Citation Nr: 1323805 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 04-16 593A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral defective hearing. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for degenerative joint disease of the spine. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from February 1969 to December 1972. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2003 decision by the RO which denied the benefits sought on appeal. A hearing at the RO before the undersigned was held in July 2006. The Board remanded the appeal for additional development in October 2006. In October 2007, the Board denied service connection for the disabilities at issue on appeal, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2009 Memorandum Decision, the Court vacated the October 2007 Board decision and remanded the appeal to the Board for further action. In September 2010, the Board remanded the appeal for additional development. Additional evidence by way of a lay statement by the Veteran's wife was recently submitted directly to the Board. This evidence is duplicative of arguments previously considered by the RO. As such, the Veteran is not prejudiced by the Board's undertaking to adjudicate his claim at this time. FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that the Veteran does not have a hearing loss or tinnitus at present which is related to service. 2. The Veteran is not shown to have a current back disability that had its onset in service or is otherwise related to service or any incident therein. CONCLUSIONS OF LAW 1. Bilateral defective hearing was not incurred in or aggravated by military service nor may any current sensorineural hearing loss be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012). 2. The Veteran does not have a tinnitus due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. The Veteran does not have a low back disability due to disease or injury which was incurred in or aggravated by service, nor may any current arthritis of the back be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in February 2003. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs) and all VA medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's Virtual VA electronic medical records. The Veteran was examined by VA during the pendency of this appeal and testified at a hearing before the undersigned at the RO in July 2006. The Board finds that the VA examinations were comprehensive and adequate upon which to base a decision on the merits of the issues on appeal. The VA examiners personally interviewed and examined the Veteran, elicited a medical history and provided the clinical information necessary to adjudicate the issues addressed in this decision. Further, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). As noted above, the Veteran testified a hearing before the undersigned in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the hearing, the acting VLJ fully identified the issues on appeal, indicated the evidence necessary to substantiate the claims, and asked specific questions directed at identifying the location of any potentially outstanding medical evidence. Further, neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the undersigned has complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. The claim was also remanded in September 2010 for additional development of the record. The remand directives included obtaining VA examinations to determine the nature and etiology of any identified low back disability, hearing loss and tinnitus. Additional VA treatment records were associated with Virtual VA, and the Veteran was afforded a VA spine examination in March 2012. The Veteran was also scheduled for a VA audiological examination in February 2012, but failed to report. He was rescheduled for another audiological examination in March 2013, but subsequently cancelled that appointment, and did not request to be rescheduled. In light of the foregoing, the AMC has substantially complied with the September 2010 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current 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 claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year of date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) 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. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Hearing Loss & Tinnitus The Veteran contends that he has had chronic tinnitus and decreased hearing since 1971, when a he was standing on the deck of a destroyer within three feet of the cannons when they were fired. The Veteran testified that "as soon as humanly possible" he went to sick bay for treatment and was given aspirin and some cotton to put in his ears. The Veteran reported that his tinnitus was initially intermittent, but had worsened over the years and that it now occasionally stops for about a hour. The Veteran's STRs, including his separation examination in December 1972, were completely silent for any complaints, treatment, abnormalities or diagnosis for hearing loss or any ear problems, including tinnitus during service. Similarly, the Veteran made no mention of tinnitus or any ear or hearing problems on his original application for VA compensation in August 1973, when examined by VA in September 1973, on a subsequent claim in July 1991, or when examined by VA in July 1991. The evidentiary record showed that the Veteran was involved in at least two significant motor vehicle accidents (MVA) subsequent to service - one sometime around 1974 in which the Veteran reportedly was hospitalized for two weeks, and the other in the late 1990's. (See December 1999 and March 2002 VA outpatient notes). Although the Veteran was requested by VA to submit medical records or authorization for VA to obtain the records pertaining to the earlier MVA, and any records pertaining to his workers compensation claim in 2003, he has not responded to the requests or provided VA with the requested information. Without the Veteran's cooperation, VA is powerless to obtain these records. VA treatment records showed that the Veteran suffered a whiplash injury in an MVA in the late 1990's, and additional injuries to his back, neck and right leg. (See i.e., March 2002, and July 2003 VA treatment notes). A VA outpatient note in Virtual VA showed that when seen by VA audiology services in July 2000, the Veteran reported a history of "decreased hearing and constant tinnitus since service" and requested information to file a claim for tinnitus. (VV p. 364). When seen by VA neurology services in July 2001, the Veteran reported ringing in his ears since service. (V.V. p. 344). The evidentiary record showed that the Veteran underwent audiological examinations in July 2000 and August 2003. The audiometric findings were as follows: July 2000 HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 5 25 LEFT 0 5 10 - 15 August 2003 HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 40 50 50 LEFT 30 30 50 40 55 In July 2000, speech discrimination was 96 percent in the right ear and 100 percent in the left ear. In August 2003, speech discrimination was 92 percent in each ear. The Veteran was afforded a VA audiological examinations in April 2007. At that time, the Veteran reported chronic tinnitus since exposure to cannon fire in 1971, and said that it occasionally stops for about an hour at a time. The Veteran rated the severity of his tinnitus as a 9.5/10, and said that he noted a decline in his hearing over the last 30 years. The audiometric findings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 50 45 70 LEFT 20 15 35 45 45 Speech discrimination was 94 percent in the right ear and 96 percent in the left ear. The diagnosis was sensorineural hearing, bilaterally. The examiner discussed the audiometric findings from the July 2000 and August 2003 VA examinations and noted that the Veteran had normal hearing acuity through 4000 hertz when examined in July 2000, and that there had been a significant decline in sensitivity when seen in August 2003. The examiner indicated that due to the remoteness of any complaints since service, and the Veteran's history of occupational noise exposure, it was less likely than not that his current hearing loss and tinnitus were related to service. The Veteran was evaluated by a fee basis VA audiologist in May 2007. The examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints and medical history, and relied on the audiometric findings from the April 2007 audiological examination. The examiner opined that it was less likely than not that the Veteran's current hearing loss and tinnitus were related to service. The examiner indicated that his opinion was based on the fact that the Veteran had normal hearing in service and that there was no evidence of any hearing problems or tinnitus until many years after service. In September 2009, the Board remanded the appeal, in part, for a VA audiological examination to determine the etiology of the Veteran's current hearing loss and tinnitus. The Veteran was scheduled for a VA examination in February 2012, but failed to report. The Veteran's attorney advised VA in January 2013, that the Veteran reported late for the examination, but the examiner had already left, and requested that he be rescheduled for another examination. In February 2013, the AMC contacted the Veteran to notify him that he was scheduled for a audiological examination on March 18, 2013, and advised him of the importance to report for the examination. The Veteran stated that he would attend the examination. As a courtesy, the Veteran was contacted again by VA three days before the examination (March 15, 2013), to remind him of the scheduled appointment. At that time, the Veteran reported that he would be unable to keep the appointment because he didn't have the "gas" to come to the exam. The report noted that the AMC offered to transport the Veteran to the examination at VA's expense, but after conferring with someone in the background, the Veteran stated that he was going to decline the offer, and the examination was cancelled. The Veteran did not request to be rescheduled and has not submitted any additional evidence. At this point, the Board notes that VA treatment records in Virtual VA showed that the Veteran was treated at the VA facility where the audiological examination was scheduled on numerous occasions prior to and after the March 2013 appointment, including on March 8th, 14th, 15th, and 25th. The purpose of the VA audiological examination in March 2013, was to determine the etiology of his current hearing loss and tinnitus, and the importance of this examination was explained to the Veteran by the AMC in February 2013. Although the Veteran claimed that he could not keep the appointment because he was out of gas, the fact that he declined VA's offer for free transportation to the appointment without any explanation, did not request to be rescheduled, and was seen at the VA facility immediately before and after the date of the scheduled appointment, raises serious questions as to his willingness to cooperate with VA. Without the Veteran's cooperation, the Board must base its decision on the current evidence of record. See 38 C.F.R. § 3.655(b). In this case, other than the Veteran's assertions that he has had chronic tinnitus and declining hearing acuity since a reported exposure to cannon fire in service in 1971, the objective evidence of record does not show any complaints of tinnitus until more than 28 years after service and no evidence of a hearing loss until more than 30 years after service. While the Veteran is competent to provide evidence regarding his observations and experiences, any such assertions must be weighed against other inconsistent or contradictory evidence of record. See Buchanan, 451 F.3d 1331 (Fed. Cir. 2006). In this regard, the Board notes that while the Veteran testified that he was treated for hearing problems and tinnitus "as soon as humanly possible" after the alleged firing incident in 1971, the STRs were completely silent for any such complaints or treatment. The Board finds it significant that while the STRs include numerous treatment records while serving aboard the USS Cochrane from 1969 to July 1971, they do not reflect any treatment for hearing problems or tinnitus. Additionally, the Board finds that the Veteran's testimony concerning his hearing problems and treatment in service was vague, evasive and inconsistent with the other evidence of record. Specifically, the Veteran testified that when asked if he had any medical problems at the time of his service separation examination, he said that "the only thing that came to mind, . . . was the hearing loss and the ringing in the ears periodically[,]" but "to the best of [his] knowledge it was kind of pushed under the carpet." (T p.5). In this regard, not only were there no objective physical abnormalities of the Veteran's ears or ear drums at the time of his separation examination, but an audiological examination at that time showed his hearing acuity was within normal limits. The Board also notes that the audiometric findings did not reflect any significant threshold shifts when compared to the findings at service enlistment. Hensley v. Brown, 5 Vet. App. 155, 163 (1993). As to the Veteran's assertion that he reported a history of tinnitus and decreased hearing at the time of his service separation examination, but that "it was kind of pushed under the carpet" the Board finds his testimony to be self-serving and inconsistent with the STRs. Specifically, on his separation examination report, the Veteran certified that he was informed of and understood the provisions of Navy regulation BUMED Instruction 6120/6D, which, in essence, directs medical personnel to advise separating servicemen of their rights to contest the medical findings on examination for purposes of preserving any potential claim. The underlying purpose of this Navy regulation is to insure that all service members being separated from active service are made aware of their rights to submit a claim for VA benefits. See Department of the Navy, BUMEDINST 6120.6D, 33B-JRD-pks, August 13, 1969. Thus, the Veteran's insinuation that he reported a disability at separation, but that it was somehow ignored lacks credibility. Furthermore, the Veteran has not offered any explanation as to why he never sought medical attention or filed a claim with VA for the alleged tinnitus and hearing problems that he now claims were present at the time of service separation, until more than 28 years after service. While the evidentiary record showed that the Veteran filed a claim for an unrelated disability in August 1973, shortly after his discharge from service, he never mentioned his chronic tinnitus or hearing problems (or back problems). Likewise, the Veteran made no mention of any hearing problem or tinnitus when examined by VA in September 1973, or on a claim for VA benefits in 1991. It is also significant to note that the Veteran was not shown to have a hearing loss when examined by VA in 1973 or at the time of his first post-service VA audiological examination in July 2000. It seems reasonable to expect that if the Veteran had tinnitus and a noticeable decrease in hearing since 1971, that he would have at least mentioned these problems when examined by VA in 1973. That the Veteran would suffer hearing loss and chronic tinnitus since 1971, which he reported on VA audiological in April 2007, stopped only occasionally for about an hour, but that he would not file a claim with VA or seek any medical treatment for a disability that he has always believed was related to service until nearly three decades after service, is not rational or believable and reflects negatively on his credibility. Finally, the Board notes that the Veteran testified that because of his hearing problems and tinnitus, he couldn't take any jobs that exposed him to noisy environments subsequent to service. Yet, he then went on to report that he worked for several years as a machine operator for a tool company, and said that the noise level was so bad that he couldn't wear his hearing aids and had to wear ear plugs. (T p.7). He made a similar assertion regarding his chronic back problems, and said that he couldn't take any jobs that involved heavy lifting. Yet, on a Functional Report for Social Security disability in August 2003, the Veteran reported that he routinely lifted heavy boxes weighing up to 50 pounds in the various jobs that he had since service. 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, and consistency with other evidence submitted on behalf of the Veteran. Caluza, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board emphasizes that personal interest to receive benefits may affect the credibility of the evidence. Cartright, 2 Vet. App. at 25 (1991). In this case, the Board does not find the Veteran to be a reliable historian, and that his contentions of chronic tinnitus and hearing problems since 1971 are not credible. Since the Veteran is not credible, and the only competent evidence that addresses the question of etiology of the Veteran's tinnitus and hearing loss are the two unfavorable VA audiological examinations discussed above, the Board finds that the preponderance of the evidence is against the claim. The only nexus opinions of record are not supportive of the claim. The Veteran has not presented any competent medical evidence showing a nexus between service and his hearing loss and tinnitus. VA attempted to obtain a competent nexus opinion concerning these issues; however, the Veteran failed to cooperate by reporting to the examination. Accordingly, the Board finds no basis for a favorable disposition of the Veteran's appeal, and the claims of service connection for tinnitus and defective hearing are denied. Low Back Disability The Veteran contends that his current low back disability could be due to the physical demands of military service and believes that he is entitled to a grant of service connection. The Veteran testified that during service, he had to off load supplies, mail and other materials onto his ship, and that his other duties involved a lot of bending, lifting and twisting motions that put added demands on his body. While the Veteran said that he twisted his back more than once, he did not report any specific injury or any treatment for a back problem in service, and he testified that "there's a good possibility the [he] wrenched [his] back more than one time just trying to maintain [his] footing." When asked about specific treatment, he testified that he couldn't recall if he ever went on sick call. Although the Veteran reported a history of a back injury prior to service, examination of his spine at the time of enlistment was normal. Additionally, STRs do not show any complaints, treatment, abnormalities or diagnosis for any back problems during his time in service. The STRs showed that the Veteran was treated for a bilateral wrist injury when he fell off the back of a truck in February 1971, and that he was seen on numerous occasions, primarily for left wrist problems during his nearly two years of remaining service. However, the STRs do not show any complaints or treatment for any back problems related to his fall or to any other injury or incident. Additionally, the Board notes that the Veteran made no mention of any back problems on his original application for VA compensation in August 1973, on a subsequent claim in July 1991, or when examined by VA in July 1991. While the Veteran mentioned being ill with back pain and vomiting when examined by VA in September 1973, he did not relate his reported back pain and other symptoms to any specific injury or event. Specifically, the Veteran reported that while on a destroyer off the coast of Vietnam in July 1972, he "was ill - unable to eat and pain in back." He said that he had three convulsions and fell three times striking his head - all in one day, and that he vomited prior to each convulsion. The Veteran went on to report that he experienced some sort of weak spell a week before the examination. Significantly, the Veteran did not report any current back problems during the VA examination nor did the medical report include any specific findings or diagnoses pertaining to the Veteran's back. At this point, the Board notes that while the September 1973 examination report included the comment "cause of tendency to low B.P. ? unknown," the fact that there were no reported complaints, findings or diagnosis for any low back problems on the examination, it is more rational and reasonable to assume that physician's comment was in reference to the documented, multiple low blood pressure readings that were recorded on the examination and not, as the Veteran's attorney suggests, to any low back problem. As to the Veteran's assertions concerning his alleged convulsions in July 1972, the STRs are silent for any such incident or treatment. The STRs did show that the Veteran was seen for a sore throat in October 1972, at which time he reported that he thought he experienced three convulsive seizures and fell off his bed the day before. However, not only do the STRs not reflect any complaints of a head or back injury when seen in October 1972, but showed that the Veteran did not report any specific injuries. The first reported evidence of a back problem was in 1999, some 27 years after his discharge from service. A VA treatment report, dated in December 1999, showed that the Veteran reported a three month history of low back pain radiating into his right leg after "stepping hard on brakes to avoid an accident." At that time, the Veteran also reported that he was hospitalized for two weeks after an automobile accident 25 years earlier, and said that he had "soft tissue injuries" and minor low back pain ever since. When seen by VA in March 2002, the Veteran reported that he sustained injuries to his lower back and leg in a "car crash" four years earlier. In May 2003, the Veteran reported severe back and leg pain after a MVA. When seen by VA in July 2003 the Veteran report a "whiplash" injury in an automobile accident five years earlier. The Veteran reported that his head didn't hit anything and that he didn't lose consciousness. A VA x-ray study in August 2001, showed a history of an injury in a MVA with complaints of neck stiffness and spasm. Additional records received from the Social Security Administration in February 2007, including numerous duplicate VA records, showed treatment for various maladies, including back and neck problems from 1999 to 2003. The records showed that the Veteran reported that his disabilities began in June 1999. At the direction of the Board remand in September 2010, the Veteran was examined by VA in March 2012, to determine the nature and etiology of his current back problems. The examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints, medical history and the findings on examination. The diagnoses included mechanical low back pain syndrome, L5-S1 disc herniation and S1 radiculopathy secondary to the herniated disc. The examiner opined that it was less likely than not that the Veteran's current low back disability was incurred in or caused by the reported events in service, vis-à-vis, loading materials aboard ship, wrenching and twisting his back, falling off a truck, and falling three times in one day. The examiner indicated that while the Veteran may have sustained a lumbosacral sprain/strain in service, he opined that it was likely that these were self-limiting in nature and did not involve any radiculopathy in service. The examiner noted that there was no evidence of any ongoing back problems or treatment until many years after service, and that when the Veteran was treated for back problems, he reported that they began after a MVA in 1999. At this point the Board notes that, contrary to his testimony before the undersigned in July 2006, at the March 2012 VA examination, the Veteran reported that he was treated for back problems on numerous occasions in service, and that the diagnosis was always the same - a sprain or strain. The Veteran also reported that he was initially treated for back problems by a chiropractor in 1999, and that he subsequent sought treatment by VA. The Board finds it significant, that the Veteran never mentioned his chiropractic treatment previously, nor did he provide VA with any treatment records or authorization to obtain those records. As noted earlier in this decision, the Veteran was asked to provide VA with the names and addresses of all healthcare providers who have treated him for his back problems since service, as well as any records pertaining to his workers' compensation claim in 2003, but that he has never responded to the requests. That the Veteran now claims that he was treated for, and diagnosed with a back disorder on numerous occasions in service, when he testified in July 2006 that he could not recall if he had ever sought medical treatment in service, undermines the probative value of his contentions. Accordingly, the Board finds that the Veteran was not treated for back problems in service. In this case, the Board finds the March 2012 VA opinion persuasive as it was based on a thorough review of the record and included a detailed discussion of all relevant facts. The examiner offered rational and plausible explanation for concluding that the Veteran's current low back disability was not to service or to any alleged incident therein. See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). Furthermore, the Veteran has not presented any competent medical evidence to rebut that opinion. Thus, the most probative evidence of record consists of the March 2012 VA opinion. Because the Veteran's contentions are inconsistent with the record, the Board does not find them credible, and accords them no probative value. The Veteran is likewise not shown to have any medical expertise, and therefore any medical conclusions he offers are of no probative value. The decision then must be based on the documented medical record, which as described above, fails to support the conclusion that any current back disability is related to service. The Board has considered the letter from the Veteran's wife, received in July 2013. However, she has no firsthand knowledge of the Veteran's alleged experiences in service. Moreover, as the Board does not find the Veteran to be a reliable historian or a credible witness, her assertions mirroring his allegations are of no more probative value than the Veteran's. Thus, the Board declines to assign her statement any evidentiary weight. As there is no credible, competent evidence of record suggesting a connection between the Veteran's current low back disability and service, no evidence of arthritis within one year of service, and no evidence of a low back disability until many years after his discharge from service, the record affords no basis to grant service connection. Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for a low back disability. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issues on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Finally, the Board notes that in a letter received at the Board in July 2013, the Veteran's attorney argued the Board should not rely on the findings and opinions on the VA examinations discussed above, arguing in essence that the examiner's failed to consider the Veteran's statement and relied on negative evidence in reaching their conclusions. As to the latter assertion, the Board notes that while the examiner's noted that there was no evidence of any complaints, treatment or findings pertaining to the claimed disabilities in service or until many years thereafter, their opinions also considered other factors, including the normal hearing examination more than two decades after service, e multiple post-service MVA accidents and the Veteran's self-reported history of back problems beginning after the first MVA in 1976. For the reasons discussed above, the Board does not find the attorney's arguments persuasive and declines to assign her allegations any evidentiary weight. The attorney also asserted that the Veteran alleges that he was not adequately notified of the dates and times of the VA examinations and requests that the Board remand the appeal to provide him with another examination. However, as discussed in great detail above, the evidence of record showed that the Veteran was not only properly notified of the VA examinations, but declined the RO's offer to be transported to the most recent scheduled appointment at VA's expense. Under the circumstances, the Board finds that the Veteran's allegations are not credible, and declines to remand the appeal to schedule him for another examination. The Veteran is always free to reopen his claim at anytime, with the submission of new and material evidence. ORDER Service connection for bilateral defective hearing is denied. Service connection for tinnitus is denied. Service connection for a low back disability is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs