Citation Nr: 1322808 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 07-22 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for hemorrhoids. 4. Entitlement to service connection for a right leg disability (other than a knee or ankle disability). 5. Entitlement to service connection for a right wrist disability. 6. Entitlement to service connection for a right knee disability. 7. Entitlement to service connection for a left knee disability. 8. Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to July 1984 and September 1984 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The issue of entitlement to service connection for hypertension has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Throughout the appeal the Veteran has not had a diagnosed right ankle disability. 2. Throughout the appeal the Veteran has not had a diagnosed left ankle disability. 3. Throughout the appeal the Veteran has not had a diagnosed hemorrhoid disability. 4. Throughout the appeal the Veteran has not had a diagnosed right leg disability. 5. The Veteran's right wrist symptoms were not incurred during service, and the most probative evidence indicates that the Veteran's right wrist symptoms are not related to service, but rather to his non-service connected cervical spine disability. 6. The preponderance of the medical evidence shows that the Veteran's right knee disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 7. The preponderance of the medical evidence shows that the Veteran's left knee disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin, 8. The Veteran's pre-existing right ear hearing loss did not underwent a permanent increase in severity during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for service connection for a hemorrhoid disability have not been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 4. The criteria for service connection for a right leg disability have not been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 5. The criteria for service connection for a right wrist disability have not been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 6. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 7. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that through VCAA letters dated August 2006 and October 2006, the Veteran was informed of the information and evidence necessary to substantiate the claims for service connection. He was also advised of the types of evidence VA would assist in obtaining, as well as his own responsibilities as to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 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 (2006). The VCAA letter to the Veteran was provided in August 2006 prior to the initial unfavorable decision in February 2007. In this case, the Veteran was advised of the criteria for rating a disability and those governing effective dates of awards in the August 2006 letter, prior to the most recent adjudication by the RO, which cures any timing deficiency. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, private treatment records, VA examination reports, VA treatment records, Social Security Administration records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded VA examinations in May 2011. The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, and the examination reports set forth detailed examination findings. Therefore, the examination reports are adequate to decide the claims of service connection. Thus, further examination is not necessary regarding the issues on appeal. Service Connection - Laws and Regulations Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Pertinent to the case at hand, arthritis is among the list of chronic diseases listed within 38 C.F.R. § 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 C.F.R. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 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"). 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) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("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"). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection - Right or left Ankle, Hemorrhoids, Right Leg The Board will address the issues of service connection for a right or left ankle disability, right leg disability, and hemorrhoids together as the analysis is based upon the same legal basis. Regarding the Veteran's right and left ankle claims, the Veteran noted on his July 2007 substantive appeal that his ankles give him a lot of pain. The VA examiner in May 2011 found, after radiological reports, a medical history, a review of the claims file, and a physical examination, that the Veteran had no current diagnosis of an ankle disability. The record contains no medical evidence of a diagnosed disability. Regarding the Veteran's hemorrhoids claim, on his July 2007 substantive appeal, the Veteran noted one incident in service and one incident post-service. The Veteran was afforded a VA examination in May 2011. At that time, the Veteran noted one episode while in service and no problems since. The examiner specifically found, after physical examination, no diagnosis at that time. The remainder of the Veteran's treatment records shows no current diagnosis. Regarding the Veteran's right leg claim, the Veteran reported on his July 2007 substantive appeal that he had some leg problems while running on the track on the base team. He noted that these leg injuries may not have been that serious, but his legs continue to bother him. The VA examiner in May 2011 noted that the Veteran pulled his right hamstring in service and was treated conservatively. He had no problems since. The examiner noted no right leg diagnosis. The remainder of the medical records also notes no right leg diagnosis. Although the Veteran asserts that he has a current right or left ankle, hemorrhoid, and right leg disability, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a diagnosis of a right or left ankle, hemorrhoid, or right leg disability, the Board finds that the diagnosis and determination of etiology of such disorders is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. The Veteran is certainly competent to testify as to symptoms, such as pain or rectal bleeding, which are non-medical in nature; however he is not competent to render a medical diagnosis or etiology. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). In this case, no competent evidence of record finds a diagnosis of a right or left ankle, hemorrhoid, and right leg disability. The only medical evaluations of record showed no diagnosis. The examiners were fully informed of the pertinent factual premises of the case and addressed the Veteran's lay assertions. Additionally, they provided fully articulated opinions that included a reasoned analysis. Therefore, the Board finds that the examiner's opinions are of more probative value than the Veteran's lay assertions that he has a current right or left ankle, hemorrhoid, or right leg disability. The Court has indicated that in the absence of proof of a present disability, there can be no valid claim for service connection; an appellant's belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet.App. 223 (1992). There is also no competent evidence of a diagnosable right or left ankle, right leg, or hemorrhoid disability at any point during the claim or appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007). As the preponderance of the evidence is against the claim that the Veteran has a currently diagnosed right or left ankle, hemorrhoid, or right leg disability related to an injury, disease, or event in service, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Service Connection - Right Wrist The Veteran contends that he has carpal tunnel syndrome related to service. On his July 2007 substantive appeal, he notes that he was diagnosed with carpal tunnel syndrome, which does not bother him currently. He was afforded a VA examination in May 2011, the examiner noted one incident of gradual onset of pain and paresthesias during service, which was treated and resolved within days. The Veteran at that time noted no problems since. The VA examiner noted no current diagnosis. A private treatment record dated August 2003 noted that the Veteran developed weakness and numbness in his hands in October 2002. The examiner noted disc herniation at C5-6, with progressive difficulty with hand weakness. The examiner underwent an anterior discectomy and fusion C5-6. Again, the Board notes that although the Veteran asserts that he has a right wrist disability that is causally related to service, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a diagnosis and etiology of a right wrist disability, the Board finds that the diagnosis and determination of etiology of such a disorder is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. The Veteran is certainly competent to testify as to symptoms, such as weakness and numbness, which are non-medical in nature; however he is not competent to render a medical diagnosis or etiology. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). In this case, no competent evidence of record finds a diagnosis of a right wrist disability. The only medical evaluations of record showed no diagnosis. The record did show symptoms of weakness and numbness in the hands; however, this was causally associated with the Veteran's herniated disc of the cervical spine, which is not service connected. The examiners were fully informed of the pertinent factual premises of the case and addressed the Veteran's lay assertions. Additionally, they provided fully articulated opinions that included a reasoned analysis. Therefore, the Board finds that the examiner's opinions are of more probative value than the Veteran's lay assertions that he has a current right wrist disability related to service. The Court has indicated that in the absence of proof of a present disability, there can be no valid claim for service connection; an appellant's belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet.App. 223 (1992). There is also no evidence of a diagnosed right wrist disability at any point during the claim or appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007). As the preponderance of the evidence is against the claim that the Veteran has a currently diagnosed right wrist disability related to an injury, disease, or event in service, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Service Connection Bilateral Knees The Veteran asserts that he injured his knees in the military and that they still give him some pain and alert him to changes in the weather. The Veteran's service treatment records show a twisted left knee in June 1983. The Veteran tripped in a ditch while running and felt pain, but did not hear or feel any pop. He noted a history of bilateral knee joint instability (gives way often) also of left patellar dislocation. The examiner noted no effusion, no skin injuries, no joint line or patellar pain, and no demonstrable ligamentous instability. X-rays were negative. He did note tenderness over medial half anterior tibial plateau. He diagnosed a left knee sprain. The service treatment records also show complaints of right knee pain for one day in February 1984. The Veteran was afforded a VA examination in May 2011. The Veteran denied any knee problems since leaving service. X-rays found the Veteran's right knee to be normal and his left knee to have a small superior patellar enthesophyte with no other abnormalities. The examiner diagnosed bilateral knee strains. An independent medical opinion was provided in October 2012. The examiner reviewed the Veteran's medical records and lay assertions and opined that the Veteran's claim of bilateral knee strain is less likely than not the cause for any knee conditions following his active duty service. The examiner noted that the past medical active duty history indicates a one day period of right knee pain. The condition resolved with conservative treatment. Furthermore, no residuals or additional events occurred during his military career. Additionally, although the Veteran dislocated his left patella in 1983, this injury responded well to conservative therapy. He noted no residuals or additional events incurred during his military career. Finally, before the VA examiner in May 2011, the Veteran stated that he denied any knee problems since leaving the service. Therefore, the examiner opined that it is less likely than not that the claimed knee strain conditions are proximately due to or the result of his time in service. The VA examiner was fully informed of the pertinent factual premises of the case and addressed the Veteran's lay assertions. Additionally, he provided an articulated opinion that included a reasoned analysis. Therefore, the Board finds that the examiner's opinion is of significantly more probative value than the Veteran's lay assertions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Again, the Board notes that although the Veteran asserts that he has a bilateral knee disability that is causally related to service, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a diagnosis and etiology of a bilateral knee disability, the Board finds that the diagnosis and determination of etiology of such a disorder is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. The Veteran is certainly competent to testify as to symptoms, such as knee pain or instability, which are non-medical in nature; however he is not competent to render a medical diagnosis or etiology. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). In this case, no competent evidence of record finds a bilateral knee disability that is causally or etiologically related to service. In sum, the most probative evidence indicates the Veteran's current bilateral knee disability is not related to his complaints during service. Accordingly, the preponderance of the evidence is against the claim, and service connection for a bilateral knee disability is denied. As the preponderance of the evidence is against the claim for service connection for a bilateral knee disability, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection Right Ear Hearing Loss The Veteran contends that he has hearing loss in his right ear that was aggravated during his active service. VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1132. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. The December 1979 entrance examination shows the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 85 75 95 85 80 For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. As such, the presumption of soundness does not apply and the disability pre-existed service. A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C.A. § 1153. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). The Veteran's July 1984 separation examination showed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 75 75 95 85 85 These findings reveal no increase in severity during his first period of active duty. The Board acknowledges however that the records do not include a separation examination from the second period of active duty. The May 2011 VA examination showed the Veteran's current pure tone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 100 105+ 105+ 105+ 105+ On the basis of all the evidence of record prior to, during, and subsequent to service, the Board concludes that the evidence of record does not show that the underlying disorder increased in severity during active service. Under these circumstances, the presumption of aggravation is not for application. See Beverly v. Brown, 9 Vet. App. 402 (1996). The VA examiner in May 2011 found that an audiogram dated December 1979 showed a severe to profound hearing loss in the right ear. The July 1984 examination showed similar results with moderately severe to profound hearing loss in the right ear. The examiner noted that the examinations did not use appropriate masking technique for obtaining thresholds in the right ear. If properly masked, the examiner explained that it was likely that the thresholds would have been profound, which would confirm total hearing loss in the right ear from age two. The examiner noted complaints of hearing loss in service, but found that it is possible that the Veteran's results indicated the better bone conduction response instead of representing the true bone conduction ability of the right ear. The examiner noted an audiological result from January 1987 that revealed profound sensorineural hearing loss in the right ear. The ENT report indicated that the Veteran had profound sensorineural hearing loss. The examiner continued noting that the Veteran reported several times that he had been profoundly hearing impaired on the right side since age two. Based on the masked thresholds and evidence in the service treatment records, the examiner noted that it would seem less likely as not that the Veteran's hearing could have worsened in the right ear as a result of military noise exposure, as the Veteran had no useable hearing in that ear when testing was properly conducted with adequate masking levels. Although the Veteran asserts that his right ear hearing loss was aggravated during service, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to the issue of determining proper testing techniques and the proper reading of levels of hearing loss based on acoustic testing, the Board finds that such determinations are too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. In this case, the examiner's expertise and interpretation of the Veteran's hearing loss severity and pure tone threshold findings is more probative than the Veteran's lay statements. Based on a thorough review of all lay and medical evidence, the Board finds the preponderance of the evidence to be against the claim, as the weight of the evidence shows that the Veteran's right ear hearing loss syndrome did not increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). Therefore, claim of service connection for right ear hearing loss must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a right ankle disability is denied. Service connection for a left ankle disability is denied Service connection for hemorrhoids is denied. Service connection for a right leg disability (other than a knee or ankle disability) is denied. Service connection for a right wrist disability is denied. Service connection for right knee disability is denied. Service connection for left knee disability is denied. Service connection for right ear hearing loss is denied. ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs