Citation Nr: 1312293 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 08-38 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an earlier effective date than August 4, 2006, for a grant of service connection for scar residuals of an appendectomy. 4. Entitlement to an earlier effective date than August 4, 2006, for a grant of service connection for pseudofolliculitis barbae (PFB). 5. Entitlement to an earlier effective date than August 4, 2006, for a grant of service connection for posttraumatic stress disorder (PTSD). 6. Entitlement to an earlier effective date than August 4, 2006, for a grant of service connection for herniation of fatty tissue. 7. Entitlement to an earlier effective date than August 4, 2006, for a grant of service connection for mild degenerative osteoarthritis of the left knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from June 1989 to September 1997, including in the southwest Asia theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted the Veteran's service connection claims for scar residuals of an appendectomy, assigning a zero percent rating effective August 4, 2006, pseudofolliculitis barbae (PFB), assigning a 10 percent rating effective August 4, 2006, posttraumatic stress disorder (PTSD), assigning a 10 percent rating effective August 4, 2006, herniation of fatty tissue (which was characterized as herniation of fatty tissue claimed as cyst), assigning a zero percent rating effective August 4, 2006, and for mild degenerative osteoarthritis of the left knee, assigning a 10 percent rating effective August 4, 2006. The RO also denied the Veteran's service connection claims for bilateral hearing loss and for tinnitus. This matter also is on appeal from a March 2009 rating decision in which the RO denied the Veteran's claims for an earlier effective date than August 4, 2006, for the grant of service connection for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue, and for mild degenerative osteoarthritis of the left knee. FINDINGS OF FACT 1. The record evidence shows that the Veteran has normal hearing in the right ear and does not experience sensorineural hearing loss in the left ear for VA disability compensation purposes. 2. The record evidence shows that the Veteran's tinnitus is normal and is not related to active service or any incident of service. 3. The record evidence demonstrates that the Veteran's claims of service connection for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue, and mild degenerative osteoarthritis of the left knee were received by VA on February 25, 2004, and entered in to BIRLS on February 27, 2004. 4. In a letter dated on June 28, 2005, and mailed to the Veteran, he was informed that VA records showed that he had filed multiple claims on February 25, 2004, but the paperwork for these claims had been lost; it appears that this letter was mailed to the Veteran at an incorrect mailing address. 5. In statements on a VA Form 21-526 dated on August 2, 2006, and date-stamped as received by the RO on August 4, 2006, the Veteran stated that he just had learned that VA needed new information regarding his previously filed claims because correspondence had been mailed to him at an incorrect mailing address. 6. In a rating decision dated on November 14, 2007, and issued to the Veteran and his service representative on November 19, 2007, the RO granted the Veteran's claims of service connection for scar residuals of an appendectomy, assigning a zero percent rating effective August 4, 2006, PFB, assigning a 10 percent rating effective August 4, 2006, PTSD, assigning a 10 percent rating effective August 4, 2006, herniation of fatty tissue, assigning a zero percent rating effective August 4, 2006, and for mild degenerative osteoarthritis of the left knee, assigning a 10 percent rating effective August 4, 2006. 7. In statements on a VA Form 21-4138 dated on November 28, 2007, and date-stamped as received by the RO on December 5, 2007, the Veteran requested an earlier effective date of February 2004 for the grant of service connection for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue, and for mild degenerative osteoarthritis of the left knee. 8. The record evidence shows that the Veteran has prosecuted his service connection claims for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue, and mild degenerative osteoarthritis of the left knee continuously since February 25, 2004. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active service nor may sensorineural hearing loss be presumed to have been incurred during service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). 3. The criteria for an effective date of February 25, 2004, for a grant of service connection for scar residuals of an appendectomy have been met. 38 U.S.C.A. §§ 5110, 5111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.4(b)(1), 3.31, 3.151, 3.155, 3.400 (2012). 4. The criteria for an effective date of February 25, 2004, for a grant of service connection for PFB have been met. 38 U.S.C.A. §§ 5110, 5111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.4(b)(1), 3.31, 3.151, 3.155, 3.400 (2012). 5. The criteria for an effective date of February 25, 2004, for a grant of service connection for PTSD have been met. 38 U.S.C.A. §§ 5110, 5111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.4(b)(1), 3.31, 3.151, 3.155, 3.400 (2012). 6. The criteria for an effective date of February 25, 2004, for a grant of service connection for herniation of fatty tissue have been met. 38 U.S.C.A. §§ 5110, 5111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.4(b)(1), 3.31, 3.151, 3.155, 3.400 (2012). 7. The criteria for an effective date of February 25, 2004, for a grant of service connection for mild degenerative osteoarthritis of the left knee have been met. 38 U.S.C.A. §§ 5110, 5111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.4(b)(1), 3.31, 3.151, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. With respect to the Veteran's service connection claims for bilateral hearing loss and for tinnitus, the Board notes that, in letters issued in September and October 2006 and in June and August 2007, VA notified the Veteran of the information and evidence needed to substantiate and complete these claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the Veteran to submit medical evidence relating the claimed disabilities to active service and noted other types of evidence the Veteran could submit in support of his claims. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his service connection claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the Veteran's earlier effective date claims for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue, and for mild degenerative osteoarthritis of the left knee, the Board notes that these claims are "downstream" elements of the RO's grant of service connection for these disabilities in the currently appealed rating decision. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As noted above, VA notified the Veteran of the information and evidence needed to substantiate his service connection claims in September and October 2006 and in June and August 2007. In December 2008, VA also notified the Veteran of the information and evidence needed to substantiate and complete his earlier effective date claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. These letters also noted other types of evidence the Veteran could submit in support of his earlier effective date claims. The Veteran further was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his earlier effective date claims. See Pelegrini, 18 Vet. App. at 112. As will be explained below in greater detail, the evidence does not support granting service connection for bilateral hearing loss or for tinnitus. By contrast, the evidence supports assigning an earlier effective date of February 25, 2004, for the grant of service connection for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue, and for mild degenerative osteoarthritis of the left knee. Because the Veteran was fully informed of the evidence needed to substantiate these claims, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Additional notice of the five elements of a service-connection claim was provided in all of the VCAA notice letters issued during the appeal period and in separate July 2010 correspondence, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, with respect to the Veteran's service connection claims, the September and October 2006 and June and August 2007 notice letters were issued prior to the currently appealed rating decision issued in November 2007; thus, this notice was timely. With respect to the Veteran's earlier effective date claims, the December 2008 notice letter was issued prior to the currently appealed rating decision issued in March 2009; thus, this notice also was timely. Because the Veteran's service connection claims are being denied in this decision, and because his earlier effective date claims are being granted in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file also has been reviewed. The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required. In October 2006, the Defense Personnel Records Information System (DPRIS) informed VA that the Veteran's service treatment records could not be located. In June 2007 and in October 2010, the Veteran was asked to provide copies of all of his service treatment records that were in his possession. The Veteran provided copies of certain of his service treatment records to the RO in June 2007 in response to a request for these records. The RO subsequently concluded in a formal memorandum to the file in October 2010 that the Veteran's complete service treatment records were not available for review. A review of the Veteran's claims file indicates, however, that the Veteran's available service treatment records subsequently were obtained from VA's Records Management Center (RMC) and associated with the claims file in October 2011. In cases where the Veteran's service treatment records (or other pertinent records, for that matter) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must provide an explanation to the Veteran regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court also has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). Given the foregoing, the Board concludes that all of the Veteran's available service treatment records have been obtained and further efforts to attempt to obtain them would be futile. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the Veteran shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the Veteran has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the Veteran's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) ; McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the Veteran's earlier effective date claims, there is no duty to provide an examination or a medical opinion in this case because such evidence would not be relevant to these claims. With respect to the service connection claims for bilateral hearing loss and for tinnitus, the Veteran has been provided with VA examinations which address the contended causal relationship between the claimed disabilities and active service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the service connection claims adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Service Connection Claims The Veteran contends that he incurred bilateral hearing loss and tinnitus during active service. He specifically contends that in-service acoustic trauma caused or contributed to his current bilateral hearing loss and tinnitus. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military 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, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including sensorineural hearing loss (as an organic disease of the nervous system), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claim in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). Clinically, the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For compensation purposes, however, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater or where the auditory thresholds for at least three of these frequencies are 26 dB or greater or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. In Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013), the Federal Circuit recently overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013); see also 38 C.F.R. § 3.309(a). Because sensorineural hearing loss (as an organic disease of the nervous system) is considered a "chronic" disability under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology remains valid in adjudicating the Veteran's service connection claim for bilateral hearing loss. By contrast, because tinnitus is not explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a), the Board finds that Savage and the theory of continuity of symptomatology in service connection claims is not applicable to adjudicating the Veteran's service connection claim for tinnitus. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background The Veteran's service treatment records show that, at his pre-enlistment physical examination in July 1988, he denied all relevant pre-service medical history. Clinical evaluation of his ears was normal. His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 0 5 5 0 LEFT 15 5 5 5 15 On periodic physical examination in August 1994, the Veteran denied all relevant in-service history. Clinical evaluation of the Veteran's ears was normal. His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 10 5 LEFT 15 5 5 15 5 At his separation physical examination in May 1997, he denied any history of ear trouble and checked a box indicating "I don't know" for a history of hearing los. Clinical evaluation of the Veteran's ears was normal. His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 0 10 LEFT 10 10 10 10 5 The post-service medical evidence shows that, on VA Disability Benefits Questionnaire (DBQ) hearing loss and tinnitus examination in September 2011, The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran stated that his hearing loss resulted in him "missing parts of conversation" which had to be repeated. He denied experiencing recurrent tinnitus. The Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 15 LEFT 15 15 15 20 15 The VA examiner stated that the Veteran's test results were valid for rating purposes. Speech audiometry revealed speech recognition ability of 96 percent in each ear. The VA examiner also stated that the use of speech discrimination scores was appropriate for the Veteran. Tympanometry showed normal acoustic immitance bilaterally and abnormal ipsilateral and contralateral reflexes bilaterally. The VA examiner stated that the Veteran's hearing loss did not exist prior to service because his separation physical examination showed normal hearing thresholds bilaterally from 500 to 4000 Hertz. With respect to the Veteran's tinnitus, the VA examiner stated: The Veteran reported that he experiences normal tinnitus in both ears. Veteran's description of his tinnitus is similar to that experienced by most individuals with normal hearing. As such, the Veteran's tinnitus is not considered pathological and is considered normal. It is my professional opinion that [the] Veteran's tinnitus is not caused by or the result of military noise exposure. This examiner also stated that, because the Veteran's current hearing threshold did not meet VA criteria for hearing loss disability, he would not provide the requested etiological opinion concerning hearing loss. The diagnoses were normal hearing in the right ear and sensorineural hearing loss in the left ear (in the frequency range of 6000 Hz or higher frequencies). On VA audiology consult in April 2012, the Veteran's complaints included occasional ear pain or sensitivity and recurrent bilateral tinnitus. Otoscopy was unremarkable. Tympanometry results were normal "which is suggestive of normal middle ear function" bilaterally. The Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 25 LEFT 15 10 15 25 15 Speech audiometry revealed speech recognition ability of 100 percent in each ear. The diagnoses were hearing within normal limits and tinnitus. Analysis The Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for bilateral hearing loss and for tinnitus. The Veteran has contended that he incurred bilateral hearing loss and tinnitus during active service. The competent evidence does not support his assertions concerning in-service incurrence or continuity of symptomatology since service for bilateral sensorineural hearing loss as tinnitus is not considered a "chronic disease" to which continuity of symptomatology is a valid theory of establishing service connection. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013); see also 38 C.F.R. § 3.309(a). The Veteran's service treatment records show no complaints of or treatment for bilateral hearing loss or tinnitus at any time during active service. Nor do any of the pure tone thresholds obtained at the Veteran's enlistment physical examination in 1988, his periodic physical examination in August 1994, or at his separation physical examination in May 1997 demonstrate the presence of impaired hearing for VA disability compensation purposes at any time during active service. 38 C.F.R. § 3.385. There further is no indication that the Veteran complained of or was diagnosed as having bilateral sensorineural hearing loss during service or within the first post-service year (i.e., by September 1998) such that service connection for bilateral sensorineural hearing loss is warranted on a presumptive basis as a chronic disease. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The post-service evidence also does not support granting service connection for bilateral hearing loss or for tinnitus. The Veteran has asserted that he experienced continuous disability due to bilateral hearing loss and tinnitus since his service separation in September 1997. The Board again notes that continuity of symptomatology is no longer a valid theory for establishing service connection for tinnitus. The evidence does not support the Veteran's assertions of a continuity of symptomatology for his bilateral hearing loss since his service separation, however. The post-service evidence shows instead that the Veteran's hearing in his right ear is normal and, although the Veteran experiences sensorineural hearing loss in his left ear at very high frequencies (above 6000 Hz), this is not considered a disability for VA purposes (as the VA examiner noted in September 2011). See 38 C.F.R. § 3.385. Although the September 2011 VA examiner noted the Veteran's complaint of tinnitus, he concluded that it was normal (or "similar to that experienced by most individuals with normal hearing") and was not related to his claimed in-service noise exposure. The Veteran's subsequent VA audiology consult in April 2012 confirmed the presence of normal hearing for VA disability compensation purposes and tinnitus. The Board observes in this regard that a service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced bilateral hearing loss or tinnitus at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence of a hearing loss disability for VA compensation purposes at any time during the pendency of this appeal. Id. And although the Veteran complained of tinnitus at his most recent VA examination in September 2011, it was found to be normal and was not related to any alleged in-service noise exposure. In summary, the Board finds that service connection for bilateral hearing loss and for tinnitus is not warranted. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown,6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. at 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current VA disability compensation claim, in recent statements, the Veteran has asserted that his symptoms of bilateral hearing loss and tinnitus have been continuous since service. He asserts that he continued to experience symptoms relating to bilateral hearing loss (missing parts of conversations which had to be repeated to him) and tinnitus after he was discharged from service. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of either bilateral hearing loss or tinnitus after service separation. Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible. The Board finds that the Veteran's more recently-reported history of continued symptoms of bilateral hearing loss and tinnitus since active service is inconsistent with the other lay and medical evidence of record. Indeed, while he now asserts that his disorders began in service, in the more contemporaneous medical history he gave at the service separation examination, he denied any history or complaints of symptoms of bilateral hearing loss and tinnitus. Specifically, the service separation examination report reflects that the Veteran was examined and his ears were found to be normal clinically. His separation physical examination also showed no impaired hearing for VA disability compensation purposes. 38 C.F.R. § 3.385. The Veteran's in-service history of symptoms at the time of service separation is more contemporaneous to service so it is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later). The post-service medical evidence does not reflect complaints or treatment related to bilateral hearing loss and tinnitus for many years following active service. The Board emphasizes the multi-year gap between discharge from active service (1997) and initial reported symptoms related to bilateral hearing loss and tinnitus in approximately 2006 (a 9-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board notes that the Veteran sought treatment for a myriad of medical complaints since discharge from service, including bilateral hearing loss. Significantly, during that treatment, when he specifically complained of other problems, he never reported complaints related to tinnitus. In fact, as noted above, the Veteran specifically denied experiencing recurrent tinnitus when examined for VA disability compensation purposes in September 2011. Rucker, 10 Vet. App. at 67 (holding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). He did not claim that symptoms of his disorders began in (or soon after) service until he filed his current VA disability compensation claims. Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories. See Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology for bilateral hearing loss since service because, as noted elsewhere, continuity of symptomatology is no longer a valid theory for establishing service connection for non-chronic diseases like tinnitus. See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for years after service, and his previous statements made for treatment purposes. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. Earlier Effective Date Claims The Veteran contends that he is entitled to an earlier effective date than August 4, 2006, for the grant of service connection for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue, and for mild degenerative osteoarthritis of the left knee. He specifically contends that his original service connection claims for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue, and for mild degenerative osteoarthritis of the left knee were received by the RO on February 25, 2004, and then the paperwork was lost by RO personnel. He also specifically contends that, when he found out in August 2006 that his original claims paperwork had been lost by the RO, he immediately filed a new VA Form 21-526 claiming service connection for these same disabilities. He finally contends that, but for RO error in losing his original claims paperwork, the appropriate effective date for the grant of service connection for all of these disabilities is February 25, 2004. In general, except as otherwise provided, the effective date of an evaluation an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. For claims of entitlement to service connection, the effective date will be the day following separation from active service or date entitlement arose if the claim is filed within one year of discharge from service, otherwise the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2012). A "claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, the RO will forward an application form to the claimant for execution. If the RO receives a complete application from the claimant within one year from the date it was sent, the RO will consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2012). Factual Background A review of information obtained from Beneficiary Identification Records Locator Subsystem (BIRLS), an internal VA database used for tracking claims filed at the RO, and included in the Veteran's claims file shows that a claim was received at the RO on February 27, 2004. In a letter from the RO dated on June 28, 2005, and mailed to the Veteran at [redacted], he was informed: Our records show that you filed a claim for benefits on February 25, 2004. Unfortunately, we have not been able to locate the original paperwork submitted. Provide a copy of your claim with any evidence previously submitted. If you do not have all the evidence available, please describe the evidence you were unable to provide on the enclosed VA Form 21-4138. We will assist you in obtaining evidence previously provided if you can specifically identify the source of the evidence. This letter referred to multiple claims that had been filed by the Veteran on February 25, 2004, although the specific claims were not listed in it. This letter is marked, "File copy," with a handwritten note and is date-stamped on June 29, 2005. On a VA Form 21-526, "Veteran's Application For Compensation And/Or Pension," dated on August 2, 2006, and date-stamped as received by the RO on August 4, 2006, the Veteran asserted, "The purpose of this statement is to advise [that] I have just found out you have ask[ed] for a new 526. I wish to point out [that] you sent the letter to [redacted]. This is to inform you I have never been to [redacted]." The Veteran filed for service connection for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue (which he characterized as a cyst in the left leg), and for mild degenerative osteoarthritis of the left knee on this form. He also provided a mailing address in [redacted], as his home address. As noted in the Introduction, in a rating decision dated on November 14, 2007, and issued to the Veteran and his service representative on November 19, 2007, the RO granted the Veteran's claims of service connection for scar residuals of an appendectomy, assigning a zero percent rating effective August 4, 2006, PFB, assigning a 10 percent rating effective August 4, 2006, PTSD, assigning a 10 percent rating effective August 4, 2006, herniation of fatty tissue, assigning a zero percent rating effective August 4, 2006, and for mild degenerative osteoarthritis of the left knee, assigning a 10 percent rating effective August 4, 2006. This rating decision was mailed to the Veteran at the mailing address in [redacted], that he had provided on the August 2006 VA Form 21-526. In response, the Veteran submitted a notice of disagreement on a VA Form 21-4138 that was dated on November 28, 2007, and date-stamped as received by the RO on December 5, 2007. He contended that he was entitled to an earlier effective date for the grant of service connection for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue, and for mild degenerative osteoarthritis of the left knee. He specifically contended, " I filed a claim back in 2004 and you lost the claim. You also sent all the letters and information to an address in [redacted]." The Veteran again listed his mailing address in [redacted], on this form. In a rating decision dated on March 12, 2009, and issued to the Veteran and his service representative on March 12, 2009, the RO denied the Veteran's earlier effective date claims. This rating decision also was mailed to the Veteran at the mailing address in [redacted], that he had provided on the August 2006 VA Form 21-526. The Veteran disagreed with this decision in statements on a VA Form 21-4138 dated on March 17, 2009, and date-stamped as received by the RO on March 20, 2009. In a memorandum sent to the RO by the Veteran's service representative in April 2010, VA was notified that the Veteran's mailing address had changed to his current mailing address in [redacted]. The Veteran used this mailing address when he perfected a timely appeal on his earlier effective date claims in April 2010. The Veteran subsequently confirmed that this was his correct mailing address in a telephone conversation with RO personnel which occurred on October 18, 2010 (and which was documented on a VA Form 21-0820 dated on that same date). Analysis The Board finds that the evidence supports assigning an earlier effective date of February 25, 2004, for a grant of service connection for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue, and for mild degenerative osteoarthritis of the left knee. The Veteran has contended that his original service connection claims for these disabilities were filed at the RO on February 25, 2004, and entered in to BIRLS on the same day by RO personnel. He also has contended that correspondence from VA dated on June 28, 2005, referred to his pending service connection claims but was sent to an incorrect mailing address. He has contended further that he submitted a new VA Form 21-526 filing for service connection for these disabilities on August 4, 2006, when he learned that his prior claims paperwork had been lost by the RO and the RO had sent correspondence about the lost claims paperwork to him at an incorrect mailing address. The evidence of record clearly supports these assertions and demonstrates that the Veteran is entitled to an earlier effective date of February 25, 2004, for a grant of service connection for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue, and for mild degenerative osteoarthritis of the left knee. It is clear that the Veteran's original service connection claims were received at the RO on February 25, 2004. Although the exact nature of the claims that were filed on February 25, 2004, is not clear from a review of the BIRLS information associated with the Veteran's claims file in support of his earlier effective date claims, the letter from the RO dated on June 28, 2005, referred to multiple service connection claims being filed on February 25, 2004. This persuasively suggests that the Veteran filed his original service connection claims for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue, and for mild degenerative osteoarthritis of the left knee on February 25, 2004. It also is clear from a review of the record evidence that VA received claims from the Veteran on February 25, 2004, because the RO promulgated the June 28, 2005, letter notifying him that his claims had been received on that date but the paperwork had been lost. More importantly, this June 28, 2005, letter from VA notified the Veteran that, if he could not locate the evidence previously submitted, VA would assist him in obtaining it if he could identify it. The Board notes in this regard that the Court has held that "[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). While Ashley dealt with the regularity of Board procedures, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied the presumption of regularity to procedures at the RO level. In this case, there is no clear evidence demonstrating that the RO either did not receive the Veteran's claims of service connection for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue, and for mild degenerative osteoarthritis of the left knee on February 25, 2004, or that it did not issue the June 28, 2005, letter which notified him that the paperwork for these claims had been lost. There further is no clear evidence that the June 28, 2005, letter was mailed to the Veteran at an incorrect mailing address. The Board notes in this regard that a review of internal VA information attached to the June 28, 2005, letter indicates that the Veteran's mailing address at that time (at least according to VA records) was [redacted]. The Veteran has asserted continuously during the appeal period, however, that he never lived in [redacted], and the mailing address on the June 28, 2005, letter sent to him by VA was incorrect. Applying the presumption of regularity to the facts of this case, the Board finds that the BIRLS information indicating that claims were filed by the Veteran on February 25, 2004, and the June 28, 2005, letter issued to the Veteran (indicating the loss of his original claims paperwork) were promulgated by the RO as part of its regular claims processing work. In summary, the Board concludes that the Veteran has prosecuted claims of service connection for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue, and for mild degenerative osteoarthritis of the left knee continuously since he filed his original claims on February 25, 2004, the date that they were received by VA and entered in to BIRLS by RO personnel. The Board observes that the laws and regulations governing effective dates are clear. For claims of entitlement to service connection, the effective date will be the day following separation from active service or date entitlement arose if the claim is filed within one year of discharge from service; otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2012). In this case, the date of the Veteran's claims is February 25, 2004. VA examination reports dated in June and October 2007 also indicate that the Veteran related symptoms of each of these disabilities which existed at the time that his original claims were filed. See Gilpin v. West, 135 F.3d 1353, 1355-1356 (Fed. Cir. 1998) (finding requirement of current symptomatology at time application filed to be permissible interpretation of statutes governing compensation benefits). Hence, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for an effective date of February 25, 2004, for a grant of service connection for scar residuals of an appendectomy, PFB, PTSD, herniation of fatty tissue, and for mild degenerative osteoarthritis of the left knee have been met. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to an effective date of February 25, 2004, for a grant of service connection for scar residuals of an appendectomy is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an effective date of February 25, 2004, for a grant of service connection for pseudofolliculitis barbae (PFB) is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an effective date of February 25, 2004, for a grant of service connection for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an effective date of February 25, 2004, for a grant of service connection for herniation of fatty tissue is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an effective date of February 25, 2004, for a grant of service connection for mild degenerative osteoarthritis of the left knee is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs