Citation Nr: 1126869 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 09-49 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial compensable disability rating for service-connected residuals, status post left clavicle fracture. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from February 1964 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The January 2010 VA Form 9 shows that the Veteran initially requested a Travel Board hearing in conjunction with his appeal. The Veteran was sent a March 2011 letter which scheduled the hearing for April 1, 2011 at the RO in Lincoln, Nebraska. However, in a March 2011 report of general information form, the Veteran called the RO and stated that he would like to cancel his hearing scheduled for April 1, 2011. He did not request that the hearing be rescheduled. Therefore, the Veteran's hearing request is withdrawn and a hearing is no longer necessary. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The service-connected residuals, status post left clavicle fracture were manifested by the ability to flex to 170 degrees and abduct 165 degrees; with no evidence of malunion of the clavicle, or objective evidence of functional loss due to painful motion. 3. Bilateral hearing loss did not manifest in service or sensorineural hearing loss within one year thereafter, and bilateral hearing loss has not been shown to be causally or etiologically related to the Veteran's military service. 4. Tinnitus was not demonstrated in service; it is not attributable to military service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for residuals, status post left clavicle fracture have not been met for the period of the appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45. 4.59, 4.71a, Diagnostic Codes 5003, 5201, 5203 (2010). 2. Bilateral hearing loss was not incurred in or aggravated by active service nor may sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2010). 3. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). With respect to the Veteran's claim for an initial compensable disability rating for residuals, status post left clavicle fracture, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Nevertheless, in this case, the Veteran is challenging the initial disability rating assigned following the grant of service connection for residuals, status post left clavicle fracture (minor). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied. With respect to the merits of the claims for service connection, the RO did provide the appellant with notice in March 2009 prior to the initial decision on the claim in June 2009. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the notice letter about the information and evidence that is necessary to substantiate his claims for service connection. Specifically, the March 2009 letter indicated that in order to establish service connection the evidence must show that he had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. Additionally, the November 2009 Statement of the Case (SOC) notified the Veteran of the reasons for the denial of his application and, in so doing, informed him of the evidence that was needed to substantiate his claims. In addition, the RO notified the Veteran in the notice letter about the information and evidence that VA will seek to provide. In particular, the March 2009 letter indicated that reasonable efforts would be made to help him obtain evidence necessary to support his claims, including that VA would request all records held by Federal agencies, such as service treatment records, military records, and VA medical records. The Veteran was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claims. The RO also informed the Veteran about the information and evidence that he was expected to provide. Specifically, the March 2009 letter notified the Veteran that he must provide enough information about his records so that they could be requested from the agency or person that has them. It was also requested that he complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, if there were any private medical records that he would like VA to obtain on his behalf. In addition, the March 2009 letter stated that it was the Veteran's responsibility to ensure that VA receives all requested records that are not in the possession of a Federal department or agency. Furthermore, the Veteran was also provided with notice of the type of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. In this regard, the Board notes that the March 2009 letter informed him that a disability rating was assigned when a disability was determined to be service- connected and that such a rating could be changed if there were changes in his condition. The letter also explained how effective dates were determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Therefore, the notification requirements have been met. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all available VA treatment records are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. The record shows that the Veteran was afforded a VA examination in connection with his claim for an initial compensable disability rating for service-connected residuals, status post left clavicle fracture in April 2009. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examination obtained in this case is more than adequate, as the report was predicated on review of the pertinent evidence of record, and fully addressed the rating criteria that are relevant to rating the Veteran's service-connected disability. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to rate the Veteran's service-connected disability. The Veteran was also afforded a VA audiological examination in May 2009 with respect to his claims for service connection for bilateral hearing loss and tinnitus. Again, the Board finds that the examination is adequate, as it was predicated on a review of the claims file and all pertinent evidence of record as well as on an audiological examination, and the examiner provided reasoning for the negative nexus opinion. In addition, the record shows that the May 2009 VA examiner referred the issue of etiology of the Veteran's tinnitus to another VA physician. In a separate May 2009 record, a VA physician reviewed the claims file including the May 2009 audiological examination report and provided a negative nexus opinion with a supporting rationale. Thus, the Board finds that the VA physician's opinion is adequate. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion in regard to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. LAW AND ANALYSIS Disability Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's service-connected residuals, status post left clavicle fracture are currently rated as noncompensable under Diagnostic Code 5203. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5203, a 10 percent disability rating is assigned for malunion of the clavicle or scapula of either the major or minor limb. Dislocation of the clavicle or scapula warrants a 20 percent rating. Nonunion of the clavicle or scapula with loose movement also warrants a 20 percent rating. Nonunion of the clavicle or scapula without loose movement warrants a 10 percent rating. Limitation of motion of the arm is contemplated by 38 C.F.R. § 4.71a, Diagnostic Code 5201, and provides that a 20 percent rating is warranted for limitation of motion of the minor arm at shoulder level. Limitation of motion of the arm to midway between side and shoulder level warrants a 20 percent rating in the minor arm. Limitation of motion of the arm to 25 degrees from side warrants a 30 percent rating in the minor arm. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The regulations define normal range of motion for the shoulder as forward flexion from zero to 180 degrees, abduction from zero to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. See 38 C.F.R. § 4.71, Plate I (2010). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an initial compensable disability rating for his service-connected residuals, status post left clavicle fracture. The VA treatment records are absent for any complaints or treatment for the Veteran's service-connected residuals, status post left clavicle fracture. The Veteran was afforded a VA examination in April 2009. The Veteran reported that he experienced pain off and on ever since his left clavicle fracture during service. The pain occurs with cold weather and wet weather conditions. It is not associated with use of the shoulder itself. He reported pain daily throughout the cold weather months and also when it is "stormy." He described the pain as aching and rated the pain as 3/10. The pain occurs directly over the fracture site at the proximal left clavicle. He reported a "large bump sticking out" ever since the fracture. He has not seen a physician for this condition since he was treated in service and does not use any treatment for the condition. The condition was considered stable. The Veteran reported deformity of the left shoulder with pain and stiffness and that the condition affected the motion of the joint. He reported no to having giving way, instability, weakness, incoordination, decreased speed of the joint motion, locking episodes, episodes of dislocation or subluxation, effusions, or symptoms of inflammation. There were no constitutional symptoms of arthritis and no incapacitating episodes of arthritis. There were no limitations to standing or walking. On physical examination, the joint findings consisted of deformity and tenderness over the fracture site. There was no evidence of abnormal weight bearing and no loss of a bone or part of a bone. On range of motion, there was no objective evidence of pain with active motion on the left side. The Veteran could flex to 170 degrees and abduct to 165 degrees. The internal rotation was from 0 to 90 degrees and the left external rotation was from 0 to 90 degrees. There was no objective evidence of pain following repetitive motion and there were no additional limitations after three repetitions of range of motion. There was no joint ankylosis. The x-ray results showed an old healed midclavicle fracture with no additional osseous or soft tissue abnormalities. Moderate left glenohumeral and mild AC joint disease was noted. The alignment was normal. The Veteran was diagnosed with residuals, status post left clavicle fracture. It was noted that the Veteran had been employed for 20 years. He was working full time and had lost no time from work in the past 12 months. The examiner reported that there were no significant effects on usual occupation and no effects on usual daily activities. After considering the totality of the record, the Board finds the preponderance of the evidence is against the Veteran's claim for a compensable initial disability rating for his service-connected residuals status post left clavicle fracture. According to the April 2009 VA examination report, the Veteran had almost normal flexion of the left shoulder and there was no evidence of any functional impairment due to the disability. Although the examiner noted that the Veteran reported pain and aching of his left shoulder, there was no objective evidence of pain during the range of motion testing or following repetitive testing. Furthermore, the VA treatment records show treatment for other ailments, but the records are completely absent for any treatment or complaints related to the Veteran's service-connected disability. There is no objective evidence of any limitation of motion due to pain, weakened movement, excess fatigability, incoordination, swelling, or atrophy of disuse of the shoulder. In addition, the medical evidence does not reveal any malunion, nonunion, or dislocation of the left clavicle. Indeed, although the April 2009 VA examination report noted that the Veteran had a deformity of the left clavicle, the April 2009 x-rays show that the Veteran's clavicle was healed with normal alignment. Therefore, the Veteran's residuals, status post left clavicle fracture does not meet the criteria for a compensable disability rating under the pertinent rating criteria. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased disability rating for the Veteran's service-connected disability is not warranted on the basis of functional loss. Although the Veteran has complained of generalized pain, the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased disability rating. In fact, the April 2009 VA examiner noted that there was no objective evidence of pain following repetitive motion and there were no additional limitations after three repetitions of range of motion. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial compensable disability rating for residuals, status post left clavicle fracture. In making the above determination, the Board has considered the Veteran's statements regarding his symptoms. The Board has no reason to doubt that the Veteran has experienced pain in his left shoulder. However, as noted above, the April 2009 VA examination report and the VA treatment records show no objective evidence of pain with motion or any functional impairment. The Board acknowledges the Veteran is competent to give evidence about what he experiences. Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). However, the Board finds more persuasive, the minimal objective findings and the April 2009 VA examination findings which show no objective evidence of pain with motion or any functional loss. The Veteran himself stated that the pain did not occur with any use of the shoulder. See April 2009 VA examination report. The Board has also considered whether an increased disability rating would be in order under other relevant diagnostic codes. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In this respect, the Board has considered whether the Veteran is entitled to a compensable disability rating under Diagnostic Code 5201. However, there is no evidence that the Veteran's arm is limited to the shoulder level. Indeed, the medical evidence shows that the Veteran is able to flex to 170 degrees and abduct 165 degrees. Thus, a compensable disability rating is not warranted under Diagnostic Code 5201. The Board has also considered whether Diagnostic Code 5003 is applicable to the Veteran's claim. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensably disabling under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The April 2009 x-ray report shows that the Veteran is diagnosed with moderate left glenohumeral joint degenerative joint disease and mild AC joint degenerative disease. However, there is no medical evidence of record relating the findings of degenerative joint disease to the Veteran's service-connected residuals, status post left clavicle fracture. More significantly, as noted above, the medical evidence does not show limitation of motion confirmed by objective evidence of swelling, muscle spasm, or painful motion. Indeed, the April 2009 VA examination report noted that there was no objective painful motion or pain following repetitive motion. Therefore, application of Diagnostic Code 5003 would not result in the assignment of a compensable disability rating. Thus, in the absence of any objective evidence of malunion or nonunion of the left clavicle or scapula or objective evidence of functional impairment of the left shoulder, an initial compensable disability rating for residuals status post left clavicle fracture is not warranted. The preponderance of the evidence is against the claim and, therefore, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's left shoulder disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2010). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. As such, it cannot be said that the available schedular evaluation for the disability is inadequate. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected residuals, status post left clavicle fracture under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2010). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. In the Veteran's application for compensation benefits, the Veteran stated that his hearing loss was related to his duties during active military service. He explained that he loaded and unloaded patients onto medi-vac aircraft flying out of Vietnam into Clark Air Force Base (AFB) in the Philippines. He stated that they often flew the missions several times a day and that this duty exposed his ears to loud and harmful noise on a frequent basis. The Veteran explained that he believed this was the source of his hearing loss. The medical evidence shows that the Veteran has a current bilateral hearing loss disability in accordance with VA regulations. 38 C.F.R. § 3.385 (2010). However, the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of hearing loss. The November 1967 discharge examination report reveals that the Veteran's ears were clinically evaluated as normal. The Veteran's hearing was within normal limits. The Veteran also had a hearing loss profile of "H1" at that time. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). The November 1967 report of medical history shows that the Veteran specifically denied experiencing any hearing loss. In this case, there is no evidence of any hearing loss until 2009, more than 40 years after the Veteran's separation from active service. With regard to the years-long evidentiary gap in this case between active service and the earliest complaints of hearing loss and tinnitus, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). The Board does note that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Nevertheless, the more persuasive evidence of record does not relate a current bilateral hearing loss disability to the Veteran's military service. Indeed, the discharge examination report shows that the Veteran's hearing was within normal limits. In addition, the May 2009 VA examiner provided a negative nexus opinion with respect to whether the Veteran's current bilateral hearing loss is related to active military service. During the May 2009 VA examination, the Veteran reported that he worked in air evacuation of injured military personnel during military service. He reported service-related noise exposure from aircraft and the flight line. The Veteran denied recreational noise exposure. As a civilian, the Veteran worked in the agriculture business with many noisy jobs and it was noted that he was currently working as a horse shoer. The examiner opined that the Veteran's hearing loss was not a result of noise exposure during his military service. At separation, hearing sensitivity was normal. The examiner noted that the rationale for the opinion given was that the Veteran's hearing sensitivity was normal in each ear at separation. Exposure to either impulse sounds or continuous exposure can cause temporary threshold shift, which usually abates in 16 to 48 hours after the exposure. Impulse noise may also result in immediate and permanent hearing loss. Since the damage from noise exposure occurs at the time of the exposure, a normal audiogram subsequent to the noise exposure would verify that the hearing recovered without a permanent threshold shift (hearing loss). Additional noise exposure, aging and health conditions since military separation are likely contributing factors in the Veteran's hearing loss. The Board finds that the May 2009 VA examiner provided a well-reasoned opinion, supported by the evidence of record, in which she did not attribute the Veteran's bilateral hearing loss to his period of active military service. Thus, without competent medical evidence attributing the Veteran's bilateral hearing loss to his active military service, service connection is not warranted. See 38 C.F.R. § 3.304. Here, the only evidence relating the Veteran's current bilateral hearing loss to active service is the Veteran's personal assertions. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). For example, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Moreover, the Board is mindful that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Here, the Veteran has alleged that his current bilateral hearing loss is related to in-service noise exposure. However, the Board assigns more persuasive value to the May 2009 VA examiner's opinion. Although the Veteran stated that his bilateral hearing loss began during service (as noted in the application for benefits), the service treatment records show that the Veteran's hearing was within normal limits upon separation from service and the Veteran specifically denied experiencing any hearing loss during service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Moreover, the record does not indicate that the Veteran has the medical expertise to diagnose or opine as to the etiology of a bilateral hearing loss disability. In this respect, the origin of a bilateral hearing loss disability is a matter of medical complexity and is often the subject of conflicting opinions. Furthermore, although the Veteran has stated that his current bilateral hearing loss disability is related to service, he has provided merely conclusory statements. On the other hand, the VA examiner conducted an audiological examination to include review of the Veteran's reported history and his service treatment records and post-service treatment records. The examiner then provided a negative nexus opinion with a supporting rationale. Therefore, the Board finds that the VA examiner's opinion is more persuasive than the statements of the Veteran with respect to the etiology of the Veteran's bilateral hearing loss disability. This is especially so as the examiner considered the Veteran's history and complaints when providing the opinion. The Board also recognizes that service connection may be granted on the basis of continuity of symptomatology. 38 C.F.R. § 3.303(b). The Veteran has stated that the onset of his bilateral hearing loss began during active service. While the Veteran is competent to testify as to the worsening of his hearing since service, the Board finds that the Veteran is not credible with respect to his reports of continuity of symptomatology and that the documentary evidence is of more persuasive value than the Veteran's statements. Indeed, although the Veteran stated that the onset of his hearing loss began during service, the service treatment records are completely absent for any diagnosis or complaints with respect to hearing loss. Indeed, the discharge examination report shows that the Veteran's hearing was within normal limits and the report of medical history shows that the Veteran specifically denied experiencing any hearing loss. There is no evidence of treatment or diagnosis of a bilateral hearing loss until many years after separation from active service. This gap in time also weighs against any continuity of symptomatology. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). Thus, entitlement to service connection for bilateral hearing loss based on post-service continuity of symptomatology must be denied. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(b). The Board notes that there is no objective evidence that the Veteran's claimed disability manifested to a compensable degree within one year of the Veteran's separation from military service. A review of the Veteran's post-service medical treatment records reveals that the earliest evidence of hearing loss is the May 2009 VA examination report. This record was created more than 40 years after the Veteran's separation from active military service. Thus, service connection is not warranted on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In light of the above, the Board finds that service connection for bilateral hearing loss is not warranted. In reaching its conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for service connection for hearing loss, that doctrine is not applicable as to the claim. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). With respect to the Veteran's claim for service connection for tinnitus, the Board also finds that service connection is not warranted. The medical evidence shows that the Veteran has a current diagnosis of tinnitus. However, as noted above, the service treatment records are completely absent for any complaints or indications of tinnitus. The November 1967 discharge examination report shows that the Veteran's ears were clinically evaluated as normal and the report is absent for any diagnosis or complaint of tinnitus. The Veteran was afforded a VA audiological examination in May 2009. The May 2009 VA examiner referred the issue of etiology of the Veteran's tinnitus to another VA physician, but did note that additional noise exposure, aging, and health conditions since military separation were likely contributing factors in the Veteran's hearing loss and tinnitus. In a separate May 2009 record, a VA physician reviewed the claims file to include the May 2009 audiological examination and provided a nexus opinion. The physician opined that that it was less likely as not that the Veteran's tinnitus was related to military service. The rationale provided was that there was a lack of evidence in the claims file of any complaints of tinnitus during service and the time between service and the date of the evaluation was over 40 years without evidence of any audiologic treatment in the intervening years. The Board acknowledges the Veteran's statements regarding the etiology of his tinnitus. The Veteran has stated that his tinnitus must be related to his in-service duties of loading patients onto medi-vac flights. The Veteran has also explained that his tinnitus began during active service and has continued until this time. The Board acknowledges that the Veteran is competent to describe his in-service exposure to loud noises and is competent to relate that he has experienced tinnitus since service. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007), Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, after reviewing the entire record, the Board questions the credibility of the Veteran's statements regarding the onset of his tinnitus while in service and the claimed continuity of symptoms. During the May 2009 audiological examination, the Veteran described the onset of tinnitus as occurring during active military service. However, in a report of medical history completed by the Veteran in November 1967, the Veteran checked no as to having experienced any ear, nose or throat trouble and denied experiencing any hearing loss. The Veteran did not report any hearing difficulties or tinnitus. This contemporaneous statement provided in 1967, contradicts the Veteran's 2009 statement regarding the onset of his tinnitus. See State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992); see also Burns v. HHS, 3 F.3d 415, 417 (Fed. Cir. 1993) (testimony was impeached by witness' "inconsistent affidavits" and "expressed recognition of the difficulties of remembering specific dates of events that happened . . . long ago"); Mings v. Department of Justice, 813 F.2d 384, 389 (Fed. Cir. 1987) (impeachment by testimony which was inconsistent with prior written statements). The Board finds the service treatment records, to include the discharge examination report and report of medical history to be more credible than the Veteran's current statements because the statements made in 1967 were not made in the context of a claim for monetary benefits, but was made in a medical setting where the Veteran was likely more intent on accurately reporting his ailments, if any. In summary, due to the inconsistent and contradictory statements made by the Veteran, the Board finds that the Veteran's statements regarding the onset of his tinnitus and continuity of his tinnitus symptomatology ever since service, are not credible. In summary, the service treatment records are devoid of treatment or complaints related to tinnitus, and in the report of medical history, the Veteran denied any ear, nose or throat trouble and did not report any tinnitus. The first post-service indication of tinnitus was not until 2009, more than 40 years after discharge. Moreover, despite evidence of in-service noise exposure, the 2009 VA physician opined that the Veteran's current tinnitus was less likely as not due to noise exposure during military service. Furthermore, the May 2009 VA examiner stated that additional noise exposure, aging, and health conditions since military separation were likely contributing factors in the Veteran's hearing loss and tinnitus. For these reasons, the Board finds that the preponderance of the evidence is against the claim. In reaching its conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for service connection for tinnitus, that doctrine is not applicable as to the claim. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial compensable disability rating for service-connected residuals, status post left clavicle fracture is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs