Citation Nr: 1300809 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 10-31 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for a bilateral foot disability, to include pes planus. 6. Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1972. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO), St. Petersburg, Florida, which denied the Veteran's claims. The Veteran was scheduled to appear at the RO to have a personal hearing before a Veterans Law Judge. However, the Veteran failed to appear for his hearing, and has not since requested a new hearing. Accordingly, the Veteran's hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issue of entitlement to service connection for a back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of a bilateral hearing loss disability. 2. The Veteran does not have a current diagnosis of a right knee disability. 3. The Veteran does not have a current diagnosis of a left knee disability. 4. The Veteran's currently diagnosed tinnitus is not related to his military service. 5. The Veteran's currently diagnosed bilateral foot disability is not related to his military service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. A right knee disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. A left knee disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 4. Tinnitus was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 5. A bilateral foot disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for a bilateral hearing loss disability, a right knee disability, a left knee disability, tinnitus, and a bilateral foot disability. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the effective-date element of the claim, by a letter mailed in August 2008, prior to the initial adjudication of his claims. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims and there is no reasonable possibility that further assistance would aid in substantiating these claims. The evidence of record includes the Veteran's statements, service treatment records, and postservice VA treatment records. Additionally, the Veteran was afforded VA audiological examinations in May and August 2009 as well as an examination for his bilateral foot disability in April 2009 with an addendum dated June 2009. The VA examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board is cognizant of the fact that although the Veteran's claims folder was available during the April and August 2009 VA examinations, it was not available during the May 2009 VA audiological examination. However, such did not have an adverse effect on the adequacy of the examination. Notably, as previously indicated, the May 2009 VA examiner fully considered the Veteran's complaints, to include his complaints of hearing loss. An audiological examination was then performed that addressed all the relevant rating criteria. The Board notes that the Veteran was not provided an examination and nexus opinion with regard to his claims for right and left knee disabilities. Under 38 C.F.R. § 3.159(c)(4) (2012), VA will provide a medical examination or opinion if the information and evidence of record does not contain sufficient medical evidence for VA to make a decision on the claim but: (1) contains competent lay or medical evidence that the claimant has a current diagnosed disability, or persistent or recurring symptoms of disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further finds that there is sufficient evidence to decide these claims, and that further medical examination or opinion is not necessary to decide the claims for service connection for right and left knee disabilities. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, as discussed in further detail below, the competent and probative evidence does not show or indicate that the Veteran has current diagnosed right and left knee disabilities. Accordingly, a VA examination is not warranted. The facts of this case are different than the facts in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case, there is no competent and probative evidence which supports evidence of current right or left knee disabilities. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has retained the services of an accredited representative. He failed to appear for his scheduled Board hearing. Accordingly, the Board will proceed to a decision as to the issues of entitlement to service connection for a bilateral hearing loss disability, right knee disability, left knee disability, tinnitus, and a bilateral foot disability. Service connection for bilateral hearing loss, right knee, and left knee disabilities Because the outcome as to these issues involves the application of virtually similar law, the Board will address the three issues together. Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection presupposes a diagnosis of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). For certain chronic disorders, including sensorineural hearing loss disability and arthritis, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012). For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000. or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2012). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran is claiming entitlement to service connection for bilateral hearing loss, right knee, and left knee disabilities, which he contends are due to his military service. See, e.g., the Veteran's notice of disagreement dated September 2009. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. With respect to Hickson element (1), the competent and probative evidence of record does not demonstrate that the Veteran is currently diagnosed with bilateral hearing loss, right knee, or left knee disabilities. In connection with his bilateral hearing loss disability claim, the Veteran was afforded a VA audiological examination in May 2009. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 20 20 LEFT 15 20 35 25 25 Speech discrimination score at that time was 96 percent in the right ear and 98 percent in the left ear. The VA examiner reported right ear mild high-frequency sensorineural hearing loss at 6000 Hz and 8000 Hz. In the left ear the examiner reported mild hearing loss at 1500 Hz, 2000 Hz, and 6000 Hz. All other frequencies revealed normal hearing sensitivity. The VA examiner declined to diagnose the Veteran with a bilateral hearing loss disability. His rationale was based on the objective audiological testing of the Veteran's hearing acuity. Additionally, the Veteran was afforded a VA audiological examination in August 2009. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 20 20 LEFT 10 10 25 25 25 Speech discrimination score at that time was 96 percent in the right ear and 98 percent in the left ear. The VA examiner reported clinically normal hearing bilateral, and as such, declined to diagnose the Veteran with a bilateral hearing loss disability. Her rationale was based on the objective audiological testing of the Veteran's hearing acuity. The May and August 2009 VA examinations appears to have been based upon thorough examination of the Veteran and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Furthermore, the examiners' opinions of no current hearing loss disability are consistent with 38 C.F.R. § 3.385. As discussed above, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000. or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2012). The competent and probative evidence of record, to include the May and August 2009 VA examination reports, therefore does not demonstrate that these criteria have been met with respect to the Veteran's claimed bilateral hearing loss disability. The VA examination report does not include threshold findings (from 500 - 4000 Hertz) exceeding 40 dB in either ear and the Veteran's puretone thresholds did not average 26 dB or more over any three frequencies (from 500 - 4000 Hertz). Likewise, speech recognition scores were not less that 94 percent in the examination. Based on these findings, the Board concludes that the competent and probative evidence of record does not demonstrate that the Veteran has a current bilateral hearing loss disability for VA rating purposes. The Board recognizes that the Veteran has complained of hearing loss in his ears. See, e.g., the Veteran's notice of disagreement dated in September 2009. Furthermore, his audiometric findings suggest that he has some hearing impairment in his ears. However, the level of hearing impairment in his ears does not satisfy the regulation criteria for establishing a hearing loss disability for VA purposes. With respect to the Veteran's claimed right and left knee disabilities, the Board finds that the weight of the evidence is against a finding that the Veteran has either of these disabilities. Specifically, the competent and probative evidence of record is absent a finding of such. The Board wishes to make it clear that it has no reason to doubt that the Veteran experiences certain symptoms such as pain in his knees. However, symptoms alone, without a diagnosed or identifiable underlying malady or condition, do not constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including difficulty hearing and pain in his knees), has presented no competent evidence of hearing impairment of such severity to satisfy the regulatory requirements for establishing a bilateral hearing loss disability for VA rating purposes. In this regard, the Board finds that the Veteran as a lay person is not competent to render a medical opinion that his current hearing impairment rises to such levels as to constitute a disability for VA purposes. Furthermore, the Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to either a right or left knee disability. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions or audiological findings such as pure tone thresholds or speech discrimination scores, the Board must find that his contention with regard to a diagnosis of a bilateral hearing loss disability, right knee disability, or left knee disability to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claims are not competent evidence of a current diagnosis of a bilateral hearing loss, right knee, or left knee disability. The Veteran has been accorded ample opportunity to present competent evidence of current disability in support of his claims of bilateral hearing loss, right knee, and left knee disabilities. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002). The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Because the competent evidence of record does not show a current diagnosis of bilateral hearing loss, right knee, or left knee disabilities, the first Hickson element is not met, and service connection is not warranted on that basis as to any of these claims. See Degmetich v. Brown, 104 F.3d 132 (Fed. Cir. 1997); see also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. In conclusion, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for bilateral hearing loss, right knee, and left knee disabilities. The benefits sought on appeal are accordingly denied. Service connection for tinnitus and bilateral foot disability Because the outcome as to these issues involves the application of virtually similar law, the Board will address the two issues together. The law and regulations generally pertaining to service connection claims has been set forth above and will not be repeated. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, 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. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service." Cases in which the condition is noted on entrance are, however, still governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows 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 (2012). 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 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2012). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2012). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). The Board initially notes that, with respect to the Veteran's bilateral foot disability claim, the Veteran has contended that he has had bilateral flat feet "all his life." See the April 2009 VA examination report. To the extent that there is a question as to whether the Veteran had a preexisting bilateral foot disability that was aggravated by his period of service, the Board notes that no bilateral foot disability was noted on the Veteran's June 1968 entrance examination and thus the presumption of soundness applies. This presumption cannot be rebutted unless there is clear and unmistakable evidence that the bilateral foot disability pre-existed and was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Board observes that the Veteran's service treatment records during his period of active duty do not document the presence of a bilateral foot disability or symptoms associated therewith that may be attributable to a pre-existing disability. Accordingly, the Board finds that there is not clear and unmistakable evidence that the Veteran's current bilateral foot disability pre-existed his military service. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The presumption of soundness upon enlistment has therefore not been rebutted. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012); see also Bagby v. Derwinski, 1 Vet. App. 225, 227. The Veteran is claiming entitlement to service connection for tinnitus and a bilateral foot disability, which he contends are due to his military service. See, e.g., the Veteran's notice of disagreement dated September 2009. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. As to Hickson element (1), the evidence of record indicates that the Veteran is currently diagnosed with pes planus and tinnitus, as is evidenced by the reports of the April and August 2009 VA examinations, respectively. Hickson element (1) is, therefore, satisfied as to both claims. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Board notes that a review of the Veteran's service treatment records reveals no evidence of tinnitus. However, the Veteran maintains that he developed tinnitus due to noise exposure in service from working as a flight line ordinance crew chief in the Air Force. See, e.g., the Veteran's notice of disagreement dated September 2009. The Veteran served on active duty from October 1968 to October 1972. His DD Form 214 reflects that his military occupational specialty was a weapons mechanic. Although his service treatment records are negative for any history, treatment, or diagnosis of tinnitus, pursuant to the provisions of 38 U.S.C.A. § 1154(a), the Board finds that the circumstances of the Veteran's service, including military training as a weapons mechanic, would be consistent with exposure to loud noise in service. This is sufficient to satisfy Hickson element (2), in-service injury. With respect to the Veteran's bilateral foot disability, the Board notes that his service treatment records document treatment for pain in his feet in December 1968 as a result of marching. At that time, tenderness and swelling in the right second and third metatarsal were noted. However, an X-ray report revealed no fracture. Additionally, the Veteran sought treatment for feet problems in October 1970. Mild dyshidrosis on both feet and toes were noted. The remainder of the Veteran's service treatment records, to include his July 1972 separation examination, are negative for any complaints of or treatment for a bilateral foot disability. The Board adds that the record does not reflect medical evidence showing any manifestations of arthritis of the feet during the one-year presumptive period after the Veteran's separation from service. On the contrary, the record does not reflect any complaints or findings of a bilateral foot disability until July 2008 (more than 30 years after his separation from active service) that are consistent with arthritis. As such, service connection is not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. Turning to crucial element (3), nexus, the Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record supports a finding that neither the Veteran's current tinnitus nor bilateral foot disability are related to his military service. With regard to the Veteran's tinnitus, he was afforded a VA audiological examination in August 2009. In addition to the results of a current audiological examination, the VA examiner considered the Veteran's history of military noise exposure. Despite the Veteran's in-service noise exposure, the audiologist concluded that, "it's less likely as not that [V]eteran's current hearing loss and tinnitus are a result of noise exposure while in the service..." The audiologist's rationale for her conclusion was based on a review of the Veteran's claims folder as well as consideration of the Veteran's medical history. She also noted possible contributions to the Veteran's tinnitus from unprotected occupational noise exposure and medical factors. With respect to the Veteran's bilateral foot disability, he was afforded a VA examination in April 2009. In addition to the results of a current examination, the VA examiner considered the Veteran's in-service treatment for pain in his feet as well as his current complaints of bilateral foot pain. After examination of the Veteran, the VA examiner diagnosed the Veteran with bilateral pes planus. In an addendum dated June 2009, a VA examiner who reviewed the April 2009 examination report initially reported that the Veteran's service treatment records were absent any documentation of bilateral pes planus. He further reported that if going by the Veteran's reported history of a chronic bilateral foot disability, the pes planus "would likely be related to the service." However, he also noted that if going by the absence of evidence of the pes planus condition in the service records, then the Veteran's current bilateral foot disability "is not likely to be related to the [Veteran's] service..." He thereafter concluded that "the bilateral pes planus condition at this time cannot be related to the [Veteran's] service without the resort to speculation. There is no other foot condition which can be related to the service." The Board notes that in finding that it is speculative as to whether the Veteran's pes planus is a result of his military service, the VA examiner provided a rationale for his conclusion. Specifically, the examiner's rationale for his conclusion was his finding that the Veteran's service treatment records did not document any complaints of or treatment for bilateral pes planus. Moreover, although he indicated that if going by the Veteran's statements that he has had a bilateral foot disability since service, that his current pes planus would likely be related to his service, as will be discussed below, the Board finds that the Veteran's statements of a chronic bilateral foot disability are not credible and inconsistent with the evidence of record. The Board therefore finds that in qualifying his opinion with sufficient rationale, to include review of the Veteran's service treatment records and his medical history, remand is unnecessary for further development. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The August 2009 VA audiological examination report as well as the April 2009 VA examination with June 2009 addendum appear to have been based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history. See Bloom, supra. Additionally, the VA examiners' opinions appear to be consistent with the Veteran's medical history, which is absent any documented complaints of or treatment for tinnitus or a bilateral foot disability for many years after service. Further, in rendering the opinions, the VA examiners considered the Veteran's entire medical history, and determined that his military service, to include the in-service exposure to noise and treatment for feet problems, did not cause his current tinnitus and bilateral foot disability. The Veteran has not submitted a medical opinion to contradict the VA examiners' opinions. As was explained in the VCAA section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claims. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is the claimant's responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson, supra. "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau, supra; see also Buchanan, supra ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including ringing in his ears and pain in his feet), has presented no probative clinical evidence of a nexus between either his tinnitus or bilateral foot disability and his military service. The Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to acoustic trauma or a bilateral foot disability during service. That is, the Veteran is not competent to opine on matters such as the etiology of any current tinnitus or bilateral foot disability. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to the etiology of his currently diagnosed tinnitus and bilateral foot disability to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. The Board notes that the Veteran appears to be contending that he has had tinnitus and a bilateral foot disability continually since service. However, the first postservice evidence of complaint of, or treatment for either tinnitus or a bilateral foot disability is dated in July 2008 when the Veteran filed his claims for VA benefits. This was more than 30 years after the Veteran left service in October 1972. While the Veteran is competent to report tinnitus and a bilateral foot disability over the years since service, the Board notes that neither tinnitus nor a bilateral foot disorder were reported at the time of his service discharge. The Board finds that his current statements regarding a continuity of tinnitus and a bilateral foot disability since service are not credible. His July 1972 separation examination from service as well as the April and August 2009 VA examinations contradict any current assertion that his current tinnitus and bilateral foot disability were manifested during service. There is no competent medical evidence that the Veteran complained of or was treated for either tinnitus or a bilateral foot disability for many years after his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also 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 the claimed condition]. The Board accordingly places no probative value on the assertions of the Veteran that there has been a continuity of symptomatology dating to service. Therefore, continuity of symptomatology after service is not demonstrated. Accordingly, Hickson element (3) is not met, and the Veteran's claims fail on this basis. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for tinnitus and a bilateral foot disability. The benefits sought on appeal are accordingly denied. ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a bilateral foot disability, to include pes planus is denied. REMAND Service connection for a back disability The VCAA and its implementing laws and regulations provide, generally, that an examination or opinion is necessary if the evidence of record contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and establishes that the Veteran suffered an injury or disease in service; indicates that the claimed disability or symptoms may be associated with the established injury, or disease in service or with another service-connected disability, but does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2012). The Board observes that the Veteran was afforded a VA examination for his back disability in April 2009. However, the Board finds that the opinion rendered is inadequate. In so finding, the Board notes that the April 2009 examiner conducted an interview of the Veteran, reviewed the claims file, and conducted a complete examination. The examiner also noted the Veteran's in-service treatment for low back pain in October 1970. After considering the foregoing, the examiner diagnosed the Veteran with a low back strain and concluded that "[t]his condition cannot be related to the service without the resort to speculation based on the available information." Before the Board can rely on the examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, the Board must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves v. Nicholson, 21 Vet. App. 46, 51 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. See Wallin v. West, 11 Vet. App. 509, 514 (1998). The phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Finally, the examiner should clearly identify precisely what facts cannot be determined. For example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes. See Jones, 23 Vet. App. at 389. Here, it is unclear on what reason or reasons the examiner based his conclusion that an opinion would be speculative. The Board observes that the examiner noted the Veteran's in-service treatment for low back pain and diagnosed the Veteran with a low back strain. In finding that the condition could not be related to service without resort to speculation, it is uncertain whether the examiner was attempting to indicate that because the available information was absent complaints of or treatment for a back disability for many years after the Veteran's discharge from service, that his current back disability is not related to his military service. Moreover, it is uncertain whether additional research or consultation would allow for a nonspeculative opinion. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). For the above stated reasons, and in light of the Court's recent holding in Jones regarding the use by examiners of terminology indicating that an opinion cannot be provided without resort to speculation, the Board finds that the April 2009 opinion is inadequate as regards the back disability claim. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for the claim remanded herein. After obtaining proper authorization, the RO should obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Thereafter, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his back disability. The Veteran's claims folder must be made available to the examiner prior to the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must: a) Identify any back disability that is currently shown or otherwise indicated in the record during the course of the appeal (i.e., at any time since July 2008). b) If a back disability is identified, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's current back disability is etiologically related to his period of military service, to include in-service treatment for low back pain. The examiner should indicate in his/her report that the claims folder was reviewed. A detailed rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran's VA claims folder. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs