Citation Nr: 1306240 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 07-10 004A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an effective date earlier than December 20, 2006, for the grant of service connection for migraine headaches. 3. Entitlement to an initial rating higher than 30 percent for the migraines. 4. Entitlement to an effective date earlier than March 10, 2011, for the grant of service connection for an anxiety disorder, not otherwise specified (NOS). 5. Entitlement to an effective date earlier than June 14, 2011, for a 40 percent rating for degenerative arthrosis and facet arthropathy of the lumbar spine. 6. Whether the Veteran's daughter may be recognized as a "helpless child" based on permanent incapacity for self-support prior to attaining the age of 18 for the purpose of entitlement to Department of Veterans Affairs benefits. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active military service from July 1980 until retiring in July 2000. This appeal to the Board of Veterans' Appeals (Board/BVA) is from October 2005 and July 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In the October 2005 rating action, the RO, in pertinent part, determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. The Veteran appealed. In a June 2011 decision since issued during the pendency of the appeal, however, the Board concluded otherwise, finding that new and material evidence indeed had been submitted to reopen this claim for service connection for bilateral hearing loss. But rather than immediately readjudicating this claim on its underlying merits, the Board instead remanded this claim to the RO via the Appeals Management Center (AMC) for further development. Also in that June 2011 decision, aside from reopening this claim for service connection for bilateral hearing loss and then remanding it for further development and consideration, and remanding an additional claim that also was on appeal to the Board of entitlement to service connection for migraine headaches, the Board also denied the Veteran's claims for service connection for posttraumatic stress disorder (PTSD) and for a rating higher than 20 percent for his low back disability. He since has filed a motion for reconsideration of that decision, but the Board denied that motion. Regardless, service connection for his migraine headaches was granted in a July 2012 rating decision during the pendency of this appeal. The RO assigned a 30 percent initial rating for these migraines retroactively effective from December 20, 2006. In September 2012, in response, he filed a notice of disagreement (NOD) with the effective date for the grant of service connection for these migraines, also for a higher initial rating for this disability. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). He has not been provided a statement of the case (SOC) concerning these downstream claims, however, or given opportunity in response to file a substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect his appeal of these downstream claims to the Board. See 38 C.F.R. § 20.200 (2012) (an appeal to the Board consist of a timely filed NOD in writing and, after receipt of an SOC, a timely filed substantive appeal). Thus, pursuant to the holding in Manlincon v. West, 12 Vet. App. 119 (1998), the Board is obligated to remand, rather than merely refer, these downstream claims to the RO via the AMC. Also in the July 2012 rating decision, the RO granted service connection for an anxiety disorder, NOS, and assigned an initial 10 percent rating for this disability retroactively effective from March 10, 2011. In that same rating action, the RO also recharacterized the Veteran's service-connected low back disability from a lumbar sprain to degenerative arthrosis and facet arthropathy of the lumbar spine. In so doing, the RO also increased the rating for this service-connected low back disability from 20 to 40 percent retroactively effective as of June 14, 2011. In September 2012, in response, he filed an NOD with the effective date assigned for the grant of service connection for his anxiety disorder, NOS. He also disagreed with the effective date assigned for the higher 40 percent rating for his low back disability. But he has not been provided an SOC concerning these other downstream claims, either, or given opportunity in response to file a substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect his appeal of these downstream claims to the Board. See 38 C.F.R. § 20.200 (2012). So the Board also is remanding, rather than merely referring, these other claims as well. Manlincon v. West, 12 Vet. App. 119 (1998). Still additionally in that July 2012 rating action, the RO denied his claim to recognize his daughter as a "helpless child" based on her permanent incapacity for self-support prior to attaining the age of 18 for the purpose of entitlement to VA benefits. In August 2012, the RO received a statement from him along with medical evidence that he attached. In the statement, although he requested reconsideration of the RO's decision denying his "helpless child" claim, he also indicated that he disagreed with the RO's decision denying this claim. Thus, the Board construes that statement as a timely NOD concerning this claim. 38 C.F.R. § 20.201 (2012). See also Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming that the [claimant] desired appellate review, meeting the requirement of § 20.201 was not an onerous task). But just as in the case of the other claims already mentioned, he has not been provided an SOC concerning this "helpless child" claim or given opportunity, in response, to file a substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect his appeal of this claim to the Board. See 38 C.F.R. § 20.200 (2012). Consequently, the Board also is remanding, rather than merely referring, this claim too. Manlincon v. West, 12 Vet. App. 119 (1998). Whereas the Board is going ahead and deciding the claim for bilateral hearing loss. FINDING OF FACT According to the medical and other competent and credible evidence in the file, it is just as likely as not the Veteran's bilateral hearing loss, like his already service-connected tinnitus (the ringing in his ears), is related to his military service, and especially to repeated exposure to excessively loud noise and consequent injury (acoustic trauma) while engaged in combat against enemy forces during the Persian Gulf War. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, he has a bilateral hearing loss disability due to an injury incurred in combat in service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), upon receipt of a complete or substantially complete application, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, however, the Board is granting service connection for the claimed bilateral hearing loss disability. This award represents a complete grant of the benefits sought on appeal. Thus, the Board need not discuss whether there has been compliance with the duty to notify and assist provisions of the VCAA because even if, for the sake of argument, there has not been, this is ultimately inconsequential and, therefore, at most nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102. See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (clarifying that VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim). There is no such possibility in this particular instance since the claim is being granted rather than denied. II. Service Connection Like his tinnitus, which already has been determined to be a service-connected disability, the Veteran attributes his bilateral (left and right ear) hearing loss to his military service and, in particular, to being repeatedly exposed to excessively loud noise while engaged in combat during the Persian Gulf War. He also cites his training and other responsibilities in the military, even just as a soldier generally, as additional reason he now has hearing loss. When filing his claim he indicated that he had started having hearing difficulties while in the military and that, since the conclusion of his service, his hearing had continued to get progressively worse. The records concerning his service confirm that he served in Southwest Asia during the Persian Gulf War and earned, among other commendations, the Combat Action Ribbon. In addition, his Military Occupational Specialty (MOS) was field artillery cannoneer. Establishing entitlement to service connection generally requires medical or, in certain circumstances, lay evidence of (1) current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a nexus or etiological link between the in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). These second and third requirements may be established by showing continuity of symptomatology under 38 C.F.R. § 3.303(b). See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be shown by demonstrating: (1) that a condition was "noted" during service or during any applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Certain diseases, including organic diseases of the nervous system (which includes sensorineural hearing loss), are considered chronic or permanent, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree, generally meaning to at least 10-percent disabling, within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Satisfactory lay or other evidence that an injury or a disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran's receipt of the Combat Action Ribbon for his service during the Persian Gulf War is prima facie evidence of his combat experience, meaning conclusive evidence he participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and did not instead only serve in a general "combat area" or "combat zone" but did not himself engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). This determination is made on a case-by-case basis. See also Moran v. Peake,525 F.3d 1157 (Fed. Cir. 2008). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. And, as mentioned, this statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In deciding claims, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with assessing the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court/CAVC) has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id., at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. Most of the probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Before service connection may be granted for hearing loss, the loss must be of a particular level of severity to be considered a ratable disability. For purposes of applying the laws administered by VA, hearing impairment will be considered a ratable disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or when 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. The Court has held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability, however, where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Court explained that when audiometric test results do not meet their regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing loss disability by submitting competent evidence that the current disability is causally related to his service. Id., at 60. So, in other words, the Veteran need not have satisfied the threshold minimum requirements of § 3.385 while in service, only instead needs to currently or, at the very least, have at some point since the filing of his claim. According to the Court's holding in McCLain v. Nicholson, 21 Vet. App. 319 (2007), the requirement that a claimant have a current disability before service connection may be awarded for the disability is satisfied when a claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim, even if no disability is found to be present at the time the claim is adjudicated. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 155 (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). In this case, the Veteran reports that while he was serving in the Persian Gulf War, he engaged in combat and was exposed to acoustic trauma due to artillery and heavy weapons fire. He notes that he also experienced acoustic trauma due to his MOS as a field artillery cannoneer. The evidence of record confirms he served in Southwest Asia during the Persian Gulf War and, as mentioned, was awarded the Combat Action Ribbon. In addition, his MOS was field artillery cannoneer. As he engaged in combat with the enemy during the Persian Gulf War and his MOS was in an artillery unit, the Board finds that his statements regarding his level of noise exposure in service, in these capacities, are credible and consistent with the circumstances, conditions, and hardships of his service. Thus, the Board concludes he sustained acoustic trauma during his service in the manner he alleges. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). His service treatment records (STRs) are unremarkable for any findings suggestive of a bilateral hearing loss disability as defined by the applicable VA regulation, 38 C.F.R. § 3.385. But this, as explained, is not fatal to his claim, especially since there are numerous findings of some degree of hearing loss in both ears, albeit of the lesser variety contemplated by Hensley. For example, during a February 1989 reenlistment examination, he had a puretone air conduction threshold level in his left ear at 4,000 Hertz (Hz) of 25 decibels. Also during a subsequent February 1993 audiological evaluation, he had a puretone air conduction threshold level in his right ear at the same frequency of 4,000 Hz of 20 decibels. Indeed, there are findings of Hensley hearing loss throughout his service. In March 2000, he had a physical examination in anticipation of his eventual retirement from the military. And, notably, in response to the question of whether he had ever had or if he then currently had hearing loss, he responded "yes." Part of that examination included an audiological evaluation. His pure tone thresholds, in decibels, were as follows (the measurements are in the frequencies of 500, 1000, 2000, 3000, and 4000Hz): RIGHT 0 0 0 5 15 LEFT 10 5 5 10 15. Thus, at the time of his March 2000 military retirement examination, he did not have a hearing loss disability in either ear for VA compensation purposes. But, again, according to the holding in Hensley, he need not have had a hearing loss disability according to these standards of § 3.385 while in service, including at time of separation. Rather, it is only necessary that he now have sufficient hearing loss to satisfy the requirements of this regulation, and service connection is possible if there also is evidence indicating this current hearing loss disability is related to his military service, as opposed to other unrelated or intercurrent factors or causes. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In November 2001, he had a VA audiological evaluation. The examiner acknowledged the Veteran had been exposed to large artillery fire in training and during the Persian Gulf War over approximately 18 years of his military career. The Veteran denied any occupational or recreational noise exposure as a civilian, so at any other time in his life, certainly not to the level he had experienced during his military service. His pure tone thresholds, in decibels, were as follows (the measurements are in the frequencies of 500, 1000, 2000, 3000, and 4000Hz): RIGHT 10 10 5 20 30 LEFT 10 5 10 20 25. Speech audiometry revealed speech recognition ability of 98 percent in his right ear and 96 percent in his left ear. The diagnosis was normal hearing bilaterally. Notwithstanding that examiner's diagnosis, the Board sees there was some degree of Hensley hearing loss in both ears since he had a 30-decibel (dB) loss at 4,000 Hz in his right ear and a 25-dB loss at this same frequency in his left ear. In January 2003, he had another VA audiological examination that was performed on contract by QTC Services. He again reported acoustic trauma during his combat service in the Persian Gulf War. His pure tone thresholds, in decibels, were as follows (the measurements are in the frequencies of 500, 1000, 2000, 3000, and 4000Hz): RIGHT 15 15 10 15 25 LEFT 20 20 15 20 30. So he again had some measure of hearing loss in each ear in the 4,000Hz frequency, specifically, a 25-dB loss in his right ear and a 30-dB loss in his left ear. But even more importantly, speech audiometry revealed speech recognition ability of only 84 percent in his right ear and just 88 percent in his left ear. It also was specifically indicated that the Maryland CNC test was used. Thus, since the speech recognition scores were less than 94 percent in each ear, they were sufficiently low to conclude he has a ratable hearing loss disability according to the requirements of 38 C.F.R. § 3.385. In addition, although the examiner interpreted the audiometric results as showing normal thresholds through 3000 Hz, he also stated, so affirmed, there was sensorineural hearing loss at 4000 Hz, bilaterally, albeit just relatively "mild". As importantly, he further indicated the Veteran's bilateral hearing loss was more likely than not caused by his acoustic trauma in service. So given that this opinion was based on review of the Veteran's STRs, as well as the other records concerning his service, and included recognition of his acoustic trauma in service, and an audiological evaluation, this opinion has a lot of probative weight insofar as supporting the claim of noise-induced hearing loss related to service. The Veteran also had a private audiology examination in April 2007. The private report was provided in graphic representations without numerical interpretation as to the exact puretone thresholds found. Nevertheless, the Board may interpret graphical representations of audiometric data and convert them to numerical data in its role as a fact finder as long as the graphical representations are clear. See Kelly v. Brown, 7 Vet. App. 471 (1995); Hall v. Nicholson, 21 Vet. App. 80 (2006) (unpublished) (stating that the Court held in Kelly only that the Court could not interpret graphical data from a hearing evaluation and convert it to numerical data because this involved fact finding, which is not a Court function, but there was no indication the Board is precluded from doing so as a fact finder). The Board finds that the graphical representations are clear in this instance in reaffirming the Veteran has bilateral hearing loss. In the report of that April 2007 private audiological evaluation, puretone thresholds, in decibels, were as follows (the measurements are in the frequencies of 500, 1000, 2000, 3000, and 4000Hz): RIGHT 40 45 40 NR 40 LEFT 25 30 20 NR 25. Thus, the results showed the Veteran had a hearing loss disability for VA compensation purposes consistent with 38 C.F.R. § 3.385 in his right ear, but not quite in his left ear. Nevertheless, he had Hensley hearing loss in his left ear. In July 2011, he had yet another VA audiological evaluation. His pure tone thresholds, in decibels, were as follows (the measurements are in the frequencies of 500, 1000, 2000, 3000, and 4000Hz): RIGHT 10 10 0 20 35 LEFT 10 10 15 25 30. Speech audiometry revealed speech recognition ability of 94 percent in his right ear and 98 percent in his left ear. The examiner concluded the Veteran did not meet the criteria for hearing loss for VA purposes, referring to the requirements of § 3.385. He also determined in any event that it was less likely than not the Veteran's hearing loss was due to military noise exposure. In providing rationale, the examiner indicated that, based upon a review of the Veteran's claims file, the Veteran's hearing was within normal limits while in the military. In addition, the Veteran's hearing was within normal limits at the time of his November 2001 VA examination. This examiner, however, did not consider the Veteran's acoustic trauma in service. Rather, he incorrectly stated the Veteran did not sustain acoustic trauma during his service when, in fact, he clearly did. As stated above, given that he engaged in combat and in consideration of his MOS, the Board finds that he did in fact sustain acoustic trauma during hi service. Therefore, the probative value of this medical opinion is significantly lessened to the extent it is based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Hayes v. Brown, 5 Vet. App. 60, 69 (1993) ("[i]t is the responsibility of the BVA . . . to assess the credibility and weight to be given the evidence"). In addressing this claim, which concerns the hearing acuity in both ears, there is medical and lay evidence for and against the claim - both insofar as whether the Veteran has sufficient hearing loss to be considered a ratable disability according to 38 C.F.R. § 3.385 and on the equally determinative issue of the causation of this hearing loss disability. But when all is said and done, the evidence supporting the claim is at least as probative as that against the claim. So, at the very least, he is entitled to have this reasonable doubt resolved in his favor and his claim granted. 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating that an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). It is entirely within the Board's province to give more probative weight to certain pieces of evidence than others. See Schoolman v. West, 12 Vet. App. 307, 310-311 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). Obviously, this responsibility is more difficult when, as here, medical opinions diverge. And, at the same time, the Board is mindful that it cannot make its own independent medical determination and there must be plausible reasons for favoring one medical opinion over another. Evans at 31; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Here, though, there are indeed legitimate reasons for giving as much, if not more, probative weight to the evidence supporting the claim as there are for giving weight to the evidence against the claim. In making this determination, the Board points out that the Veteran is competent to report suffering acoustic trauma from repeated exposure to loud noise during his combat service in the Persian Gulf War and in light of his MOS as an artillery cannoneer. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge. This knowledge comes to a witness through use of his senses, i.e., that which is heard, felt, seen, smelled or tasted. Layno, 6 Vet. App. at 465. Moreover, the Board finds no reason to doubt the Veteran's credibility in reporting that he had hearing loss during his service (which he even made a point of during his retirement examination), or that he has continued to experience hearing loss during the many years since to establish chronicity of that injury in service and, in turn, link his current disability to that acoustic trauma in service. As already alluded to, establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of showing chronicity (permanency) of injury in service to, in turn, link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Since he engaged in combat during the Persian Gulf War and his MOS was in the artillery as a cannoneer, he clearly sustained acoustic trauma. Moreover, although his STRs are unremarkable for any findings showing a ratable bilateral hearing loss disability for VA compensation purposes, this is not required, and the records include numerous findings of some degree of Hensley hearing loss in both ears throughout his service. It certainly is facially plausible then that the acoustic trauma in service resulted in some degree of hearing loss that continued after his discharge. As such, the Board finds that his statements concerning this are not just competent, but also credible, so ultimately probative and tending to add favorable weight to his claim. See Struck v. Brown, 9 Vet. App. 145, 155-156 (1996) (accepting that contemporaneously dated records may be given more probative weight than evidence offered many years later, long after the fact). In regards to the question of whether he currently has a ratable bilateral hearing loss disability for VA compensation purposes, again, meaning according to the threshold minimum requirements of 38 C.F.R. § 3.385, the Board realizes he did not have a hearing loss disability as defined by this VA regulation at the time of his November 2001 and July 2011 VA examinations. However, he did have the required level of hearing loss during his January 2003 VA (QTC) examination. In addition, he had a ratable hearing loss disability in his right ear as defined by VA regulation at the time of his April 2007 private audiological evaluation. See 38 C.F.R. § 3.385. And, to reiterate, he need only have established the existence of this current disability at some point since the filing of this claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Hence, merely because there was no evidence of hearing loss to this level, in either ear, when examined in November 2001 and July 2011 is not reason enough, alone, to conclude he has not satisfied his burden of proof of showing he has this claimed disability. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability) While there is some discrepancy reported on the presence of a current hearing loss disability, the Board resolves all doubt in the Veteran's favor concerning this. As for the level of impairment associated with the hearing loss diagnosis, this is to be resolved in determining his present level of compensation (i.e., what rating is most appropriate for this disability) and is not for discussion on the more preliminary matter of whether this disability is related or attributable to his military service or dates back to his service (i.e., is service connected). As explained, when, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (holding that "a Veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail."). Because there is competent and credible supporting evidence of the occurrence of acoustic trauma in service, the presence of Hensley hearing loss during service, a post-service diagnosis of hearing loss for VA compensation purposes, and a medical nexus opinion relating the bilateral hearing loss disability to military service, specifically to acoustic trauma in service, the Board concludes that the evidence supports the granting of service connection for bilateral hearing loss. ORDER The claim for service connection for bilateral hearing loss is granted. REMAND As already alluded to, the Veteran has submitted a timely NOD regarding the following claims: (1) entitlement to an effective date prior to December 20, 2006, for the grant of service connection for his migraine headaches, (2) entitlement to an initial rating higher than 30 percent for these migraine headaches, (3) entitlement to an effective date prior to March 10, 2011, for the grant of service connection for his anxiety disorder, NOS, and (4) entitlement to an effective date earlier than June 14, 2011, for the assignment of the higher 40 percent rating for his low back disability. In addition, the Board construes his August 2012 statement as a timely NOD regarding the still additional issue of whether his daughter may be recognized as a "helpless child" based on permanent incapacity for self-support prior to attaining the age of 18 for the purpose of entitlement to VA benefits. The RO apparently has not yet issued an SOC concerning these several claims, so the Veteran has not been provided opportunity, in response, to also file a substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to "perfect" his appeal of these several additional claims to the Board. See again 38 C.F.R. § 20.200. In this circumstance, the Board must remand these claims, rather than merely refer them, so the RO/AMC can provide the Veteran this necessary SOC concerning these claims and give him opportunity in response to perfect his appeal of these claims by filing a timely substantive appeal. Manlincon, 12 Vet. App. at 238. Accordingly, these claims are REMANDED for the following additional development and consideration: In response to his NOD, provide the Veteran an SOC concerning the following several claims: (1) entitlement to an effective date earlier than December 20, 2006, for the grant of service connection for migraine headaches, (2) entitlement to an initial rating higher than 30 percent for these migraine headaches, (3) entitlement to an effective date earlier than March 10, 2011, for the grant of service connection for his anxiety disorder, NOS, (4) entitlement to an effective date earlier than June 14, 2011, for the higher 40 percent rating for his low back disability, and (5) whether his daughter may be recognized as a "helpless child" based on permanent incapacity for self-support prior to attaining the age of 18 for the purpose of entitlement to VA benefits. Also advise him that, upon receipt of this SOC, he still needs to file a substantive appeal (VA Form 9 or equivalent statement) in response to complete the steps necessary to perfect his appeal of these additional claims to the Board. If, and only if, he perfects an appeal by the submission of a timely substantive appeal should these claims be returned to the Board for further appellate review. 38 C.F.R. §§ 20.202, 20.302, etc. (2012). He has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs