801(a). Thus, the Veteran meets the current disability and in-service disease or injury requirements. However, the Board finds that service connection must be denied for the reasons below. Given the above, the only remaining issue is whether there is a nexus or link between his in-service injury and his BHL. The Board notes that the Veteran's service personnel records reflect that he was a radio-relay operator who served in Vietnam from April 1968 to April 1969 and was awarded the Vietnam Campaign Medal and Vietnam Service Medal. See DD 214. Therefore, he is entitled to the combat presumption found in 38 C.F.R. § 3.304(d). In the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. In this regard, the Board accepts that the circumstances of the Veteran's combat service involved hazardous noise levels. Nonetheless, the Board finds that the evidence of record does not show that his service duties caused BHL or is otherwise etiologically related to this part of his service. The Veteran's April 1969 separation examination is silent for any hearing loss concerns and shows normal findings with respect to his hearing. The Veteran was afforded a VA audiological examination in November 2021. Upon examination, the Veteran did not have a diagnosis of hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385 (the examiner only noted hearing loss in the frequency range of 500-4000 Hz and in frequency range of 6000 Hz or higher frequencies). Nonetheless, the examiner provided a negative etiological opinion. The examiner concluded that it is less likely than not that the Veteran's hearing loss is related to military noise exposure. She noted that the enlistment hearing test showed normal pure tone thresholds. She explained that there is no report of complaint/treatment for hearing decrease in the service treatment records or at separation. The examiner noted that the first complaint of hearing loss is (this claim) 52 years post separation, and the hearing test shows normal hearing at 250-4,000 HZ, except for a mild drop at 3 kHZ and mild-moderate hearing loss at 6-8 kHZ. She explained that the Veteran worked as a carpenter (1974-1988), then as a project construction manager and spent some time on the work sites (zoos, aquariums, parks). She noted he has ridden a Harley-Davidson motorcycle for one year. The examiner noted that the Institute of Medicine report (Noise and Military Service, September 2005) concluded that, based on current knowledge, noise induced hearing loss occurs immediately (i.e. there is no evidence to support delayed onset of noise induced hearing loss years after the exposure). In addition, she explained that kidney cancer may cause hearing loss and veteran's hearing loss may be due to presbycusis (age). The examiner found that although noise exposure is conceded and the relationship of noise exposure, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. The Veteran was afforded an addendum opinion from another VA audiological examiner in March 2023. The examiner determined that the claimed condition was less likely than not caused by the indicated toxic exposure risk activities after considering the potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. The examiner explained that there is no pathology to warrant a diagnosis or condition that can be related to the claimed toxic exposure. During his August 2023 Board hearing, the Veteran explained that he has trouble hearing if two or more people are talking (he cannot follow any conversations). He added that he does not wear hearing aids. Following the hearing, the Veteran submitted the results of a September 2023 private hearing examination from Arizona Hearing Specialists in October 2023. While the examination displays BHL for VA purposes, the examiner did not provide an opinion on whether the Veteran's BHL is related to his service. The Board finds the November 2021 opinion to be the only probative opinion in ultimately concluding that there was insufficient evidence to constitute a positive nexus between the Veteran's current BHL and inservice noise trauma. The Board notes the IOM citation in the November 2021 opinion and acknowledges that in June 2019, the Court issued a decision in McCray v. Wilkie, 31 Vet. App. 243 (2019). In McCray, the Court discussed the above noted IOM report. The Court noted that the IOM report concluded, in part, that "based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss." However, the IOM report also indicated that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." The Court then held that if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the Veteran raises the issue or it is reasonably raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. McCray, 31 Vet. App. at 257. Although not raised by the Veteran, the Board acknowledges that the November 2021 VA examiner relied, in some part, on the 2005 IOM report as a basis for providing a negative opinion and the 2005 IOM report has apparently qualifying or contradictory statements, as noted by the Court in McCray. The Board finds that does not render the entire November 2021 VA opinion inadequate or diminish its probative value as to the point of whether the Veteran's hearing loss is due to in-service noise exposure. The IOM report acknowledged that there was insufficient evidence to address the question of delayed onset noise-induced hearing loss. Nevertheless, the IOM report's own finding that, based on the anatomical and physiological data available on the recovery process of noise exposure, it is unlikely that delayed hearing loss effects occur is probative. This statement tends to show that the limitation was considered, but the IOM was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term (unlikely). Indeed, the committee noted its understanding of the mechanisms and processes involved in the recovery from noise exposure as it suggested a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. The Board finds that the use of the word extremely also lends much support to finding that the report retains its probative value and is not inadequate. The Board further notes that no opposing studies or other contradictory medical evidence have been submitted in this appeal. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to present and support a claim for benefits and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). Moreover, the McCray court referenced a medical text's qualifying or contradictory aspects as one factor on a non-exhaustive list that is relevant to the Board's evaluation of the probative value and adequacy of a medical opinion. McCray, 31 Vet. App. 243. Here, the November 2021 VA examiner only partially relied on the findings of the IOM report and discussed other factors that led to her ultimate conclusion. Thus, the VA examiner did not rely entirely on the IOM report in forming the conclusion but, instead, considered all relevant facts in this case. Her opinion and rationale are the most probative evidence of record on the etiology of the Veteran's bilateral hearing loss. Reading the examiner's opinion as a whole, the examiner relied on accurate facts, expressly considered the Veteran's in-service noise exposure, described the Veteran's disability in sufficient detail, related medical literature to the Veteran's specific facts, and provided a reasoned medical explanation that connected her conclusion to supporting data. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board acknowledges the Veteran's assertions that noise exposure during active-duty service caused his hearing loss. The Board notes that the Veteran is competent to attest to lay observable symptoms such as decreased hearing and ringing in his ears. However, he is not competent to opine regarding complex medical issues such as to the etiology of hearing loss. A nexus opinion has been provided by a medical examiner with the appropriate education, experience, and training. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds that the November 2021 VA examiner's opinion provided sufficient rationale and is probative in determining the etiology of the Veteran's hearing loss. As that opinion is against the claim, and there are no other competent opinions (on the etiology of the Veteran's BHL) of record, the Board finds that the claim for service connection on a direct basis must be denied. Service connection may also be established on a presumptive basis for certain chronic diseases, to include sensorineural hearing loss, which develops to a compensable degree within one year after separation from service, even though there is no evidence of that disease during active service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Board finds that the Veteran's hearing loss has not shown to have manifested to a compensable degree in service or within a year after service. A review of the record shows no evidence of complaints, diagnosis, or any hearing loss during service or within one year following separation from service. Although his April 1969 separation examination report used the Whispered Voice test and is not reliable for rating purposes, he did not report any ear trouble on his report of medical history on separation from active-duty service. In addition, the first reference to hearing loss complaints of record is when the Veteran filed his claim for service connection in 2021, many decades after his separation from active-duty service. Thus, there is no evidence suggesting that chronic hearing loss was shown as such in service or within one year following separation from service. Moreover, the Veteran has not alleged that he experienced hearing problems in service or shortly thereafter. Therefore, the totality of the evidence does not show that the Veteran's hearing loss began in service or within one year after service; nor does the evidence show continuity of symptomatology following service. Service connection for hearing loss is therefore not warranted on a presumptive basis. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Consequently, the Board finds that the evidence is against the claim for service connection for BHL on both a direct and presumptive basis. The evidence of record is persuasively against a finding that hearing loss is related to service or any noise exposure during service, or that hearing loss manifested to a compensable degree in service or within one year following service, and there is no continuity of symptomatology following service. (CONTINUED ON NEXT PAGE) Accordingly, there is no benefit of the doubt to resolve in the Veteran's favor and the claims for service connection for BHL must be denied. 38 U.S.C. § 5107(b). Jenna Brant Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Miller, D M., 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.