Citation Nr: 1127455	
Decision Date: 07/22/11    Archive Date: 07/29/11

DOCKET NO.  07-16 876	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for a chronic low back disorder, claimed as degenerative disc disease (DDD) of the lumbar spine.

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

D. Ganz, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from April 1972 to November 1973.  He also had an additional 29+ years of service in the Air National Guard, presumably including periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA), but specific times have not been confirmed.    

This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee.

The Veteran testified before the undersigned Veterans Law Judge in December 2008.  A transcript of the hearing is of record.

In January 2009, this case was remanded by the Board for further development and is now ready for disposition.


FINDINGS OF FACT

1.  A chronic back disorder was not manifest during active service; spine pathology was not identified until 1977.  The current back disorder is unrelated to active duty or National Guard service.  

2.  Bilateral hearing loss was not manifest during service.  The current bilateral hearing loss is unrelated to active duty or National Guard service.



CONCLUSIONS OF LAW

1.  A chronic low back disorder, claimed as DDD of the lumbar spine, was not incurred in or aggravated by active duty or National Guard service.  38 U.S.C.A. §§ 101(24), 1131, 5103(a), 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303 (2010).

2.  Bilateral hearing loss was not incurred in or aggravated by active duty or National Guard service.  38 U.S.C.A. §§ 101(24), 1131, 5103(a), 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.385 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §1131 (West 2002).  

If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b) (2010).  However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b) (2010).

Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2010).  

Service connection may also be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA, or injury incurred or aggravated while performing INACDUTRA, or acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during INACDUTRA.  See 38 U.S.C.A. § 101(24).  Presumptive periods do not apply to periods of duty training.  Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).

The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In this decision, the Board has considered the lay evidence as it pertains to the issue.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (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). 

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").

In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

Chronic Low Back Disorder

Service treatment records (STRs) reflect that the Veteran was treated in July 1973 for several days of back pain after moving.  It was noted that he had psychophysiological undertones to his complaints and was given Tylenol.  In July 1973, he requested deep heat treatment in his sacroiliac and lumbar spine areas for back pain that was becoming more acute.  He also complained of stomach and back pain and was diagnosed with depressive reaction.  In August 1973, he complained of back pain and was diagnosed with somatization.  

In September 1973, it was initially thought that the Veteran's left sided low back pain was secondary to depression, but that his depression was better and back pain persisted.  The etiology of the back pain was unknown. 

There is no further mention of the injury or treatment of the back in the service treatment records.  At the time of service separation in November 1973, clinical evaluation revealed that his spine was normal.  Therefore, service records do not show a chronic back disorder associated with his complaints of back pain at the time of discharge.

Next, post-service evidence does not reflect low back symptomatology for several years after service discharge.  Specifically, in late September 1977, the Veteran was admitted to the hospital for treatment of a low back strain that occurred while he was bowling.  Physical findings revealed a severe paravertebral muscle spasm in the lower lumbar area.  He was discharged from the hospital a week later.  

This is the first recorded symptomatology related to a low back disorder, coming some 4 years after discharge and clearly unrelated to active duty or National Guard service.  Therefore, the medical evidence does not reflect continuity of back symptomatology.

In considering the Veteran's lay statements, he testified that he injured his back in 1971 or 1972 when an aircraft he was working on moved and struck his low back and that it was aggravated by heavy lifting and work.  He testified further that not long after service he was treated off and on for back pain, and in 1977 or 1978 he was hospitalized because his back collapsed on him.  

In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of back pain after service separation.  Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible.  

The Board finds that the Veteran's more recently-reported history of continuous symptoms of a back disorder since active service are inconsistent with the other lay and medical evidence of record.  Indeed, while he now asserts that his disorder began in service, in the more contemporaneous medical history he gave at the service separation examination in November 1973, he denied then having, or ever having had, any recurrent back pain. 

Specifically, the service separation examination in November 1973 report reflected that the Veteran was examined and his spine was found to be clinically normal.  Further, his in-service complaints of back pain were suggested to be more psychological than physiological in nature.

His in-service history of a lack of back symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later).  

Next, the post-service medical evidence does not reflect complaints or treatment related to low back symptomatology for 4 years following active service.  Additionally, the September 1977 hospital records note that the Veteran "acutely" injured his back while bowling, which suggests that he did not have a prior back condition or disorder that was exacerbated.  

The Board emphasizes the multi-year gap between discharge from active duty service (1973) and initial reported symptoms related to a low back disorder in approximately 1977 (nearly a 4-year gap).  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability).

Furthermore, the Veteran did not claim that symptoms of his back disorder began in (or soon after) service until he filed his current VA disability compensation claim.  Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories given at separation and his previous statements made for treatment purposes.  See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements).

Similarly, during a May 1999 private treatment record the Veteran reported that he was hospitalized for his back in 1978 after extreme lower back pain.  Likewise, numerous other private treatment records do not indicate that he reported that his back disorder or back pain began during service or soon thereafter.  

Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for several years after service, and his previous statements made for treatment purposes.  For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation.  

Next, service connection may be granted when the evidence establishes a medical nexus between service and current complaints.  In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's back disorder to any service, despite his contentions to the contrary.    
	
To that end, the Board places significant probative value on a December 2009 VA examination undertaken specifically to address the issue on appeal.  At that time, the Veteran reported that his low back pain began in 1973 (while on active duty) when he was working and an airframe struck him causing back pain and that his pain had become progressively worse.  After a physical examination, the examiner diagnosed low back DDD.  

With respect to a medical nexus with active duty, the examiner opined that it was less likely than not that DDD was related to service.  The examiner reflected that there was no support in the medical literature for an acute soft tissue injury to the back, such as those which resolved with rest and no evidence of bony abnormality on x-ray and without signs of acute disk herniation, leading to an increased incidence of DDD.  

The examiner emphasized that documentation prior to the Veteran's exit physical showed that straight leg raises were negative and that this test was a sensitive indicator of a symptomatic herniated disk, which was noted to be absent at the time of examination.  The examiner remarked that there was no evidence of acute symptomatic disk herniation in the then-19 year old male.  He concluded that the absence of back pain and its subsequent development and progression over the course of the following 20 years was consistent with the natural history of DDD, and that DDD could not be causally related to an acute soft tissue injury.

With respect to a medical nexus with periods of ACDUTRA or INACDUTRA, the examiner stressed that after the Veteran's period of active duty, medical records show an episode of pain in 1987, attributable to working his attic, and in 1977 pain developed during bowling.  The examiner remarked that unless these activities were sanctioned and participated in at the request of the National Guard (which the evidence indicates that they were not), it was his medical opinion that the DDD was less likely as not caused by the Veteran's duty in the National Guard.   
	
The Board finds that the examination was adequate for evaluation purposes.  Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination.  There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact.  Moreover, there is no contradicting medical evidence of record.  Therefore, the Board finds the VA examiner's opinion to be of great probative value.
	
The Board has also considered the Veteran's statements and sworn testimony asserting a nexus between his currently-diagnosed back disorder and active duty or Guard service.  While the Board reiterates that he is competent to report symptoms as they come to him through his senses, DDD of the back is not the types of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis.  

Such competent evidence has been provided by the VA medical examiner who has examined the Veteran during the current appeal and by service records obtained and associated with the claims file.  Here, the Board attaches greater probative weight to the clinical findings than to his statements.  See Cartright, 2 Vet. App. at 25.  

In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved.  As such, the appeal is denied.

Bilateral Hearing Loss

Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 hertz (Hz) are 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.

STRs reflect no complaints of, treatment for, or a diagnosis related to hearing problems or any symptoms reasonably attributed thereto.  On the separation audiological evaluation in November 1973, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT

10
5
5
15
LEFT

10
10
5
5

As such, at the time of discharge, the clinical evaluation of the Veteran's hearing was normal for purposes of 38 C.F.R. § 3.385.  Therefore, no bilateral hearing loss was noted on separation from service.

Next, post-service evidence does not reflect bilateral hearing loss for many after service discharge.  On the authorized audiological evaluation in September 1984, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT

0
0
5
20
LEFT

0
0
0
5

This clinical evaluation of the Veteran's hearing was also normal for purposes of 38 C.F.R. § 3.385.  

On the authorized audiological evaluation in September 2004, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT

5
0
50
55
LEFT

5
0
10
25

This clinical evaluation, which reveals an auditory threshold above 40 at 4000 Hz in the right ear, shows right ear hearing loss for VA purposes.  See 38 C.F.R. § 3.385.  

On the authorized audiological evaluation in December 2009, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT

0
0
50
55
LEFT

10
5
10
35

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 90 percent in the left ear.  Hearing loss is shown for VA purposes.  See 38 C.F.R. § 3.385.  

The September 2004 National Guard audiology examination is the first recorded symptomatology of decreased hearing rising to hearing loss for VA purposes.  As discussed below, in December 2009, a VA examiner reviewed the claim file, including numerous National Guard audiograms, and concluded that hearing loss developed somewhere between 1993 and 1998.  Thus, these findings show that at the earliest, the Veteran's hearing loss began approximately 20 years after discharge.  Therefore, the medical evidence does not reflect continuity of symptomatology.

As part of the current VA disability compensation claim, in recent statements and sworn testimony, the Veteran has asserted that his symptoms of hearing loss started in service due to engine noise from aircraft and machines used in aircraft maintenance.  

In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of hearing loss after service separation.  Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible.  

The Board finds that the Veteran's more recently-reported history of continued symptoms of hearing loss since active service is inconsistent with the other lay and medical evidence of record.  Indeed, while he now asserts that his hearing loss began in service, in the more contemporaneous medical history he gave at the service separation examination in November 1973, he denied then having, or ever having had, any hearing loss or ear trouble. 

Specifically, the service separation examination in November 1973 report reflects that the Veteran had puretone thresholds at 1,000, 2,000, 3,000, and 4,000 Hz that did not rise to the level of hearing loss for VA purposes and that no diagnosis of hearing loss or decreased hearing was given.  

His in-service history of a lack of decreased hearing or hearing loss symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation.  See Harvey, 6 Vet. App. at 394 (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden, 125 F.3d at 1481 (upholding a Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later).  

The post-service medical evidence does not reflect complaints or treatment related to hearing loss for more than 20 years following active service.  The Board emphasizes the multi-year gap between discharge from active duty service (1973) and initial reported symptoms related to a low back disorder in approximately 1977 (nearly a 4-year gap).  See Maxson, 230 F.3d at 1333 (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense, 1 Vet. App. at 356 (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability).

Furthermore, the Veteran did not claim that symptoms of his hearing loss began in (or soon after) service until he filed his current VA disability compensation claim.  Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories given at separation and his previous statements made for treatment purposes.  See Pond, 12 Vet. App. at 341 (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements).

Similarly, a May 2004, private treatment record notes that the Veteran denied decreased hearing.  Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes.  Rucker, 10 Vet. App. at 73 (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for many years after service, and his previous statements made for treatment purposes.  For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of hearing loss symptoms since service separation.  

Next, service connection may be granted when the evidence establishes a medical nexus between service and current complaints.  In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's bilateral hearing loss to service, despite his contentions to the contrary.    
	
To that end, the Board places significant probative value on a December 2009 VA audiology examination undertaken specifically to address the issue on appeal.  At that time, the Veteran reported the gradual onset of hearing loss since the 1970s and difficulty hearing his wife and children.  

After audiometric testing, the examiner diagnosed the Veteran with bilateral sensorineural hearing loss that was normal to moderately severe.  The examiner noted that he reviewed multiple serial audiograms performed during National Guard duty.  The examiner opined that it was less likely than not that the Veteran's current hearing loss was related to active duty service, and more likely that it developed during Air National Guard service.  

The examiner indicated that the rationale for this opinion is that STRs from active duty do not show hearing loss, the first diagnosis of hearing loss is in 1998, approximately 25 years after separation from active duty, and that the Air National Guard records demonstrate hearing loss developing somewhere between 1993 and 1998.  

While the examiner opined that hearing loss developed during the years the Veteran spent in the National Guard, longevity in the National Guard is not sufficient to warrant service connection.  As noted above, service connection may be granted for disease or injury while performing ACDUTRA, or injury while performing INACDUTRA.  In this case, the Veteran does not assert, and the evidence does not show, that he incurred any injury or disease during any period on ACDUTRA or INACDUTRA.

The Board finds that the examination was adequate for evaluation purposes.  Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted audiometric testing.  There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact.  Moreover, there is no contradicting medical evidence of record.  Therefore, the Board finds the VA examiner's opinion to be of great probative value.
	
The Board has also considered the Veteran's statements and sworn testimony asserting a nexus between his currently-diagnosed hearing loss and active duty and/or Guard service.  While the Board reiterates that he is competent to report symptoms as they come to him through his senses, bilateral hearing loss is not the type of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis.  

Such competent evidence has been provided by the VA audiological examiner who has examined the Veteran during the current appeal and by service records obtained and associated with the claims file.  Here, the Board attaches greater probative weight to the clinical findings than to his statements.  See Cartright, 2 Vet. App. at 25.  

In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved.  As such, the appeal is denied.

Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).    

When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies.  See 38 U.S.C.A. § 7261(b)(2) (West 2002).  In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

Here, with regard to the Veteran's chronic back disorder and bilateral hearing loss claims, the VCAA duty to notify was satisfied by way of letter sent to the Veteran in September 2005 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content.

With respect to the Dingess requirements, in April 2006 and October 2006 letters, subsequent to the initial adjudication of the claims, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  

Any such timing error regarding the April and October 2006 letters was cured after the Veteran's claims were readjudicated in a March 2007 statement of the case (SOC).  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).  With these letters, the RO effectively satisfied the remaining notice requirements with respect to the service connection claims on appeal).

Therefore, adequate notice with regard to the Veteran's service connection claims was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). 

Next, VA has a duty to assist the veteran in the development of the claim.  This duty includes assisting him in the procurement of STRs and other pertinent treatment records, and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In this case, the RO obtained STRs, VA treatment records, and the Veteran submitted private treatment records.  Further, he was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge.  Additionally, specific VA medical opinions and examinations were obtained in December 2009 regarding the nature and etiology of his claimed chronic back disorder and bilateral hearing loss, and, as discussed above, these examinations were adequate.  Finally, as noted above, the RO made exhaustive efforts to obtain any additional outstanding personnel records from the NPRC.  

Therefore, the available records and medical evidence have been obtained in order to make an adequate determinations as to these claims.  

Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


ORDER

Service connection for a chronic back disorder, claimed as DDD of the lumbar spine, is denied.

Service connection for bilateral hearing loss is denied.



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs