Citation Nr: 1301967 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 04-42 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for residuals of a right leg and knee injury. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from August 1959 to April 1961. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2004 and February 2005 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In the April 2004 rating decision, the RO declined to reopen a claim for service connection for residuals of a right leg and knee injury. In the February 2005 rating decision, the RO denied service connection for bilateral hearing loss and tinnitus. The Veteran testified at a personal hearing before a Veterans Law Judge (VLJ) in July 2005 concerning the issue of whether new and material evidence had been presented to reopen a claim of entitlement to service connection for residuals of a right leg and knee injury. A transcript of the hearing is of record. The VLJ who conducted the July 2005 hearing is no longer employed by the Board. The Veteran was informed of this in a January 2008 letter from the Board and was provided the opportunity to exercise his right to testify at a new hearing before another VLJ. He responded that same month that he did not want an additional hearing before a VLJ. As regards his claims for service connection for bilateral hearing loss and tinnitus, the Veteran requested a hearing regarding these issues in his August 2005 VA Form 9 (substantive appeal). However, in December 2005, the Veteran withdrew his hearing request. There are no outstanding hearing requests of record. In January 2007 the Board remanded the matter of whether new and material evidence had been presented to reopen a claim for service connection for residuals of a right leg and knee injury. In a separate decision issued on the same date, the Board denied the claims for service connection for bilateral hearing loss and tinnitus. In December 2007, the United States Court of Appeals for Veterans Claims (Court) granted a July 2007 motion for remand of the January 2007 decision denying service connection for bilateral hearing loss and tinnitus. In March 2008, the Board remanded the claims for service connection for bilateral hearing loss and tinnitus for additional development. In January 2011, the Board found that new and material evidence had been submitted sufficient to reopen the claim for service connection for residuals of a right leg and knee injury. The reopened claim for service connection, as well as the claims for service connection for bilateral hearing loss and tinnitus, were remanded to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. After completing additional development, the AMC denied the claim for service connection for residuals of a right leg and knee injury, on the merits, and continued to deny the claims for service connection for bilateral hearing loss and tinnitus (as reflected in a June 2012 supplemental SOC (SSOC)), and returned these matters to the Board for further appellate consideration. In August 2012, the Board sought advisory medical opinions from the Veterans Health Administration (VHA). After receiving the completed VHA medical opinions, the Veteran received proper notice pursuant to 38 C.F.R. § 20.903 in November 2012. He responded in the same month that he had no further evidence or argument to submit and wanted the Board to immediately proceed with the adjudication of his appeal. The Code of Federal Regulations indicates that a Board-initiated medical expert opinion obtained under the authority of 38 C.F.R. § 20.901 is not subject to initial review by the RO. See 38 C.F.R. § 19.9(c)(1) (2012). In other words, the Board is not required to afford a claimant the opportunity to have a claim readjudicated by the Agency of Original Jurisdiction (AOJ) when the only new evidence of record consists of a newly- obtained VHA opinion. Thus, the Board will proceed to a decision on the merits on the claims. The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that has been considered in the June 2012 SSOC. Therefore, the Board's consideration of this evidence will not result in prejudice to the Veteran. As a final preliminary matter, in the January 2011 decision and remand, the Board noted that an August 2010 statement from the Veteran appeared to raise claims for service connection for prostate cancer, a kidney condition, and hernia problems. The Veteran's Virtual VA e-folder reflects that, in an April 2011 decision, the RO granted service connection for status post left inguinal herniorrhapy (claimed as abdominal hernia). Nevertheless, there is no indication that the RO has addressed claims for service connection for prostate cancer and a kidney condition. Claims for service connection for prostate cancer and a kidney condition have been raised by the record, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. Competent medical evidence indicates that the Veteran has current residuals of a right leg and knee injury, specifically, venous insufficiency and varicose veins, that are related to service. 3. Competent and persuasive evidence of record does not demonstrate that the Veteran's bilateral hearing loss was manifested during active service, was manifested within the first post-service year, or was developed as a result of an established event, injury, or disease during active service. 4. Competent and persuasive evidence of record does not demonstrate that the Veteran's tinnitus was manifested during active service or was developed as a result of an established event, injury, or disease during active service. CONCLUSIONS OF LAW 1. Current residuals of a right leg and knee injury, specifically, venous insufficiency and varicose veins, are related to service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Bilateral hearing loss was not incurred in or aggravated by active service, nor may service incurrence be presumed. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given the favorable disposition of the claim for service connection for residuals of a right leg and knee injury, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. As regards the claims for service connection for bilateral hearing loss and tinnitus, the Veteran filed his claim for service connection in December 2004. Thereafter, he was provided notice of what evidence was required to substantiate his claims for service connection and of his and VA's respective duties for obtaining evidence in correspondence dated in December 2004 and April 2008. Thereafter, the claims were reviewed and SSOCs were issued in January 2010, August 2010, and June 2012. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court found that the VCAA notice requirements applied to all elements of a claim. Notice as to this matter was provided in March 2006 and April 2008. The Veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. A review of the record shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal. His service treatment records and VA and private treatment records have been obtained and associated with his claims file. The Veteran was also provided with VA examinations to evaluate his claimed bilateral hearing loss and tinnitus in December 2009 and August 2011. Additionally, a medical opinion from VHA was obtained in September 2012. This case was remanded January 2011 because the Board found that the December 2009 VA examination report was inadequate; to obtain records from the Social Security Administration (SSA); and to make an additional attempt to obtain treatment records from Crane, Inc. As regards a VA examination, the Board instructed that the examiner should state whether it was at least as likely as not that any current tinnitus and/or bilateral hearing loss had its clinical onset during service or was related to the Veteran's in-service noise exposure. The examiner was instructed to acknowledge the Veteran's statement that he did not seek in-service treatment as well as his report of continuity of symptomatology following his discharge from service. The Veteran was afforded a VA examination in August 2011. The examiner opined that the Veteran's bilateral hearing loss and tinnitus were less likely as not caused by or a result of his active service or reported in-service noise exposure. In providing a rationale for this opinion, the examiner noted that whisper voice tests at enlistment and separation were within normal limits for both ears; however, these tests do not give ear or frequency specific data and do not rule out the presence of a high frequency hearing loss. She added that there were no complaints of hearing loss or tinnitus found in the service medical records. As the Board stated in its August 2012 request for a medical opinion, the rationale provided for this opinion was not adequate as, while the examiner pointed to the absence of complaints of hearing loss or tinnitus in the service treatment records, she did not take into account the Veteran's lay statements. Because VA undertook to provide a VA examination to evaluate the Veteran's claimed hearing loss and tinnitus, the Board must ensure that such an examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). Significantly, the audiologist who provided the September 2012 VHA opinion considered and addressed the Veteran's report of hearing loss in service. The Board finds the September 2012 VHA opinion adequate to address these claims. As regards his SSA records, the records were requested pursuant to the Board's January 2011 remand. The SSA responded in the same month that there were no medical records because the Veteran did not file for disability benefits. Moreover, the Veteran himself reported in an April 2011 statement that he had never filed for SSA benefits. Accordingly, no further action in this regard is required. As regards records from Crane, Inc., the Veteran reported in a May 2008 statement that he received extensive and annual hearing tests while working for Polyvend, which later became Crane, adding that he worked for the company for a long time. In January 2011, the Veteran submitted a VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)) for Crane Merchandising Systems. The AMC requested records from this entity in April and May 2011; however, no response was received. The June 2012 SSOC indicated that no response had been received. The Board finds that no further action in regard to obtaining copies of hearing tests from Crane, Inc. is warranted. See 38 C.F.R. § 3.159(c)(1). For all the foregoing reasons, the Board finds that there was substantial compliance with the January 2011 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Additionally, in a June 2009 VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)), the Veteran reported that his family doctor, Dr. J.A.H., who had treated him all of his life, passed away a few years earlier and his secretary had advised him that they did not know where his records were. Accordingly, no further action in regard to obtaining records from this physician is required. Further, in a January 2010 VA Form 21-4142, the Veteran reported that he had received treatment at Van Buren County Memorial Hospital. He indicated that this was an old hospital which had been demolished, but stated that he had gone to the new hospital, was sending the records they gave him, and was told that the hospital would send any additional records which were currently in storage in a warehouse when possible. In a February 2010 letter, the AMC advised the Veteran that the 21-4142 for Van Buren County Memorial did not contain a complete address. The complete address was requested so the AMC could request records from this facility. The Veteran has not subsequently provided a new VA Form 21-4142 including a complete address for this facility. Accordingly, no further action in regard to obtaining records from this facility is required. The Board has considered that, as mentioned in the introduction, an April 2011 rating decision included in the Veteran's Virtual VA e-folder reflects that he was granted service connection for status post left inguinal herniorrhapy. The evidence considered in this decision included a claim received in September 2010, enlisted service records, service treatment records, a VCAA notice response received in September 2010, a statement from the Veteran with a statement from Mr. D., received in September 2010, and a March 2011 VA examination. While the Veteran's service treatment records are associated with the claims file, the other pieces of evidence listed above are not presently available for the Board's review in either the paper claims file or the Virtual VA e-folder. Nevertheless, there is no indication that the aforementioned claim, statements, and VA examination report pertain to the Veteran's claims for bilateral hearing loss and/or tinnitus. Rather, the rating decision indicates that the VA examination pertained to the Veteran's claimed hernia. Further, it is only reasonable to conclude that such statements also pertain to the claimed abdominal hernia. Accordingly, remand to associate these pieces of evidence with the current record would impose unnecessary additional burdens on adjudication resources, with no benefit flowing to the Veteran, and is, thus, unnecessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The Veteran has not identified any additional, relevant evidence that has not been requested or obtained. The Veteran has been notified of the evidence and information necessary to substantiate his claims, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claims for service connection for bilateral hearing loss and tinnitus. The Merits of the Claims Service connection may be granted for disability resulting from disease 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). Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court) or the United States Court of Appeals for the Federal Circuit (Federal Circuit), lay observation is competent. 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 (1997). The determination as to whether the requirements for service connection 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). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of the inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Residuals of a Right Leg and Knee Injury Considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection residuals of a right leg and knee injury, specifically, venous insufficiency and varicose veins, is warranted. The Veteran asserts that he has a current right leg disability as a result of an injury incurred during service. He has reported that, in October 1960, his right leg was injured when an automobile driven by two drunken sailors crashed into an area outside of a naval base where he was sitting on a concrete bench. Service treatment records include an October 1960 record of treatment for a bruised left, as opposed to right, lower leg. The Veteran testified during the July 2005 hearing that he did not know why the record mentioned the left leg rather than the right leg, but thought that such reference may have been made in error because multiple people were injured in the accident and there may have been some confusion among the medical personnel. On separation examination in April 1961 clinical evaluation of the lower extremities was normal. The Veteran has submitted lay statements in support of his reported in-service injury. In an August 2004 statement, J.W.S., Jr. reported that he was sitting with the Veteran at the time of the accident, in which they were both injured. He stated that the Veteran was hospitalized with a right leg and knee injury. In a November 2004 statement, the Veteran's brother stated that, when he came home on leave in December 1960, the Veteran's right leg was swollen and bruised and he could barely walk. Post-service VA and private treatment records include complaints regarding and treatment for right leg pain. The Veteran was afforded a VA examination to evaluate his claimed right leg disability in October 2004. He described the October 1960 motor vehicle accident. He stated that he was hospitalized for several days because of an injury to his right lower leg, but apparently did not have any fractures, although it was bruised. He added that he remained in the service for about a year after this and stated he did not recall having any particular difficulty with his leg. He went on to state that, shortly after leaving service, he noticed some swelling of his right ankle and lower leg and started wearing support hose. He added that he had worn stockings off and on since that time. The Veteran stated that he had, very gradually, noticed some increase in the circumference of his right leg and increased problems with pain when standing. He denied any surgery on the right leg, but reported that he had a saphenous vein harvested from his left leg for a recent coronary artery bypass. Examination revealed brawny edema from the right knee down to the toes which was moderate in magnitude. There was no evidence of arterial insufficiency, although there were very large tortuous varicose veins which extended down almost the entire length of the greater saphenous system from the groin to the inside of the ankle. There were also smaller, but dilated veins involving the lesser saphenous system over the back of the calf. Edema of the leg was slightly pitting and the right leg seemed to be slightly warmer than the left. The diagnosis was varicose veins, unilateral, with chronic brawny edema of the right leg. The examiner commented that, though he had no evidence to support the events described by the Veteran, including the onset of swelling in the leg, it was certainly conceivable that he could have had an injury that caused deep vein thrombosis or even arteriovenous fistula with subsequent development of varicosities and chronic edema of the right leg. The examiner added that swelling of this type occurring in an individual who would have been in his late teens or early 20s at the time of the incident was highly unlikely under ordinary circumstances. The examiner concluded by stating that he was unable to say for certain, but it was certainly possible that the Veteran's present condition was a direct consequence of his injury which occurred many years earlier. In a December 2004 statement, the Veteran reported that he was hospitalized for severe injuries to his right leg and knee after being hit by a car in October 1960. He reported right leg pain every day since being released. The Veteran underwent another VA examination in February 2011. The examiner indicated that no claims file was available to review. The Veteran again described being hit by a motor vehicle in service. He reported that he was taken back to the base and was kept overnight in the dispensary. He stated that he was told by the corpsman there that they could not find any structural damage to his right leg or knee. However, the Veteran added that, in subsequent days, his entire right leg turned black and blue and was extremely sore. The Veteran indicated that he limped for a number of days, but the discoloration resolved. He reported that he had always experienced discomfort in the right leg since getting out of the Navy, and added that he had worked as a machinist, which had required him to be on his feet for significant periods of time. Examination of the right leg revealed bulbous varicosities cascading down the inner aspect of the right upper leg from the groin extending down to the level of the knee and into the lower leg. There was pitting edema in the pretibial region and "tattooing" of brawny discoloration and pigmentation over the medial aspect of the ankle and over the medial malleolus. The diagnoses were remote blunt trauma to the right leg without sequelae and saphenofemoral venous insufficiency with significant venous reflux and varicose vein formation involving the entire right leg with significant left lower extremity edema. [Parenthetically, the Board notes that this reference to the left lower extremity appears to be in error, as the same examiner found edema on examination of the right lower extremity and made no such finding in regard to the left lower extremity.] The examiner commented that the Veteran's issues were not with his joint, but, rather, were related to the dramatic venous insufficiency involving the entire length of the right leg. The examiner stated that, regarding whether or not the compression of the right leg during the traumatic event occurring in 1960 was enough to "blow out" the greater saphenous femoral venous junction, he could only resort to speculation. However, he stated that the fact was that the Veteran had significant right lower extremity and right upper leg disability which could be benefitted by decompressing the greater saphenous vein surgically. While the February 2011 VA examiner did not review the claims file in conjunction with his examination on that date, he indicated in a July 2011 addendum that he had reviewed the claims file; however, he offered no additional comments or information. As indicated above, in August 2012, the Board requested a VHA medical opinion regarding the claim for service connection for residuals of a right leg and knee injury. In October 2012, a vascular surgeon reviewed the claims file and noted that multiple examiners had documented swelling and varicose veins of the right leg. She further noted that the Veteran had reported swelling of the right ankle which started to occur shortly after discharge from service and had progressively worsened. The vascular surgeon stated that, from the notes, the Veteran had varicose veins and swelling of the right leg. Although she could not find evidence of a duplex examination, she indicated that this was likely due to venous insufficiency. She opined that the accident described in 1960 may or may not have contributed to the Veteran's current venous disease. She then went on to opine that it was greater than 50 percent possible that the Veteran developed a deep vein thrombosis of the right leg after the accident, resulting in venous insufficiency and venous stasis disease. The Veteran clearly has a current right leg disability, specifically, venous insufficiency and varicose veins, as demonstrated on VA examination in October 2004 and February 2011. Thus, the first element of the successful service connection claim is satisfied. The evidence also reflects that the Veteran incurred an injury to the right leg during service. In this regard, the Veteran is competent to report his in-service injury to the right leg. See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). The Board finds this report to be credible. In making this determination, the Board has considered the fact that the service treatment records document treatment for the left, as opposed to right, leg in October 1960. However, the Board finds that it is likely that this reference to the left leg was simply an error, as the Veteran has consistently described an injury to the right leg and provided a plausible explanation for such an error during the July 2005 hearing. The Board has also considered that the Veteran reported during the October 2004 VA examination that he was hospitalized for several days following the 1960 accident, whereas during the February 2011 VA examination, he reported that he was taken back to the base and was kept overnight in the dispensary. Despite this inconsistency, the Veteran has consistently described an in-service injury to the right leg after being hit by a motor vehicle. Moreover, the Veteran has provided lay statements, from a fellow service member also injured in the accident and from his brother, who observed his right leg following the accident, which support the Veteran's report of an in-service injury to the right leg. Hence, the only question remaining for resolution is whether there exists a medical nexus the Veteran's current right leg disability and service. The Veteran has reported, as he is competent to do, a continuity of symptomatology of right leg pain since service. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds this report to be credible. This report of a continuity of symptomatology suggests a link between his current right leg pain and service. See Duenas v. Principi, 18 Vet. App. 512 (2004). Further, the only medical opinions regarding the question of a relationship between the Veteran's current right leg venous insufficiency and varicose veins and service are those rendered by the October 2004 VA examiner, the February 2011 VA examiner, and the VA vascular surgeon. While the October 2004 and February 2011 opinions each indicate that it is medically possible that the Veteran's described injury to the right leg in 1960 could result in his current right leg condition, these opinions are equivocal at best. Accordingly, they are simply too speculative to establish a nexus. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a medical nexus). While the vascular surgeon who provided the October 2012 opinion similarly stated that the accident described in 1960 "may or may not have contributed to [the Veteran's] current venous disease" she went on to clearly opine that it was greater than 50 percent possible that he developed a deep venous thrombosis of the right leg after the accident, resulting in venous insufficiency and venous stasis disease. Thus, while the first portion of the October 2012 opinion also appears to be speculative, the vascular surgeon did go on to opine that it was more likely than not that the Veteran's current right leg condition, that is, venous insufficiency and venous stasis disease, was related to a deep venous thrombosis of the right leg which developed after the accident. The Board finds that this opinion provides probative evidence that supports a nexus between the Veteran's current right leg condition and service. Thus, resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for residuals of a right leg and knee injury, specifically, venous insufficiency and varicose veins, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Bilateral Hearing Loss and Tinnitus Service connection can be granted for certain diseases, including organic diseases of the nervous system (such as sensorineural hearing loss), if manifest to a degree of 10 percent or more within one year of separation from active service. Such diseases shall be presumed to have been incurred in service even though there is no evidence of disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for bilateral hearing loss and tinnitus is not warranted. The Veteran asserts that he has hearing loss and tinnitus related to service. Specifically, in a December 2004 statement he asserted that, while working in the maintenance division at the Naval Training Center in San Diego, the saluting cannons fired and the blast "sucked the air away from us" adding that it was a minute before he and the others working with him could breathe. He stated that this incident was very painful and made his ears hurt badly. He described another incident in which he was flying from Arizona to Tennessee on a Marine Corps cargo plane when the plane ran into a bad storm, causing the plane to rise, fall, and shake. He stated that it seemed like his ear drums were "turned inside out" and it "hurt bad." He added that, since this incident, he had been partially deaf and had ringing in his ears. The Veteran reported that he had not been treated for this problem, as he thought it was a problem he would have to live with. Service treatment records are negative for complaints regarding or treatment for hearing loss or tinnitus. On enlistment examination in August 1959 and separation examination in April 1961, hearing was 15/15 for whispered and spoken voice, bilaterally. Ear examinations on both dates were normal. While there is no evidence of hearing loss in service, the Board notes that the absence of in-service evidence of hearing loss is not fatal to a claim for that disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) 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. 155, 159 (1993). Likewise, service connection may be granted for tinnitus or other disability diagnosed after service upon a showing of a medical nexus between that disability and injury (to include noise exposure) or disease in service. See, e.g., 38 C.F.R. § 3.303(d). Post-service VA treatment records include complaints of decreased hearing. In October 2003 the Veteran denied a change in his vision or hearing but reported some decreased hearing. The external ears were normal on examination. In February 2004, the Veteran was seen for several problems including wax impaction of the left ear. He reported decreased hearing. The left ear was irrigated. In February 2005, the Veteran presented to the audiology clinic with complaints of decreased hearing and constant tinnitus, bilaterally, for many years. He gave a history of military noise exposure. The assessment in regard to the right ear was mild sensorineural hearing loss from 250 to 1000 Hertz, with a moderately severe to severe sensorineural hearing loss from 1500 to 8000 Hertz. The assessment in regard to the left ear was mild to moderate sensorineural hearing loss from 250 to 1500 Hertz, with a moderately severe to severe sensorineural hearing loss from 2000 to 8000 Hertz. The audiologist commented that the Veteran's degree of hearing loss could cause significant communication problems and that he might benefit from the use of bilateral hearing aids. Hearing aids were issued in March 2005. In August 2005 the Veteran reported that his hearing was doing well, although he did report some decreased hearing. The Veteran was afforded a VA audiological examination in December 2009. He complained of difficulty hearing and intermittent ringing tinnitus, bilaterally. The examiner noted that service treatment records revealed that the Veteran passed whispered voice tests administered in August 1959 and April 1961. The Veteran reported that his difficulty hearing and tinnitus began after he was exposed to cannon fire in the Navy. He stated that his typical job was as a maintenance worker on the base, which did not usually involved significant noise exposure; however, one day he was working on a sewer on the base and the gun crew did not realize he was down range from the gun when they shot over his head. The Veteran described minimal civilian noise exposure, although he reported that he was a machinist. He also reported limited hunting, without hearing protection, when he was a young man. He denied a family history of hearing loss or medical problems with his ears. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 75 75 75 LEFT 35 25 60 85 90 Speech recognition scores on the Maryland CNC Word List were 72 percent in the right ear and 62 percent in the left ear. The diagnosis was mild to severe sensorineural hearing loss in the right ear and mild to profound sensorineural hearing loss in the left ear. The examiner opined that the Veteran's hearing loss and tinnitus were not at least as likely as not caused by or related to his military service. In providing a rationale for this opinion, the examiner noted that the Veteran passed his entry and exit whisper tests from the military and no report was found in the service treatment records suggesting a complaint of hearing difficulty or tinnitus while in service. In a January 2010 statement, the Veteran reported that he had problems with hearing and tinnitus since cannon fire in service damaged his ears. The Veteran was afforded another VA audiological examination in August 2011. He again complained of difficulty hearing and ringing in his ears. He denied pre- and post-military occupational and recreational noise exposure and reported military noise exposure from cannon fire without hearing protection. He stated that he lost his hearing suddenly when he was in close proximity to cannons being fired unexpectedly in 1961. He reported that he worked as a machinist post-military, but denied noise exposure. He denied ear disease, ear or head trauma, or a family history of hearing loss. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 55 70 70 LEFT 25 25 60 85 80 Speech recognition scores on the Maryland CNC Word List were 84 percent in the right ear and 88 percent in the left ear. The diagnosis was normal to severe sensorineural hearing loss, bilaterally. The examiner opined that it was less likely as not that the Veteran's current tinnitus and/or bilateral hearing loss were caused by or a result of his active service or his reported in-service noise exposure. In providing a rationale for this opinion, the examiner stated that the whisper voice tests at enlistment and separation were within normal limits for both ears; however, these tests do not give ear or frequency specific data and do not rule out the presence of a high frequency hearing loss. She added that there were no complaints of hearing loss or tinnitus in the service treatment records. As indicated above, in August 2012, the Board requested a VHA medical opinion regarding the claims for service connection for bilateral hearing loss and tinnitus. In September 2012, a VA audiologist reviewed the claims file and acknowledged the Veteran's contention that he was exposed to cannon fire in 1961 which caused him to be "partially deaf for the rest of his life." The audiologist noted that the whispered voice test had been administered at the Veteran's entrance to and exit from service; however, she noted that the whispered voice test was not deemed an accurate or sensitive assessment of hearing sensitivity and, therefore, his hearing sensitivity at that time was largely unknown. Therefore, she stated that the whispered voice test had no relevance to her opinion. The audiologist reported that she found "absolutely no evidence that shows hearing loss or tinnitus existed since his [the Veteran's] military service." In fact, she found that most of the evidence was to the contrary. In support of her conclusion, the audiologist noted that the Veteran had submitted a picture of the Naval Training Center in San Diego showing the cannons to which he was exposed. She stated that these were ceremonial cannons located on a canal as part of a saluting battery, as opposed to battleship cannons firing live projectiles and, therefore, they used minimal charges. She stated that it was unlikely that these cannons would produce a concussive wave sufficient to cause noise injury. She further acknowledged that the Veteran had submitted a picture of the saluting battery in which several sailors were standing around the cannons and pointed out that, if the cannons truly produced such force that they "sucked the air away from us" as reported by the Veteran in his December 2004 statement, no one would be standing so close. The audiologist also addressed the Veteran's reported incident which occurred when flying from Arizona to Tennessee on a cargo plane and he had a feeling "like [his] ear drums were turned inside out" as described in his December 2004 statement. The audiologist stated that the pain he was describing was likely as if he had a cold at the time and his Eustachian tubes were not functioning appropriately to adjust middle ear pressure according to the altitude change. She indicated that, while this could certainly be painful, it would not cause permanent hearing loss. The audiologist noted that the service treatment records showed no complaint or diagnosis of hearing loss or tinnitus in service or within one year of discharge and the separation examination revealed the ears and ear drums to be normal. She opined that it was unlikely that if someone was actually "partially deafened" they would make absolutely no complaint of it. Regarding his post-service employment, the audiologist pointed out that review of the claims file revealed that the Veteran had worked for more than 30 years in a plastics factory as a machinist and reported that his hearing was evaluated annually. She stated that the only persons subjected to annual hearing conservation tests by law are those who are routinely exposed to hazardous noise levels. Further, she pointed out that the Veteran had a very limited time in service, roughly one year and six months, versus more than 30 years of noise exposure in a factory setting. The audiologist acknowledged that the Veteran had claimed that his hearing loss existed since leaving service; however, he did not seek any treatment until 2005, more than 40 years after leaving service. She pointed out that the Veteran had filed a claim for a leg injury in 2001; however, he did not claim hearing loss and tinnitus until the end of 2004. She commented that, if the Veteran had had hearing loss and tinnitus since leaving service, it was unusual that he did not also claim it in 2001. The audiologist concluded by stating that the Veteran currently had a moderately-severe to severe high frequency sensorineural hearing loss in both ears. She stated that this hearing loss was consistent with his history of routine civilian noise exposure in a factory setting. She opined that it was more likely that his current hearing loss was due to or had its origins during his civilian employment and, therefore, it was less likely than not that his hearing loss and tinnitus had their clinical onset during his active service or were otherwise related to any in-service disease, injury, or event, to include noise exposure. The December 2009 and August 2011 VA audiological examinations clearly show that the Veteran has current bilateral hearing loss disability for VA purposes, as defined by 38 C.F.R. § 3.385, as well as current tinnitus. Thus, the first element of each claim for service connection, a current disability, is satisfied. While the Veteran's service treatment records do not document the occurrence of, or treatment for, any specific incidence of acoustic trauma, he is competent to assert the occurrence of in-service injury, to include in-service noise exposure from a cannon firing. He is also competent to describe ear pain while flying during service. See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board finds these reports of noise exposure and ear pain to be credible. Hence, the only questions remaining for resolution are whether there exists a nexus between current bilateral hearing loss disability and service, and/or between current tinnitus and service. The Board acknowledges that the Veteran has reported, as he is competent to do, a continuity of symptomatology of bilateral hearing loss and tinnitus since service. Specifically, in his December 2004 statement, the Veteran stated that he had been partially deaf and had ringing in his ears since flying on a Marine Corps cargo plane in service. During the December 2009 VA examination he reported that his difficulty hearing and tinnitus began after he was exposed to cannon fire in the Navy. Similarly, in a January 2010 statement, the Veteran reported that he had problems with hearing and tinnitus since cannon fire in service damaged his ears. While the Veteran is competent to describe hearing loss and tinnitus since service, the Board finds these reports not credible. In this regard, the audiologist who provided the September 2012 VHA opinion pointed out that the Veteran had filed a claim for service connection for a leg injury in 2001, but did not file a claim for service connection for hearing loss and tinnitus until 2004. She found it unusual that he would not have filed a claim for these disabilities if he had them since service. The Board notes that the Veteran did not file his claim for a right leg disability in 2001, but, rather, in November 2000. His claim was denied in a July 2001 rating decision and he filed a request to reopen his claim in July 2003. The fact that the Veteran did not mention his hearing loss and tinnitus at the time he filed claims for his right leg disability weighs against the credibility of any assertions of continuity of symptomatology of these disabilities. Further, the Board notes that the first mention of decreased hearing in the post-service treatment records is in October 2003. The first mention of tinnitus is in February 2005. A February 2005 Report of Contact reflects that the Veteran himself advised the RO that he had never been examined for his claimed hearing loss or tinnitus and, so, he had no medical evidence to submit. The Board recognizes that, symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). However, the Veteran's ears were described as unremarkable during examination in conjunction with hospitalization for chest pain and hypertension and in October 2000; were described as normal during private treatment for an upper respiratory tract infection in January 2000; and were described as unremarkable during treatment for hypertension in April 2001. It is reasonable to believe that, if the Veteran was experiencing hearing loss and tinnitus since service, such would have been mentioned during treatment prior to 2003 and 2005, respectively. The only medical opinions regarding the etiology of the Veteran's hearing loss and tinnitus are those provided by the December 2009 VA examiner, the February 2011 VA examiner, and the audiologist who provided the September 2012 VHA opinion. Both the December 2009 and February 2011 VA examiners provided opinions indicating that there was not a relationship between the Veteran's current hearing loss and tinnitus and service; however, the rationale for these opinions is not sufficient for deciding the claims. Indeed, both examiners appeared to rely, in part, on normal hearing tests during service. As indicated above, absence of in-service evidence of hearing loss is not fatal to a claim for that disability. See Ledford, 3 Vet. App. at 89. Further, the examiners pointed to the absence of complaints of hearing loss or tinnitus in the service treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the absence of evidence in the service medical records to provide a negative opinion). By contrast, the audiologist who provided the September 2012 VHA opinion reviewed the claims file and acknowledged the Veteran's reports of in-service symptoms and symptoms since service. However, she found that, if someone were "partially deafened" it was unlikely that they would make no complaint. She further addressed the Veteran's reports of symptoms since service, but as discussed above, noted found it unusual that the Veteran would not have filed a claim for hearing loss and tinnitus until 2004 if he had them since service, particularly in light of his history of filing a claim for service connection for a right leg disability. (As noted above, the Board has determined, based upon the record as a whole, that the Veteran's reports of continuing hearing loss and tinnitus symptoms since service are not credible.) The examiner also addressed the Veteran's reported injuries to the ears in service, that is, the cannon firing and experiencing ear pain while flying, but discussed why neither incident would result in hearing loss. Significantly, the VHA audiologist, who opined that it was less likely than not that the Veteran's hearing loss and tinnitus had their clinical onset during his active service or were otherwise related to any in-service disease, injury, or event, to include noise exposure, attributed his current hearing loss to another cause, specifically, his post-service employment. While the Veteran described only minimal civilian noise exposure during the December 2009 VA examination and denied pre- and post-military occupational and recreational noise exposure during the February 2011 VA examination, the record reflects he worked as a machinist after service. In his May 2008 VA Form 21-4142, he reported that his hearing was tested annually by his employer from 1964 to 1997. The VHA audiologist stated that the only persons subjected to annual hearing conservation tests by law are those who are routinely exposed to hazardous noise levels and pointed out that the Veteran had a very limited time in service, roughly one year and six months, versus more than 30 years of noise exposure in a factory setting. As discussed above, the audiologist who provided the September 2012 opinion reviewed the claims file, considered the Veteran's assertions, and provided a thorough rationale for her opinion that it was less likely than not that the Veteran's hearing loss and tinnitus had their clinical onset during his active service or were otherwise related to any in-service disease, injury, or event, to include noise exposure. The Board finds that this opinion is probative, and consistent with the evidence record. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Thus, the only competent, probative (persuasive) medical opinion evidence pertinent to these claims is adverse to the claims. Significantly, neither the Veteran nor his representative has presented or identified any existing, contrary medical opinion(s)-any that, in fact, supports a finding that there exists a medical nexus between bilateral hearing loss and/or tinnitus and service. The Board has considered whether service connection for bilateral hearing loss could be established on a presumptive basis. To establish service connection for a disability on a presumptive basis, the disability must manifest itself to a compensable degree within one year of the Veteran leaving active duty. See 38 C.F.R. §§ 3.307, 3.309. In this case, no medical evidence demonstrates that the Veteran experienced sensorineural hearing loss to a compensable level within a year after his discharge from active duty, rather, the first medical evidence mentioning decreased hearing is dated in October 2003. Therefore, service connection for sensorineural hearing loss cannot be established on a presumptive basis. Moreover, the Board points out that passage of many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Therefore, based on the foregoing, the Veteran is not entitled to service connection for bilateral hearing loss or tinnitus. The Veteran contends that his current hearing loss and tinnitus are related to service; however, there is no competent medical evidence or opinion to corroborate these contentions. See 38 C.F.R. § 3.159(a)(1) (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 Veteran's opinions are insufficient to provide the requisite nexus between an in-service event or injury and any current disability because, as a lay person, he is not competent to establish a medical etiology merely by his own assertions; such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Stadin v. Brown, 8 Vet. App. 280, 284 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As such, his statements regarding the etiology of any hearing loss and tinnitus disabilities are merely speculation as to a possible cause as he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to medical causation. For all the foregoing reasons, the claims for service connection are denied. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for residuals of a right leg and knee injury, specifically, venous insufficiency and varicose veins, is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs