Citation Nr: 1311459	
Decision Date: 04/05/13    Archive Date: 04/19/13

DOCKET NO.  05-36 135	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for a bilateral hearing loss disability.

2.  Entitlement to an increased (compensable) rating for a scar on the dorsum of the left foot.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.M. Rutkin, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1970 to January 1972.  He was also a member of the Army National Guard from October 1982 to October 1986, and from April 1988 to January 1990.  Thereafter, he was a member of the Air Force Reserves from May 1991 to May 1994.  He did not have further active duty other than for training purposes. 

This appeal to the Board of Veterans' Appeals (Board/BVA) is from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  A February 2004 rating decision denied the Veteran's petition to reopen his previously denied, unappealed, claim for service connection for bilateral hearing loss, and a November 2005 rating decision confirmed and continued the noncompensable (i.e., 0 percent) rating for a scar on the dorsum of his left foot.

In April 2010 the Board denied two other claims that also were on appeal, for service connection for a low back disability and for depression, including as secondary to the low back disability.  However, the Board remanded these two remaining claims to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration.  Specifically, the Board directed the RO/AMC to provide Veterans Claims Assistance Act (VCAA) notice to comply with the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006), to notify the Veteran that he could have a videoconference hearing before the Board in lieu of an in-person hearing, and, depending on his response, to schedule a hearing in accordance with the type of hearing he requested.

The RO sent him the additional VCAA notice in May 2010, and in April 2012 he had a videoconference hearing before the undersigned Veterans Law Judge of the Board.


In a subsequent June 2012 decision, the Board reopened the claim for service connection for a bilateral hearing loss disability because there was the required new and material evidence concerning this claim.  But rather than immediately readjudicating this claim on its underlying merits, the Board instead then proceeded to again remanded this claim to the RO via the AMC, this time however to obtain additional records and provide a VA audiological examination.  The Board also remanded the increased-rating claim for the Veteran's left foot scar and directed the RO/AMC to obtain any additional records identified by him and provide a VA examination reassessing the severity of the scar and all associated disability.  All development requested by the Board in that and the prior remand has been completed, as discussed in more detail below in the section addressing the satisfaction of VA's duties to notify and assist the Veteran with his claims under the VCAA.

In a July 2012 statement, the Veteran wrote that he had appealed the Board's April 2010 decision denying his claim of entitlement to service connection for a low back disability, and that he had experienced and been treated for low back pain "constantly" since separating from service.  However, the Board's April 2010 decision is final and binding, absent any indication of an appeal of that decision to the higher United States Court of Appeals for Veterans Claims (Court/CAVC).  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1100 (2012).  Without the vacating of that prior decision as concerning the denial of this claim and remand of this low back claim from the Court, this claim is no longer under the Board's jurisdiction unless there is some other exception to the finality (res judicata affect) of that decision, such as the Chairman orders reconsideration of that decision, which has not been motioned, much less granted.  Accordingly, the Veteran's July 2012 statement serves instead as a petition to reopen this claim of entitlement to service connection for a low back disability.  This issue has been re-raised by the record, but has not been readjudicated initially by the RO as the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this other claim, so is referring it to the RO for appropriate action. 


FINDINGS OF FACT

1.  The Veteran's hearing was normal during active military service and continued to be normal three years after separation from active service, and the preponderance of the competent and credible evidence otherwise weighs against finding a relationship or correlation between his current hearing loss disability and hazardous noise exposure and consequent injury (acoustic trauma) during his service.

2.  The scar on the dorsum of his left foot is less than 6 square inches, superficial, stable, not painful to touch, and is essentially not visible; it also does not cause limited motion or other functional impairment.


CONCLUSIONS OF LAW

1.  A bilateral hearing loss disability was not incurred in or aggravated by the Veteran's active military service and may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2012).

2.  The criteria also are not met for a compensable (i.e., 10 percent or higher) rating for the scar on the dorsum of the Veteran's left foot.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.118, Diagnostic Codes 7804 and 7805 (2003). 



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In deciding these claims, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") claims file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See id.  The analysis below therefore focuses instead on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the claims.  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 claimant).

The Board must assess the credibility and weight of all evidence, so including both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons or bases for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

I.  Duties to Notify and Assist

The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002)), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (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 not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

All notice under the VCAA generally should be provided prior to an initial decision on a claim by the RO as the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a statement of the case (SOC) or supplemental SOC (SSOC) after the claimant has had an opportunity to submit additional evidence.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).

With regard to the service connection claim for a bilateral hearing loss disability, the Court held that a claim of entitlement to service connection consists of five elements:  (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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006).  Notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) requires notice of these five elements.  See id. at 486; Quartuccio, 16 Vet. App. at 187.

Here, a VCAA notice letter specific to the Veteran's bilateral hearing loss claim was first sent in May 2007.  The letter informed the Veteran of all five elements of service connection, gave examples of the types of evidence he could submit in support of his claim, and provided notice of his and VA's respective responsibilities for obtaining relevant records on his behalf.  Although this letter was not sent prior to the initial February 2004 rating decision adjudicating this claim, it was subsequently readjudicated in SSOCs issued in July 2008, October 2010, and March 2013.  The last SSOC denied this claim on the merits (previous SSOC's had denied reopening the claim).  Thus, the Veteran has had ample opportunity to submit additional evidence following proper VCAA notice before his claim was readjudicated by the RO.  Therefore, the delay in timing was harmless, and the duty to notify has been satisfied.  See id.; see also Mayfield, 499 F.3d at 1323.  

A May 2010 letter was also sent to the Veteran in accordance with the Board's April 2010 remand directive to provide notice that complied with the Court's holding in Kent v. Nicholson, 20 Vet. App. 1 (2006) with respect to petitions to reopen previously denied claims.  As the Veteran's claim has been reopened and denied on the merits, any error with respect to the timing or content of this letter was harmless, and none has been shown or alleged. 

With regard to the Veteran's claim for an increased (compensable) rating for his left foot scar, the Court has held that in order to satisfy the first notice element in an increased rating claim, VA must notify the claimant that he needs to provide or request VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability at issue.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010) (Vazquez-Flores III); Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008) (Vazquez-Flores I), overruled in part sub. nom. Vazquez-Flores/Wilson v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009) (Vazquez-Flores II).  Further, the claimant must be notified that a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment.  Id.  Finally, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation.  Id.  Except when VCAA notice as to how to substantiate an increased-rating claim is not provided at all, it is the claimant's burden to show that he was prejudiced by any deficiency in the notice provided.  See Vazquez-Flores, 24 Vet. App. at 106-07.  

During the pendency of this appeal, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103(a) need not be "veteran specific," and that VA is not required to notify the Veteran of the rating criteria applicable to the disability at issue or to inform him that he may submit evidence of the effect of his disability on daily life.  See Vazquez-Flores/Wilson, 580 F.3d at 1280-81.

Here, prior to the initial rating decision in this matter, an August 2003 letter informed the Veteran that the evidence needed to show that his disability had gotten worse.  It also provided notice of his and VA's respective responsibilities for obtaining relevant records in support of his claim.  A May 2007 letter further informed the Veteran of how VA determines the degree of disability and provided examples of the types of medical and lay evidence he could submit or ask VA to obtain in support of his claim, in accordance with Vazquez-Flores I.  Although the May 2007 letter was not sent prior to initial adjudication of this claim, the Veteran had ample opportunity to submit additional information and evidence before his claim was subsequently readjudicated in July 2008, October 2010, and March 2013 SSOC's.  Thus, the delay in timing was harmless.  See Mayfield, 499 F.3d at 1323.  Therefore, the duty to notify has been satisfied.  See 38 U.S.C.A. § 5103(a); Vazquez-Flores, 24 Vet. App. at 97-103; Quartuccio, 16 Vet. App. at 187. 

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

Here, the Veteran's service treatment records, service personnel records, and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained to the extent possible.  In accordance with the Board's June 2012 remand directives, a June 2012 letter requested the Veteran to identify additional relevant VA and private records relevant to his claims.  He did not respond to this letter.  His current VA treatment records, however, have been associated with the Virtual VA file.  

Moreover, pursuant to the Board's June 2012 remand, the RO obtained additional military records associated with the Veteran's membership in the Army National Guard and Air Force Reserves, and the National Personnel Records Center (NPRC) clarified that the Veteran did not have further active duty except for training purposes, and provided the dates of such training.  The Veteran's claim, however, is only based on hazardous noise exposure and alleged hearing loss during his period of active service, as confirmed in a September 2012 statement submitted by the Veteran.  He does not allege hazardous noise exposure or the incurrence or aggravation of hearing loss during a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA).  Thus, further inquiry into this issue is not warranted. 

The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claims.  Thus, the duty to assist has been satisfied with respect to obtaining relevant records on the Veteran's behalf.  See 38 C.F.R. § 3.159(c).  

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.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Green v. Derwinski, 1 Vet. App. 121 (1991).  In increased rating claims, where the evidence of record does not reflect the current state of the claimant's disability, a new VA examination must be conducted.   See 38 C.F.R. § 3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.

With respect to the service connection claim for a bilateral hearing loss disability, in addition to VA audiological examinations provided in January 2004 (performed on a contract basis by QTC Medical Services) and May 2006, a VA audiological examination was provided in February 2013 in accordance with the Board's June 2012 remand directive.  The February 2013 VA examination report is adequate for deciding this claim.  Specifically, the examiner reviewed the claims file and medical history, conducted an examination of the Veteran, which included relevant audiological testing, recorded the pertinent clinical findings, and provided a clear explanation for the opinion stated which is consistent with the credible evidence of record.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  There are no significant inconsistencies or ambiguities in the examination report, and the claimant has not challenged its adequacy or thoroughness, or the competency of the examiner.  See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291.  

The VA examiner also complied with the Board's instructions to comment on the opinion rendered in the January 2004 VA examination report.  Notably, the examiner's opinion did not turn on whether the Veteran had hazardous noise exposure during active service (which is assumed, as discussed below), but rather on the fact that the Veteran's hearing was normal at separation from active service and three years after separation from service, as shown in a May 1975 VA examination report.  The Veteran's recorded puretone thresholds did not change or "shift" during active service, as shown below.  Moreover, the examiner's opinion was based not only on the Veteran's normal hearing at separation, but also on the fact that it continued to be normal three years later.  Although the examiner did not actually check off a box in the Etiology section of the Disability Benefits Questionnaire (DBQ) with regard to the likelihood that the Veteran's hearing loss is related to active service, the examiner's discussion in the Remarks section clearly shows that the examiner concluded that the Veteran's hearing loss is not related to service.  See Monzingo, 26 Vet. App. at 107.  Accordingly, VA's duty to provide an adequate VA examination has been met with respect to this claim.  See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312.  

With respect to the increased rating claim for the left foot scar, in addition to a January 2004 VA examination performed by QTC Medical Services on a contract basis, a February 2013 VA skin examination was provided in accordance with the Board's June 2012 remand directive.  The VA examination report is adequate for rating purposes, as the examiner reviewed the claims file, examined the Veteran and recorded all relevant clinical findings, and described the Veteran's disability in sufficient detail to enable the Board to make a fully informed decision on this claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green, 1 Vet. App. at 124).  

The Veteran has not stated and there is no other evidence indicating that there has been a material change in the severity of the his scar since he was last examined by VA in February 2013.  See 38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95 (April 7, 1995).  Accordingly, VA's duty to provide an adequate VA examination is satisfied.  38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312.   


In sum, VA's duty to notify and assist under the VCAA has been satisfied.  The Veteran has had ample opportunity to participate in the development of his claim.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")).  Any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication," and no such defect has been alleged.  See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, any error in the notice or assistance provided was harmless, as no prejudice resulted.  See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002).  Accordingly, the Board may proceed with appellate review.  

II.  Procedural Due Process

A.  Compliance with the Board's Remand Directives

As noted above, the Board remanded these claims in April 2010 and June 2012 for further development.  A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand.  Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries, 22 Vet. App. at 105 (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  


The Board's remand directives to send the Veteran a VCAA notice letter compliant with Kent v. Nicholson, 20 Vet. App. 1 (2006), to provide a hearing before the Board, to obtain additional records identified by the Veteran, to determine any additional periods of active service, ACDUTRA, and INACUDTRA and to obtain any records associated with such service, and to provide new VA examinations have been satisfied, as shown in the above discussion.  Thus, there has been compliance with all of the Board's remand directives.  See id.

B.  Compliance with Bryant

The Veteran testified at an April 2012 videoconference hearing before the undersigned, as noted above.  Under 38 C.F.R. § 3.103(c)(2) (2012), it is the responsibility of the hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer has two distinct duties under section 3.103(c)(2).  First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant.  Id. at 496 (finding that a hearing officer's inquiries relevant to the existence of a current disability and a nexus to service did not equate to explaining to the claimant that these issues were material to substantiating the claim).  Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record.  Id., at 496-97.  

Importantly, the Court also observed that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c).  See id. at 498.  Citing Sanders, 556 U.S. at 407, 410, the Court noted in this regard that the rule of prejudicial error requires a case-by-case determination as to whether the error in question was harmless.  Id.  Thus, in Bryant, 23 Vet. App. at 498-99, the Court concluded that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the "clarity and completeness of the hearing record was intact" and the purpose of section 3.103(c)(2) fulfilled because the record reflected that these issues were developed by VA, including the provision of a VA examination, and there was no indication that the appellant had any additional information to submit.  

Here, with respect to the Veteran's service connection claim, the outstanding issue is whether he has a current hearing loss disability caused or aggravated by active service, to include in-service noise exposure or acoustic trauma.  With respect to the Veteran's increased rating claim, the outstanding issue is whether the criteria for a compensable rating have been satisfied.  At the hearing, the undersigned asked questions regarding the Veteran's in-service noise exposure, such as due to his military occupational specialty (MOS), and when the Veteran first noticed his hearing loss.  The undersigned also asked the Veteran questions regarding his current left foot scar symptoms and associated functional impairment.  Thus, the undersigned elicited relevant testimony regarding the nexus element in the service connection claim and regarding symptoms that might warrant a higher rating for the left foot scar, such as pain.   

Although the undersigned did not explicitly identify the outstanding issues for the Veteran, any deficiencies in the April 2012 Board hearing under section 3.103(c)(2) were harmless.  In this regard, VA has otherwise developed these claims, including obtaining records on the Veteran's behalf and providing VA examinations in accordance with the Board's remand directives, as discussed above with respect to VA's duty to assist under the VCAA.  The VA examination reports directly address the outstanding issues in these claims.  Moreover, the Veteran did not raise any new issues pertaining to his claims at the hearing, and there is no indication of any outstanding evidence that might be submitted.  See id. at 499.  

Thus, given the development undertaken by VA with respect to these claims, and in light of the Veteran's testimony at the hearing, the "clarity and completeness of the hearing record [is] intact" and the purpose of section 3.103(c)(2) to develop the record has been fulfilled.  Id. at 498-99.  Accordingly, the Veteran's right to a Board hearing has been satisfied and no prejudicial error exists with regard to the hearing officer's duties under section 3.103(c)(2).  See id.; see also Sanders, 556 U.S. at 407, 410.

III.  Service Connection

The Veteran claims entitlement to service connection for a bilateral hearing loss disability, which he argues was caused by hazardous noise exposure or acoustic trauma during active service.  For the following reasons, the Board finds that service connection is not warranted. 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit held that a three-element test must be satisfied in order to establish entitlement to service connection.  Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Id.

However, claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b).  See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases").  Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Walker, 708 F.3d at 1338-1339.  Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation."  Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease").  A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. at 1338.

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id.  Thus, if the claimed disability is not one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits.  Id.  For example, the Federal Circuit held in Walker that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as it found that the claimant's hearing loss was not among the chronic diseases listed in section 3.309(a)).  Id. at 1336-37, 1340. 

Because the Veteran has been diagnosed with sensorineural hearing loss, and organic diseases of the nervous system are defined as chronic diseases in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be supported by evidence of a continuity of symptomatology after service.  See Walker, 708 F.3d at 1338-1339. 

The Veteran's sensorineural hearing loss is also eligible for presumptive service connection.  Specifically, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for organic diseases of the nervous system, which includes sensorineural hearing loss, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  However, this presumption will be rebutted if there is affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

With respect to hearing loss, impaired hearing will be considered to be a disability under the laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).  The Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected.  Hensley at 159.

The evidence is equivocal as to whether the Veteran has a current hearing loss disability for VA compensation purposes.  Two VA examination reports do not show hearing loss that meets the criteria for a hearing loss disability, and one does.  Specifically, a January 2004 VA examination report (performed by QTC Medical Services) shows that audiometric testing revealed puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
20
15
15
LEFT
25
15
15
30
30

The Veteran's puretone thresholds show some hearing loss in both ears but not severe enough to be considered a disability under VA law.  See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159.  The Veteran's speech recognition scores in the January 2004 VA examination, based on testing using the Maryland CNC word list, were 100 percent in the right ear and 96 percent in the left ear.  These scores also show that the Veteran's hearing loss did not meet the criteria for a disability.  See id.

However, a May 2006 VA examination report does show a bilateral hearing loss disability.  Specifically, it reflects an audiogram showing puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
20
35
35
LEFT
25
25
20
35
40

These puretone thresholds meet the criteria for hearing loss as a ratable disability under section 3.385. 


The Veteran's puretone thresholds and speech recognition scores again did not show a hearing loss disability in the February 2013 VA examination report.  The audiogram in this report shows puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
15
15
LEFT
10
15
15
25
30

This audiogram shows normal hearing in the right ear and some hearing loss in the left ear which does not rise to the level of a disability, as noted by the examiner.  See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159.  Likewise, the Veteran's speech recognition scores of 94 percent for both ears do not meet the criteria for a hearing loss disability.  See id.

For the purposes of this claim, the Board resolves the conflicting medical evidence in the Veteran's favor and finds that a hearing loss disability has been established based on the May 2006 VA examination report.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 55.  However, irrespective of whether a hearing loss disability has been established, the preponderance of the evidence weighs against a relationship to service, as discussed below. 

Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).  When an injury is incurred in combat, satisfactory lay or other evidence 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) (West 2002); 38 C.F.R. § 3.304(d).   This presumption is rebuttable only by clear and convincing evidence.  Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996).  While service connection for a combat-related injury may be based on lay statements alone, there must still be competent evidence of a current disability and a nexus to service in order to establish entitlement to compensation benefits.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (observing, in pertinent part, that "the mere fact that a [veteran] has suffered a service-connected disease or injury does not automatically lead to compensation for future disabilities . . . . [T]he veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty"); see also Huston v. Principi, 18 Vet. App. 395, 402 (2004); Clyburn v. West, 12 Vet. App. 296, 303 (1999); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996).  

The Veteran does not allege and the evidence does not otherwise show combat service.  Although he served during the Vietnam Era, he has not stated and his service records do not indicate that he served in Vietnam.  Thus, the more relaxed evidentiary standard for combat-related injuries does not apply.  See 38 U.S.C.A. § 1154(b).   However, hazardous noise exposure is established based on the Veteran's MOS as a Motor Transportation Driver.  This MOS has been determined by the Department of Defense to involve a moderate probability of hazardous noise exposure.  See VA Fast Letter 10-35 (September 2, 2010) (discussing the Duty MOS Noise Exposure Listing).  The Veteran's DD 214 also shows that he was awarded a citation as a Sharpshooter (Rifle M-16).  A July 2003 statement by the Veteran reflects that he did not wear hearing protection during service.  In a June 2010 statement, the Veteran wrote that he delivered ammunition to artillery units and was exposed to hazardous noise from artillery firing.  He stated that he was also exposed to loud engine noises from the truck and from the motor pool during maintenance.  Thus, based on the circumstances of his service, and resolving any doubt in his favor, hazardous noise exposure is established.  38 U.S.C.A. § 1154(a); see also 38 C.F.R. § 3.102.

While hazardous noise exposure has been established, the evidence must still show that the Veteran's current hearing loss disability is related to such exposure or otherwise related to service.  As discussed above, because the Veteran's hearing loss is considered a chronic disease as defined in section 3.309(a), such a relationship may be shown either by establishing chronicity during service, a continuity of symptoms after service, or by competent evidence otherwise supporting a relationship to service.  See 38 C.F.R. § 3.303(a) and (b); Walker, 708 F.3d at 1338-39.

Here, the preponderance of the evidence weighs against both chronicity during service and a continuity of symptoms after service.  Specifically, the Veteran's service treatment records do not reflect complaints, treatment, or findings of hearing loss.  His separation examination reflects an audiogram showing puretone thresholds of 0 in all frequencies recorded, including at 500, 1000, 2000, and 4000 Hertz (his puretone thresholds at 3000 Hertz, were not recorded).  His hearing acuity was found to be normal on clinical evaluation.  The results of speech recognition testing were not recorded.  The Veteran's puretone thresholds showed normal hearing at separation.  See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159.  Moreover, there is no evidence of a shift in the Veteran's puretone thresholds during service that might denote some change in hearing acuity.  In this regard, the Veteran's January 1970 pre-induction examination report reflects an audiogram showing puretone thresholds of 0 in the frequencies recorded, including at 500, 1000, 2000, and 4000 Hertz (his puretone thresholds at 3000 Hertz were not recorded).  His hearing was clinically evaluated as normal in this report.  Thus, the service treatment records do not show any hearing loss or change in hearing during active service. 

At the April 2012 hearing, the Veteran testified that he experienced hearing loss during active service.  See Hearing Transcript, p. 8.  Although the Veteran has not been shown to have a medical background or medical expertise and is thus considered a lay person (see 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise)) his statement is considered competent evidence as hearing loss can be a matter of first-hand experience.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature").  

The competency of evidence differs, however, from the weight assigned to the evidence, which varies according to its credibility, probative value, and relationship to other items of evidence.  See Layno, 6 Vet. App. at 469 (holding that the weight and credibility of testimony, as distinguished from its competency, is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted); accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify").  The Board discounts the weight of evidence it finds not to be credible.  See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table).  Further, the Federal Circuit has held that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").  


In this case, although it possible that the Veteran had episodes in which he experienced hearing loss during service, as he claims, it is not credible that hearing loss as a chronic condition manifested during service.  In this regard, the Court has held that silence in the service treatment records can constitute "contradictory" evidence weighing against the credibility of a claimant's testimony.  Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring).  In order to infer from this silence that a claimed disability did not manifest during active service, the Board must find that the service treatment records are complete "in relevant part," and that the claimed "injury, disease, or related symptoms would ordinarily have been recorded had they occurred."  Id. (citing Fed.R.Evid. 803(7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded)).  The Court noted that in making this determination, the Board may be required to consider the limits of its own competence on medical issues.  Id.; see also See Colvin v. Derwinski, Vet. App. 171, 175 (1991) (holding that the Board is not competent to substitute its own opinion for that of a medical expert).  For example, in Kahana, the Court held that the Board could not make an independent determination that an injury to the anterior cruciate ligament (ACL) would have been documented in the service treatment records without supporting medical evidence.  See id. at 434 (majority opinion).  

Here, not only are the service treatment records silent for any mention of hearing loss, but the separation examination affirmatively shows that the Veteran's hearing was normal based on audiological testing.  As noted above, there was no threshold shift between the Veteran's pre-induction examination and his separation examination.  Moreover, as discussed below, a May 1975 VA audiological examination dated over three years after the Veteran's separation from service shows that the Veteran's hearing continued to be normal.  These contemporaneous medical records showing objective clinical findings of normal hearing are much more probative than the Veteran's lay statement regarding in-service hearing loss made years later in support of a claim for benefits.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant).  Accordingly, because the Veteran's statement that he had hearing loss during service is in direct conflict with the service treatment records and the May 1975 VA examination report (discussed below), it does not serve as credible evidence.  See Caluza, 7 Vet. App. at 511.  Therefore, the Board must discount the weight of this statement and accords more weight to the service treatment records showing normal hearing at separation.  See Madden, 125 F.3d at 1481; Washington, 19 Vet. App. at 368. 

Thus, because a preponderance of the probative and credible evidence shows that the Veteran's hearing loss did not manifest in service, a chronicity in service has not been established.  See 38 C.F.R. § 3.303(b).  Even assuming it to be credible that the Veteran had occasional subjective experiences of hearing loss during service, 
the mere manifestation during service of potentially relevant symptoms does not show a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  The normal audiological results at separation and in the May 1975 VA examination report discussed below heavily weigh against a finding of a chronic hearing loss disability in service.  

The preponderance of the credible evidence also weighs against a continuity of symptoms after service.  The Veteran submitted a service connection claim for hearing loss in April 1975 and a VA examination was performed in May 1975.  The VA examination report reflects an audiogram showing puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
/
5
LEFT
5
5
5
/
20

The Veteran's puretone threshold at 3000 Hertz were not recorded in this examination report.  The puretone audiometry reflected in the May 1975 VA examination report shows normal hearing at this time.  See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159.  His speech recognition scores of 100 percent in the right ear and 96 percent in the left ear likewise showed normal hearing.  See id.


There is no other evidence or mention of hearing loss until the Veteran's July 2003 service connection claim, and the earliest clinical evidence of hearing loss is the January 2004 VA examination report (although the testing results did not show hearing loss severe enough to be considered a disability).  

Accordingly, the Veteran's allegation of a continuity of hearing loss ever since active service conflicts with the May 1975 VA examination report showing normal hearing over three years after his separation from service.  The absence of any contemporaneous evidence of hearing loss until the January 2004 VA examination report, in conjunction with the separation examination report and May 1975 VA examination report showing normal hearing, leads to the conclusion that the Veteran's statements are not credible.  See Buchanan, 451 F.3d at 1336-37 (holding that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence); Caluza, 7 Vet. App. at 511.

In sum, the credible evidence weighs against a finding of a continuity of symptoms after service.  See 38 C.F.R. § 3.303(b). 

Finally, the competent and probative evidence otherwise weighs against a relationship between the Veteran's current hearing loss disability and his period of active service.  In the January 2004 VA examination report, the examiner stated that the Veteran had sensorineural hearing loss in the left ear that was more likely than not due to military noise exposure.  The examiner did not provide further explanation or indicate that the claims file had been reviewed.  The examiner simply noted earlier in the report that the Veteran reported having constant tinnitus since serving in the military, and that he did not wear hearing protection while practicing on the firing range during service. 


In the May 2006 VA examination report, the examiner opined after reviewing the claims file and examining the Veteran that it was "not at least as likely as not" that the Veteran's hearing loss had its onset during active service or within one year of service separation.  The examiner explained that the Veteran's service treatment records showed normal puretone thresholds from 500 through 4000 Hertz in both ears in the pre-induction and separation examination reports.  In the context of the examiner's discussion, it is clear that the examiner found it unlikely that the Veteran's hearing loss had its onset during active service. 

In the February 2013 VA examination report, after reviewing the claims file and examining the Veteran, the examiner stated that the Veteran's January 1970 pre-induction examination and 1972 separation examination report showed normal hearing, and his hearing was also shown to be normal in the May 1975 VA examination report.  The examiner further stated that the opinion in the January 2004 VA QTC examination report regarding the Veteran's left ear hearing loss "was the result of the [examiner's] not having [the Veteran's] service medical records available for review."  Although the February 2013 VA examiner did not directly state whether it was at least as likely as not that the Veteran's hearing loss was related to service, it is clear based on this discussion and in particular on the comment on the January 2004 examiner's opinion that the February 2013 VA examiner concluded that the Veteran's hearing loss was not related to service. 

The Board accords more weight to the opinions provided in the May 2006 and February 2013 VA examination reports than to the opinion in the January 2004 VA examination report.  In this regard, the Court held in Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008), that the probative value of a medical opinion comes from its reasoning and that a medical opinion is not entitled to any weight if it contains only data and conclusions.  The Court further held that critical pieces of information from a claimant's medical history can lend credence to the opinion of a medical expert who considers them, and detract from the medical opinions of experts who do not.  Id.  The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.  Id.   

The January 2004 VA examiner's opinion is not supported by an explanation and does not account for the normal hearing shown in the Veteran's separation examination report and in the May 1975 VA examination report over three years later.  These examination reports constitute "critical pieces of information" from the Veteran's medical history, and the examiner's lack of consideration of them detracts from the probative value of her opinion.  See id.  Indeed, there is no indication that the January 2004 VA examiner was familiar with this medical history or had the claims file available for review.  By contrast, the May 2006 and February 2013 VA examiners provided explanations for their opinions which are grounded in the pertinent medical history and cite to the normal hearing shown at separation and in the May 1975 VA examination report.  Thus, because these opinions are supported by explanations and take into account the relevant evidence of record, they carry more weight than the January 2004 VA examination report. 

In Hensley, 5 Vet. App. at 159, the Court held that hearing shown to be within normal limits at separation does not preclude service connection for a current hearing loss disability.  In making this determination, all the evidence of record, including the Veteran's puretone threshold shifts during active service, must be considered.  See id. at 163-64.  However, there must still be evidence that "the current [hearing loss] disability is causally related to service."  Id. at 160.  The fact that there was normal hearing at separation heavily weighs against such a finding, as shown by the May 2006 and February 2013 VA examination reports.  Indeed, there were no puretone threshold shifts during service or any degree of hearing loss at separation.  Moreover, the February 2013 VA examiner's opinion is based not only on the Veteran's normal hearing at separation, but on the fact that it continued to be normal over three years following discharge, as shown in the May 1975 VA audiological examination report.  Further weighing against a relationship to service is the long period of time that elapsed between the Veteran's separation from service in January 1972 and the earliest clinical evidence of hearing loss over thirty years later in the January 2004 VA examination report.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service, and that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a condition was incurred in service).  

The Board has considered the Veteran's contention that his hearing loss disability was caused or aggravated by in-service hazardous noise exposure or acoustic trauma.  In this regard, he is competent to testify as to matters within his experience and personal knowledge, such as his symptoms and medical history.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that lay evidence can be competent with respect to both the diagnosis and the etiology of a disability); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge).  Moreover, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See Davidson, 581 F.3d at 1316 (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability.  See Davidson, 581 F.3d at 1316.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington, 19 Vet. App. at 368 (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  

However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity.  See Barr, 21 Vet. App. at 309.  For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  The Federal Circuit has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Id.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.

In this case, whether hearing loss which manifested over several years after separation from active service (as shown by the credible and competent evidence discussed above) was caused or aggravated by hazardous noise exposure or acoustic trauma during service is a determination that is too complex from a medical standpoint to be made based on lay observation alone given the long amount of time that has elapsed.  As there is no credible evidence of an earlier history of hearing loss or earlier treatment for hearing loss, none of the circumstances set forth in Jandreau as to when lay testimony may be competent apply.  Thus, a competent opinion on this issue can only be made by a medical professional with appropriate expertise, such as an audiologist.  Consequently, the Veteran's opinion that his hearing loss was caused or aggravated by in-service noise exposure carries little weight and is outweighed by the findings to the contrary by the January 2013 and May 2006 VA examiners.  See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309; see also King v. Shinseki, 700 F.3d, 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).  In contrast with the Veteran, the VA examiners are medical professionals specializing in audiology who considered his statements-including his history of in-service noise exposure-and the pertinent evidence of record and concluded that the Veteran's hearing loss did not have its onset in service and was not related to service. 

Accordingly, the preponderance of the competent and credible evidence weighs against a relationship between the Veteran's current hearing loss disability and his period of active service, to include his established in-service noise exposure.  Therefore, service connection is not warranted on a direct basis.  See 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1166-67. 

Because the evidence shows that the Veteran's hearing loss did not manifest within one year of service separation, for the reasons discussed above, service connection also may not be established on a presumptive basis.  See 38 C.F.R. §§ 3.307, 3.309.  

In sum, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a bilateral hearing loss disability must be denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 


IV.  Increased Rating

The Veteran contends that he is entitled to an initial compensable (i.e. 10 percent or higher) rating for his service-connected left foot scar.  For the reasons that follow, the Board concludes that an increased rating is not warranted.

VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10 (2012).  The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7 (2012).  Otherwise, the lower rating will be assigned.  Id.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.  The schedule recognizes that disability from distinct injuries or diseases may overlap.  See 38 C.F.R. § 4.14 (2012).  However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided.  Id.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged."  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  

The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended in August 2002 and again in October 2008.  See 67 Fed. Reg. 49490-99 (July 31, 2002); 73 Fed. Reg. 54708 (September 23, 2008).  The October 2008 revisions are applicable to claims for benefits received by VA on or after October 23, 2008.  Id.  In this case, the Veteran filed the present claim in August 2005.  Therefore, only the post-August 2002 and pre-October 2008 version of the schedular criteria is applicable.

The Veteran's scar on the dorsum of the left foot has been rated as noncompensable, or 0 percent disabling, under DC 7805, which provides that scars may be rated based on limitation of function of the affected part.  38 C.F.R. § 4.118.

By way of background, the Veteran's left foot was struck by a heavy object during active service which resulted in a contusion injury, according to the Veteran's service treatment records.  No fracture was seen at the time.  Service connection for a nontender scar on the dorsum of the left foot was granted in a June 1975 rating decision based on the clinical findings in a May 1975 VA examination report, which showed that the Veteran's left foot was normal apart from a "well healed scar about 1 [inch] in length over the dorso-lateral aspect of the left foot." 

At the January 2004 VA examination, the Veteran reported having pain deep inside the foot.  There was no functional impairment resulting from the scar.  The Veteran did not report time lost from work due to the scar.  On examination, there was a scar at the dorsolateral area of the left foot which measured about 2 centimeters by .1 centimeter.  There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, Keloid formation, hypopigmentation, hyperpigmentation, abnormal texture or limitation of motion.  No burn scars were present.  The examiner diagnosed a scar of the left foot.

In the February 2013 VA examination report, the examiner indicated that the Veteran's left foot was not affected by a scar.  The examiner explained in the "Remarks" section of the Disability Benefits Questionnaire that there was no visible scar on the dorsum of the left foot. 

At the April 2012 Board hearing, the Veteran testified that he experienced pain in the left foot when he stood on it which traveled up his leg.  He further testified that it was very weak, and that he had been fired from a couple of jobs because he needed to rest his foot.  When asked if his scar was painful, the Veteran responded in the negative, but stated that it was "a little tender."  

The evidence shows that the Veteran's left scar does not affect the functioning of his left foot and indeed is barely visible.  Although he has reported pain in the left foot, service connection has only been established for the scar.  He has not argued that the pain is associated with the scar and there is no competent evidence otherwise indicating that the Veteran's left foot pain is associated with the scar.  Accordingly, a compensable rating is not warranted under DC 7805 based on limitation of function of the affected part.  See 38 C.F.R. § 4.118.

The Board has considered the application of other diagnostic codes.  Under DC 7804, a 10 percent rating is provided for scars which are superficial and painful on examination.  38 C.F.R. § 4.118.  The January 2004 and February 2013 VA examination reports show that the Veteran's scar was not painful on examination.  The Board accords more weight to the objective clinical findings made by medical professionals who examined the Veteran than to the Veteran's lay statements made in support of his claim.  Indeed, the Veteran himself at first denied that his scar was painful at the hearing, and has rather reported pain "deep inside the foot" which has not been shown to be related to his scar, as reflected in the January 2004 VA examination report.  While he is competent to state that his scar is "a little tender," this does not equate to a scar being painful on examination.  Thus, a 10 percent rating is not warranted under DC 7804.

Diagnostic Code 7801 applies to scars other than head, face, or neck, that are deep or that cause limited motion.  38 C.F.R. § 4.118.   Under DC 7801, a 10 percent rating is assigned for scars exceeding 6 square inches (39 sq. cm.).  See 38 C.F.R. § 4.118 (2003).  A deep scar is defined as one associated with underlying soft tissue damage.  See 38 C.F.R. § 4.118, DC 7801, Note (2).  

Here, the January 2004 VA examination report shows that the Veteran's scar was superficial and was less than one inch.  It was not even visible to the February 2013 VA examiner.  Thus, a 10 percent rating may not be assigned under DC 7801.  See id.

Under DC 7802, as in effect between August 2002 and October 2008, scars other than head, face, or neck, that are superficial and that do not cause limited motion are assigned a 10 percent rating if they exceed an area or areas of 144 square inches (929 sq. cm.).  See 38 C.F.R. § 4.118 (2003).  Because the Veteran's scar does not exceed an area of 144 square inches, and in fact is less than an inch, a separate 10 rating is not warranted under DC 7802.  

Under DC 7803, scars which are superficial and unstable are assigned a 10 percent rating.  See 38 C.F.R. § 4.118 (2003).  An unstable scar is defined as one where, for any reason, there is frequent loss of covering of skin over the scar.  Id., Note (1).  Here, there is no evidence of record showing that the Veteran's scar has been unstable and thus a separate rating is not warranted under DC 7803.  See id.  

In sum, the criteria for a compensable rating for the Veteran's left foot scar have not been met throughout the pendency of this claim.  Thus, staged ratings are not appropriate.  See Hart, 21 Vet. App. at 509-10. 

The Board has considered whether to the address the issue of a total disability rating based on individual unemployability (TDIU).  See 38 C.F.R. §§ 3.340, 4.16 (2012).  In Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), the Court held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation.  If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is the issue of whether a total rating based on individual unemployability as a result of that disability is warranted.  Id. at 455.  

Here, the Veteran has not stated and the evidence of record does not otherwise suggest that he is prevented from engaging in substantially gainful employment due to his left foot scar.  In fact, he stated that he was working at the April 2012 Board hearing, and denied any affect on his employment at the January 2004 VA examination.  Although his employment in two jobs was reportedly terminated due to left foot pain, this pain has not been attributed to his scar and thus is not a part of the service-connected disability under evaluation.  Thus, the issue of entitlement to TDIU has not been raised.  See id.

The Board has considered whether the Veteran's claim should be referred for an extraschedular rating.  See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008).  Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability.  Thun, 22 Vet. App. at 114.  However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration.  Id.  The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  

In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry.  First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Id.  In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  See id.  If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required.  Id.  Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Id.  If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating.  Id.  

Referral for extraschedular consideration is not warranted.  The evidence shows that the Veteran's service-connected left foot scar is superficial, not painful on examination, stable, and less than one inch.  Indeed, it is barely visible.  The scar does not exhibit qualities or symptoms outside the purview of the rating criteria, which are based on factors such as whether it is painful, deep, and/or unstable, and also take into account its size and impact on functioning.  See 38 C.F.R. § 4.118.  Thus, the Veteran does not have symptoms or impairment associated with his scar that have been left uncompensated or unaccounted for by the assignment of a noncompensable (i.e. 0 percent) rating under the schedular criteria.  See Thun, 22 Vet. App. at 115.  As noted in Thun, 22 Vet. App. at 115, the rating criteria are averages and need not account for each individual circumstance in order to be adequate for evaluation purposes.  Rather, the disability must be "exceptional" or "unusual."  

Accordingly, a comparison of the Veteran's left foot scar and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b).  Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability.  In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  Moreover, such factors have not been shown.  Therefore referral for extraschedular consideration is not warranted.  See id.

In sum, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to an increased (compensable) rating for the Veteran's left foot scar is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3 (2010); Gilbert, 1 Vet. App. at 55. 


ORDER

The claim of entitlement to service connection for a bilateral hearing loss disability is denied. 

The claim of entitlement to an increased (compensable) rating for the scar on the dorsum of the Veteran's left foot also is denied.




____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs