Citation Nr: 1324878 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-21 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for alcohol dependence. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as mood swings, PTSD, depression, anxiety disorder, and panic attacks. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for hypertension, secondary to acquired psychiatric disorder. 6. Entitlement to service connection for residuals of a broken nose, to include a sleep disorder. 7. Entitlement to service connection for a left-foot laceration. 8. Entitlement to service connection for malaria residuals. 9. Entitlement to service connection for hepatitis, to include as secondary to herbicide exposure. 10. Entitlement to service connection for throat cancer, to include as due to herbicide exposure. 11. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a right-foot laceration, and if so, entitlement to that benefit. 12. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a bilateral knee disability. 13. Entitlement to compensation benefits under 38 U.S.C.A. § 1151 for negligent VA medical procedures in connection with a cervical spine surgery. 14. Entitlement to compensation benefits under 38 U.S.C.A. § 1151 for negligent VA medical procedures in connection with a diagnosis of throat cancer. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to March 1976, and January 1979 to January 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that the Veteran's claims have been variously characterized prior to reaching the Board. The Board finds, however, that the issues on appeal are best characterized as shown above. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for an acquired psychiatric disorder, nose/sleep disorder, left foot laceration, throat cancer, and hypertension, and entitlement to § 1151 benefits resulting from VA treatment for throat cancer and cervical spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In February 2012, prior to the Board's issuance of a final decision, the Veteran testified that he wished to withdraw the appeal of the denial of his claim of entitlement to service connection for alcohol dependence. 2. Service connection for residuals of a right foot laceration was denied in an unappealed June 1996 rating decision. 3. Evidence received since the June 1996 rating decision, is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim for service connection for residuals of a right foot laceration. 4. A prior denial of service connection for a bilateral knee disability was continued in an unappealed April 1998 rating decision. 5. Evidence received since the April 1998 rating decision is cumulative or redundant of the evidence of record previously of record or does not relate to an unestablished fact necessary to substantiate the claim for service connection for a bilateral knee disability. 6. The preponderance of the evidence is against finding that the Veteran has a current bilateral hearing loss disability that is etiologically related to a disease, injury or event in service. 7. There is an approximate balance of positive and negative evidence as to whether the Veteran has bilateral tinnitus that was incurred in service. 8. No residuals of malaria have been present during the pendency of this claim. 9. No hepatitis has been present during the pendency of this claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal as to the application to reopen his claim of service connection for alcohol dependence have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. New and material evidence has not been presented to reopen a claim of entitlement to service connection for residuals of a laceration to the right foot. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a bilateral knee disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. A bilateral hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 5. Resolving doubt in favor of the Veteran, tinnitus was incurred in active duty military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 6. Residuals of malaria were not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 7. Hepatitis was not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claim Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During his February 2012 hearing, prior to the Board's issuance of a final decision, the Veteran indicated that he wished to withdraw the appeal of the denial of claim of service connection for alcohol dependence. The Board finds that this statement clearly articulated the Veteran's intent to withdraw this claim from appellate status. Consequently, the Board finds that there remains no allegation of error of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review it and it is dismissed. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, the Veteran received 38 C.F.R. § 3.159(b) notice in May 2007 and June 2008 letters. The May 2007 and June 2008 notices were issued prior to the appealed September 2008 rating decision. In the letters, the Veteran was also notified of VA's practices in assigning disability evaluations and effective dates for service-connected disabilities pursuant to Dingess/Hartman. With respect to obtaining new and material evidence, the Board finds that the May 2007 and June 2008 letters also met the specificity required under Kent v. Nicholson, 20 Vet. App. 1 (2006), as the Veteran was advised of the exact reason for the previous denial of service connection for bilateral knee and right foot disabilities, and the evidence needed to reopen the claim. There are accordingly no deficiencies of notification in this case, nor has the Veteran argued otherwise. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4) (2012). In this case, VA and private medical records concerning the claimed disabilities have been obtained to the extent possible, and there is no indication of additional relevant treatment records concerning this disability. Additionally, Social Security Administration (SSA) records have been obtained and reviewed in conjunction with these claims. As such, the RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment described by the Veteran. The Veteran was also afforded a fully comprehensive VA audiological examination, with a subsequent medical opinion in March 2011, to determine whether he had bilateral hearing loss and tinnitus related to his military service. The March 2011 VA examination report, reflects that the VA examiner reviewed the Veteran's past medical history and provided opinions consistent with the remainder of the evidence of record, and provided sufficient information to decide the Veteran's claim. The Board, therefore, concludes that the March 2011 examination report is adequate for purposes of rendering a decision as to the issues of bilateral hearing loss and tinnitus in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As to the Veteran's malaria and hepatitis claims, the Board concludes an examination is not needed. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be discussed in greater detail below, the most probative evidence of record does not indicate that the Veteran has any current hepatitis or residuals of malaria. Thus, the Board believes that there is no credible and probative evidence suggesting an association a current disability related to malaria and/or hepatitis and any event, injury, or disease in service. Thus, VA is not required to provide the Veteran with a VA examination in conjunction with these claims. With respect to the Veteran's request to reopen his claims for entitlement to service connection for bilateral knee and right foot disabilities, the Board notes that until a claim is reopened VA does not have a duty to provide a medical examination or obtain a medical opinion. See 38 C.F.R. § 3.159(c)(4)(C)(iii) (2012). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Claims to Reopen Legal Criteria The Veteran seeks to reopen his previously denied claims of entitlement to service connection for residuals of a right foot laceration and a bilateral knee disability. Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Factual Background and Analysis Service connection for residuals of a right foot laceration and bilateral knee disability was originally denied in a March 1996 rating decision. The claim was again adjudicated on the merits in June 1996 following receipt of missing service treatment records. Service connection was denied for these issues. The Veteran did not appeal the denial and it became final. Service connection for a residuals of a right foot laceration was denied because the Veteran did not have any current residuals of his documented in-service right foot laceration-not even a scar. Additionally, there was no showing of any residual foot disability upon enlistment in his second period of service. In other words, the Veteran's right foot laceration was acute and transitory and without any residuals. Service connection for a bilateral knee disability was denied because although the Veteran was treated in service for knee complaints, they were acute complaints that were resolved following treatment, and there is no nexus between the Veteran's post-service knee complaints and his military duty. A subsequent request reopen the previously denied bilateral knee disability claim was denied in March 1998 and April 1998. The Veteran did not appeal the denials, and they became final. Service connection for a bilateral knee disability was denied in the 1998 rating decisions because the evidence of record did not show a competent nexus between the Veteran's current bilateral knee complaints and his military service. In April 2007, the Veteran most recently requested that his service connection claims for right foot laceration and bilateral knee disability be reopened. Evidence of record at the time of the June 1996 and April 1998 rating decisions consisted of: (1) the Veteran's service treatment records (STRs), (2) VA treatment records, (3) an October 1995 VA examination showing a history of right foot surgery, and residuals of trauma to the left knee with probable arthritic chance and chondromalacia of the right knee (4) April 1998 VA examinations showing resolved right 5th toe hammertoes, and osteoarthritis of the bilateral knees with a left knee anterior cruciate ligament tear, and (5) the Veteran's own arguments. There was no evidence showing any current right foot disability due to residuals of a right foot laceration, nor was there any clinical evidence linking the Veteran's residuals of a right foot laceration and current bilateral knee complaints to his military service. Evidence received since June 1996 and April 1998 includes: (1) VA treatment records showing no current residual of a right foot laceration or bilateral knee disability related to service, (2) the Veteran's February 2012 hearing testimony, (3) the Veteran's continued arguments contending that he has a right foot and bilateral knee disability related to service, (4) a February 2012 buddy statement indicating that the Veteran is "a man of integrity in character," (5) 2010 statements from the Veteran's siblings indicating that he served in the Republic of Vietnam, and (6) records from the Social Security Administration (SSA) including copies of VAMC treatment records. Current VA treatment records show bilateral knee complaints, and tremors in the left knee. The Veteran also had pain in the right foot area, callus on the right foot, little toe, but there is no suggestion of any residual of a laceration per se. There are no treatment records or other evidence of record linking any current right foot or bilateral knee complaints to an event, injury, or disease in service. There is no indication that current pain in the foot or calluses on the right foot are related to his resolved in-service right foot laceration. The Board finds that the evidence added to the record since the June 1996 and April 1998 denials is redundant and cumulative of the evidence already of record. In regards to the VA outpatient and private treatment records, they merely show continued monitoring and a history of bilateral knee problems and its residuals, and calluses of the right foot that have not been related to a laceration. The Board notes in this regard that evidence of a present condition is generally not relevant to a claim for service connection, absent some competent linkage to military service. Mingo v. Derwinski, 2 Vet. App. 51, 53 (1992). Also, the statements received from the Veteran are redundant of previously unsupported assertions already of record. These arguments were previously considered. There is no evidence showing a nexus between the Veteran's current bilateral knee complaints and right foot calluses and his military service, nor is there new evidence showing a residual of an in-service right foot laceration. On review of the evidence above, the Board finds that the evidence received since June 1996 and April 1998 is not material to the claims. Nothing in the evidence added to the record relates to the reason the claims were originally denied; i.e., nothing therein shows or implies that the Veteran's current bilateral knee disability is related to his in-service treatment for knee complaints, nor does the evidence of record show that the Veteran has any residuals of an acute and resolved treatment for a right foot laceration in service. The evidence added to the record, other than the redundant lay statements, relates exclusively to current symptoms and does not show or imply any relationship between those symptoms and active service. The Board has considered the case in light of Shade, and while Shade asserts that a case must be reopened if any previously-unproven element of service connection is addressed, in this case the evidence received since June 1996 and April 1998 does not pertain to any elements of service connection that were previously missing. Accordingly, the circumstance cited by Shade is not applicable. Under these circumstances, the Board must conclude that new and material evidence to reopen the claim for service connection for residuals of a right foot laceration or bilateral knee disability has not been received. Service Connection General Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. 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. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Service Connection: Bilateral Hearing Loss and Tinnitus Factual Background and Analysis The Veteran contends that loud noise exposure during service has caused his current bilateral hearing loss and tinnitus. With respect to claims for service connection for hearing loss, the Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id. at 159. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A review of the Veteran's STRs shows no complaints of bilateral hearing loss or tinnitus. In a February 1972 enlistment audiogram, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 X 10 LEFT 15 5 5 X 15 Periodic audiometric testing revealed the following puretone thresholds, in decibels: June 1972: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 10 10 LEFT 5 5 5 15 15 March 1974: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 20 15 LEFT 10 5 5 20 15 March 1975: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 25 15 LEFT 15 10 10 25 20 In his February 1976 discharge examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 10 10 LEFT 10 10 10 10 0 Upon enlistment examination for his second period of service in January 1979 puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 5 LEFT 15 10 5 5 15 And a discharge audiogram, dated in October 1982 showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 10 10 LEFT 5 5 5 10 10 Speech recognition testing was not performed during his enlistment and separation audiological testing. In his January 1983 report of medical history, the Veteran denied any hearing loss. Following service, it appears that the Veteran first complained of hearing problems in 2005. At that time, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 15 20 35 LEFT 5 0 15 25 25 Speech recognition was 100 percent, bilaterally. At the time, he endorsed hearing problems since discharge from service, but denied any tinnitus. No opinion was provided as to the etiology of his hearing loss complaints. The Veteran was afforded a VA audiological examination in March 2011, during which puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 20 35 40 LEFT 0 10 20 35 40 Speech audiometry revealed speech recognition ability of 94 percent in both ears. The examiner diagnosed the Veteran as having bilateral sensorineural hearing loss and tinnitus. At the time of the examination, the examiner detailed the Veteran's hearing acuity history and his complaints of hearing problems and tinnitus. He described the Veteran's hearing complaints as situational hearing problems, particularly at a distance and when there is background noise. The Veteran further described his tinnitus as nearly constant ringing in the ears, and it had its onset following noise exposure during military service. The Veteran indicated that during service, he was exposed to loud AmTrec diesel engine and high-pitched pony started engine noises as his military occupational specialty (MOS) was an AmTrec Crewman. He asserted that he was also exposed to mounted 30 and 50 caliber machine guns and a wide array of other weapons. Also, his MOS between 1979 and 1983 was Attack Helicopter Crewman, which included exposure to helicopter engines, grenade launchers, and mounted helicopter guns. Post-service, the Veteran was exposed to loud electric motors and chain gears on machinery used in wax manufacturing. He stated that hearing protection was provided, but not enforced. Later he worked as an electrician, without exposure to much noise. Next, he worked in home construction work and odd jobs. He denied any appreciable history of loud recreational noise exposure. Following review of the claims file, and interview and examination of the Veteran, the examiner opined that the Veteran's current bilateral hearing loss was less like than not related to his in-service noise exposure. First, he indicated that the Veteran's tinnitus is associated with his bilateral hearing loss. In reaching his conclusion, the examiner indicated that the Veteran was indeed exposed to excessive noise in service, but there are differences in individual susceptibility to noise-induced hearing loss. In other words, not everyone who is exposed to excessive noise ends up with noise-induced hearing loss. In the Veteran's case, his bilateral hearing was within normal limits for his February 1976 separation audiogram, and on his October 1982 ETS audiogram. In addition, the examiner indicated that there was no significant threshold shift for either ear during each period of service. The examiner identified a "significant change of hearing" as a 10 dB loss at 500 through 4000 Hz. He opined that had the Veteran's hearing been permanently decreased due to his military noise exposure, then either hearing loss or significant threshold shift would have been shown on his separation physicals. He indicated that the Veteran's hearing loss would not have been delayed in onset after service. Additionally, the examiner noted that in October 2005, the Veteran had normal hearing through 3000 Hz, with only a mild loss at 4000 Hz (35 dB in the right ear and 30 dB in the left). This was not to a disabling degree 21 years after service. The examiner indicated that based upon these findings, it is more likely that the Veteran's bilateral hearing loss was related to idiopathic or occupational noise exposure after service. With respect to the tinnitus, the examiner indicated that he could not determine its etiology without resort to speculation. He indicated that the Veteran had a positive history of noise exposure during service, and did report its onset as being soon after his noise exposure. He noted, however, that for the reasons stated above with respect to bilateral hearing loss, he could not attribute the Veteran's tinnitus complaints to in-service hearing loss. As an initial matter, the March 2011 audiological findings support the conclusion that the Veteran has a bilateral hearing loss disability for VA compensation purposes. 38 C.F.R. § 3.385 (2012). Therefore, the question to be decided in the present appeal is whether such hearing loss and tinnitus are associated with the Veteran's active duty. The Veteran's MOS of AmTrec Crewman and Helicopter Crewman indicates at the very least helicopter and machine noise exposure. Based on this evidence, it is clear that the circumstances of the Veteran's service would have exposed him to acoustic trauma during service. Thus, the Board does not dispute that he likely experienced acoustic trauma during service. Following complete review of the evidence of record, the Board finds that service connection for bilateral hearing loss is not warranted, but there is reasonable doubt as to the etiology of his tinnitus. The Board finds that there is a remarkable lack of credible evidence of pathology during service and for many years following separation. With the exception of the Veteran's slight increase in some puretone thresholds between the February 1972 and February 1976 audiological examinations, the service treatment records are negative for hearing loss complaints. Additionally, his thresholds improved as shown at the discharge audiological examination in October 1982. Moreover, the thresholds did not reach a level to warrant a finding of a hearing loss disability for VA purposes under 38 C.F.R. § 3.385. Although the Veteran reported decreased hearing acuity in 2005, it appears that the earliest post-service diagnosis of disabling hearing loss in the bilateral ears was during the March 2011 VA examination. The Veteran has not indicated any other treatment for hearing problems. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. Although the evidence record shows a current bilateral hearing loss, it does not contain reliable evidence which relates the claimed disability to any injury or disease in service. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran has stated that he experienced symptoms of hearing loss during service, and that he continued to have such symptoms following discharge from active service. However as discussed above, his previous statements, to include the findings of both of his separation physical examinations, do not point to onset during service and fail to show complaints suggestive of hearing loss in the years following service. Rather, the first evidence demonstrating hearing loss dates to 2005 and 2011. As such, the Board finds that the Veteran's more recent statements regarding symptoms during service and in the years directly thereafter to be not credible and unreliable to establish onset of the claimed disability. Moreover, during his 2011 VA audiological examination, the Veteran described his post-service noise exposure as including occupational noise exposure from working in a wax factory and in construction. In summary, the Board finds that the negative record at service discharge and in the years following service is more probative than the Veteran's more recent statements. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board additionally notes that the VA audiologist who conducted the March 2011 examination concluded that bilateral hearing loss is not the result of noise exposure during active duty. He discussed the pertinent evidence, noting that the enlistment and separation examinations showed normal hearing (for VA purposes) with no significant shift for either ear. In essence, despite examining the Veteran, obtaining a history from him, and reviewing pertinent service and post-service records, the examiner was unable to link the Veteran's hearing loss disability to his military service. The audiologist provided a reasoned opinion, based on complete review of the record, interview, and examination. In assigning high probative value to this examiner's conclusions, the Board notes that he had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. The Board thus finds the VA examiner's conclusion that the Veteran's bilateral hearing loss is less likely than not related to his service to be of greater probative value than the Veteran's unsupported statements. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Absent competent and reliable lay or medical evidence relating the claimed to service, and in consideration of the VA opinion discussed above, the Board concludes that the claims of entitlement to service connection for hearing loss must be denied. The preponderance of the evidence is against the Veteran's claim, and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. With respect to the tinnitus, the Board finds all reasonable doubt in the Veteran's favor to warrant a grant of service connection for tinnitus. First, the portion of the March 2011 opinion related to tinnitus is inadequate. The purported negative nexus opinion is combined with a statement made by the audiologist that he was unable to provide an opinion as to the etiology of the Veteran's tinnitus without resort to speculation. He indicated that there is clear evidence of noise exposure and the Veteran has reported the onset of tinnitus soon after the exposure, but there was a lack of hearing loss at service separation. For those reasons, the examiner provided a negative nexus. The Board finds that because the examiner provided a speculative opinion, his opinion with respect to tinnitus lacks probative value. The Board also notes that the Veteran is competent to describe the circumstances surrounding his in-service noise exposure and to report symptoms of tinnitus as such comes to him through his senses and, as such, requires only personal knowledge rather than medical expertise. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). See also Buchanan at 1337. The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). However, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, 6 Vet. App. at 469. As noted, the Veteran is competent to describe his in-service noise exposure. Specifically, the Veteran is competent to report symptoms of tinnitus such as ringing or buzzing in the ears continuously since service, and the Board finds him credible as to the tinnitus symptoms. The Board has no reason to doubt the Veteran's assertions that he incurred acoustic trauma during service which caused ringing in his ears, has continued to experience ringing in his ears since then, and now has a diagnosis of tinnitus. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). As such, service connection for tinnitus is warranted. Service Connection: Malaria and Hepatitis: Factual Background and Analysis The Veteran contends that he has residuals of malaria and has hepatitis due to his military service. A review of the STRs shows no treatment for any hepatitis or liver-related problems. He was treated in 1974 for malaria, and at that time, he was quarantined. There was no mention of any hepatitis or hepatitis-related symptoms. The Veteran was provided a malaria smear test by the VAMC in January 2007. He received the results in February 2007, which were negative. At no time during the period of appeal has the Veteran ever been diagnosed as having any residuals of his in-service malaria. During his February 2012 hearing, the Veteran testified that he has hepatitis due to Agent Orange exposure and that he was treated for the same while he was treated in-service for malaria. He also contends that his malaria residuals including being constantly cold. He denied requiring any treatment or medication for his cold intolerance. Upon careful review of the evidence, the Board notes that no residuals of malaria or hepatitis were ever diagnosed during service or thereafter. Indeed, the Veteran was treated in service for malaria, but it resolved without residuals. The evidence of record does not include any medical opinion that a current diagnosis of residuals of malaria or hepatitis (or might be) related to the Veteran's service or a service-connected disability, and does not suggest that any current diagnosis of residuals of malaria or hepatitis might be related to his service or a service-connected disability. In the absence of adequate evidence establishing a nexus between the Veteran's alleged residuals of residuals of malaria or hepatitis and his service, the Board finds that the Veteran's claim seeking service connection for residuals of residuals of malaria or hepatitis must be denied. See Brammer, supra. As the Veteran has no diagnosis of hepatitis, the Board need not address his contentions that it is secondary to Agent Orange exposure. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii), 3.309(e). With respect to whether the Veteran's own testimony can establish a current disability associated with residuals of malaria or hepatitis here, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. In this case, the Veteran may well have had malaria during service or thought he had hepatitis during service. He is competent to report his medical diagnoses. However, he has no documented residuals of malaria and diagnosis of hepatitis, and he lacks the medical training or credentials to provide a clinical diagnosis as to these claimed disabilities. To this extent, his lay opinion is substantially outweighed by the unfavorable clinical evidence of record-namely, the complete lack of a hepatitis or malaria diagnosis despite numerous instances of documented post-service blood work. The Board must stress that the Board's inquiry with this claim is strictly limited to the question of residuals of malaria or hepatitis. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim of service connection for residuals of malaria and hepatitis, that doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER The appeal of the claim of entitlement to service connection for alcohol dependence is dismissed. As new and material evidence has not been received, reopening of the claim for service connection for residuals of a laceration to the right foot is denied. As new and material evidence has not been received, reopening of the claim for service connection for a bilateral knee disability is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. Service connection for residuals of malaria is denied. Service connection for hepatitis is denied. REMAND The Board finds that further evidentiary development is necessary regarding the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder, nose/sleep disorder, left foot laceration, throat cancer, and hypertension, and entitlement to § 1151 benefits resulting from VA treatment for throat cancer and cervical spine disability. With respect to the service connection claims, the Board notes that VA's duty to assist includes a duty to provide the Veteran with a proper medical examination or opinion when warranted. In this respect, the Board notes that in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations that would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Psychiatric Disorder The Veteran contends that he has an acquired psychiatric disorder attributable to his period of active duty. He has characterized this claim as entitlement to service connection for PTSD, mood swings, depression, anxiety, disorder, and panic attacks. Applicable regulations provide that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). During the pendency of this appeal, a new version of 38 C.F.R. § 3.304 was promulgated. See 75 Fed. Reg. 39843 (July 13, 2010). The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010, but have not been decided by the Board as of July 13, 2010. Because the Veteran's PTSD claim was appealed to the Board before July 13, 2010, and is being decided thereafter, the updated version of the law is applicable. When the Board addresses questions or issues that the RO did not previously consider, "the Board must secure a waiver from a claimant or otherwise determine that there would be no prejudice to the claimant by proceeding to adjudicate the question or issue." See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Similarly, where the Board considers law not previously considered by the RO, the Board is required to notify the claimant and indicate that consideration of this law may result in a decision adverse to the claimant. See 38 C.F.R. § 20.903(b) (2012) (requiring Board to "notify the appellant and his or her representative" of its intent to consider a law not considered by RO, where consideration "would result in denial of the appeal"). McBurney v. Shinseki, 23 Vet. App. 136, 138 (2009). In this case, the Veteran has not been advised of the new version of 38 C.F.R. § 3.304(f). On remand, he should be so notified. Regarding a stressor, the Veteran contends that he was responsible for evacuating American personnel from Vietnam. He recalled having to pick up dead service men along the highway and put them in body bags and silver caskets. A review of his service treatment records shows no treatment for psychiatric complaints during service. Additionally, there has been no verification that the Veteran actually served in the Republic of Vietnam. Since service, the Veteran has had various psychiatric diagnoses, including depression and mood disorder secondary to general medical condition. During the period on appeal, he has not met the criteria for a diagnosis of PTSD, but maintains his psychiatric symptoms had their onset during service. Attempts have been made to verify the Veteran's reported stressors, but the RO was unable to do so. The Board finds that the evidence of record meets the low threshold delineated in McLendon, for when a VA examination is warranted. Thus, the Veteran should be scheduled for a VA examination to diagnose him with all current psychiatric disabilities, to include PTSD in accordance with the criteria for PTSD as set forth in the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV), and to determine whether this PTSD or any other psychiatric disability was caused or aggravated by his active duty service. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). The Veteran has not been provided a VA examination in conjunction with his psychiatric complaints. The Board notes that the Court has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the examiner should consider whether any diagnosed psychiatric disabilities were caused or aggravated by his active duty service. Nose and Sleep Disorder The Veteran contends that his nose was broken during service and now he has a deviated septum with sleep problems. He contends that following his broken nose, he continued to have difficulty breathing during service and after. He recalled in 1988 or 1989 that he was told he had broken his nose at one time. The Veteran is competent to report symptoms such as difficulty breathing through his nose and sleep problems. The Veteran has not, however, been afforded a VA examination regarding his nose and sleep disorder claims. As such, the Board finds that the Veteran should be afforded a VA examination to determine that nature and etiology of any residuals of a broken nose or associated sleep problem. See McLendon, supra. Left Foot The Veteran contends that he has residuals of a left foot laceration during service. He contends that he cut his foot in service, but does not recall how, and that he has had residuals of this cut in form of calluses on the left foot. A review of the STRs shows no treatment for a cut to the left foot, but a right foot laceration was documented. As noted above, the claim of service connection for residuals of right foot laceration residuals has not been reopened. The evidence of record shows a history of left 5th toe hammertoe and calluses of the left foot. The Veteran has competently reported that he incurred a left foot laceration in service and has generally reported left foot symptoms since service. The Veteran has not been afforded a VA examination for his claimed left foot disability. The Board again finds that the minimal threshold described in McClendon, and the Veteran should be afforded a VA examination for his claimed left foot disability. Hypertension The Veteran contends that his currently diagnosed hypertension is secondary to his claimed PTSD. The Board again notes that further development on the pending service connection claim for an acquired psychiatric disorder will necessitate a deferral of the secondary claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). In the event that the Veteran is diagnosed with a psychiatric disability related to his military service, he should thereafter be afforded a VA examination for his hypertension claim to determine whether it is secondary to his psychiatric disability. § 1151 Claims and Service Connection for Throat Cancer The Veteran contends that his throat cancer was diagnosed too late and that he has an additional cervical spine disability as a result of the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment; or due to an event not reasonably foreseeable. In June 2005, the Veteran reported the sensation of a foreign object in his throat. In October 2006, the Veteran again reported feeling like he had a foreign object in his throat. He was diagnosed as having squamous cell carcinoma of the right vocal cord in January 2007. The Veteran underwent surgery (laryngoscopy with laser) for his vocal cord cancer in March 2007. The Veteran has specifically asserted that his complaints of an irritated throat were ignored by VA treating personnel, and because of this late diagnosis, he now has major speech complications. The Veteran alternatively claims that his throat cancer is secondary to Agent Orange exposure during service. He maintains that he served 3 tours in Republic of Vietnam, at which time he was exposed to herbicides. In March 1998, the Veteran underwent a cervical discectomy. He contends that the surgery was performed improperly, and now he has additional disabilities related to it. The discharge summary following the 1998 surgery indicated that the procedure was uneventful. The Veteran has not been afforded a VA examination in conjunction with his § 1151 claims and has not had any VA examination related to his service connection claim for throat cancer. The Board finds that a remand is required in this case to determine whether the Veteran has additional disabilities as a result of any carelessness, negligence, lack of proper skill, or error in judgment, or not a reasonably expected result or complication of VA treatment in conjunction with his 1998 cervical discectomy and his 2006-2007 treatment for throat cancer. In addition, the Board finds that the Veteran should be afforded a VA examination as to direct service connection for his throat cancer claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Issue the Veteran a 38 C.F.R. § 3.159(b) letter and notify him of the recent changes to 38 C.F.R. § 3.304(f). See 75 Fed. Reg. 39843 (July 13, 2010). 2. Obtain any and all pertinent VA treatment records that have not yet been associated with the claims file. 3. Upon receipt of any new records, schedule the Veteran for an appropriate VA examination for his claim for service connection for an acquired psychiatric disorder, including PTSD. All appropriate tests and studies should be performed and all clinical findings reported in detail. The claims file, including any pertinent evidence contained in Virtual VA, should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. Additionally, the examiner should elicit from the Veteran a history of symptoms relating to his claimed PTSD. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should diagnose the Veteran with all psychiatric disabilities and determine whether he has a diagnosis of PTSD in accordance with the criteria set forth in the DSM-IV. Then, an opinion should be provided as to whether it is at least as likely as not (a 50 percent or greater probability) that any of the Veteran's psychiatric disabilities or PTSD had its onset in service, or is otherwise related to service. The examiner should provide a complete rationale for any opinion provided. 4. If, and only if, the Veteran is diagnosed as having a psychiatric disorder attributable to his active duty, schedule the Veteran for appropriate VA examination for his claimed hypertension. The claims file, including any pertinent evidence in Virtual VA, should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, and any pertinent evidence contained in Virtual VA, eliciting a history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current hypertension had its onset during military service or was caused or chronically worsened by a service-connected disability. The examiner should provide a complete rationale for any opinion provided. 5. Schedule the Veteran for an appropriate VA examination addressing the etiology of his claimed residuals of a broken nose, sleep disorder secondary to a broken nose, left foot laceration residuals, throat cancer (vocal cord), and cervical spine disability. The claims file, including any pertinent evidence in Virtual VA, should be provided to the examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, and any pertinent evidence contained in Virtual VA, eliciting a history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer opinions as to whether it is at least as likely as not (a 50 percent or greater probability) that any current residuals of a broken nose, sleep disorder secondary to a broken nose, and left foot laceration residuals, and throat cancer had their onset during military service or are otherwise related to service. With respect to the Veteran's cervical spine disability, the examiner is asked to provide an opinion addressing whether the Veteran at least as likely as not (a 50 percent or greater probability) has an additional disability due to his 1998 cervical discectomy at the VA Medical Center, and determine whether any additional disabilities were foreseeable consequences of the treatment provided, and whether the Veteran's symptoms resulted from carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA. With respect to the Veteran's throat cancer claim, the examiner is asked to provide an opinion addressing whether the Veteran at least as likely as not has an additional disability due to treatment for his vocal cord cancer at the VA Medical Center, and determine whether any additional disabilities were foreseeable consequences of the treatment provided, and whether the Veteran's symptoms resulted from carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA. The examiner is asked to address the Veteran's contentions that his throat cancer was found too late and following months of reporting a foreign object in his throat. The claims file must be made available to, and reviewed by, the examiner, including any pertinent evidence in Virtual VA, and the examiner must state that the claims file was reviewed in the report provided. A complete rationale for all conclusions and opinions, with citation to relevant medical findings, must be provided. 6. Then, readjudicate the claims. If the benefits sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs