Citation Nr: 0810032 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-07 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an increased rating for recurrent right ankle instability, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for degenerative joint disease of the left knee, currently evaluated as 10 percent disabling. 3. Entitlement to a compensable rating for residuals of a soft tissue injury of the right midfoot. 4. Entitlement to an increased rating for left knee instability, currently evaluated as 10 percent disabling. 5. Entitlement to service connection for a back disability, claimed as secondary to service-connected disability. 6. Entitlement to service connection for hearing loss disability. REPRESENTATION Appellant represented by: Richard J. Mahlin, Attorney ATTORNEY FOR THE BOARD Hallie E. Brokowsky INTRODUCTION The veteran had active service from January 1989 to January 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from January 2005 and March 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. By a rating decision in October 2006, the RO denied entitlement to service connection for a left ankle disability. In November 2006, the veteran's representative issued a notice of disagreement with the October 2006 rating decision including with regard to the denial of entitlement to service connection for a left "knee" disability. Service connection had previously been established for left knee disabilities. In a letter dated in January 2007, the RO advised the veteran and his representative that no action would be taken on the notice of disagreement as it referred to disabilities already on appeal, and did not mention a left "ankle" disability. No statement has been received to date expressing disagreement with the October 2006 RO denial of entitlement to service connection for a left ankle disability. As such, the issue is not for appellate consideration. This case was previously before the Board in November 2006, wherein the Board remanded the increased rating issues, as well as the issue of entitlement to service connection for a back disability, for additional development. This case was more recently before the Board in June 2007, wherein the veteran's claims for increased disability ratings, as well his claims of entitlement to service connection for a back disability and hearing loss were remanded for additional due process considerations. The case has been returned to the Board for appellate consideration. FINDINGS OF FACT 1. The veteran's service-connected recurrent ankle instability is not productive of marked limitation of motion; there is also no evidence of ankylosis of the ankle, ankylosis of the subastragalar or tarsal joint, or malunion of the os calcis or astragalus. 2. The veteran has pain of his left knee, but he does not have significant limitation of motion in his knee. 3. The service-connected residuals of a soft tissue injury of the right midfoot are not productive of moderate symptoms; the veteran did not have any related complaints upon his last examination. 4. The service-connected left knee instability is manifested by subjective complaints of pain, mild weakness, and slight instability, without recurrent subluxation, dislocated semilunar cartilage, impairment of the tibia and fibula, or ankylosis. 5. There is no competent medical nexus evidence of record indicating the veteran's back disability is causally or etiologically related to his service in the military, or his service-connected disabilities. 6. There is no competent medical evidence of record demonstrating that the veteran has bilateral ear hearing loss disability according to VA standards; his hearing loss was initially demonstrated years after service, and has not been shown by competent clinical evidence to be etiologically related to his military service. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for recurrent ankle instability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.59, 4.71a, Diagnostic Code 5271 (2007). 2. The criteria are not met for a rating higher than 10 percent for degenerative joint disease of the left knee. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260-5261 (2007). 3. The criteria are not met for a compensable rating for residuals of a soft tissue injury to the right midfoot. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.59, 4.71a, Diagnostic Code 5284 (2007). 4. The criteria for a disability rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, 5257 (2007). 5. The veteran's back disability was not incurred in, or aggravated by, active service, nor proximately due to, or aggravated by, service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304, 3.307, 3.309, 3.310 (2007). 6. The veteran's bilateral hearing loss was not incurred in, or aggravated by, active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VA satisfied its duty to notify by means of October 2004, October 2005, December 2006, and July 2007 letters from the agency of original jurisdiction (AOJ) to the appellant. These letters informed the appellant of what evidence was required to substantiate his claims for increased disability ratings and for service connection. This letter also informed him of his and VA's respective duties for obtaining evidence, as well as requested that the veteran submit any additional evidence in his possession pertaining to his claims. In addition, a March 2006 letter, as well as the December 2006 and July 2007 letters, explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of service connection, in compliance with Dingess/Hartman. Nevertheless, because the instant decision denies the veteran's claims, no disability ratings or effective dates will be assigned. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decisions that are the basis of this appeal was decided after the issuance of initial, appropriate VCAA notices. As such, there was no defect with respect to timing of the VCAA notice. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Duty to Assist With regard to the duty to assist, the claims file contains the veteran's service medical records, and reports of VA and private post-service treatment and examination. Additionally, the claims file contains the veteran's own statements in support of his claims. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record for the time period at issue, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claims. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Increased Disability Evaluations Legal Criteria Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schrafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where, as here, the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2007). See also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Analysis Recurrent Ankle Instability Presently, the veteran's right ankle disability is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under Diagnostic Code 5271, a 10 percent disability evaluation is assigned where there is moderate limitation of motion of the ankle. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. A 20 percent disability evaluation is warranted where there is marked limitation of the ankle. Id. Upon reviewing the rating criteria in relation to the evidence for consideration, the Board finds that the veteran's disability picture is most consistent with the currently assigned 10 percent disability evaluation, and that an increased disability evaluation is not warranted. The objective clinical evidence of record does not show that the veteran has marked limitation of motion of his right ankle. Significantly, the veteran's most recent VA examination showed that the veteran had range of motion of his right ankle from zero (0) to 15 degrees in dorsiflexion and from zero (0) to 40 degrees in plantar flexion. See 38 C.F.R. § 4.71, Plate II (full range of motion for the ankles is zero (0) to 20 degrees dorsiflexion and zero (0) to 45 degrees plantar flexion). Therefore, the Board finds that the veteran's right ankle symptomatology most closely fits within the criteria for the currently assigned 10 percent disability evaluation. The Board also considered whether the veteran may be entitled to a higher rating under other potentially applicable Diagnostic Codes. With regard to the criteria under Diagnostic Code 5270, there is no evidence of ankylosis of the veteran's right ankle. Likewise, under Diagnostic Code 5272, is no evidence of ankylosis of the veteran's subastragalar or tarsal joint. Further, the findings do not warrant an evaluation under Diagnostic Codes 5273 and 5274, as there is no evidence of malunion of the os calcis or astragalus, nor is there evidence of an astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes 5273 and 5274. As such, the Board does not find that the medical evidence supports a schedular rating in excess of 10 percent for the right ankle. In concluding that the veteran is not entitled to a disability evaluation in excess of 10 percent for his right ankle disorder, the Board has also considered whether the veteran is entitled to a higher disability evaluation on the basis of functional loss due to pain pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). While the veteran reports pain upon standing and walking, the veteran does not experience a significant loss of range of motion. Further, the current 10 percent disability evaluation contemplates the veteran's complaints of pain, as well as any limitation of motion due to pain. There is no objective indication that the veteran's symptoms result in any additional functional limitation to a degree that would support a rating in excess of the current disability rating for the veteran's right ankle. Finally, the Board has considered whether the veteran is entitled to an increased disability evaluation for his right ankle disorder on an extra-schedular basis. However, the Board concludes that the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b). In this regard, the Board finds that there has been no showing by the veteran that his right ankle disability, standing alone, resulted in a marked interference with employment or necessitated frequent periods of hospitalization, so as to render impractical the application of the regular rating schedule standards. Accordingly, the Board finds that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) have not been met. In conclusion, the Board finds that the preponderance of the evidence is against the finding of entitlement to an increased disability evaluation for the right ankle disability, on either a schedular or extra-schedular basis. See 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Degenerative Joint Disease of the Left Knee The veteran is currently assigned a 10 percent disability evaluation for his degenerative joint disease of the left knee. Diagnostic Code 5010 provides that arthritis due to trauma, substantiated by X-ray findings, and is rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007). Degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is warranted for each major joint affected by limitation of motion. Id. A 20 percent rating is warranted when there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. The Board notes that for the purpose of rating disability from arthritis, the knee is considered to be a major joint. 38 C.F.R. § 4.45. According to Diagnostic Code 5260, a noncompensable rating is assigned when flexion is limited to 60 degrees and a 10 percent rating is assigned when flexion is limited to 45 degrees. A 20 percent rating requires flexion limited to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable evaluation is warranted when extension is limited to 5 degrees and a 10 percent evaluation is warranted when extension is limited to 10 degrees. A 20 percent evaluation is warranted when extension is limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. The objective clinical evidence of record does not show the veteran has flexion limited to 30 degrees or extension limited to 15 degrees. His range of motion far exceeds these respective limits. Indeed, the medical evidence of record clearly indicates that he has most recently had extension to 0 degrees, and that his flexion, at worst, and fully acknowledging his pain, is still to at least 130 degrees. VA considers "full" range of motion for the knee to be from 0 to 140 degrees (full extension to full flexion). See 38 C.F.R. § 4.71, Plate II. Thus, the veteran has, at most, slight limitation of motion in his left knee, insufficient to warrant even the lowest possible noncompensable disability evaluations under Diagnostic Codes 5260 and 5261. Therefore, his symptomatology most closely fits within the criteria for the currently assigned 10 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260-5261. The Board has also considered whether the veteran is entitled to a higher rating on an extra-schedular basis. However, the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." See 38 C.F.R. § 3.321(b)(1). There has been no showing by him that the degenerative joint disease in his left knee has caused marked interference with his employment (meaning above and beyond that contemplated by his current 10-percent rating) or necessitated frequent periods of hospitalization so as to render impractical the application of the regular rating schedule standards. Accordingly, the Board does not have to refer this case to the Director of Compensation and Pension Service for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Residuals of a Soft Tissue Injury of the Right Midfoot The veteran is currently assigned a noncompensable disability rating by analogy to 38 C.F.R. § 4.71a, Diagnostic Code 5284. See 38 C.F.R. § 4.20 (2007) (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous). Under Diagnostic Code 5284, a 10 percent rating is warranted for a moderate foot injury. A 20 percent rating is assigned under this Code for a moderately severe foot injury. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. In considering these rating criteria in relation to the objective medical evidence, the Board finds that the veteran's disability picture is most consistent with the currently assigned noncompensable rating. The objective clinical evidence of record does not show he has moderate residuals of a soft tissue injury of the right midfoot. In fact, the September 2006 VA examination makes no mention of any complaints related to these residuals, and his treatment records are likewise negative. Therefore, the Board finds that the veteran's right midfoot symptomatology most closely fits within the criteria for the currently assigned noncompensable disability evaluation. In reaching this decision, the Board also considered other applicable Diagnostic Codes, including Diagnostic Codes 5272, 5278, and 5283. There is no evidence that the veteran's residuals of a soft tissue injury of the right midfoot resulted in ankylosis of the subastragalar or tarsal joint in poor weight bearing position,. See 38 C.F.R. § 4.71a, Diagnostic Code 5272. In addition, there is no evidence that the veteran has unilateral acquired claw foot with toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to a right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads. See 38 C.F.R. § 4.71a, Diagnostic Code 5278. With regard to the criteria under Diagnostic Code 5283, there is no evidence that the veteran's residuals of a soft tissue injury of the right midfoot resulted in a deformity of the tarsal or metatarsal bones. As such, the Board does not believe that a compensable evaluation under Diagnostic Codes 5272, 5278, or 5283 is warranted. The Board also has considered whether the veteran is entitled to a higher rating on the basis of functional loss due to pain pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). See, too, 38 C.F.R. §§ 4.40, 4.45, and 4.59. However, there is no objective clinical indication he has any symptoms, let alone symptoms causing functional limitation (motion, etc.) to a degree that would support a higher, compensable rating. Similarly, the Board has considered whether the veteran is entitled to a higher rating on an extra-schedular basis. However, there are no grounds for referring this case to the Director of VA's Compensation and Pension Service for extra-schedular consideration. See, e.g., Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Left Knee Instability The veteran's left knee instability is rated as 10 percent disabling pursuant 38 C.F.R. § 4.71a, Diagnostic Code 5257. A 10 percent disability evaluation is warranted for slight recurrent subluxation or lateral instability of the knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. A 20 percent disability evaluation is warranted for moderate recurrent subluxation or lateral instability of the knee. Id. For the next higher 30 percent disability evaluation, there must be severe knee impairment, with recurrent subluxation or lateral instability. Id. Considering the rating criteria in relation to the relevant evidence of record, the Board finds that the veteran's current 10 percent rating for his left knee instability is most appropriate. 38 C.F.R. § 4.7. The objective clinical evidence of record does not show he has moderate recurrent instability and there is no clinical evidence of subluxation, according to the September 2006 VA examination report. In this regard, the Board points out that the veteran's VA examination was negative for objective evidence of subluxation, abnormal movement, swelling, or deformity. Although he had complaints of persistent pain and antalgic gait, there was no objective clinical indication that he had crepitation or grinding, and the veteran did not require any assistive devices. Therefore, the veteran's symptomatology most closely fits within the criteria for the currently assigned 10 percent disability evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. In concluding the veteran is not entitled to a higher rating for his left knee instability, the Board has considered as well whether he has additional functional loss - over and beyond that objectively shown - due to his pain, or because of weakness, premature or excess fatigability, incoordination, etc. See DeLuca v. Brown, 8 Vet. App. 202 (1995), citing 38 C.F.R. §§ 4.40, 4.45, and 4.59. Nevertheless, there has been no objective clinical indication, including at his VA compensation examination, that his left knee pain causes additional functional impairment over and beyond that objectively shown, even when his symptoms are most problematic, during "flare-ups." As a result, his current 10 percent rating adequately compensates him for the extent of his pain. The Board has also considered whether the veteran may be entitled to a higher rating under other applicable Diagnostic Codes, including Diagnostic Codes 5256, 5258, and 5262. However, there is no evidence that he has ankylosis in his left knee, abnormal knee joint motion, or dislocated cartilage. As such, the Board does not find that a compensable disability evaluation is warranted under Diagnostic Codes 5256, 5258, or 5262. The Board has also considered whether the veteran is entitled to a higher rating on an extra-schedular basis. However, the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." See 38 C.F.R. § 3.321(b)(1). There has been no showing by him that his left knee instability has caused marked interference with his employment (meaning above and beyond that contemplated by his current 10-percent rating) or necessitated frequent periods of hospitalization so as to render impractical the application of the regular rating schedule standards. Accordingly, the Board does not have to refer this case to the Director of Compensation and Pension Service for extra- schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Entitlement to Service Connection Legal Criteria Service Connection - In General A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). Secondary Service Connection Service connection may be granted, as well, for a disability that is proximately due to or the result of a service- connected condition. When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. 38 C.F.R. § 3.310(a). But medical evidence is required to show this secondary cause-and-effect relationship; mere lay opinion will not suffice. See Lanthan v. Brown, 7 Vet. App. 359, 365 (1995). In addition, secondary service connection is permitted for aggravation of a nonservice-connected disability caused by a service-connected condition. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (". . . when aggravation of a veteran's non-service- connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability . . . over and above the degree of disability existing prior to the aggravation."). Analysis Back Disability, Including as Secondary to Service-Connected Disability Based on the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for a back disability, including as secondary to his service-connected disabilities, so it must be denied. 38 C.F.R. § 3.102. The service medical records do not show that the veteran complained of or was treated for a back disability during his military service. The Board also notes that the veteran did not make any complaints related to his left knee at a June 1991 VA examination or a May 1994 service examination. This is probatively significant and given a lot of weight and credibility because this was at a time contemporaneous to the alleged incidents in question. See, e.g., Struck v. Brown, 9 Vet. App. 145, 155-56 (1996). It stands to reason that, if he indeed had any problems during his service, then he would have at least mentioned this during his evaluations. See 38 C.F.R. § 3.303(a) (service connection requires that the facts "affirmatively [show] inception or aggravation . . . ."). In addition, there is no objective evidence of continuance of symptomatology during the years following the veteran's discharge from service. See Savage, supra (requiring medical evidence of chronicity and continuity of symptomatology). In particular, the veteran's back disability was not manifested or diagnosed within the one-year presumptive period following his discharge from service in 1991. Instead, it appears that the veteran was not diagnosed with a back disability until he sought treatment VA in 2004, over 12 years after his active duty service in the military had concluded. In the absence of demonstration of continuity of symptomatology, the initial demonstration of the disability at issue, years after service, is too remote from service to be reasonably related to service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). More significantly, there is no competent clinical evidence that relates his current back disability to his service. None of the veteran's treating providers have indicated that the veteran's back disability is related his military service, including as secondary to any of his service- connected disabilities. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) ("In order for service connection for a particular disability to be granted, a claimant must establish he or she has that disability and that there is 'a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service.'" Citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Therefore, the only evidence portending that the veteran's back disability is in any way related to his service- connected disabilities, comes from him personally. As a layman, the veteran simply does not have the necessary medical training and/or expertise to determine the cause of this. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). See, too, Savage v. Gober 10 Vet. App. at 495-498, indicating that, even in situations of continuity of symptomatology after service, there still must be medical evidence relating the current conditions at issue to that symptomatology. Id. As such, his allegations, alone, have no probative value without medical evidence substantiating them. So the preponderance of the evidence is against his claim, in turn, meaning the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Bilateral Hearing Loss Based on the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for bilateral hearing loss, so it must be denied. 38 C.F.R. § 3.102. The veteran's service medical records are entirely negative for any complaint, treatment, or diagnosis of hearing loss. The veteran did not report any complaints referable to his ears in the manner now alleged (i.e., hearing loss), including during his military separation examination. This is probatively significant and given a lot of weight and credibility because this was at a time contemporaneous to the alleged incident in question. See, e.g., Struck v. Brown, 9 Vet. App. 145, 155-56 (1996). It stands to reason that, if he indeed had any problems with his hearing at his discharge from service, then he would have at least mentioned this during his military examination. There also is no objective evidence of continuity of symptomatology during the years immediately following the veteran's discharge from active military service and the initial diagnosis of bilateral hearing loss. In fact, the evidence of record clearly demonstrates that he did not have relevant symptoms or receive treatment for bilateral hearing loss until a September 2005 audiological evaluation, over 14 years after his service. See Savage, supra (requiring medical evidence of chronicity and continuity of symptomatology). The Board notes that, in the absence of demonstration of continuity of symptomatology, or a competent nexus opinion, the initial demonstration of current disability years after service is too remote from service to be reasonably related to service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board acknowledges that the veteran has been diagnosed with mild high frequency sensorineural hearing loss, according to a letter from C. A. F., Au.D. However, there is no current demonstration of bilateral hearing loss disability for VA purposes. Unfortunately, since the attached audiogram report from Dr. F is uninterpreted, it cannot be used to demonstrate whether the veteran has sufficient bilateral hearing loss to meet the threshold minimum requirements of 38 C.F.R. § 3.385, in order to be considered a hearing loss disability for VA purposes. Moreover, there is no persuasive medical nexus evidence of record indicating or otherwise suggesting his bilateral hearing loss disability was incurred or aggravated during his military service. See 38 C.F.R. § 3.303(a) (service connection requires that the facts "affirmatively [show] inception or aggravation . . . ."). See also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability . . ."). As a layman, the veteran simply does not have the necessary medical training and/or expertise to determine the cause of his bilateral hearing loss. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). See, too, Savage v. Gober 10 Vet. App. at 495-498. Because of this, his allegations, alone, have no probative value without medical evidence substantiating them. In view of the foregoing, the Board finds that the record does not contain competent evidence of a causal relationship between the current bilateral hearing loss and the veteran's military service - and to acoustic trauma in particular. As the preponderance of the evidence is against his claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Failure to Report to VA Examinations The Court has also held that where the veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The veteran has made evidentiary assertions that his conditions have increased in severity. Under 38 C.F.R. § 3.326(a) (2007), a VA examination will be authorized where there is a possibility of a valid claim. As such, the veteran had been repeatedly scheduled for VA examinations in order to evaluate the current manifestations and severity of his service-connected disorders at issue. In addition, the veteran was scheduled for VA examinations in order to determine the nature and etiology of his hearing loss and low back disability. Most recently, the veteran was scheduled for VA examinations pursuant to the Board's June 2007 remand. The RO subsequently attempted to assist the veteran with his claims by requesting that he attend VA examinations to obtain current findings as to the severity and symptomatology of his left knee disabilities, right ankle disability, and right midfoot disability, as well as to determine the nature and etiology of his hearing loss and low back disability. However, he has repeatedly failed to report for his evaluations as scheduled. See 38 C.F.R. § 3.655(b) (when a claimant fails to report for a VA examination scheduled in conjunction with a claim for an increased disability evaluation, the claim shall be disallowed; when a claimant fails to report for a VA examination scheduled in conjunction with a claim for service connection, the claim shall be evaluated on the evidence of record). See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not ... a one-way street. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Thus, although additional information may have been gained to his benefit from the examinations, the veteran did not comply with VA's best efforts to have him examined. The nondiscretionary ("shall" be disallowed) language in § 3.655(b) means the claims for increased disability ratings must be denied, regardless, indeed if only based on a failure to report for necessary medical evaluations to assess the severity of the disabilities at issue. Further, the Board has no option but to consider his claims for service connection based on the evidence of record, which is insufficient to grant his claims. ORDER The claim for a rating higher than 10 percent for recurrent ankle instability is denied. The claim for a rating higher than 10 percent for degenerative joint disease of the left knee is denied. The claim for a compensable disability rating for residuals of a soft tissue injury of the right mid foot is denied. The claim for a rating higher than 10 percent for left knee instability is denied. Service connection for a back disability, including as due to service-connected disabilities, is denied. Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs