Citation Nr: 1105308 Decision Date: 02/09/11 Archive Date: 02/18/11 DOCKET NO. 07-23 672 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for hay fever or allergic rhinitis. 4. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) or asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had active military service from February 1968 to March 1976. These matters come before the Board of Veterans' Appeals (Board) from a March 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Chicago, Illinois. In November 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In December 2010, the Veteran submitted additional written evidence without a waiver of RO consideration. The Board finds that a remand for consideration by the agency of original jurisdiction (AOJ) is not warranted. The evidence consists of statements by the Veteran, an article on asthma, and copies of service treatment records (STRs). The Board finds that the statements by the Veteran are redundant of previous statements and the STRs are already contained in the claims file. Although the article discusses asthma, it does not relate specifically to the Veteran, and is not combined with any opinion of a medical professional. See Sacks v. West, 11 Vet. App. 314 (1998) (generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise "is too general and inconclusive" to well ground a claim); thus, it is not probative of the respiratory issue on appeal. FINDINGS OF FACT 1. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran's bilateral hearing loss disability is causally related to active service. 2. The Veteran's statements regarding when he was issued ear protection in service are less than credible. 3. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran's tinnitus is causally related to active service. 4. The evidence of record reflects that the Veteran had hay fever/allergic rhinitis prior to entrance into service. 5. The Veteran is less than credible with regard to any contention that he did not have hay fever/allergic rhinitis prior to active service. 6. The competent and credible evidence of record reflects that the Veteran's pre-existing hay fever/allergic rhinitis was not aggravated by active service. 7. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has COPD/asthma causally related to active service. 8. The competent clinical evidence of record reflects that the Veteran's COPD was initially demonstrated years after service, and has not been shown by competent clinical evidence to be causally related to the Veteran's active service. 9. The Veteran is less than credible with regard to the onset date of his respiratory disability, diagnosed as COPD. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in, or aggravated by, active service, nor may it be presumed (as an organic disease of the nervous system), to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1154, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2010). 2. Tinnitus was not incurred in, or aggravated by, active service, nor may it be presumed (as an organic disease of the nervous system), to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1154, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2010). 3. Pre-existing hay fever/allergic rhinitis was not chronically aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.380 (2010). 4. COPD and/or asthma was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.300, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Duty to Notify 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); 38 C.F.R. § 3.159(b); 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable 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 held 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, 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, it will assist in substantiating or that 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 VA correspondence to the Veteran in October 2004, VA informed him of what evidence was required to substantiate the claim of entitlement to service connection for hay fever/rhinitis. In May 2005 correspondence to the Veteran, VA informed him of what evidence was required to substantiate the claims of entitlement to service connection for hearing loss, tinnitus, and COPD. The October 2004 and May 2005 correspondence notified the Veteran of his and VA's respective duties for obtaining evidence. VA correspondence to the Veteran in December 2006 informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess/Hartman. In Pelegrini, 18 Vet. App. at 112, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision. Although the complete notice was not provided until after the RO initially adjudicated the Veteran's claims, the claims were properly re-adjudicated in July 2010, which followed the adequate notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to assist With regard to the duty to assist, the claim's file contains the Veteran's STRs, private and VA treatment and examination records, and the Veteran's statements in support of his claims, to include his testimony at a Board hearing. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a further duty to obtain. At the November 2010 Board hearing, the Veteran testified that he did not believe that any private providers that he had seen for his hearing were still in business. Moreover, he testified that he did not receive any treatment from any audiologists. He further testified that he believed that VA had his records for any pulmonary disability. The Veteran's accredited representative requested that all medical information from Phu Cat, South Vietnam between 1969 and 1970 for his hospitalization be obtained. The Board notes that the Veteran testified that he did not know whether he was treated for his skin or for his breathing, and did not provide any further details as to a date of any hospitalization in Vietnam. The record reflects that the Veteran served in Vietnam from 1969 through January 1970 and was treated for skin infections, upper respiratory infection/sore throat, and diarrhea. There is no indication, from the Veteran's STRs, that he was treated or hospitalized for asthma or COPD. The claims folder includes June 1971 STRs which reflect the Veteran was admitted for seven days for a skin infection, had previously been hospitalized for a sore throat in January 1971, and had been hospitalized six times for a herpes infection of the eye. The report is negative for hospitalization for any breathing complaints. The Veteran's September 1969 report of medical history while at Phu Cat, Vietnam reflects that the Veteran specifically denied asthma, chronic cough, or shortness of breath. The Veteran testified that there could be medical records, other than those associated with the claims file, but he could not provide specifics as to these records. He further testified that no provider had ever provided an opinion that his respiratory disability was causally related to active service. The Veteran was provided with 60 days from the date of the hearing to provide any additional evidence regarding the claims. The record does not reflect that he submitted any additional medical records or provided any additional information which the AOJ could use to obtain additional records. Based on the Veteran's inability to definitively state he was hospitalized in service for respiratory complaints, an inability to provide any time frame, other than twelve months, the STRs of record which do not reflect any reports of hospitalization, and the Veteran's lack of information regarding any additional treatment records, the Board finds that VA does not have any further duty to attempt to obtain any additional medical records. At the Board hearing, the accredited representative contended that evidence from a 1971 motorcycle accident might support his claim for entitlement to service connection for tinnitus. The Board finds that attempts to obtain such evidence are not warranted. A 1973 Hearing Conservation Data record reflects that the Veteran reported tinnitus after a 1971 motorcycle accident. As the Veteran is competent to report that he had tinnitus in 1971, there is no evidence to dispute this assertion, and the contemporaneous records support this assertion, the Board finds that the Veteran had tinnitus in service following a motorcycle accident. Therefore, further records regarding the accident are not needed, and a remand to attempt to obtain any such records would not benefit the Veteran. VA examinations and opinions were obtained in April 2010 (hay fever/allergic rhinitis, respiratory disability) with an addendum in June 2010, and in January 2006 (hearing loss disability/tinnitus). 38 C.F.R. § 3.159(c)(4). 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 VA examinations/opinions obtained in this case are more than adequate. The opinions consider the pertinent evidence of record, to include the claims file, the statements of the Veteran regarding in-service trauma and post service medical complaints, pulmonary function tests, and audiological tests. Rationale was provided for the opinions given. The Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In the 2006 VA examination report, the examiner noted that the Veteran reported that he has difficulty hearing conversations and notices ringing worse at night or when it is quiet. Thus, it is established that the VA examiner did consider the functional effects caused by the hearing disability. Moreover, the Board notes that the rationale for such a requirement is that the functional effects are for consideration in rating the disability. The Board finds, in the decision below, that service connection for bilateral hearing loss disability is not warranted, therefore, the requirements of Martinak are moot. 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. II. Legal Criteria Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Generally, to prove service connection, a claimant must submit (1) evidence of a current disability, (2) evidence of in-service incurrence or aggravation of an injury or disease, and (3) evidence of a nexus between the current disability and the in- service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hearing loss disability or tinnitus, as an organic disease of the nervous system, becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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 (2010). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2010). The Board notes that diseases of allergic etiology, including bronchial asthma and urticaria, may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress or as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380 (2010). III. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Hearing loss disability The Veteran avers that he has bilateral hearing loss as a result of active service. The first element of a claim for service connection is that there must be evidence of a current disability. The evidence of record includes a January 2006 VA examination report. The report revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 35 60 60 LEFT 25 30 70 70 70 The January 2006 VA examination report reflects that the Veteran does have current bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease. The Veteran contends that he was exposed to loud noise while working on the flight line for six years. The Veteran's DD 214s indicate that his military occupational specialty (MOS) from February 1968 to October 1970 was an aircraft maintenance specialist, and from October 1970 to March 1976 was a precision photographic systems technician, with a secondary MOS of an airplane mechanic. The Board finds that exposure to loud noise in service, to include training, is consistent with the circumstances of the Veteran's service. 38 U.S.C.A. § 1154(a) (West 2002). As such, the Board finds that the second element of a service connection claim, injury in service, has been met. The third requirement for service connection is competent credible evidence of a nexus between the current disability and the in-service disease or injury. The Board finds, for the reasons noted below, that the third requirement for service connection has not been met. The evidence of record includes the Veteran's September 1967 report of medical examination for enlistment purposes. HERTZ 500 1000 2000 3000 4000 RIGHT 5 -5 -5 -- -5 LEFT 5 5 0 -- -5 The Board has acknowledged that service department records dated prior to November 1, 1967 are presumed to use the ASA standard, rather than the current ISO standard. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. When converted, the Veteran's results are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 5 -- 0 LEFT 20 15 10 -- 0 The evidence of record also includes a "Hearing Conservation Data" record, dated in May 1968. The record reflects that ASA standards were used. The report reflects the following results when converted to ISO standards: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 10 5 LEFT 20 15 15 10 5 The Board notes that the hearing Conservation Data record indicates a hearing loss at the 6000 Hz. level; however, a pre- existing hearing loss at the 6000 Hz. was also shown on the September 1967 audiological results card. The May 1968 Hearing Conservation Data record states that the Veteran's primary work area was the flight line and hanger shop. It was noted that ear protection had not been worn. The record further reflects "this individual was issued ear plugs and instructed to wear them." The evidence of record also includes a March 1973 Hearing Conservation Data record which reflects that the results were reported using the newer ISO/ANSI standard. The results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 15 10 15 LEFT 25 15 15 20 20 The record reflects that ear protection was worn, and that the Veteran's primary work area was the flight line. Finally, the Veteran's STRs include a July 1975 report of medical examination for separation purposes. The results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 10 15 LEFT 5 0 0 5 5 The record also reflects a hearing loss at the 6000 Hertz, however, as noted above, a hearing loss was noted on entrance. Moreover, hearing loss disability for VA purposes is based on the frequencies of 5-00 to 4000 Hertz, and not on 6000 Hertz. 38 C.F.R. § 3.385. The July 1976 VA examination report for separation purposes reflects a history of numerous conditions, to include fracture of a hand, eye trouble, cyst removal, painful left elbow, chest pains associated with fractured rib, hay fever, and skin disease. The Board notes that hearing loss complaints are not listed. In addition, the Veteran's ears were noted to be negative for problems. Thus, the record does not reflect that the Veteran had hearing loss at separation despite the results of the hearing test in March 1973. The Board notes the Veteran's statements that he was not provided any hearing protection while he was in the Air Force and also his testimony that he was not provided any kind of hearing protection until the last part of his eight year service. However, such statements contradict the objective evidence of record, and are less than credible. As noted above, the May 1968 Hearing Conservation Data record states that the Veteran was issued ear plugs and instructed to wear them. The March 1973 Hearing conservation Data record reflects that ear protection was worn. The Board finds that this evidence, which is more contemporaneous in time to the actual time in service, is more probative than the Veteran's statements made approximately 40 years later. The conservation record reflects that the Veteran was issued hearing protection, and instructed to wear it, within three months after entrance into service. A July 2001 private audiology record reflects that the Veteran had normal to moderately-severe mid to high frequency slightly asymmetrical sensorineural hearing loss of the left ear, which appeared to be noise related of some type. The right ear revealed very mild high frequency sensorineural hearing loss. It was noted that the Veteran did not recall why asymmetrical sensorineural hearing loss for the left ear exists and further investigation as to the asymmetry was recommended. The record does not reflect that further revaluation was done. In January 2006, the Veteran underwent a VA examination. The examiner stated that it was not as least as likely as not that the Veteran's hearing loss was related to military noise exposure. The examiner's opinion was based, in part, on the Veteran's entrance and separation audiological results. The Board also acknowledges that VA regulations do not necessarily preclude service connection for hearing loss that first met the 38 C.F.R. § 3.385 requirements after service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). However, in the present claim, there is no clinical opinion which supports a causal relationship between the Veteran's current hearing loss disability and active service. The earliest post service diagnosis of hearing loss is the July 2001 record, which is approximately 25 years after separation from service. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000.) The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., worse ability to hear). See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). To this extent, the Board finds that the Veteran is competent to report that he has current trouble hearing. However, with regard to continuity of symptomatology since service, the Veteran testified at the 2010 Board hearing that he was not even aware that he had a hearing problem until maybe "six or eight years ago". The January 2006 VA examination report reflects that he reported "difficulty hearing conversation for the past six years", but that he had been told before six years ago that he was losing his hearing. These time periods correspond generally with the Veteran's July 2001 private examination. Thus, the competent evidence of record, which consistent of the Veteran's testimony as to when he noticed hearing loss and the medical records, reflects that the earliest time which the Veteran noticed hearing loss or had hearing loss diagnosed was more than two decades after separation from service. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for bilateral hearing loss disability. The medical evidence is against a finding that the Veteran's hearing loss disability is related to service. Additionally, the Board notes that there is no objective evidence that sensorineural hearing loss manifested itself to a compensable degree within one year of the Veteran's separation from military service. As noted previously, hearing loss was first documented many years after service. Thus, service connection is not warranted for a hearing loss disability on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board notes that the Veteran may sincerely believe that his bilateral hearing loss disability warrants service connection. However, the Veteran has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation as is necessary in this instance. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. Espiritu, 2 Vet. App. at 494-95. In addition, he has not averred that he has had hearing loss since service, and there is no clinical nexus between the Veteran's current hearing loss disability and active service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Tinnitus The Veteran avers that he has tinnitus as a result of active service. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., experiencing ringing in his ears). See Washington, 19 Vet. App. at 368. To this extent, the Board finds that the Veteran is competent to report that he has current tinnitus. The Board finds that the second element of a claim for service connection has also been met. As noted above, the Veteran's exposure to loud noise in service is conceded as consistent with the circumstances of his service working on the flight line. 38 U.S.C.A. § 1154(a). In addition, the Board notes that a March 1973 Hearing Conservation Data record reflects that the Veteran reported having experienced tinnitus after a head injury, with unconsciousness, after a motorcycle accident in 1971. The third requirement for service connection is competent credible evidence of a nexus between the current disability and the in-service disease or injury. The Board finds, for the reasons noted below, that the third requirement for service connection has not been met. A January 2006 VA examination report reflects the opinion of the VA examiner that the Veteran's tinnitus was not as least as likely as not related to acoustic trauma in service. In addition, the VA examiner noted that the tinnitus from the motorcycle accident appeared to have resolved itself. The VA examiner's opinion was based on the Veteran's statement to the examiner that he first noticed the tinnitus approximately five to six years earlier (approximately 2000 to 2001). The Veteran's testimony at the Board hearing is consistent with the statements he made to the VA examiner (i.e. that his tinnitus in service resolved itself, and he did not have tinnitus until many years later). The Veteran testified that the tinnitus returned in the "last few years". The Veteran's reports of when the tinnitus returned post service, corresponds to the approximate time he noticed a hearing loss. Thus, the evidence reflects that any current tinnitus is not related to the tinnitus experienced in service, and any tinnitus after service began more than two decades after separation from service. The Veteran's July 1975 report of medical examination for separation purposes reflects normal ears upon clinical evaluation, and is negative for any complaints of tinnitus. The evidence does not show a continuity of symptomatology since service, tinnitus within one year after service, or a clinical opinion causally relating the Veteran's current tinnitus to active service. Thus, service connection for tinnitus is not warranted on a direct or presumptive basis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz, 274 F.3d at 1365. Hay fever / allergic rhinitis The Veteran avers that he has hay fever or allergic rhinitis as a result of active service. The Veteran's September 1967 report of medical examination for enlistment purposes reflects that he reported that he had hay fever. He also noted that family members had hay fever, asthma and/or hives. The physician's notes reflect that the Veteran had self-diagnosed hay fever. As the Veteran's hay fever was noted at the time of his enlistment, the presumption of soundness on induction does not attach, and service connection may be considered only on the basis of aggravation of hay fever in service. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). The Board notes that a pre-existing injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2010). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). The Veteran's September 1969 report of medical examination for initial flying purposes reflects that he reported that he had had hay fever. He also noted that his mother had hay fever. A December 1974 consultation for dermatitis record reflects that the Veteran has a history of allergies to dogs, cats, and pollen, and hay fever and asthma with a history of skin rashes at age 18. It was also noted that his mother and younger sibling had hay fever. The Veteran's July 1975 report of medical examination for separation purposes reflects that his nose and sinus were noted to be normal upon clinical evaluation. The report notes that the Veteran had hay fever associated with asthma, adequately controlled with medications, with no complications and no sequelae. The Veteran's STRs consist of more than 50 records of complaints and treatment for skin problems, eye infections, sore throats, strep throat, and upper respiratory infections. The reports are negative for complaints of hay fever and allergic rhinitis, with the exception of noting the history of such. The April 2010 VA examination report reflects that the Veteran reported that he felt that he may have had allergic rhinitis "perhaps even before service." It was noted that his history was somewhat vague. He further reported that when he had his hay fever symptoms, he did not take any treatment and his symptoms seemed to him to be quite mild. He reported that he does not take any medication for his rhinitis and did not take any medications at any time. The Veteran further reported to the examiner that during service, his work did not aggravate his nasal complaints. The examiner opined that the Veteran's rhinitis was not made permanently worse by any exposure in service and that his rhinitis has not been permanently worsened beyond the natural progression of the condition. The Veteran's STRs and his statements to the April 2010 VA examiner are consistent with a finding that his hay fever pre- existed service and was not aggravated by service. The evidence of record does not show that the Veteran's pre-existing hay fever chronically increased in severity during service. To the contrary, the April 2010 VA medical record reflects that the Veteran reported that his work in the service did not aggravate his nasal complaints. The Veteran testified at the Board hearing as follows: Well, I remember when -when they questioned me on that (pre-existing hay fever), and they said, "Well, did you ever have any allergies as a child?" I said, "Well, I suppose I did have allergies." And they almost put the words in my mouth: "Well, did you have hay fever? Did you have this and that?" And at the time, I said, "Well, I've always had breathing problems, so I guess you could call it hay fever." I was basically just going along with their suggestions. He further stated, I just went under the assumption everybody has allergies. So I'm-I'm not saying I've never had anything wrong with me. I had allergies just like everybody else. Uh, I'm allergic to poison ivy; I'm still allergic to poison ivy. But, uh eyes and stuff get a little bit stuffy whenever they're, uh, cutting hay and things like that. But nothing exceptional. Nothing that I would take extreme notice of. . . . In fact, as far as allergies, I'm probably much better than most people. I'm not that affected by most of [them] . . ." The Board finds any contention by the Veteran that he did not have hay fever prior to service to be less than credible. Although the Veteran states that "they almost put words in my mouth", he does not specifically state which examination he is referring to. He specifically checked the box marked "hay fever" on his September 1967 entrance examination, and reported to the examiner "hay fever". He also reported to the April 2010 VA examiner that he may have had hay fever prior to service. He also reported to a separate April 2010 VA examiner (See VA examination report for COPD/asthma) that he did not recall having any problems with asthma as a child, although he did have allergy and hay fever symptoms. Finally, he testified that he had always had breathing problems. In any case, hay fever was noted by the examiner when the Veteran entered active service. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for hay fever or allergic rhinitis disability. The evidence is against a finding that the Veteran's has a hay fever/rhinitis disability related to service, to include aggravation of a pre-existing disability. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz, 274 F.3d at 1365. COPD / asthma The Veteran avers that he has COPD and/or asthma as result of active service. As noted above, the first element of a claim for service connection is that there must be evidence of a current disability. The claims folder includes an April 2010 VA examination report with a June 2010 addendum. The April 2010 VA examination report reflects a diagnosis of "most likely smoking related chronic bronchitis." Therefore, the Board finds that the Veteran has a current disability. The April 2010 VA examiner opined that the Veteran has severe disabling chronic bronchitis that is more likely than not due to his history of cigarette smoking and not related to his military service or chemical exposures while in service. The opinion was based, in part, on the Veteran's STRs, and private and VA medical records which support a diagnosis of smoking related chronic bronchitis. The June 2010 VA examination report addendum reflects that the examiner found, based on a review of the STRs and private medical records, that the notation of asthma in service was in error and that the Veteran's problems with chronic bronchitis and emphysema were not more likely than not related or had their origin with the episode of wheezing he had in service. The Veteran's September 1967 report of medical examination for enlistment purposes reflects that he reported that he had never had asthma. He reported that he had occasionally had sore throats. His lungs and chest were noted to be normal upon clinical evaluation. A September 1969 report of medical examination for initial flying purposes reflects that he reported that he had never had asthma. The STRs are positive for numerous reports of upper respiratory infections, sore throats, and difficulty with tonsils. An October 1972, the Veteran was seen for a cold and sore throat. Upon clinical examination, it was noted that the Veteran had a runny nose, large but not infected tonsils, increased nodes, and diffuse wheezes in the chest. The impression was upper and lower respiratory infections. The Veteran was discharged with antibiotics. A December 1974 dermatology consultation reflects that the Veteran had a history of allergies, hay fever, and asthma with a history of skin rashes since age 18. The Veteran's July 1975 report of medical examination for separation purposes notes that the Veteran had hay fever associated with asthma, adequately controlled with medications, with no complications and no sequelae. The report reflects the Veteran's lungs and chest were normal upon clinical evaluation. Post service, a February 1979 private medical record reflects the Veteran had complaints of strep throat, his lungs were clear. The Veteran testified at the Board hearing that he thinks he first sought treatment for his asthma or COPD in 1978 or 1979. He testified that he used an inhaler in service; however, he also testified that he did not have a prescription for one; thus, indicating that an inhaler was not in use for the years following separation from service. (The Veteran testified that he used "Theo-Dur", which is a prescription medication). The earliest clinical evidence of a prescription inhaler is in 1985, approximately ten years after separation from service. Private medical records in July 1980, December 1980, and April 1985 reflect bilateral inspiratory wheezes. Private medical records in June 1984 and September 1986 reflect mild bilateral bronchospasm. Private medical records from 1985 to 1995 reflect Proventil inhaler usage. Records in 1990 reflect bronchitis and coarse lungs with inspiratory wheeze. Records from 2001 to 2003 reflect shortness of breath, and the use of the medications "Flovent" and "Advair". None of the records reflects that the Veteran had COPD or asthma since service. Medical records and correspondence from 2001 to present, to include pulmonary function testing results, reflect that the Veteran had COPD. The earliest post-service diagnosis of COPD/asthma is approximately 15 years after separation from service. The first post-service mention of wheezing is in July 1980, approximately 4 years after separation from service. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson, 230 F.3d at 1333. The Veteran reported at the April 2010 VA examination that he had difficulty with the yearly physical training tests, particularly the run. There is no objective evidence of record that the Veteran experienced any difficulty with PT tests due to COPD or asthma. In addition, the April 2010 VA examination report reflects that the reported that the Veteran smoked at least 1.5 packs of cigarettes a day from the age of age 16 until he quit in 2001, approximately 37 years. VA received the Veteran's claim for COPD/asthma in 2005. As the evidence reflects that the Veteran's respiratory disability is related to his smoking, and was not manifested within any applicable presumptive period, it is not compensable under 38 C.F.R. § 3.300 (2010) (service connection will not be considered for disability related to tobacco products for claims filed after June 9, 1998). The Veteran has also contended that his COPD/asthma may be related to chemicals in service. The Veteran's STRs contain numerous references to skin problems and a recommendation that his duty assignment be changed to avoid chemicals irritants to his skin. The records are entirely negative for the chemicals causing any respiratory problems. In addition, the April 2010 VA examiner opined that the Veteran's chronic bronchitis is not related to his military service or chemical exposures while in service. The Veteran testified that he could "breathe pretty good while I was in the service and up until my very last year. Then I started having some health problems and stuff, primarily breathing and some real skin-skin reactions to the stuff." The Board acknowledges that the Veteran had skin complaints in service and that he was given a physical profile in December 1974 which restricted him from any skin contact with chemicals However, any contention that he started having health problems, primarily breathing, his last year in service is less than credible based on the record as a whole. The STRs reflect that in the first half of his service, he had sought medical treatment numerous times for skin irritants and cysts, had been hospitalized in January 1971 for a sore throat, had broken his hand, had numerous complaints and treatment for herpes infections of the eye, had numerous complaints of upper respiratory infections, and had suffered a second degree burn. The STRs reflect more than 50 separate dates of treatment. They are entirely negative for complaints of breathing difficulties, with the exception of an October 1972 entry which reflects diffuse wheezes in the chest with an impression of upper and lower respiratory infections, which the VA examiner considered in forming an opinion. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for COPD and/or asthma. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz, 274 F.3d at 1365. ORDER Service connection for hearing loss disability is denied. Service connection for tinnitus is denied. Service connection for hay fever or allergic rhinitis is denied. Service connection for COPD or asthma is denied. ______________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs