Citation Nr: 1306705 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 11-06 792 ) DATE ) `) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an effective date earlier than May 24, 2010, for the grant of service connection for tinnitus. 2. Entitlement to an effective date earlier than May 24, 2010, for the grant of service connection for prostate cancer with erectile dysfunction. 3. Entitlement to an effective date earlier than May 24, 2010, for the grant of special monthly compensation based on loss of use of a creative organ. 4. Entitlement to service connection for skin cancer, to include melanoma of the back, to include due to herbicide exposure. 5. Entitlement to service connection for residuals of a back injury. 6. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from March 1966 to March 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In September 2012, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. In September 2012, the Board received a medical opinion dated in September 2012 regarding the appellant's melanoma. The Board notes that VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant or representative. 38 C.F.R. §§ 19.37, 20.1304 (2012). Although the appellant and his representative did not waive RO consideration of the evidence, the Board is granting the claim, as discussed below. Consequently, the Board finds no prejudice to the appellant in proceeding to adjudicate this appeal. FINDINGS OF FACT 1. An informal claim for service connection for tinnitus was received on May 24, 2010, and there was no pending claim for tinnitus, formal or informal, before May 24, 2010. 2. A November 17, 2008, report of contact can be construed as an informal claim for service connection for prostate cancer and entitlement to special monthly compensation for loss of use of a creative organ, and there was no pending claim, formal or informal, before November 17, 2008. 3. The competent medical and competent and credible lay evidence of record demonstrates that the appellant's skin cancer is related to service. 4. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has residuals of a back injury that are related to service. 5. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has bilateral hearing loss that is related to service. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than May 24, 2010, for the grant of service connection for tinnitus have not been met. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (2012). 2. The criteria for an earlier effective date of November 17, 2008, but no earlier, for the grant of service connection for prostate cancer have been met. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (2012). 3. The criteria for an earlier effective date of November 17, 2008, but no earlier, for the grant of entitlement to special monthly compensation have been met. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (2012). 4. Skin cancer was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 5. Residuals of a back injury were not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 6. Bilateral hearing loss was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance As to the claim of entitlement to service connection for malignant melanoma, that claim has been granted, as discussed below. As such, the Board finds that any defect related to VA's duties to notify and assist under the VCAA on that claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mlechick v. Mansfield, 503 F.3d 1340 (2007). In regard to the appellant's other claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. Prior to initial adjudication of the appellant's claims, a letter dated in May 2010 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman, 19 Vet. App. at 490. In regard to the appellant's claims for earlier effective dates for the grants of service connection for tinnitus, prostate cancer, and special monthly compensation, because the July 2010 rating decision granted the appellant's claims, such claims are now substantiated. His filing of a notice of disagreement as to the May 24, 2010, effective date, does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3) (2012). Rather, the appellant's appeal as to the effective date here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the appellant of what is necessary to obtain the maximum benefit allowed by the evidence and the law. In this regard, the February 2011 Statement of the Case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant regulations pertaining to the assignment of effective dates. Additionally, the May 2010 notice letter informed the appellant of how VA determines the effective date. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve an earlier effective date for the payment of benefits based on a grant of entitlement to service connection. VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The appellant was afforded a medical examination to obtain an opinion as to whether his bilateral hearing loss condition can be directly attributed to service in April 2010. An addendum opinion was provided in April 2012. The opinions were rendered by a medical professional following a thorough examination and interview of the appellant. The examiner obtained an accurate history and listened to the appellant's assertions. The claims file was reviewed. The examiner laid a factual foundation for the conclusions that were reached. Therefore, the Board finds that the examination and addendum opinion are adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. In regard to the appellant's claim for residuals of a back injury, the appellant submitted private treatment records, including a record from March 1977 which clearly attributes the appellant's claimed disability to a February 1977 injury. For the reasons discussed below, the Board finds the appellant's assertion that he injured his back in service to be less than credible. Given that the appellant's service treatment records were silent for any back problems or complaints, the appellant's diagnosed back disability has been attributed to intercurrent causes, and the Board finds the appellant's assertion that he had a back injury in service to be less than credible, the Board concludes that an examination is not required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Earlier Effective Date Legal Criteria Generally, the effective date of an evaluation and award of pension, compensation or dependency compensation based on an original claim, a claim reopened after final disallowance or a claim for increase will be (1) the date of receipt of the claim or (2) the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. With respect to claims of entitlement to service connection, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. See 38 C.F.R. § 3.400(b)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). A claim may remain pending in the adjudication process, even for years, if VA fails to act on it. Norris v. West, 12 Vet. App. 413 (1999). Analysis The appellant claims that he is entitled to an effective date earlier than May 24, 2010, for the grants of service connection for tinnitus, prostate cancer with erectile dysfunction and entitlement to special monthly compensation for loss of use of a creative organ. The appellant contends that he initiated an application for VA benefits through the Vietnam Veterans of America (VVA) organization, his former representative. He stated that he believed the VVA did not submit paperwork in a timely fashion. He stated that he gave VVA the paperwork to file a claim on June 24, 2006. (September 2012 Board Hearing Transcript (Tr.) at p. 8) A July 2007 statement from VVA indicates that they wanted to review the appellant's claims folder. However, VVA did not indicate that the appellant wished to file a claim for benefits. A July 2007 cover letter reflects that a VA Form 21-22 and VA Form 21-4138 were submitted for appropriate action. A July 2007 note from VA reflects that there was no power of attorney. The claims file contains an appointment of a Veterans Service Organization (VSO) as Claimant's Representative (VA Form 21-22) for VVA which was signed in July 2007, and revoked in May 2010. A November 17, 2008 report of contact reflects that the appellant stated that VVA filed a claim for him on June 24, 2006, for prostate cancer, a back condition and skin cancer. The record noted that there was no indication of a claim in a database, however, the COVERS database showed something in September 2007. The appellant stated that the claim was originally taken in Hyannis by VVA and he later contacted the Providence VVA in June 2007 and was told the claim was in process. The report reflects that the appellant was advised to have VVA re-file with information on the original date. A May 24, 2010 report of contact with the appellant reflects that the appellant called in a reference to a claim that he filed over three years ago. The record noted that a review of the file could not confirm receipt of this information. A May 24, 2010 report of contact reflects that the appellant claimed "prostate cancer, back injury, melanoma (back)." In May 2010, VA sent the appellant a letter informing him that his request for benefits on May 24, 2010 was considered an informal claim for benefits. The appellant was notified that he must complete, sign and return the enclosed application, VA form 21-526. The appellant submitted a formal claim in May 2010. In a May 2010 report of contact, he clarified that he was claiming service connection for prostate cancer, a back injury, melanoma, hearing loss and tinnitus. There is no record of the appellant's alleged original claim from June 2006. However, the Board construes the November 17, 2008, report of contact as an informal claim for benefits. As noted above, any communication or action indicating intent to apply for VA benefits from a claimant or representative may be considered an informal claim. 38 C.F.R. § 3.155(a). The RO memorialized the appellant's statement regarding his claim for service connection for prostate cancer in writing in the report of contact. See 38 C.F.R. § 3.1(p). Indeed, the appellant's May 2010 report of contact, which was nearly identical to his inquiry in November 2008, was construed by the RO as an informal claim. The appellant stated that he had filed claims for service connection for prostate cancer, a back condition and skin cancer in the November 17, 2008 report of contact. As the Board construes the report as an informal claim, the Board finds that an earlier effective date of November 17, 2008, is warranted for the grant of service connection for residuals of prostate cancer with erectile dysfunction. As the appellant was granted special monthly compensation for loss of use of a creative organ, the Board finds that an earlier effective date of November 17, 2008, the date of his informal claim for service connection for prostate cancer, is also warranted. An April 2002 private treatment record reflects that the appellant had been diagnosed with prostate cancer. As noted above, the effective date of an award of service connection for a claim is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. As the appellant had prostate cancer prior to receipt of the November 17, 2008, informal claim, the informal claim is the later of the two dates. Consequently, an effective date of November 17, 2008, but no earlier, is warranted. The Board finds that the evidence is against a finding that the appellant is entitled to an effective date earlier than May 24, 2010, for the grant of service connection for tinnitus. The appellant did not state that he made a claim for service connection for tinnitus in the November 17, 2008 or May 12, 2010 reports of contact. The first reference to a claim for service connection for tinnitus was the May 2010 report of contact. Although the appellant has asserted that he filed claim in 2006, there is no evidence of a pending claim, formal or informal, before November 17, 2008. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The appellant reported that he filed a claim in June 2006 in the November 2008 report of contact. However, there is no record of this claim. There is a legal presumption of administrative regularity which, as applied to this case, means that if VA received the claim in June 2006, VA would have taken appropriate action to develop the claim, to include communicating with the appellant. This legal presumption is rebuttal by clear evidence to the contrary. Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992) (the "presumption of regularity" applies to the official acts of public officers, and in the absence of clear evidence to the contrary, it must be presumed that they have properly discharged their official duties). To the extent the appellant implicitly shifts the burden to VA to explain the nonreceipt of the June 2006 application, this argument does not rise to the level of "clear evidence" necessary to rebut the presumption of regularity. Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (The presumption of regularity allows courts to presume that what appears regular is regular, the burden shifting to the claimant to show the contrary.). To the extent that the appellant's claim relies on the argument that his former representative of record failed to file a claim, VA is not responsible for the errors, misunderstandings or advice of a non-VA employee. Accordingly, the Board finds that an earlier effective date of November 17, 2008, is warranted for the grant of service connection for prostate cancer and of special monthly compensation for loss of use of a creative organ. The Board finds that the evidence is against a finding that the appellant is entitled to an effective date prior to May 24, 2010, for the grant of service connection for tinnitus. III. Service Connection Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Savage v. Gober, 10 Vet.App. 488 (1997). Certain chronic disabilities, such as arthritis and hearing loss, as an organic disease of the nervous system, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Skin Cancer The appellant contends that he has skin cancer as a result of service, to include due to exposure to herbicides. The appellant initially filed a claim for service connection for a malignant melanoma of the lower back. In a December 2011 substantive appeal, he discussed and submitted evidence regarding basal cell carcinoma. The appellant's claim for service connection for a melanoma of the back constituted a claim for service connection for skin cancer, however diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). For the reasons that follow, the Board concludes that service connection for skin cancer is warranted. October and November 2007 private treatment records reflect that the appellant was diagnosed with left back melanoma. A September 2011 private treatment record indicates that the appellant had infiltrative basal cell carcinoma on his left forehead. The carcinoma was removed in a shave biopsy in September 2011. An October 2011 private treatment record reflects that the appellant had a superficial, nodular and micronodular basal cell carcinoma with indistinct margins at the right intraauricular. The carcinoma was surgically removed. As the appellant has a current disability, the first element of service connection has been met. A March 1966 enlistment examination report reflects that the appellant burned his neck and the right side of his face when he was 4 years old. He had a skin graft. The record noted that he had a corrective skin graft about one month prior. In a March 1966 report of medical history, the appellant also reported the neck burn and skin graft. The appellant's service treatment records also reflect that he had corrective plastic surgery in August 1966. A March 1969 separation examination report indicates the appellant had scars on his face and neck. The appellant's service treatment records do not reflect that he had any other complaints relating to his skin. The appellant's service treatment records do not reflect that he had any complaints or treatment for skin cancer. The appellant's DD Form 214 indicates that he served overseas. A dental abstract of service reflects that the appellant was stationed at Camp Essayons, which is in South Korea. In a December 2011 substantive appeal, the appellant stated that he believed he had cancerous growths due to severe sunburns suffered while in Thailand and Vietnam. He noted that the Melanoma Foundation indicated that periodic exposure to intense sunlight resulting in a sunburn seems to be more directly linked to the development of melanoma than having continuous daily exposure. At the September 2012 hearing, the appellant testified that he frequently worked outside shirtless while in Thailand. He stated that he was close to perpetually sunburned. (Tr. at p.3) He stated that he had blisters following sun exposure on three to six occasions. (Tr. at 5) Lay statements may be competent to support a claim for service connection where the events or the presence of disability, or symptoms of a disability are subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a lay person, the appellant is competent to report experiencing blisters following exposure to the sun. Although the appellant's service treatment records do not reflect that the appellant was treated for blisters or sunburn during service, the Board finds the appellant's statements to be credible. His statements are consistent with the circumstances of his service. A September 2012 opinion from a VA physician reflects that it is his opinion that the appellant's malignant melanoma was caused or related to excessive sun exposure in Vietnam/ Thailand during his military service. The Board finds that a preponderance of the evidence supports the appellant's claim. In this case, the Board finds that the evidence of record is at least in equipoise as to the matter of whether the appellant's skin cancer is a result of his military service. The appellant has been diagnosed with melanoma on his left back. He was also diagnosed with basal cell carcinoma on the left forehead and right intraauricular area. The appellant has testified that he was exposed to the sun in service and experienced blisters following sun exposure on three to six occasions. As noted above, the Board finds the appellant competent and credible to report having had sun exposure and blisters. The September 2012 opinion from a VA physician reflects that the appellant's malignant melanoma was caused or related to excessive sun exposure in Vietnam/Thailand during his military service. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In light of the positive opinion from the VA physician and the appellant's competent and credible statements that he was exposed to the sun in service, with resolution of doubt in favor of the appellant, the Board concludes that service connection is warranted for skin cancer. Residuals of a Back Injury The appellant contends that he has residuals of a back injury as a result of an in-service injury. For the reasons that follow, the Board finds that service connection is not warranted. The appellant contends that he hurt his back when he was loading a tire onto a truck in service. (Tr. at p. 5) He stated that one day his back popped. He stated that he was off the road for a week. (Id.) His representative stated that it should have been in the medical records because he received limited light duty status for over a week. (Tr. at p. 6) The appellant's service treatment records do not reflect that the appellant had any complaints or treatment relating to his back. The March 1966 enlistment examination report indicates that the appellant's upper extremities were normal. In a March 1966 report of medical history, the appellant denied having had recurrent back pain. The appellant's service treatment records do not reflect that he reported back problems. A March 1969 separation examination report reflects that the appellant's upper extremities were normal. No back problems were noted. In a March 1969 report of medical history, the appellant denied having had recurrent back pain. The report of medical history reflects that a box indicating the appellant had recurrent back pain may have been checked, but the report has a large check indicating that the appellant did not have recurrent back pain. Significantly, no conditions are noted in the physician's summary portion of the report of medical history. Following service, the first medical evidence of record is a May 1977 private treatment record. The May 1977 private treatment record notes that "[t]he patient states he has had no trouble with his low back in the past. On or about February 9, 1977, he was moving a lot of heavy loads and developed pain in the low back." The appellant reported that ht pain gradually increased and radiated to his leg. He stated that in March 1977 he stayed out of work because of the pain. The physician found that the appellant probably had a herniated disc and was unfit to work. A September 1977 private treatment record also reflects that the appellant reported that he pulled his back in March 1977. The record indicates that the appellant had a laminectomy in June 1977. An May 1986 private treatment record reflects that the appellant stated that he was still having some discomfort in the right lower back region that had started about 3 to 4 weeks ago. He had backed off on his exercise program. His left leg had occasional reminders of the sciatica, but that in large part had been relieved. The physician noted that the appellant was unable to return to work, but the physician hoped that his right lower back discomfort was temporary. A June 1986 follow up record indicates the appellant continued to be out of work and continued to have some ache in the right lower back. The radicular symptoms in the leg were almost 100 percent gone. An August 1986 letter from a private physician reflects that the appellant still had some pain in the lower back region when he was seen in July 1986, but had no pain in his legs. The fusion from L5-S1 was found to be solid on the left side on an X-ray, but less so on the right side. Another August 1986 private treatment record indicates the appellant reported having had lumbar disc surgery in 1977 after an injury he had sustained while at work. He stated that after the surgery, he was able to return to work and did not have any trouble with his back in the interim until August 1986 at which time he was lifting and moving a piece of steel at work. The physician stated that, in his opinion the appellant sustained injury to his back associated with the episode that occurred while at work on August 30, 1985. This injury, in his opinion, was a herniated lumbar disc at L5-S1 and this was confirmed by CAT scan. Required disc and fusion surgery was carried out on December 12, 1985. The physician opined that at the present time, the appellant had a permanent loss of function associated with his back injury of August 1986 and disfigurement due to the 5 inch healed surgical scar in the lumbar area. A November 1998 private treatment record reflects that the appellant had a CT scan that confirmed the presence of a large, L4-L5 disc. He underwent surgery in July 19908. The report noted that the appellant had two previous operation, one a discectomy and the second one a fusion. On each occasion, he was able to return to work, doing hi iron work, although he was repeatedly advised against it. An April 2002 private treatment record reflects that reported having a chronic back problems for which he had three operations, including a fusion in the past. His most recent back operation took place in 1998. Based on the evidence of record, the Board finds that service connection for residuals of a back injury is not warranted. The appellant is competent to report symptoms capable of lay observation, such as symptoms of back pain in service. However, the Board finds that the appellant's assertion that he injured his back in service is not credible. As noted above, the appellant's service treatment records are silent for any reports or complaints relating to his back. The appellant denied having recurrent back pain in the March 1969 report of medical history and no back problems were noted on the March 1969 separation examination report. Significantly, the private treatment records of record from 1977 through the 1990s do not reference an in-service back injury, or any back injury prior to 1977, eight years after his discharge from service. The May 1977 private treatment record specifically states that the appellant reported that he had had no trouble with his low back in the past. As the private treatment records were dated prior to the appellant's claim for benefits and were created closer to the appellant's time in service, the Board finds the records to be more probative than the appellant's statements following his claim. Due to the contradiction between the appellant's assertion that he injured his back in service and the March 1969 report of medical history and May 1977 private treatment record, the Board finds the appellant's assertion that he injured his back in service to be less than credible. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). At the September 2012 hearing, the appellant indicated that he was not okay when he was discharged from service, but he was told that anyone with a claim had to remain another day. (Tr. at p. 6) He stated that he hurt his back several times before he had an operation. The appellant has not specifically asserted that he had continuous symptoms of back pain since service. However, even if he had asserted that he had continuous symptoms, the May 1977 private treatment record reflects that he stated that he had no problems with his back in the past. Thus, an assertion of continuity of symptoms is not credible. The competent and credible evidence of record does not show that the appellant has had symptoms of back pain since service. The Board has also considered whether presumptive service connection for chronic disease is warranted. Arthritis will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. In order for the presumption to operate, such disease must become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. See 38 C.F.R. § 3.307(a)(3). The evidence of record does not establish any manifestations of arthritis of the back within the applicable time period. Inasmuch, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. The Board finds that a preponderance of the evidence is against the appellant's claim for service connection for residuals of a back injury. The evidence is against a finding that the appellant had a back injury in service. As discussed above, the Board finds the appellant's assertion that he injured his back in service to be less than credible, as it is inconsistent with his separation examination report and report of medical history and private treatment records from the 1970s through the 1990s. Additionally, there is no evidence of a nexus between the appellant's back problems and service. The evidence is also against a finding that the appellant had symptoms of back problems since service. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Bilateral Hearing Loss The appellant claims that he has bilateral hearing loss due to exposure to loud noise in service. For the reasons that follow, the Board concludes that service connection is not warranted. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet.App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The appellant was evaluated in a VA audiological examination on June 2010. In the evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 30 40 80 LEFT 15 15 40 60 60 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 90 percent in the left ear. The examiner diagnosed the appellant with bilateral sensorineural hearing loss. Pursuant to the standard set forth in 38 C.F.R. § 3.385, the record establishes that the appellant has a current bilateral hearing loss disability for VA purposes. Therefore, the Board finds that the first element of a service connection claim, that of a current disability, has been met for his hearing loss claim. In evaluating the second element of service connection, that of in-service incurrence, 38 U.S.C.A. § 1154(a) and 38 C.F.R. § 3.303(a) provide that due consideration shall be given to the places, types, and circumstances of a veteran's service as shown by his service record, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. The appellant asserts that he was exposed to loud noise while working as an engineer and truck mechanic in Thailand and Vietnam. He stated that he did not wear hearing protection in the service. The appellant's DD Form 214 reflects that his military occupational specialty (MOS) was engineer equipment mechanic. Based on this history, the Board finds the appellant was likely exposed to loud noise in-service. However, for service connection to be granted, competent and credible evidence must show that the appellant's current hearing loss disability is at least as likely as not attributed to service. The appellant's service treatment records fail to show any complaints or findings indicative of hearing loss. The appellant underwent a hearing examination in March 1966 when he enlisted in service. In the evaluation, pure tone thresholds, in decibels, converted to International Standards Organization (ISO) units, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 20 - 0 LEFT 15 5 20 - 5 The evaluation indicates the appellant had normal hearing at the time of his entry into service. The appellant's service treatment records are entirely negative for any complaint, treatment, or diagnosis of hearing loss. The appellant underwent another hearing examination at the time of his separation from the service in March 1969. In the evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 0 - 5 LEFT 0 0 0 - 0 The results of the audiometric test indicate the appellant did not have hearing loss at the time of his separation from service. In the March 1969 report of medical history, the appellant denied having had hearing loss. At the June 2010 VA examination, the appellant reported military and occupational noise exposure. He reported that he worked construction as an iron worker for 30 years with the use of hearing protection. He denied having recreational noise exposure. The VA examiner opined that the appellant's bilateral hearing loss was less likely as not caused by or a result of the appellant's military noise exposure. In the rationale, the examiner noted that induction and discharge hearing examinations documented hearing within normal limits. Auditory thresholds were stable bilaterally compared to enlistment and separation hearing tests. The VA examiner noted that given the appellant's history of military noise exposure through his MOS, it is not unreasonable to believe early damage to the hearing system began during this time. Thus, the medical opinion is based on the appellant's current nature and configuration of hearing loss and conceded noise exposure through MOS. However, the VA examiner stated that the appellant's history of occupational noise exposure could not be ruled out as other possible causes of or contributing factors to his current hearing loss. As the VA examiner provided a rationale for the opinion, the Board finds the June 2010 VA opinion to be probative. In an April 2012 addendum opinion, the June 2010 VA examiner stated that review of the appellant's service treatment records documented no significant shift in auditory thresholds when the hearing tests from enlistment to separation were compared for both eras. Therefore, the appellant's hearing loss was less likely as not caused by or a result of the appellant's military noise exposure. The VA examiner noted that however, the appellant's history of occupational noise exposure working in construction and iron working for 30 years using hearing protection cannot be ruled out as other possible cause of or contributing factors to his reported hearing loss. As the April 2012 opinion provides a rationale, the Board finds it to be probative. The appellant has contended that his bilateral hearing loss is related to service. Although a lay person may be competent to report the etiology of a disability, hearing loss is not the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Even if the appellant were competent to provide an opinion as to the etiology of a disorder which is typically confirmed by audiological testing, the Board finds that the probative value of any such opinion is outweighed by that of the June 2010 VA examiner, who has education, training and experience in evaluating the etiology of a hearing loss disability. The VA examiner reviewed the appellant's claims folder and opined that it was less likely as not that the appellant's bilateral hearing loss was a result of his military noise exposure. The appellant may be competent to report whether his symptoms have been continuous since service. The appellant has not specifically asserted that he had had continuous symptoms of hearing loss since service. He has only asserted that his bilateral hearing loss was caused by exposure to loud noise in service. As noted above, in the March 1969 report of medical history from the time of his separation from service, the appellant denied having had hearing loss. Thus, the appellant's statements do not establish that the appellant has had continuous symptoms of bilateral hearing loss since service. The Board finds that a preponderance of the evidence is against a grant of service connection for bilateral hearing loss. The evidence does not support a finding that there was a nexus between the appellant's current hearing loss and his exposure to loud noise in service. The appellant's separation examination report indicates that he did not have hearing loss when he left the service. There was no documentation of hearing loss in the record until the June 2010 VA examination report. The appellant has not asserted that he has had symptoms of hearing loss since service. Although the Board has considered the appellant's assertion that his bilateral hearing loss is related to noise exposure in service, the Board finds the June 2010 and April 2012 opinions to be more probative. The Board has also considered whether presumptive service connection for chronic disease is warranted for hearing loss. Hearing loss, as an organic disease of the nervous system, will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. In order for the presumption to operate, such disease must become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. See 38 C.F.R. § 3.307(a)(3). The evidence of record does not establish any clinical manifestations of bilateral hearing loss within the applicable time period. Inasmuch, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. In sum, the Board finds that the evidence is sufficient to establish that the appellant was exposed to loud noise in service. Further, according to the findings of the June 2010 VA audiological examination, the appellant has a current bilateral hearing loss disability for VA purposes. However, the Board finds the evidence does not support a finding that the appellant's bilateral hearing loss was caused by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claims on for service connection for hearing loss. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to an effective date earlier than May 24, 2010, for the grant of service connection for tinnitus, is denied. Entitlement to an effective date of November 17, 2008, but no earlier, for the grant of service connection for prostate cancer is granted. Entitlement to an effective date of November 17, 2008, but no earlier, for the grant of special monthly compensation is granted Entitlement to service connection for skin cancer is granted. Entitlement to service connection for residuals of a back injury is denied. Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs