Citation Nr: 1301753 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-28 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for left hip degenerative joint disease. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for right hip disability and, if so, whether the claim should be granted. 3. Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In August 2011, the Veteran testified at the RO before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The record shows that the RO denied the claim for service connection for tinnitus in a May 2010 rating decision. In June 2011, more than a year after notice of the adverse determination, VA received correspondence titled "Notice of Disagreement" with the tinnitus decision. As such, the Veteran has raised a claim to reopen. The matter is REFERRED to the RO for consideration. The issue of service connection for right hip disability is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. Left hip disability is manifested by flexion better than 45 degrees and pain on motion along with fatigue, instability, weakness, tenderness, and guarding of movement following repetitive motion testing. 2. Service connection for a right hip disability was denied in unappealed rating decision issued in February 1992. 3. The evidence received since the February1992 decision is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and is sufficient to raise a reasonable possibility of substantiating the claim. 4. Bilateral hearing loss disability is shown in service or within the initial post separation year, and has not been attributed to active service. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for left hip degenerative joint disease are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5003-5252 (2012). 2. New and material evidence has been presented to reopen a claim for service connection for right hip disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. A bilateral hearing loss disability was not incurred in or aggravated by active service, and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks an increased evaluation for left hip degenerative joint disease, currently rated at the 10 percent level; reopening of the previously denied claim for service connection for right hip disability and the granting thereof; and service connection for bilateral hearing loss disability. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). I. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), 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. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the Court has held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). VA provided the Veteran fully adequate VCAA notice for the issues on appeal in January and April 2010 letters. Although notice of the bases for the prior denial of the right hip claim was not included in the January 2010 letter, this error is harmless in view of the favorable decision to reopen the claim as discussed below. VA further satisfied its duty to assist the Veteran. VA obtained all relevant medical records and associated these with the record. VA afforded the Veteran adequate VA medical examinations in response to the claims herein decided. Although the Veteran has not been afforded a VA examination and no medical opinion has been obtained in response to the claim to reopen, VA is not obliged to provide an examination or to obtain a medical opinion in response to a claim to reopen until new and material evidence has been presented. See 38 C.F.R. § 3.159(c)(4). Lastly, VA provided the Veteran a hearing on appeal. A transcript of this hearing is associated with the claims file. Accordingly, the Board will address the merits of the claims. II. Claims for Increase The Veteran seeks an evaluation greater than 10 percent for degenerative joint disease of the left hip. The Veteran testified that he had chronic left hip that interfered with his ability to perform his job at a public school and engage in physical activities. He reported that his left hip hurt with dancing, bowling, and golf; that his left hip throbbed and ached during the night effecting his sleep. He described his condition as severe. He reported no regular treatment, but indicated that he had been seen 4 months earlier for a follow-up. He noted that he had been told he was too young for a total hip replacement. The Veteran denied use of a brace, cane or other assistive device. He reported that he has no loss of balance, but occasionally stumbles because he walks by throwing out his leg forward. Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The left hip is rated under Diagnostic Code 5003-5010. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The rating schedule provides that, under Diagnostic Code 5003, degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Under Diagnostic Code 5252, flexion limited to 45 degrees warrants a 10 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 20 degrees warrants a 30 percent rating; and flexion limited to 10 degrees warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Other potentially applicable provisions include Diagnostic Codes 5251, 5253, and 5255. Under Diagnostic Code 5251, a 10 percent disability rating is warranted for thigh limitation of extension limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. This is the maximum rating allowed under this code. An evaluation of 10 percent is warranted for limitation of adduction of the thigh with an inability to cross legs or for limitation of rotation with an inability to toe-out more than 15 degrees. Limitation of abduction of a thigh with motion lost beyond 10 degrees warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Diagnostic Code 5255 pertains to impairment of the femur. Where there is a fracture of the shaft or anatomical neck of the femur, with nonunion and loose motion, an 80 percent rating is warranted. With nonunion, but without loose motion, and where weight bearing is preserved with the aid of a brace, a 60 percent rating is warranted. Where there is a fracture of the surgical neck of the femur with a false joint, a 60 percent rating is warranted. Malunion of the femur warrants a 30 percent rating if there is marked knee or hip disability, a 20 percent rating if there is moderate knee or hip disability or 10 percent rating if there is slight knee or hip disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5253 and 5255. Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for left hip disability. Neither the lay nor the medical evidence more nearly reflects flexion limited to 30 degrees or less as contemplated by a higher evaluation. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5003-5252. Report of VA examination dated in February 2010 reflects left hip flexion limited to 90 degrees. A 10 percent evaluation requires flexion limited to 45 degrees; a 20 percent evaluation requires flexion limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Clearly, the limitation of flexion does not more nearly approximate the degree required for the next higher evaluation under Diagnostic Code 5252. Additionally, the Board finds that the criteria for a higher or separate disability evaluation is not warranted under any other potentially applicable criteria. There is no lay or medical evidence for ankylosis. Report of VA examination dated in February 2010 along with the Veteran's sworn testimony reflects considerable retained function and motion in the left hip and leg. Also, report of VA examination dated in February 2010 reflects that the Veteran has extension of the left hip better than 5 degrees, abduction better than 10 degrees, external rotation better than 15 degrees, and internal rotation to 10 degrees. Therefore, a higher or separate disability evaluation is not warranted on the basis of ankylosis under Diagnostic Code 5250; limitation of extension under Diagnostic Code 5251; or thigh impairment with no external rotation beyond 15 degrees, inability to cross legs with adduction, or motion lost beyond 10 degrees with abduction. Because there is no indication of hip flail joint or impairment of the femur, Diagnostic Codes 5254 and 5255 are not for application. Report of VA examination dated in February 2010 shows that Veteran has pain and weakness with range of motion testing. There was also objective evidence of painful motion, instability, tenderness, and guarding of movement. With repetitive motion testing, there was no additional loss of motion. There was pain, fatigue, and weakness following repetitive motion testing. Gait was described as abnormal, and the examiner noted that the Veteran had functional limitation of standing and walking-specifically, the Veteran put more weight on the right leg, favoring the left hip. The diagnosis was degenerative joint disease of the left hip. The examiner noted that the Veteran had pain towards the end of his work day as he stands, walks, and sits for extended periods of time. The Board has considered the Veteran's report of functional impairment due to left hip pain. The Board accepts the Veteran report of hip pain. 38 C.F.R. §§ 4.40, 4.45. However, neither the lay nor the medical evidence reflects the functional equivalent of flexion limited to 30 degrees or more to warrant a higher disability evaluation. A higher rating based on limitation of flexion requires that flexion more nearly approximate flexion limited to 30 degrees-and here flexion is limited to no more than 90 degrees, which in no way more nearly resembles the criteria for a higher rating. Given significantly retained range of motion in the left hip and the Veteran's testimony showing his ability to work and perform recreational activities albeit with increased pain and some restrictions, the Board finds that Veteran's limitation of motion does not justify the assignment of a higher evaluation when considered in conjunction with no indication of lost time from work due to the left hip, the absence of medical intervention for pain treatment, and the Veteran's self-treatment of pain symptoms with over-the-counter medications. At his recent hearing, the Veteran testified that he had had a general follow-up appointment for the left hip about four months earlier and VA treatment records note history of hip osteoarthritis and pain-but show no treatment for chronic problems or flare-ups. The Board has considered the Veteran's report of "stumbling." However, VA treatment records dated in 2010 include "Fall Risk Assessment" reports reflecting that the Veteran does not use a mobility device to ambulate; he walked without hesitation or loss of balance; and that he had a low fall risk. Thus, to the extent that the Veteran has left hip pain, fatigue, weakness, instability, and joint tenderness, the Board believes that the assigned 10 percent disability rating contemplates the level functional impairment related thereto, to include some interference with employment and recreational activities as reported by the Veteran. While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher (or separate) evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for an evaluation higher than 10 percent for the left hip, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative of the degree of disability. Accordingly, the claim is denied. The Board has considered whether a staged rating is warranted, but finds that it is not as the left hip disability did not exhibit symptoms or impairment that would warrant a different rating from that now assigned during the appeal period. See Fenderson, supra. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the record reflects that the manifestations of the disability are specifically contemplated by the schedular criteria. There is no indication of lost time from work or frequent periods of hospitalization. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Thun v. Peake, 22 Vet. App. 111, 115 (2008). III. Claims to Reopen The RO denied the claim for service connection for arthritis of the right hip in a February 1992 rating decision. The RO notified the Veteran of this decision in an April 1992 letter. No appeal was filed. VA received a claim to reopen the previously denied claim in January 2010. The Veteran testified in August 2011 that he had bilateral hip pain in service and that he was essentially medically separated because this problem. He reported continuity of pain in the right hip since service separation; that he received all his treatment through the VA; and that he used over-the-counter medications for pain relief. Legal Principles Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4) , which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Analysis The evidence of record at the time of the 1992 decision included service treatment records, the Veteran's original VA compensation claim (VA Form 21-526) dated in May 1991, and report of VA examination dated in September 1991. The claim was denied in 1992 because arthritis of the right hip was not shown on recent x-ray. In its decision, the RO discussed the negative imaging findings on recent VA examination and an in-service medical record dated in June 1990. Evidentiary submissions received since the prior final decision includes new and material evidence sufficient to raise the possibility of substantiating the claim. Specifically, the Veteran's testimony as to continuity of right hip pain since service along with current treatment for right hip complaints suggest that the Veteran may symptoms of a right hip disability that began in service and have continued since that service. Accordingly, the claim is reopened. IV. Claims for Service Connection Initially, the Board notes the Veteran does not assert that his claimed problems are a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, an organic disease of the nervous system, such as a sensorineural hearing loss, becomes manifest to a degree of 10 percent within one year of date of termination of active duty service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purpose of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold at any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when he 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 utilizing the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. The absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. at 159; 38 U.S.C.A. § 1154 (West 2002). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Bilateral Hearing Loss Disability Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for bilateral hearing loss disability. Hearing is shown to be within normal limits at service entry and on VA audiological testing within the initial post separation year. The Court has established that the threshold for normal is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Hearing loss is first shown nearly a decade after service separation on VA audiological examination in April 2010 and has not been related to the Veteran's period of active service. Here, the Veteran's in-service hearing and audiometric testing reflects normal findings on enlistment in April 1986. At that time, audiometric findings were between zero and 15 decibels. There is no separation examination in the record. Service treatment records further show that the Veteran was issued ear plugs. Notably, the Veteran filed an original claim for VA compensation immediately on service separation in April 1991, but he did not report any hearing loss problem at that time although he sought compensation for ear infections. VA audiological testing in September 1991 reflects pure tone thresholds between 5 and 10 decibels for the right ear, and between 5 and 20 for the left ear at the relevant frequencies. Hearing was described as within normal limits bilaterally. There were no complaint of hearing loss, but the Veteran reported tinnitus. The Veteran first reported hearing loss problems in March 2010 and a hearing loss disability as defined by VA was first shown on VA audiological examination in April 2010-at that time, the Veteran reported a history of noise exposure in service when working as a mortar-man. Here, neither the lay nor the medical evidence establishes the existence of hearing loss, to include a hearing loss disability as defined by VA, in service or within the initial post separation year. Additionally, neither credible evidence of continuity of symptomatology nor competent nexus-type evidence has been presented. In this regard, the Board acknowledges that the Veteran is competent to report his symptoms. Layno, supra. However, to the extent that the Veteran avers continuity of hearing loss symptoms since service, the Board finds that he is not credible in view of the service treatment records showing no hearing complaints or treatment, his original VA compensation claim that shows no claim for hearing loss disability, normal audiometric findings in September 1991-within a few months of service separation, and the nearly 10 years intervening service separation and his first report of any hearing loss problems. Also, to the extent that the Veteran reports having delayed onset hearing loss attributable to noise exposure in service, the Board finds that he is not competent to provide such a medical opinion given that this opinion may not be rendered based on the Veteran's personal observation, and because he lacks any particular skill or expertise that would render his opinion competent in this regard. Jandreau v. Nicholson, supra. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). Therefore, the Board finds that the Veteran's nexus opinion has no probative value. The Board assigns greater probative value to the April 2010 VA medical opinion, which found that it was less likely than not that the Veteran's hearing loss was related to service. The audiologist essentially explained that there would not have normal findings on hearing evaluation in 1991 had the Veteran sustained noise trauma related hearing loss in service. She noted the nature of permanent hearing loss due to noise trauma would have been permanent and without recovery as shown by the 1991 hearing test. Also, based on her experience and expertise, the examiner opined that the Veteran's post service noise exposure, age, and health conditions since military separation were contributing factors. The Board finds that VA medical opinion is more probative as it was prepared by a skilled, neutral, and medical professional in the field of hearing after obtaining a history from the Veteran, reviewing the claims folders, and conducting an audiological evaluation. Furthermore, the opinion is probative in this matter because it is supported by a rationale. The Board acknowledges that the examiner mistakenly referred to the 1991 VA audiological findings as findings associated with a separation examination-but this is not a meaningful error that compromised her medical opinion given that the findings were very close in time, a matter of a few months, to the Veteran's separation. According, the claims must be denied. There is no doubt to resolve. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER An evaluation in excess of 10 percent for left hip disability is denied. The petition to reopen the claim for service connection for right hip disability is granted. Service connection for bilateral hearing loss disability is denied. REMAND Right Hip Disability VA's duty to assist includes obtaining a medical examination or opinion where necessary to decide the claim. 38 C.F.R. § 3.159. See also, See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Duenas v. Principi, 18 Vet. App. 512 (2004) (a VA examination and/or opinion is warranted when there is an indication in the record that a current disability is related to military service; the threshold for an indication is low). In this case, the Board finds that a VA examination is necessary as there is an indication that the Veteran has a current disability of the right hip related to service. Service treatment records document that the Veteran presented with bilateral hip complaints, noted as worse on the left. A medical record dated in September 1990 reflects beginning osteoarthritis of both hips. The Veteran filed a claim for VA compensation immediately after service separation in 1991. Report of VA examination dated in September 1991 reflects complaints of bilateral hip pain, worse on left with weather change, rotation, and standing. Objectively there was full range of motion in both hips. The diagnosis was history of pain in hips. X-ray showed no significant bone, joint, or soft tissue pathology of either hip. The Veteran testified in August 2011 that he had bilateral hip pain in service and that he was essentially medically separated because this problem. He further testified that he has had continuous right hip pain symptoms since service. VA outpatient treatment records dated since March 2010 reflect a history of bilateral hip pain and a 2011 review of the systems noted osteoarthritis of the hips, but there were no x-ray reports in the record. Report of VA examination dated in February 2010 reflects right hip complaints and limitation of motion. There was no x-ray taken or diagnosis rendered in regard to the right hip. It is well-established in the record that the Veteran has had right hip pain dating to service. However, on remand, a VA examination should be conducted to ascertain whether there is any underlying pathology to account for the right hip pain, and whether any currently shown disability of the right hip is as likely as not related to the complaints and findings noted in service. Accordingly, the case is REMANDED to the RO or AMC, in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's right hip claim, to include VA medical records dated prior to February 2010 and since April 2011. 2. Then, the Veteran should be scheduled for a VA examination by an appropriate physician to ascertain whether there is any underlying right hip pathology (i.e. arthritis) to explain the Veteran's report of right hip pain and the recent VA examination findings for limitation of right hip motion. All indicated studies should be conducted to include x-ray of the right hip. The examiner should provide an opinion as to whether any currently shown right hip disability is as likely as not (50 percent or greater probability) etiologically related to service, to include the complaints and findings noted in service. The Veteran's report of right hip pain dating to service should be accepted as truthful unless otherwise indicated. The claims folder must be available for review along with any pertinent records located in the Veteran's Virtual VA electronic claims file. A complete rationale for all opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., that he or she relied upon in reaching his or her conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. After the development requested above has been completed to the extent possible, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the claims folders are returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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). ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs