Citation Nr: 1324829 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 07-12 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a mid and low back disorder, including degenerative disc disease (DDD) of the thoracolumbar spine, claimed to be the result of an injury. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1971. He appealed to the Board of Veterans' Appeals (Board/BVA) from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied his claims of entitlement to service connection for DDD of the thoracic and lumbar (thoracolumbar) segment of his spine and for bilateral (right and left ear) hearing loss and tinnitus. In July 2012, as support for these claims, he testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). A transcript of the proceeding is of record. In September 2012, the Board remanded the claims to the RO via the Appeals Management Center (AMC) for further development and consideration. And as for the claims now being decided in this decision, that requested development was completed, allowing the Board in turn to proceed with the adjudication of these claims. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Another 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 (Fed. Cir. 2002). But as specifically concerning the claim of entitlement to service connection for bilateral hearing loss, still further development of this claim is required, so the Board is again remanding this claim to the RO via the AMC in Washington, DC. FINDINGS OF FACT 1. A thoracolumbar spine disability did not incept during the Veteran's service or within one year of his discharge or even for many ensuing years and has not been shown by competent and credible evidence to be related or attributable to his service. 2. His tinnitus, however, is shown to be etiologically related to his service. CONCLUSIONS OF LAW 1. A thoracolumbar spine disability was not incurred in or aggravated by the Veteran's service and may not be presumed to have been. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. But his tinnitus is the result of injury incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided by the VCAA, VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Since, however, the Board is granting the claim for tinnitus, the Board need not discuss whether there has been compliance with these duty-to-notify-and-assist obligations, at least as concerning this claim, because this claim is being granted regardless. That is to say, even if, for the sake of argument, there has not been this required compliance, this still would be inconsequential and therefore ultimately amount to no more than nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102. VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on an individual case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Given the entirely favorable disposition, there simply is no such possibility as concerning the claim of entitlement to service connection for tinnitus. The Board therefore need only determine whether there has been this required VCAA compliance as concerning the claim of entitlement to service connection for a thoracolumbar spine disability, seeing as though the only other claim at issue - which is for bilateral hearing loss - instead is being remanded for further development rather than decided immediately. According to the VCAA, upon receipt of a complete or substantially complete application for benefits, VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should precede the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, for whatever reason it did not or the notice provided was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to rectify ("cure") the timing defect in the provision of the notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). This is because the intended purpose of the notice is still served inasmuch as the Veteran is still given opportunity to participate effectively in the adjudication of the claim. Additionally, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court held that a claim of entitlement to service connection consists of five elements: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date. So notifying the claimant of what evidence is necessary to substantiate the claim under U.S.C.A. § 5103(a), the first notice element in Quartuccio, requires notice of all five of these elements, so including the "downstream" disability rating and effective date elements. See Dingess at 486; Quartuccio, 16 Vet. App. at 187. Here, after having preliminarily reviewed the record on appeal, the Board has concluded that the notice requirements of the VCAA have been satisfied as concerning the claim of entitlement to service connection for a thoracolumbar spine disability. The RO sent the Veteran a letter in January 2008 informing him of the type of evidence and information needed to substantiate this claim and apprising him of his and VA's respective responsibilities in obtaining this supporting evidence. Moreover, the letter also advised him that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. As well, the letter notified him that an effective date would be assigned if the claim were granted. So he has received all required notice concerning this claim. And although the notice did not precede the initial adjudication of his claim in July 2005, his claim has been readjudicated since providing that required notice, including in a March 2013 SOC, so the timing defect in the provision of the notice has been cured. See again Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of an SOC (or SSOC) to cure timing of notification defect). VA also has made the required reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate this claim. 38 U.S.C.A. § 5103A. To this end, VA has obtained his service treatment records (STRs), VA clinical records, private medical records, VA examination reports, and his lay statements. VA was unsuccessful in obtaining potentially relevant records from the Social Security Administration (SSA), but he was duly advised of the unavailability of these SSA records in a memorandum dated in December 2012 as well as in the March 2013 SSOC. VA is not required to provide assistance or, here, further assistance when there is no reasonable possibility of obtaining evidence, such as when all efforts to obtain the evidence have been exhausted. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d), (e). The Veteran also has been provided an adequate examination in response to his claim of entitlement to service connection for a thoracolumbar spine disability. VA provided him examinations in May 2005 and February 2013. In conjunction with the February 2013 examination, the claims file and treatment records were reviewed, the Veteran's history taken, and a complete examination with clinical measures performed. The conclusion reached and diagnosis given were consistent with the examination report. Therefore, the Veteran has been afforded an adequate examination regarding this claim such that additional examination or opinion is not required. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). See also 38 C.F.R. §§ 3.327(a), 4.2. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable. Hence, no further notice or assistance to him is required to fulfill VA's obligations in developing his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board resultantly is proceeding with its review of the underlying merits of the claim. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in Veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court/CAVCV) stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Statutes and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required to support the claim. 38 C.F.R. § 3.303(b). But § 3.303(b) applies only to the chronic diseases, such as arthritis and other organic diseases of the nervous system, specifically enumerated in 38 C.F.R. § 3.309(a). See generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection also may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c). Nonetheless, where during service a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted based on aggravation. VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985). The VA General Counsel's opinion notes that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental "defect," on the other hand, because of 38 C.F.R. § 3.303(c), may not be service connected although service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. VAOPGCPREC 82-90. Establishing entitlement to service connection generally requires having: (1) competent and credible evidence of current disability or, at the very least, showing its existence at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the present disability - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). As already alluded to, arthritis or an organic disease of the nervous system, alternatively will be presumed to have been incurred in service if manifested to a degree of at least 10-percent disabling within one year after service. This presumption is rebuttable by affirmative evidence to the contrary, however. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Competency of evidence differs from its credibility and ultimate weight. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno, supra. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Mere review of the claims file is not determinative or dispositive of an opinion's probative value, however. Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Discussion Thoracolumbar Spine Disability On entry into service, the Veteran reported no medical concerns regarding his spine. The corresponding medical examination report indicated that all bodily systems were normal. His STRs indicate he fell off a jeep in September 1970, which prompted complaints of back pain. But in the report of medical history he later completed just prior to and in anticipation of his separation from service, he expressly denied back trouble of any kind. The separation medical examination report also objectively affirmed that his spine was normal, and his "PULHES" physical profile amounted to a "picket fence" (i.e., all 1's), indicating a high level of medical fitness. See generally Hanson v. Derwinski, 1 Vet. App. 512, 514 (1991) (explaining the military medical profile system). He was discharged from service in September 1971. Post-service private treatment records indicate that, in July 1976, so nearly 5 years later, he presented with complaints of back pain reportedly of only two weeks' duration, so only starting during that year. He initially attributed the pain to lifting some watermelons; however, on the day prior to admission, he did not recall any specific incident that might have aggravated the condition. He recounted that in February 1976 he was hit over the head, and that his back hurt at that time too. On physician examination, there was tenderness over the sacroiliac area and the lumbosacral region. An X-ray revealed a transitional lumbovertebral with sacralization of the right transverse process with the body of the sacrum. There was no evidence of spondylolisthesis. The intervertebral disc spaces were well maintained. Acute sacral-iliac sprain was diagnosed. The record also contains post-service VA medical records, but dated no earlier than January 2003. A March 2003 notation indicated the Veteran's back was normal with full range of motion. In June 2003, while seeking VA treatment, he reported cervical, thoracic, and lumbar spine pain since 1970, so since his military service. In December 2003, he again sought treatment for back pain, and chronic low back pain was diagnosed. In a February 2005 written statement, he indicated that in 1970 he had sustained a back injury after falling off a jeep and that he had received little or no medical attention for reasons unknown to him. During his May 2005 VA compensation examination, he asserted that he had a then current low back disability because of the September 1970 injury in service. The examiner observed the single entry in the STRs reflecting that the Veteran fell off a jeep and that he could flex at the waist without difficulty. The examiner also observed the Veteran had failed to mention any back related problems or issues during his military separation examination. After physically examining him, the examiner concluded the Veteran was embellishing his symptoms. Based on his physical examination and review of radiologic studies, the examiner diagnosed mild DDD of the lumbar spine, mild DDD of the lower thoracic spine, and osteopenia of the axial skeleton. He opined that the current back diagnoses were unrelated to the injury in service because there was not enough evidence of ongoing substantial treatment of the back after service separation that would reflect a correlation between current low back disabilities and the incident in service. According to that examiner, there was no evidence that a single episode of low back trauma in 1970 was directly responsible for symptoms occurring 34 years later. During a July 2008 neurosurgery consult, the Veteran indicated that he had been suffering from back pain since 1970 when he fell from a jeep in service. During his July 2012 hearing before the undersigned, the Veteran testified that his back problems began after the fall from the jeep in service and that he had no subsequent (intercurrent) back injuries to otherwise account for or explain his present-day disability. In February 2013, he had another VA compensation examination of his spine. This additional examiner agreed with the prior examiner in concluding the Veteran's current low back disability was unrelated to his service, including the injury in service. This examiner emphasized that the September 1970 notation in service (referring to that injury) indicated the Veteran nonetheless was able to bend at the waist without difficulty. Moreover, according to this examiner, that indicated a lack of significant intra-articular damage to the thoracolumbar spine. Furthermore, that type of injury would not independently increase the likelihood of a chronic back condition. This examiner next discussed the 1976 back treatment during which the Veteran reported a back injury after lifting a watermelon and another back injury after being hit on the head. X-rays at the time showed sacralization of the right L5 transverse process. The examiner explained that was a congenital condition that predisposes one to chronic back pain. The etiology of that condition was developmental and familial and unrelated to the Veteran's military service. The examiner asserted that Veterans and nonVeterans alike with this condition frequently suffered from back pain. The examiner also explained that had chronic back pain been related to service, there would not have been a five-year gap between service separation and the first treatment of back pain following service in 1976, as chronic back pain flared up more frequently. Due to the nature of the 1970 fall and the clear evidence of trauma in 1976 along with the radiologic findings showing anatomical predisposition to low back pain, it was unlikely the Veteran's current low back disability was related to his service. One important point worth noting at the outset of the analysis of this claim is that the essence of 38 C.F.R. § 3.303(b) is continuous symptoms since the relevant event, injury or disease in service, not necessarily instead treatment for these symptoms. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). So both of the VA examiner's reference to the Veteran not having required or received more treatment is not determinative of whether he had disability at some earlier point in time and insofar as whether that disability is related to his injury in service in 1970 versus the additional injuries he apparently has sustained since service in 1976. It is permissible, however, for these examiners to have had expectation of more frequent treatment (or at the very least complaints) given the gravity of the Veteran's alleged injury in service in comparison to what is actually shown in his STRs and his belief there is no other reasonable explanation for why he now has chronic back pain. As already alluded to, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records. But the Federal Circuit Court went on to indicate in Buchanan that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board therefore may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following service during which there was no clinical documentation of the claimed disorder). Having said that, the Board also must be careful not to equate negative evidence, meaning actual evidence weighing against the claim, with the absence of substantive evidence. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). Ultimately, the Board must consider all of the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). The Board first observes that, following the acknowledged injury in service in 1970, no DDD or other disability of the thoracolumbar spine was subsequently shown in service (indeed, not for the entire remainder of the Veteran's service) or even in the first year following the conclusion of his service. In fact, there is no evidence of DDD until years after his service. Consider also that DDD is not necessarily the same thing as degenerative joint disease (DJD), i.e., arthritis, so cannot be presumed to have been incurred in service even if shown to the required minimum compensable degree of at least 10-percent disabling within the initial post-service year. Consequently, even to the extent the Veteran's thoracolumbar spine DDD may additionally involve DJD/arthritis, service connection cannot be granted on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Even further, because the facts in this case do not warrant service connection based on chronicity in service, continuity of symptomatology from service separation to the present, or based upon diagnosis within a year of discharge, the only way in which service connection for the Veteran's current disability can be established is if the evidence otherwise establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). And unfortunately the evidence does not. The most pertinent evidence includes his lay assertions including his hearing testimony, the May 2005 VA examination report, the February 2013 VA examination report, and VA and private medical records. In weighing the evidence, the Board must consider the competency, credibility, and consequent probative value of the evidence. Whether lay versus medical evidence is needed to show the required correlation between current disability and service is entirely dependent on the specific disability being claimed, so is a case-by-case determination. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Notably, both DDD and DJD (arthritis) and their origins fall outside the realm of common knowledge of a lay person such as the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). He therefore has to have medical evidence supporting his claim, which for the most part he simply does not. To the contrary, the two VA compensation examiners who have commented unfavorably have completely disassociated his current disability from his injury in service, and they provided the required explanatory rationale, especially when considering their opinions in combination instead of in isolation. The initial May 2005 VA examiner admittedly did not have access to the 1976 private medical records concerning the back treatment the Veteran had received at that time. Thus, the May 2005 opinion is based, at best, on an incomplete history so correspondingly declines in probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion is only as good and credible as the history upon which it is based, and if based on an inaccurate factual premise it has no probative value). But there also is the additional February 2013 VA examiner's opinion, and the Board finds that it is of much greater probative value in comparison. Of note, this additional VA examiner conducted a thorough examination of the Veteran, reviewed the claims file (all, not just some, of the relevant history), and provided a full and complete rationale for his opinions and conclusions. As such, they are given a lot of evidentiary weight. This additional examiner concluded the DDD of the Veteran's thoracolumbar spine was not due to his military service, including especially his injury in service, and this examiner explained why the Veteran's chronic low back pain was likely instead due to a congenital condition. Moreover, and considered equally or even of greater significance, was the fact that years had passed between the Veteran's service and him first seeking medical treatment for his back after service, and only then because of other (intercurrent) injuries he had sustained since service. But perhaps most telling is that, when treated for those intercurrent injuries in 1976, he attributed all then current disability to those intercurrent injuries rather than to any prior injury during his military service. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). His earlier attribution of his then current disability to those intercurrent injuries, rather than any injury in service, also is very probative because he made those earlier statements and declarations at a time well before filing this claim for VA compensation benefits, so when there was no inherent reason or incentive, financial or otherwise, to fabricate information for personal gain. It was not until much more recently that he first alleged having had chronic back pain since, instead, his injury in service. He therefore has given inconsistent statements regarding the amount of time he has had back pain and related impairment and insofar as the source or cause of his pain. This inconsistency in his written and oral testimony, when considering what he alleges now but indicated in years past, in turn tends to undermine his credibility. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later); Struck v. Brown, 9 Vet. App. 145, 155-56 (1996) (Contemporaneous medical findings may be given more probative weight). In sum, the entirety of the competent and credible, and therefore most probative, evidence weights against his claim. Thus, the evidence for and against his claim is not in relative equipoise, and the benefit of the doubt rule does not apply. Alemany, supra. As such, the appeal of this claim is denied. Tinnitus The STRs make no reference to tinnitus. This condition is defined as "a noise in the ear, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1956 (31st ed. 2007). Because it is usually entirely subjective, even as a layman the Veteran is competent to proclaim having it. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). His DD Form 214 indicates he served as a military police officer in service. He asserts (including in his testimony during his July 2012 Board hearing) that his tinnitus began in service from exposure to small arms fire and other noise exposure with just at best very minimum hearing protection. He denied significant noise exposure since service because he used earmuffs whenever in situations exposing him to unsafe levels of noise. The diagnosis of tinnitus is objectively confirmed in the record, even accepting its subjective nature. In May 2005 the Veteran had a VA audiologic examination for compensation purposes. He reported military noise exposure that included aircraft noise and gunfire. On objective physical examination, he reported beginning to experience tinnitus in 1971, so during or around the time of his military service. The examiner opined that the Veteran's tinnitus was related to his bilateral hearing loss, also found on examination. However, the examiner opined that the Veteran's bilateral hearing loss was unrelated to his service (so, by extension, the tinnitus also). The Board however has found the May 2005 VA examiner's rationale regarding the etiology of the Veteran's bilateral hearing loss inadequate, as he relied solely on the fact that hearing loss was not evident during the Veteran's military separation examination as reason for concluding his hearing loss necessarily was unrelated to his service. But while it is permissible to have expectation of hearing loss shortly after or contemporaneous to the alleged acoustic trauma in service, so even during an ensuing separation examination, the Court has clarified that not having indication of hearing loss at the time of discharge from service is not, in and of itself, altogether determinative of whether service connection is warranted for a present-day hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Because the May 2005 VA examination report was inadequate, the Veteran was provided another VA compensation examination in February 2013. And as will become apparent in the REMAND below, even the February 2013 VA audiologic examination is inadequate with respect to the opinion regarding the etiology of the bilateral hearing loss. The Board, however, finds no fault with the opinion regarding the etiology of the Veteran's tinnitus. After reviewing the claims file, interviewing the Veteran, and examining him, the February 2013 VA examiner opined that the Veteran's tinnitus was at least as likely as not related to his military service. The examiner explained that hearing protection was typically not used by military law enforcement personnel during the Vietnam Era, when the Veteran served. Thus, according to this examiner, unprotected hazardous noise exposure during the Veteran's service more than likely caused his tinnitus. The examiner further explained that, during that era, tinnitus was largely unknown by the lay population, and that Veterans could have had tinnitus without realizing that it was a medical condition. The Veteran, as already explained, is competent to report tinnitus symptomatology, as tinnitus is readily apparent to those experiencing it. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("tinnitus is capable of lay observation"). The Board also finds credible the Veteran's assertions regarding exposure to unsafe noise levels during his service without the benefit of hearing protection because his duties as a military police officer, at the very least, included small arms training and because the February 2013 VA examiner indicated that historically hearing protection was not used during the period in which the Veteran served. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). See also 38 U.S.C.A. § 1154(a) (obligating VA to consider the places, types, circumstances, conditions and hardships of the Veteran's service) The Veteran has essentially reported tinnitus in service as well as continuity of symptomatology from service to the present. According to the still recent holding in Walker, for "chronic diseases" under 38 C.F.R. § 3.309(a), service connection may be established based on continuity of symptomatology. 38 C.F.R. § 3.303(b). The Board, however, need not determine whether tinnitus is a "chronic disease" under 38 C.F.R. § 3.309(a) because there is sufficient evidence with which to decide the claim without making that determination. The February 2013 VA audiologic examiner opined that the Veteran's tinnitus was at least as likely as not related to the unprotected noise exposure during his service. Like the Veteran's lay testimony, this medical opinion is competent as well as credible, and therefore ultimately probative, because it was based on a review of the record, the Veteran's statements, and on the examiner's professional expertise, and most importantly it is accompanied by explanatory rationale. Madden, supra. Thus, service connection for tinnitus is warranted. 38 C.F.R. § 3.303(d); see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER The claim of entitlement to service connection for a thoracolumbar spine disability is denied. But the claim of entitlement to service connection for tinnitus instead is granted. REMAND Unfortunately, the Board is compelled to again remand the remaining claim of entitlement to service connection for bilateral hearing loss for still additional development of the evidence due to the lack of compliance with the requests made in the Board's prior remand. See Stegall, 11 Vet. App. at 271 (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial compliance with the terms of a Board remand is required); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate). In its September 2012 remand, the Board asked that a VA audiologic examiner offer an opinion regarding the etiology of the Veteran's bilateral hearing loss. The VA examiner was asked to provide a rationale for all findings and conclusions. In February 2013, the Veteran was afforded a VA audiologic examination. The February 2013 VA examiner opined that the Veteran's bilateral hearing loss was unrelated to his service because, according to him, the Veteran's current hearing loss was more likely due to employment in law enforcement since service. The examiner did not provide sufficient rationale for this conclusion, especially seeing as though the Veteran served in the same or similar capacity while in service. The examiner also did not account for the fact that the Veteran reported using hearing protection after service but not in service. As well, the examiner did not account for the fact that the Veteran asserted much greater noise exposure in service than after. In short, the VA examiner did not explain why post-service noise exposure was more likely responsible for the Veteran's bilateral hearing loss than the other noise exposure he admittedly also had during his service, again, in the same or similar capacity of law enforcement or security. So this opinion is insufficient to decide this claim. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). Accordingly, this claim for bilateral hearing loss is again REMANDED for the following additional development and consideration: 1. Schedule another VA audiologic examination for another medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's current hearing loss is related or attributable to his military service - and, in particular, to noise exposure in his military occupational specialty (MOS) as a military policeman (MP) or security officer versus his post-service noise exposure in the same or similar capacity as a civilian police officer/immigration officer. The examiner must review the claims file, including a complete copy of this remand, for the pertinent history. The examination report must include discussion of the rationale (not merely a conclusion) for all opinions expressed, whether favorable or unfavorable to the claim, if necessary citing to specific evidence in the file. Since the Veteran is competent to say he had difficulty hearing while in service, and during the many years since, the examiner cannot cite the absence of any documented treatment, such as would be reflected in contemporaneous medical treatment records, as the sole reason for disassociating any current hearing loss from the Veteran's military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (wherein the Court determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (recognizing lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records (STRs, etc.)). The Board inevitably will have the responsibility of assessing the Veteran's credibility, so not just competency, to determine whether he has experienced continuity of symptomatology (i.e., continuous symptoms) since the claimed injury, acoustic trauma, while in service. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). It is, however, permissible for the examiner to consider the absence of any objective indication of hearing loss, such as on an audiogram, at any earlier date as one of the reasons for disassociating any current hearing loss from the Veteran's military service, just not the sole or only reason for this disassociation, unless, for example, there is medical reason or justification for expecting hearing loss to have been shown earlier than it was. As an example, if the examiner indicates there is no such thing as "delayed-onset" hearing loss, he needs to cite this authority, such as by specifying the medical treatise or other literature in the subject matter area. See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that, for non-combat Veterans providing non-medical related testimony regarding an event during service, Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements). 2. Then readjudicate the claim for hearing loss in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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 or by the Court 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs