Citation Nr: 1319663 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-29 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a right hand disability. 4. Entitlement to service connection for colon cancer. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and B. ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1966 to October 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in June 2008 and December 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is the record. In March 2012 the Board remanded the case for further development. The issue of entitlement to service connection for colon cancer is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has bilateral hearing loss disability for VA compensation purposes that is related to active service. 2. The Veteran has tinnitus that is related to active service. 3. The current right hand disability, identified as myofascial pain syndrome, chronic, mild, and first proximal phalanx avulsion chip fracture, old, was not affirmatively shown to have had onset during service; and is not otherwise related to an injury, disease, or event in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.3033.307, 3.309 (2012). 3. The criteria for service connection for a right hand disability have not been met. 38 U.S.C.A. §§ 1131, 1137, 5107(b) West 2002); 38 C.F.R. §§ 3.303 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). As the Board is granting the claims of service connection for bilateral hearing loss disability and for tinnitus, VCAA compliance need not be addressed as to these claims. Regarding the right hand service connection claim, the RO provided pre- and post- adjudication VCAA notice by a number of letters sent between March 2008 and March 2012. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case, dated in February 2013. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA and private medical records. The Veteran was afforded pertinent VA examinations in December 2010 and April 2012. The Board has reviewed the reports of these examinations. Although the examiner at the earlier examination did not have access to the claims file, the later one did. As that examination report is based on a review of the Veteran's history and both examinations described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination reports in combination are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Principles of Service Connection Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For a veteran who served 90 days or more of continuous, active service, and a chronic disease, including arthritis or an organic disease of the nervous system such as sensorineural hearing loss or tinnitus, becomes manifest to a degree of 10 percent within one year from date of separation from service, the disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). Some diseases are presumed by law and regulation to be service connected when manifested to a compensable degree in a Veteran who was exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309 (e). The Veteran served in Vietnam and is therefore presumed to have been exposed to herbicides. For the showing of chronic disease in service there is required 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). The presumption is rebutted where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Id. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing by clear and unmistakable evidence "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Service connection may be granted if a disability is proximately due to or the result of a service-connected disability or if aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) and as revised by 71 Fed. Reg. 52744-52747 (final rule revising § 3.310 to conform to the Court's holding in Allen v. Brown, 7 Vet. App. 439 (1995) (en banc)). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. II. Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The Veteran does not argue and the record does not show that the claimed disability was the result of participation in combat with the enemy, and the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C.A. § 5107(b). III. Bilateral Hearing Loss and Tinnitus The Veteran claims service connection for bilateral hearing loss disability and tinnitus due to exposure to noise in service. In statements in support of his claims and in testimony at his hearing before the undersigned Veterans Law Judge, the Veteran has stated that in service he was exposed to combat related noise exposure including from heavy artillery and mortar fire during his service in Vietnam. Facts The Veteran's service records show that he served in Vietnam from August 1966 to February 1967. These records show that his primary duties at that time included rifleman and grenadier, and his DD Form 214 MC further shows a specialty of rifleman. Service treatment records include an October 1965 pre-induction examination audiogram showing that, after conversion to International Standards Organization (ISO) standards, the puretone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 25 - 20 LEFT 30 35 35 - 50 Service treatment records in March 1967 show that the Veteran was seen for complaints of a hearing problem. At that time he stated that he had trouble with hearing before entering service in the Marine Corps. Three audiograms recorded on separate days in March 1967 show that, after conversion to ISO standards, the puretone thresholds in decibels were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 40 - 30 LEFT 35 45 50 - 50 HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 35 - 25 LEFT 30 35 45 - 45 HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 - 25 LEFT 30 35 45 - 40 The provisional diagnosis was that the Veteran had decreased hearing, apparently predominant in the left ear. The impression was deafness. The treatment records in March 1967 indicate the Veteran was assigned a profile of H3, with assignment of duty to a noise free area. He was determined to be unfit for return to full duty and unfit for assignment to an area with frequent exposure to loud noises. The limitations were considered permanent. A June 1967 ENT consultation sheet contains a provisional diagnosis of hearing loss left ear. An audiogram recorded a few days later that month showed that, after conversion to ISO standards, the puretone thresholds in decibels were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 35 - 30 LEFT 30 35 45 - 40 A narrative summary at that time diagnosed hearing loss. The report noted a history of hearing loss dating to March 1967 when an audiogram showed a hearing loss of 20 decibels and he was placed on profile H-3. The disposition was to MEDEVAC the Veteran to CONUS (Continental United States), where he was hospitalized at the Naval Hospital, Corpus Christi, Texas, and discharged from the Marine Corps in October 1967 due to his hearing loss, diagnosed as bilateral sensory neural deafness. During the hospitalization at Naval Hospital, Corpus Christi, Texas, a Medical Board report records a history of a known hearing loss on entry to service. The Medical Board report noted that a pre-enlistment audiogram showed that the puretone thresholds in decibels after conversion to ISO standards, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 15 10 LEFT 20 35 35 35 45 The Medical Board report noted that this audiogram revealed that the Veteran was borderline for meeting standards of enlistment at the time, and that after going to Vietnam, the Veteran noted progression of hearing loss that was particularly disabling when he was on patrol and others were speaking in a low voice. The Medical Board report noted that the average of three recent audiograms, taken over a five week period, showed that the puretone thresholds in decibels (the average), after conversion to ISO standards, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 35 - 35 LEFT 30 40 40 - 45 The speech discrimination was 100 percent on the right and 98 percent on the left. The report contains an opinion of the Otolaryngology Service, that the Veteran had a moderately severe sensory neural hearing loss that existed prior to enlistment, and was not significantly aggravated by military service, with notation that the Board concurred with this opinion. The Veteran was later discharged from the Marine Corps in October 1967 due to his hearing loss, diagnosed as bilateral sensory neural deafness. A March 2009 statement from Chris D. Caudle, AuD, Audiologist, shows that the Veteran was seen for audiology evaluation in February 2009, and that the results revealed a mild to severe hearing loss across the frequency range in both ears, which was sensory-neural in nature and permanent. The audiologist noted a history that the Veteran served in the U.S. Marine Corps and was involved in combat in Vietnam. During the evaluation the Veteran reported he had chronic bilateral subjective tinnitus. The audiologist diagnosed tinnitus based on the subjective impression by the Veteran. The audiologist opined that it was at least as likely as not that the Veteran's hearing loss and tinnitus were caused by or contributed to by noise exposure in service; including that the left ear hearing loss was aggravated secondary to incidents involving noise exposure during service. The audiologist based the opinion on test results, interview with the Veteran, the Veteran's description of noise exposure and complaints of tinnitus, and review of his military service records. The audiologist noted also that there was a significant decrease in thresholds across the frequency range in the right ear at discharge from service compared with entrance findings. During a June 2009 VA examination, the examiner stated that the Veteran had a significant hearing loss for both ears prior to enlistment in 1966. The examiner stated that the medical board review prior to separation determined that the Veteran's pre-existing hearing loss was not exacerbated by his military service, and that there was no report of tinnitus. The Veteran reported a history of military noise exposure from weapons fire in service; that he worked as a plumber for 35 years; and that he denied any recreational noise. The Veteran reported complaints of constant tinnitus since he was in Vietnam. The June 2009 VA examination report records that results of an audiogram examination could not be determined, and no results were adequate for rating purposes. The examiner stated that the Veteran had significant hearing loss prior to enlistment and there was no report of tinnitus in the claims folder. The report contains a diagnosis of "report of bilateral tinnitus." There is no diagnosis with respect to a hearing loss. The examiner opined that any tinnitus the Veteran had would more likely than not be associated with the hearing loss present prior to service; and there was no report of tinnitus during service. On this basis the examiner opined that tinnitus was less likely as not the result of military noise exposure. In a September 2009 statement, Dr. Caudle discussed his review of the Veteran's medical history regarding hearing loss and tinnitus. Dr. Caudle noted that a mild high frequency hearing loss in the left ear at 4000 Hz, and normal right ear hearing, was reported on induction examination; and that testing at separation showed high frequency hearing loss in both ears at 4000 Hz. Dr. Caudle noted that this loss in the right ear, which was not shown at induction, was at the frequency most affected by noise exposure or acoustic trauma. Dr. Caudle noted that there were numerous notations in the service treatment records that the Veteran at that time suffered from binaural hearing impairment. Dr. Caudle also pointed out that tinnitus is most commonly associated with hearing loss, and reiterated his belief that the Veteran's hearing loss and chronic and constant tinnitus was caused, or contributed to, by his noise exposure in service. As to the left ear, Dr. Caudle opined that the hearing loss and tinnitus in the left ear were aggravated secondary to noise exposure during service. During a November 2010 VA examination, an audiogram showed that the puretone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 40 45 60 LEFT 35 35 45 45 50 Speech recognition scores were 92 percent in the right ear and in the left ear. The examiner opined that the Veteran's hearing loss was less likely as not permanently aggravated beyond normal progression during military service. The examining audiologist based that opinion on a determination that on enlistment the Veteran had a pre-existing hearing loss in the high frequencies in the left ear and a pre-existing hearing loss at 6000 Hz in the right ear; and that at separation examination did not reveal any significant hearing threshold shifts, bilaterally. The report of a private audiological consultation in July 2011 shows that the Veteran reported complaints of hearing loss and severe bilateral tinnitus. The Veteran reported a history of noise exposure including acoustic trauma during service when he was a rifleman in Vietnam and shot firearms without wearing hearing protection so as to be able to communicate with other Marines in a noisy environment. The Veteran reported he had post-service employment as a construction worker and truck driver, and that he would often wear hearing protection. The examining audiologist stated that pure tone audiometry from military records suggested the Veteran had a mild pre-existing hearing loss prior to service, but documentation was sketchy. She further noted that documented hearing loss prior to discharge from service was evident. The report included an audiogram in graphic form that clearly shows a bilateral hearing loss disability under 38 C.F.R. § 3.385. The audiologist stated that after review of the limited audiological information available from over the time spent in service, it was her opinion that the Veteran's decline of his hearing, more specifically the severity of his hearing loss, is as likely as not the result of his noise exposure in service. Analysis The record shows that the Veteran served in Vietnam from August 1966 to February 1967, and service included primary duties including rifleman and grenadier consistent with his involvement in combat in Vietnam. Such duties would clearly be consistent with an accumulation of exposures to hazardous noise in service due to combat and other associated military activities. Service treatment records include audiograms showing a hearing loss disability in the left ear prior to entry to service, pursuant to 38 C.F.R. § 3.385, but no hearing loss disability was shown in the right ear. It appears that the Veteran was removed from Vietnam after six months due to increased hearing difficulties and he was placed on a profile for hearing loss and ultimately discharged from service a few months later in October 1967, due to his then present bilateral hearing loss disability diagnosed at that time as bilateral sensory neural deafness. There is sufficient evidence of both a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385, and a current tinnitus disorder. In fact, there was medical evidence of bilateral hearing loss disability at the time of discharge. Based on the private audiology reports dated in March 2009 (and addendum statement of September 2009), and July 2011, there is medical evidence linking the two chronic conditions of bilateral hearing loss and tinnitus to acoustic trauma due to exposure to loud noise in service, or in the case of tinnitus, linked to the bilateral hearing loss disability itself. Those private audiology reports include opinions essentially that the preexisting left ear hearing loss disability was permanently aggravated beyond the normal progression of the pre-existing left ear hearing loss, by loud military related noise in service, including from combat, and that the right ear hearing loss disability was caused by loud combat related noise in service. Further, the private audiologist opined that the Veteran's tinnitus was related to the bilateral hearing loss. The Board finds these opinions to be consistent with the contemporaneous service treatment records. Notably, review of the Medical Board report prior to discharge, shows that the reported audiology test threshold findings from the Veteran's pre-enlistment test and from the current three test average reveal that on comparison of the two: (1) for the right ear, there was a significant increase in threshold levels at all of the relevant frequencies measured from 500 to 4000 Hz for the right ear during service, and there was now a present hearing loss disability; and (2) for the left ear, there was an increase in threshold levels at all but one frequency measured (4000 Hertz), including a 50 percent increase in threshold level at the 500 Hertz level. Between the time of the cited pre-enlistment audiology evaluation and the current findings, the threshold levels for the right ear increased by 25, 50, 75 and 250 percent at the frequencies of 500, 1000, 2000, and 4000 Hz, respectively. All of these threshold level changes for the left and right ears reflect an increase in severity of the bilateral hearing loss disability. For this reason, the Board finds that the November 2010 VA examination opinion is significantly less probative than the private opinions as to the likelihood that a left ear hearing loss disability was the result of aggravation of a pre-existing left ear hearing loss by noise exposure during service, or that a right ear hearing loss disability was caused by noise exposure in service. In contrast to the private audiologists' opinions, which are consistent with the contemporaneous service treatment record evidence, the November 2010 VA examination opinion was based primarily on an inaccurate determination that the separation examination did not reveal any significant hearing threshold shifts, bilaterally. As just discussed, on comparison of the pre-enlistment and pre-discharge medical findings, the service treatment records evidence a rather significant increase in the right ear, and more than an insignificant increase in the left ear threshold levels. Notably, the Medical Board examiner concluded that the Veteran had a pre-existing moderately severe sensory neural hearing loss (referring to the left ear) that was not significantly aggravated by military service. In other words, that examiner found there was evidence of aggravation; which is different from a finding that there was not any significant hearing threshold shifts, bilaterally, the basis of the November 2010 VA examiner's opinion. For similar reasons, the Board finds the private audiologists' opinions linking the Veteran's diagnosed tinnitus to his hearing loss disability, to be significantly more probative than the VA examiners' opinions to the contrary. Given the foregoing, including the strong evidence of exposure to military-related hazardous noise and the probative opinions of two different private audiologists, the Board finds that, on affording the Veteran the benefit of any remaining doubt, service connection is warranted for bilateral hearing loss disability, and for tinnitus. IV. Right Hand Disability The Veteran asserts that he has a right hand disability due to service. In this regard, during his July 2011 Travel Board hearing he testified that he had a cyst removed from his arm during service and this resulted in his right hand condition. He testified that he did not know if the surgery damaged a nerve, but that after the surgery he periodically could not move his fingers without hurting, and he could not pick things up. Facts Service treatment records show that the Veteran was seen apparently in late April 1967, for pain of the dorsum of the right hand on squeezing things. Examination showed no neurovascular deficit and the provider doubted there was any pathology. Service treatment records in May and June 1967 show that the Veteran was treated for complaints diagnosed on pathology examination as pyogenic abscess, foreign body granuloma. Treatment included cleaning and redressing of a wound of the underarm of the right arm, and a small amount of odorless pus was removed. During a December 2010 VA examination of the hand, the Veteran reported that in 1967 he began having pain over the dorsum of the right hand. He described the pain as generalized and over the metacarpals of the second to fifth fingers, which was aching and throbbing in nature. He reported that since that time he has had repeated flares of the same pain, which generally occurred once or twice a year, most recently one year ago. He was taking no current medication, and reported he had no history of inflammatory joint disorders or constitutional symptoms. On examination, diagnostic imaging concluded with an impression of no dislocations; the joint spaces are maintained; the first proximal phalangeal base dorsal phalangeal base of separated small bony density, most probably due to chronic chip fracture, no soft tissue swelling with joint extension and no healing; the right hand is otherwise unremarkable. The report contains a diagnosis of myofascial syndrome of the right hand, recurrent. During an April 2012 VA examination, the Veteran reported a history that he had experienced chronic intermittent mechanical right hand central dorsum pain since he underwent right axillary epidermal cyst excision in May 1967. He denied any acute injuries or seeking treatment for these symptoms during active duty or after service. He reported current complaints of daily mild to moderate mechanical right hand dorsum pain, and right hand soft tissue swelling. After review of the claims file and examination of the Veteran's right hand, the April 2012 VA examiner diagnosed (1) myofascial pain syndrome, chronic, mild; and (2) first proximal phalanx avulsion chip fracture, old. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. As rationale, the examiner explained that review of the service treatment records revealed no documentation of evaluation or treatment of a right hand injury or condition. Analysis The current disabilities of the right hand-(1) myofascial pain syndrome, chronic, mild, and (2) first proximal phalanx avulsion chip fracture, old-were not affirmatively shown to have been present during service. Also, neither myofascial pain syndrome nor avulsion chip fracture of the first proximal phalanx, is a chronic disease enumerated in the regulation listing named chronic diseases, 38 C.F.R. § 3.309(a), and the theories of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. See Walker v. Shinseki, 2011-7184, WL 628429 (Fed. Cir. Feb. 21, 2013) (The continuity of symptomatology avenue to service connection under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases. 38 C.F.R. §§ 3.303(b), 3.309(a). Although the current disabilities were not affirmatively shown in service and chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply, service connection may still be established for a disability initially diagnosed after service under 38 C.F.R. § 3.303(d), when all of the evidence, including that pertinent to service, shows that the disability as incurred in service. The Veteran is competent to describe symptoms of myofascial pain syndrome and avulsion chip fracture of the first proximal phalanx. See 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The questions are whether the Veteran as layperson is competent to diagnose the current disabilities or to offer an opinion on a causal relationship between the disabilities first shown after service and an injury, disease, or even during service, the so-called "nexus" requirement. Whether the current (1) myofascial pain syndrome, chronic, mild, or (2) first proximal phalanx avulsion chip fracture, old, were present in service or whether the disabilities were caused by an injury or event are not questions that can be competently answered by the Veteran as a lay person based on mere personal observation as the disabilities fall outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to render a diagnosis of the claimed disabilities or to establish a medical causation of the current disabilities. Where, as here, there is a question of the diagnosis, which is not capable of lay observation, including by case law, to the extent the Veteran's lay testimony is offered as proof of the presence of the claimed disabilities or on causation the Veteran's lay testimony is not competent evidence, and the Veteran's lay testimony is not admissible as evidence, that is, the Veteran's lay testimony is not to be considered as competent evidence that the claimed disabilities were present in service or caused by any incident in service. Except the Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional. Jandreau, at 1377. No medical professional has diagnosed the current disabilities before 2010, almost 43 years after service separation in 1967. Further, as arthritis of the claimed right hand disability is not shown, presumptive service connection for arthritis as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309 does not apply. Also, although the Veteran had service in Vietnam and is presumed to have been exposed to herbicides, none of diagnosed conditions for which service connection is claimed is entitled to presumptive service connection under 38 C.F.R. § 3.309(e). And no medical professional has diagnosed the current disabilities in association with any injury, disease, or event in service. As the Veteran's lay evidence is not competent evidence on the material issues of fact, pertaining to a postservice diagnosis, applying 38 C.F.R. § 3.303(d) and medial causation, the Board looks to the medical evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). On VA examination in April 2012, the VA examiner expressed the opinion that the claimed condition, diagnosed as (1) myofascial pain syndrome, chronic, mild, and (2) first proximal phalanx avulsion chip fracture, old, was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. The VA examiner explained that review of the service treatment records revealed no documentation of evaluation or treatment of a right hand injury or condition. Considering the merits of the analysis and the details of the opinion, the Board finds that the opinion of the VA examiner, which was based on medical analysis applied to the facts of case, is persuasive medical evidence against the claim. As there is no favorable medical evidence to consider and weigh against the opinion of the VA examiner, the preponderance of the evidence is against the claim under the applicable theories of service connection, applying 38 C.F.R. § 3.303(a), (b), and (d) and 38 C.F.R. § 3.307, § 3.309, and § 3.317 and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for a right hand disability is denied. REMAND In a March 2010 rating decision the RO denied the Veteran's claim for service connection for colon cancer. The Veteran timely filed a notice of disagreement with that determination in June 2010. However, a statement of the case (SOC) has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Thus a remand is required for issuance of an SOC and to provide the Veteran the opportunity to perfect an appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26; Manlincon. Accordingly, the case is REMANDED for the following action: Issue the Veteran a statement of the case addressing the issue of entitlement to service connection for colon cancer; to include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ GEORGE E. GUIDO, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs