Citation Nr: 1300645 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 07-01 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for lumbosacral spine status post surgery for disc infection with degenerative disc disease, post-surgical changes, and moderate diffuse osteoarthritis (hereinafter, "lumbar spine disorder"). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to February 1968 and from March 2003 to September 2003. He also had additional service in the Air National Guard of Colorado from February 1986 to December 1997, which would have included periods of active duty for training (ACDUTRA). These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In September 2008, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. This case was previously before the Board in December 2008 and September 2010, and the current appellate claims were remanded on both occasions for further development. In pertinent part, the Board remanded the case in September 2010 to obtain clarification of opinions expressed by a May 2010 VA audiological examiner and a May 2010 VA spine examiner. New examinations were to be accorded if the original examiner(s) were unavailable. The record reflects that supplemental opinions/addendums were promulgated by these examiners in January 2011. For the reasons stated below, the Board finds that the opinion of the VA spine examiner is adequate for resolution of this case, but that the VA audiological examiner's supplemental opinion/addendum did not address all of the issues raised in the Board's remand. In view of this deficiency, in August 2012 the Board requested a medical expert opinion from a member of the Veterans Health Administration (hereinafter, "VHA opinion") in accord with VHA Directive 20006-019 (April 3, 2006), 38 U.S.C.A. §§ 5103A, 7109 and 38 C.F.R. § 20.901. The requested opinion was subsequently promulgated in September 2012; the Veteran was provided with a copy of this opinion later that same month, and was given 60 days in which to send any additional evidence or argument regarding the case pursuant to 38 C.F.R. § 20.903; and a response was received on behalf of the Veteran by his accredited representative in November 2012. Further, for the reasons stated below, the Board finds that the VHA opinion provides the necessary clarification regarding the etiology of the Veteran's right ear hearing loss and tinnitus, and is adequate for resolution of this case. All other development directed by the Board's remands in this case appears to have been substantially accomplished. For example, the Board also directed that efforts be undertaken to obtain service treatment records from the Veteran's 2003 period of active duty. As detailed in an April 2011 Formal Finding it was concluded that all efforts to obtain these service treatment records had been exhausted and further efforts would be futile. In view of the foregoing, the Board finds that a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As an additional matter, the Board notes that in September 2010 it also denied the Veteran's claim of service connection for left ear hearing loss. Accordingly, this issue is no longer before the Board for adjudication. FINDINGS OF FACT 1. The preponderance of the competent evidence of record is against a finding that the Veteran's right ear hearing loss was incurred in, aggravated by, or otherwise the result of his military service. 2. The record reflects that the Veteran's tinnitus is secondary to his hearing loss. 3. The preponderance of the competent evidence of record is against a finding that the Veteran's lumbar spine disorder was incurred in, aggravated by, or otherwise the result of his military service. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for right ear hearing loss are not met. 38 U.S.C.A. §§ 101, 106, 1110, 1111, 1112, 1131, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2012). 2. The criteria for a grant of service connection for tinnitus are not met. 38 U.S.C.A. §§ 101, 106, 1110, 1111, 1112, 1131, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.306, 3.310 (2012). 3. The criteria for a grant of service connection for lumbar spine disorder are not met. 38 U.S.C.A. §§ 101, 106, 1110, 1111, 1112, 1131, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a March 2004 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. He was also sent a letter dated in March 2006 which advised him of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Similar letters were sent to the Veteran in May 2009 and October 2010. This claim was last adjudicated in January 2012. In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his current appellate claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. As noted in the Introduction, efforts were undertaken to obtain service treatment records from the Veteran's 2003 period of active duty, and an April 2011 Formal Finding concluded that all efforts to obtain these service treatment records had been exhausted and further efforts would be futile. In such situations VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (Wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). The Board also notes that the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the September 2008 Board hearing. With the exception of the missing service treatment records, the record does not indicate the Veteran has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified any outstanding evidence which indicates his current right ear hearing loss, tinnitus, and/or lumbar spine disorder is etiologically linked to his military service. With respect to the September 2008 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned VLJ in March 2007 accurately noted the appellate issues, and asked questions to clarify the Veteran's contentions. Although it does not appear the VLJ specifically noted the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's appellate claims, the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his feet claim. Moreover, the Veteran volunteered his treatment history at his hearing. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of either hearing. As such, the Board finds that no further action pursuant to Bryant is necessary. The Board further notes that the Veteran was accorded VA medical examinations in March 2005 and May 2010 (with January 2011 addendums) which, as detailed below, included opinions that addressed the etiology of the Veteran's hearing loss, tinnitus, and lumbar spine disorder. As noted in the Introduction, a VHA opinion was also promulgated by a VA audiologist in September 2012 based upon review of the claims file to include the prior VA examinations. In this case, all of the aforementioned VA examiners were familiar with the Veteran's medical history based upon review of his VA claims file. Moreover, the nature of the current disabilities is demonstrated by the findings noted in the treatment records and the VA medical examinations themselves. However, as detailed below, the March 2005, May 2010, and January 2011 VA audiological opinions were inadequate regarding the right ear hearing loss as they did not provide sufficient rationale and/or did not fully address all of the relevant issues raised by this claim. Nevertheless, the September 2012 VHA opinion did address all of the relevant issues and provided sufficient rationale in support of the opinions expressed therein. Such is also the case with the January 2011 VA addendum/supplemental opinion regarding the Veteran's lumbar spine. No prejudice is demonstrated with respect to either the January 2011 VA spine examination addendum or the September 2012 VHA opinion. Therefore, the Board finds that the evidence is adequate to resolve this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. 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 submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). General Legal Criteria Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. History provided by the veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). In other words, with respect to Reserve service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing inactive duty training. Service connection is generally not legally merited when a disability incurred on inactive duty training results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard. 38 U.S.C.A. § 101(26), (27). Certain evidentiary presumptions - such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, such as arthritis and organic disease of the nervous system, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service--are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. §§ 101, 1112; 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309. However, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or inactive duty training. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (Noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (Citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim."). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Analysis - Hearing Loss and Tinnitus The Veteran is claiming he has right ear hearing loss and tinnitus as the result of noise exposure during a period of active duty service. Specifically, he contends that he was exposed to loud noise from aircraft as a parachute rigger, and he wore no hearing protection. During his period of active duty service, he was also exposed to loud noise during qualifying for use of the M14 and while learning how to fire mortar. He further testified that he was also exposed to aircraft noise during his service in the National Guard; however, he wore hearing protection during that time. As for any nonservice noise exposure, he reports that he always wore hearing protection while hunting. For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160. The Board also notes that, in addition to the general rules of service connection noted above, service connection may also be established for certain diseases that were initially manifested, generally to a compensable degree of 10 percent or more, within a specified presumption period after separation from active service. This presumption period is generally within the first post-service year. See 38 U.S.C.A. §§ 1110, 1112(a), 1116, 1131, 1133(a), 1137; 38 C.F.R. §§ 3.303(a), 3.306, 3.307. This presumption includes organic diseases of the nervous system such as sensorineural hearing loss. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Initially, the Board notes that the Veteran, as a lay person, is competent to describe hearing problems. However, as detailed above, specific medical testing is required to show whether one has a hearing loss disability as defined by 38 C.F.R. § 3.385, or evidence of hearing loss pursuant to Hensley, supra. As such, it is not subject to lay diagnosis. Moreover, as the determination of etiology in this case appears dependent upon the results of competent medical testing, the Board finds that competent medical evidence is also required to determine the etiology of such disability. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). With respect to the actual audiological testing in this case, the Board observes that there is no indication of a hearing loss disability of the right ear pursuant to 38 C.F.R. § 3.385 or evidence of hearing loss pursuant to Hensley, supra, during his 1965 to 1968 period of active duty nor for years after active service. For example, at his February 1965 active service entrance examination, the Veteran's ears were evaluated as normal and puretone thresholds in the right measured 0 decibels in all frequencies from 500 to 4000 Hertz. In a July 1967 treatment record, it was noted that the Veteran had impacted cerumen in his right ear which was removed. At his December 1967 active service separation examination, the Veteran's ears were evaluated as normal, and puretone thresholds in the right ear measured 0 decibels in frequencies of 500 to 2000 Hertz and 5 decibels at 4000 Hertz. At his March 1985 National Guard examination, puretone thresholds in the right ear ranged from 0 to 20 decibels at 500 to 4000 Hertz. At a November 1988 periodic examination, puretone thresholds in the right ear ranged from 0 to 20 decibels at 500 to 4000 Hertz. At a November 1992 periodic examination, puretone thresholds in the right ear measured 25 decibels at 4000 Hertz (characterized as mild middle frequency hearing loss) and ranged from 0 to 10 decibels in the other frequencies from 500 to 3000 Hertz. At a November 1997 periodic examination, puretone thresholds in the right ear measured 30 decibels at 4000 Hertz and ranged from 0 to 20 decibels in the other frequencies from 500 to 3000 Hertz. At a June 1999 periodic examination, puretone thresholds in the right ear measured 30 decibels at 4000 Hertz and ranged from 5 to 25 decibels in other frequencies from 500 to 3000 Hertz. In all of these reports, examination of the ears was normal. In short, there was no evidence of hearing loss for VA purposes until years after the Veteran's 1968 separation from active service. Further, as detailed below, there was evidence of at least Hensley type hearing loss prior to his 2003 period of active service. As such, the Veteran is clearly not entitled to a grant of service connection for right ear hearing loss pursuant to the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309. Further, the Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (Affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (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.). As already noted, service treatment records from the Veteran's period of active service from March 2003 to September 2003 are not of record and it has been determined that further efforts to obtain such records would be futile. Although the Board must carefully consider the other evidence of record in regard to these missing records, as well as the benefit-of-the-doubt rule, the Board has already determined that competent medical evidence is required to resolve this claim. As such, without documented audiological test results for this period there is nothing upon which the Board could judge whether the Veteran had a hearing loss disability during this period, or any other determinations regarding his hearing loss. Moreover, as there is no evidence of an induction examination it does not appear that the presumption of sound condition applies in this case. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991) (The presumption of sound condition attaches only where there has been an induction examination in which the later complained-of disability was not detected.). Nevertheless, the Board wishes to emphasize that there was evidence of at least Hensley hearing loss in the records prior to the 2003 period of active service. The Board also notes that, as stated below, the September 2012 VHA opinion concluded that the Veteran did have hearing loss prior to the 2003 period of active service. In this case, there are a number of medical opinions which addressed the nature and etiology of the Veteran's claimed right ear hearing loss. For example, on VA audiological examination in March 2005, audiometric testing did not reveal bilateral hearing impairment for VA compensation purposes. The Veteran was also evaluated for tinnitus. The examiner concluded that based on electronic hearing testing in service and the Veteran's current hearing level, it was his opinion that he Veteran's reported tinnitus was less likely than not caused by or a result of noise exposure while in service. The VA examiner's opinion was based in part on the fact that the current audiometric testing did not reveal a bilateral hearing impairment as defined by VA. However, following appellate review in December 2008, the Board noted that a May 2007 private audiogram appeared to indicate that the Veteran may meet the threshold requirement for hearing loss in the right ear at 4000 Hertz and therefore remanded the claims for further VA audiological examination. The May 2010 VA audiological examination revealed hearing loss for VA purposes in the right ear. Following review of the claims file, the examiner opined that, due to the Veteran's documented normal hearing at the time of his active service discharge in 1967, his hearing loss is not caused by or a result of military noise exposure. With regard to tinnitus, the examiner stated that the Veteran's tinnitus is as likely as not a symptom associated with his hearing loss. The examiner, however, did not address whether the right ear hearing loss is related to the Veteran's active duty service from March 2003 to September 2003. The claims file was returned to the May 2010 examiner for additional opinion. Additional opinion was provided in January 2011 by the May 2010 VA audiological examiner. This time, the examiner concluded that due to the Veteran's history of noise exposure and documented hearing loss between active service and during reserve duty, it was at least as likely as not that the hearing loss and tinnitus were caused by noise exposure while on reserve duty. The examiner also opined that due to the lack of evidence supporting aggravation of existing hearing loss and the existence of tinnitus prior to active service in 2003, the hearing loss and tinnitus are less likely as not caused by or a result of military noise exposure during active service in 2003. The Board finds that the January 2011 addendum/supplemental opinion by the May 2010 VA audiologist's is not fully sufficient to address the claim. The examiner linked current hearing loss to reserve service. However, the mere onset of hearing loss while a Veteran is a member of the Reserve is not sufficient to establish service connection. Instead, the hearing loss must result from a disease or injury incurred or aggravated while performing ACDUTRA, or injury incurred or aggravated while performing inactive duty for training. 38 U.S.C.A. §§ 101(24), 1110, 1131. Although there was evidence of right ear hearing loss pursuant to Hensley, supra, in the Veteran's National Guard records there is no evidence which indicates that such was caused or aggravated by an injury during a period of ACDUTRA or inactive duty training, nor due to a disease during ACDUTRA. Moreover, the examiner did not answer all the questions posed by the Board in a September 2010 remand. In view of the foregoing, the Board requested a VHA opinion to address the Veteran's claim of service connection for right ear hearing loss. In pertinent part, the Board specifically requested answer(s) to the following: a) Is it at as least as likely as not (50 percent probability or greater) that the Veteran's current right ear hearing loss is related to any incident of service, including: (a) his documented treatment during active service in July 1967 for impacted cerumen in the right ear; (b) noise exposure during his active service from February 1965 to February 1968 or March 2003 to September 2003; and (c) periods of active duty for training (generally 2 weeks a year) versus civilian activities the rest of the year during both of which he reported wearing hearing protection? Please explain the reason for your conclusion. In rendering the opinion, please explain why the finding of normal hearing on his 1967 separation examination is important in determining whether current hearing loss is or is not related to noise exposure during that period of service. b) Did right ear hearing loss exist prior to entrance on active duty in March 2003, and if so, did such undergo a permanent worsening of the disorder beyond normal progression (aggravation) as a result of his military service from March 2003 to September 2003? Please explain the reason for your conclusion. In response to the Board's questions, the September 2012 VHA opinion stated, in essence, that it was not as likely as not that the Veteran's right ear hearing loss was related to his documented treatment during active service in July 1967 for impacted cerumen in the right ear, nor noise exposure during his 1965 to 1968 period of active duty. In support of these opinions, the VA audiologist stated that cerumen impaction does not cause a permanent type of hearing loss, and noted that the cerumen was removed. In regard to the 1965 to 1968 in-service noise exposure, the VA audiologist noted that hearing was normal from 500 to 6000 Hertz in both ears at the time of discharge; that the Veteran indicated "NO" to ear trouble and hearing loss on Reports of Medical History completed in November 1988, November 1992, and November 1997; and that the first evidence of hearing loss appears in 1999 - 31 years after separation from service in 1968. With respect to noise exposure from March to September 2003, the VA audiologist stated that an opinion could not be provided without resort to speculation due to the lack of service treatment records from this period of service. Similarly, the VA audiologist opined that right ear hearing loss did exist prior to the 2003 period of active duty, as evidenced by the May 1999 period physical and September 2001 private audiogram. However, the VA audiologist could not opine whether the pre-existing right ear hearing loss was aggravated during such service without resort to speculation because the claims file/service treatment records did not contain any audiologic data or record of hearing testis from this period of time. The VA audiologist stated that without any evidence of documented hearing evaluation/thresholds from March to September 2003 it was impossible to determine if hearing loss worsened during this period of active duty. An award of service connection may not be based on resort to speculation or remote possibility. See 38 C.F.R. § 3.102 (By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Bostain v. West, 11 Vet. App. 124, 127 (1998). The Court has held that an examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. In this case, the VA audiologist who completed the September 2012 VHA opinion did support the reference to speculation in noting the lack of service treatment records for the March to September 2003 period of active duty. This is consistent with the Board's own finding regarding the necessity of specific audio testing in this case. The September 2012 VHA opinion also opined that it was not as likely as not that the Veteran's current right ear hearing loss was related to periods of ACDUTRA (generally 2 weeks per year) versus civilian activities the rest of the year during both of which he reported wearing hearing protection. In support of this opinion, the VA audiologist noted the results of audiologic testing during the Veteran's period of National Guard service, as well as the rule that the mere onset of hearing loss while Veteran was a member of the Reserves was not sufficient to establish service connection. Inasmuch as the September 2012 VHA opinion is based upon a complete review of the Veteran's VA claims folder, to include the VA examinations and opinions on this issue, the Board finds that it is entitled to the most weight regarding the etiology of the Veteran's right ear hearing loss. The Board also notes that the other opinions of record were consistent in finding that the current hearing loss was not etiologically linked to the 1965 to 1968 period of active duty. For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran's current right ear hearing loss was incurred in, aggravated by, or otherwise the result of his military service. In regard to the tinnitus claim, the Board notes that, as detailed above, the competent medical evidence reflects this disability is etiologically linked to the Veteran's hearing loss. Although service connection may be established pursuant to 38 C.F.R. § 3.310 for a disability that is secondary to an already service-connected disability, there is no legal basis to establish service connection for a disability that is secondary to a nonservice-connected disability. As such, if service connection is not warranted for the hearing loss, then it is also not warranted for the tinnitus. Analysis - Lumbar Spine With regard to the Veteran's lumbar spine claim, the physician's summary on a February 1965 Report of Medical history (when the Veteran first entered active service) noted occasional back ache. Nevertheless, his spine was evaluated as normal at his February 1965 active service entrance examination. Thereafter, an undated service treatment record noted that the Veteran's back had good range of motion, no spasm, and normal curvature. On a December 1967 Report of Medical History completed by the Veteran at the time of his discharge from active service, the Veteran gave a positive response to arthritis, which was explained as a complaint of chronic, mild back pain attributed to arthritis. Nevertheless, the clinical evaluation of the spine was normal at his December 1967 active service separation examination. At his March 1985 National Guard enlistment examination and at a November 1988 periodic examination, the Veteran's spine was evaluated as normal, and he reported no recurrent back pain on the accompanying reports of medical history. At a November 1992 periodic examination, it was noted that he suffered occasional low back pain and saw a private physician for such, but had no trauma or diagnosis, and an accompanying report of medical history noted that his occasional low back pain was nothing serious and just old age. In June 1993, the Veteran was hospitalized at a private facility for fever and back pain. In July 1993, a private treatment record noted that the Veteran had an eight year history of low back pain and bilateral leg pain, which had been getting worse for the past eight months. In September 1993, a private physician submitted a letter indicating that the Veteran had an infectious discitis of the L4-L5 disc space, and significant deterioration of the lower lumbar area due to this. The Veteran was given a physical profile in September 1993 for degenerative disc disease and in October 1993 for back surgery. An October 1993 service treatment record noted that the Veteran had a four to five year history of low back pain. At a November 1997 periodic examination, it was noted that he had a well-healed lumbar scar due to a private lumbar laminectomy of L4-L5 in December 1993, which produced good results but some low back pain since the surgery. At a June 1999 periodic examination, the Veteran's spine was evaluated as normal, but an accompanying report of medical history noted recurrent back pain referable to his fusion surgery in 1993. On a January 2003 health risk assessment form, it was noted that the Veteran had lower back pain and had been prescribed a muscle relaxant by his physician. At his September 2008 hearing, the Veteran testified that he was only treated once for low back pain during his first period of active service, but he expressed his belief that his current low back disorder was related to this in-service episode on account of the type of work he performed and because he experienced the same episodes of pain in subsequent years during his service in the National Guard. He acknowledged that he did not have any episodes of low back pain between the time of his discharge from active service in 1968 until 1985, but he testified that he thereafter experienced episodes of low back pain two to four times a year during his service in the National Guard. He stated that he was not sure if he had ever had an episode of low back pain during a period of ACDUTRA, but he asserted that he did experience low back pain (which required medication) during these ACDUTRA periods. He could not attribute his back pain to any specific injury. Rather, he stated that his back just started hurting during his active duty service and he experienced the same type of pain during his service in the National Guard for which he ultimately required back surgery in 1993. The Board notes that the Veteran, as a lay person, is competent to describe complaints of back pain. Nevertheless, competent medical evidence is required to determine whether such complaints are the result of a chronic disability and the nature of such disability. This is consistent with the fact that the Court has held that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Moreover, the actual condition of the Veteran's spine is not subject to lay observation, and, like the hearing loss, requires specific medical testing to diagnose. As such competent medical evidence is required to both diagnose and determine the etiology of the Veteran's lumbar spine disability. The Board has already determined that his contentions do not constitute competent medical evidence. In this case, there is no evidence detailing a specific injury to the Veteran's lumbar spine, and the Veteran himself has indicated there was no injury/trauma. Rather, he indicated that his back problems just developed over time, and that he did not have any back problems from the time of his 1968 separation from active duty until at least 1985. Therefore, it appears the relevant issue is whether the Veteran's current lumbar spine disorder developed as a result of a disease process incurred in or aggravated by his military service, to include periods of ACDUTRA and/or inactive duty training, as opposed to the lengthy periods of non-military service over the years. In this case, the Veteran has been accorded multiple VA medical examinations and opinions regarding his lumbar spine disorder. The March 2005 VA orthopedic examination diagnosed the Veteran with status-post surgery for disk infection, degenerative disk disease, post-surgical changes, and moderate diffuse osteoarthritis. The VA examiner, however, did not provide a medical nexus opinion. Consequently, the Board remanded the case in December 2008 for such an opinion. Pursuant to the Board's December 2008 remand, the Veteran underwent a VA spine examination in May 2010. On that occasion, the VA examiner reviewed the claims file and noted relevant findings in the Veteran's service treatment records. The examiner went on to opine that it is less likely as not (less than 50/50 probability) that the Veteran's current back condition is caused by or a result of any lumbar spine condition or disorder which may have been present when the Veteran was on active duty from 1965 to 1968, noting the normal findings regarding his lumbar spine on the undated service treatment record from that period and stating that the Veteran's separation and physical history were free from any indications of a back condition. The examiner also stated his belief that there was ample opportunity between 1968 and 1993 (when the Veteran had his back surgery) for the Veteran to have developed an independent back condition, unrelated to any speculative condition that may have been present during active duty. The examiner further opined that it is less likely as not that the Veteran's back problem stems from any event of active duty training for the National Guard, but did not provide a rationale for that conclusion. As detailed in the September 2010 remand, the Board observed that the May 2010 examiner failed to acknowledge the Veteran's complaint of arthritis, explained as note of chronic, mild back pain attributed to arthritis on the December 1967 Report of Medical History. Further, the examiner did not address whether the Veteran's current low back disability was related to any preexisting disability that was permanently aggravated by active service from February 1965 to February 1968 or by active service from March 2003 to September 2003. Therefore, the Board remanded the case to obtain such opinions. In the January 2011 addendum, the May 2010 VA spine examiner stated that upon further review of the case, his opinion remained unchanged from May 2010. In support of this opinion, the examiner emphasized the fact that the entrance physical showed a normal spine and that the physician's summary in the concurrent Report of Medical History noted "occasional back ache," as well as the accounting of a bus accident in 1962. However, there was no clear indication that he had back injuries in that bus accident. Moreover, as the Veteran only reported "occasional back ache" the examiner opined it was more likely than not that the Veteran suffered from a minor occasional back condition prior to his initial active duty. The examiner further stated that occasional back pain did not necessarily equate to a "chronic" back condition. Regardless, the examiner was not aware of any permanent worsening of the condition mentioned during service and did not locate any documentation of worsening in the claims file. The examiner also stated that the complaints in 1967 at service separation (i.e., the December 1967 Report of Medical History) likely reflected a temporary exacerbation of the pre-existing condtion, not an aggravation. With respect to the Veteran's March to September 2003 period of active service, the examiner stated that based on the fact that the Veteran had already had significant back surgery with fusion and treatment of infection, and the lack of clear documentation in the records that there was a significant change in his back problem from March to September 2003, that it was less likely as not that the Veteran's pre-existing low back condition underwent a permanent worsening beyond normal progression (in other words no aggravation occurred) during his active service from March to September 2003. The Board also reiterates its finding that the presumption of soundness does not appear to apply to the 2003 period of active service as no entrance examination appears to be of record. In summary, the Board has determined that the nature and history of the Veteran's current lumbar spine disorder is such that competent medical evidence is required to both diagnose the disability and determine the etiology thereof; and, as detailed above, the competent medical opinions in this case have consistently been to the effect that this disability was not incurred in, aggravated by, or otherwise the result of the Veteran's military service. No other basis for establishing service connection for the lumbar spine disorder is demonstrated by the evidence of record to include the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309. The provisions of 38 C.F.R. § 3.310 regarding secondary service connection are not applicable as the record does not indicate the Veteran currently has any service-connected disabilities. In view of the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for the Veteran's lumbar spine disorder, and it must be denied. Conclusion For the reasons stated above, the Board concludes that the preponderance of the evidence is against the Veteran's claims of service connection for right ear hearing loss, tinnitus, and lumbar spine disorder. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to these claims must be denied ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for lumbar spine disorder is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs