Citation Nr: 1329610 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 08-25 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from January 1994 to January 1997. He had additional service in the Alabama Army National Guard from December 2004 to January 2006. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2011 the Board issued a decision denying another claim the Veteran also had appealed, for service connection for a bilateral knee disability. However, the Board, instead, remanded his remaining claims to the RO, via the Appeals Management Center (AMC), for further development and consideration. In a decision since issued in May 2012, on remand, the AMC granted two of those remaining claims, for service connection for posttraumatic stress disorder (PTSD) and hypertension. The AMC assigned in initial 50 percent rating for the PTSD, retroactively effective from March 13, 2007, and a higher 70 percent rating as of August 17, 2011. The AMC assigned an initial 0 percent (i.e., noncompensable) rating for the hypertension. The Veteran did not, in response, separately appeal either these ratings or effective dates, so these claims also are no longer at issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). In a Supplemental Statement of the Case (SSOC) since issued in August 2012, the AMC continued to deny the remaining claims for service connection for bilateral hearing loss, a low back disability, and a bilateral foot disability. So these claims are again before the Board. Before being decided, however, the claims for service connection for a low back disability and bilateral foot disability require still further development. Consequently, the Board is again remanding these claims to the RO via the AMC. Whereas the Board is going ahead and deciding the claim for service connection for bilateral hearing loss. FINDING OF FACT The Veteran does not have sufficient hearing loss in either ear according to VA standards to be considered a ratable disability. CONCLUSION OF LAW He is not shown to have a ratable bilateral hearing loss disability, much less that is due to disease or injury incurred in or aggravated by his active military service or that may be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA enhanced VA's duty to notify a claimant of the information and evidence necessary to substantiate a claim 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, 3.326(a) (2012). The VCAA also redefined VA's obligations with respect to the duty to assist a claimant with a claim. Id. Duty to Notify Upon receipt of a complete or substantially complete application, VA has a duty to notify the Veteran of the information and evidence not of record that is (1) necessary to substantiate the claim; (2) that VA will obtain; and (3) that he is expected to provide. 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002) and Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (discussing these VCAA notice requirements). Here, a March 2007 letter was sent to the Veteran apprising him of the information and evidence needed to substantiate his claims of entitlement to service connection, including for bilateral hearing loss, and apprising him of his and VA's respective responsibilities in obtaining this necessary supporting evidence. The letter also advised him of all five elements of his claim: (1) Veteran status; (2) existence of a disability; (3) a connection between his service and the disability; but also regarding the "downstream" (4) degree of disability, i.e., disability rating; and (5) effective date in the eventuality service connection was granted. See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). He therefore has received all required notice concerning this claim. Moreover, the RO sent him that March 2007 letter before initially adjudicating his claim of entitlement to service connection for bilateral hearing loss in the September 2007 rating decision that prompted this appeal. So the RO provided him that notice letter in the preferred sequence, before initially considering this claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). He received additional VCAA notice in March 2008, including as concerning the "downstream" disability rating and effective date elements of his claim to comport with the holdings in Dingess, and his claim since has been readjudicated in a July 2008 Statement of the Case (SOC) and even as mentioned more recently, on remand, in August 2012 Supplemental SOC (SSOC). So even if, arguably, he did not receive all required notice before initially adjudicating his claim, he since has received additional notice - followed by readjudication of his claim in the July 2008 SOC and August 2012 SSOC - to rectify ("cure") any timing error in the provision of the additional notice. If, for whatever reason, VCAA notice did not precede the initial adjudication of the claim, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in an SOC or SSOC - such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a 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 his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). There is no such pleading or showing in this instance. The Veteran has been provided the opportunity to respond to VA correspondence and over the course of this appeal has had multiple opportunities to submit and identify relevant evidence that would tend to support his claim. He therefore has been provided the required meaningful opportunity to participate effectively in the processing of his claim. Duty to Assist VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when necessary to make a decision on the claim, unless there is no possibility this assistance would aid in the substantiation of the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth the Secretary's various duties to the claimant). To this end, VA informed the Veteran of its duty to assist him in obtaining records and supporting evidence. In regards to a medical examination and opinion, this was one of the reasons the Board remanded this claim in March 2011. He resultantly had a VA audiological examination in July 2011 that was comprehensive, both in terms of determining whether he has sufficient hearing loss in either ear, or both, to be considered an actual ratable disability according to the threshold minimum requirements of the governing VA regulation, 38 C.F.R. § 3.385, and only if confirmed he does for a medical nexus opinion regarding the etiology of his hearing loss, and specifically in terms of the likelihood it is related or attributable to his active military service, and especially to noise exposure during or coincident with his service. The report of the examination contains the findings needed to make these determinations, so is adequate for the purposes of deciding this claim. See 38 C.F.R. § 4.2 (indicating it would be incumbent on the VA adjudicator to return the report for all necessary additional information if this was not the case). As it stands, including based on the results of that VA hearing evaluation, there is no competent and credible medical evidence of record confirming the Veteran currently has sufficient hearing loss in either ear to be considered a ratable disability according to VA standards (i.e., 38 C.F.R. § 3.385), so there necessarily cannot be any attribution of this alleged disability to his military service since, for all intents and purposes, it is not shown to even exist. In fact, the July 2011 VA audiological examiner specifically ruled out a ratable hearing loss disability in either ear as defined by this applicable VA regulation. Thus, the Board finds that the medical evidence of record, including this VA compensation examination and opinion, is sufficient to resolve the appeal of this claim; VA has no further duty to provide an examination or medical opinion. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nichoslon, 20 Vet. App. 79, 83 (2006) and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (clarifying when VA examinations and opinions are required). VA has fulfilled its duty-to-notify-and-assist obligations as concerning this claim. II. Governing Statutes, Regulations and Case Law Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection 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). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the alleged disability or, at the very least, showing he has at some point since the filing of his claim for the disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or correlation between the currently claimed disability and the disease or injury incurred or aggravated during service (the so-called "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely, those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard. See Walker, supra (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit Court indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three- part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the "nexus" requirement of the three- element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Id. As already alluded to, not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required." Walker, supra (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). Sensorineural hearing loss in particular, however, is defined as a chronic disease in section 3.309(a) since considered a type of organic disease of the nervous system. The Veterans Benefits Administration's (VBA's) M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note: "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." M21-1MR III.iv.4.B.12.a. Thus, the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be supported by evidence of continuity of symptomatology since service. Sensorineural hearing loss is also eligible for presumptive service connection. Specifically, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime after December 31, 1946, service connection for sensorineural hearing loss may be established on a presumptive basis by showing the disease manifested to a compensable degree (meaning to least 10-percent disabling) within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307; 3.309(a). However, this presumption will be rebutted if there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Further concerning claims for hearing loss, the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). But impaired hearing only will be considered to be an actual ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). It therefore is possible to have hearing loss, just insufficient hearing loss to be considered an actual ratable disability according to these VA standards. It also deserves pointing out, however, that the Court has held that § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal audiometric testing limits at time of separation from service. See Hensley, 5 Vet. App. at 159. The Court explained that, when audiometric test results do not meet the regularity requirements for establishing a "disability" at the time of the Veteran's separation from service, he nevertheless may establish his entitlement to service connection for a current hearing loss disability by submitting competent evidence showing the current disability is causally related to his service. Id., at 160. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competency of evidence differs from its ultimate weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In deciding this claim, the Board must determine the probative value of all of the evidence submitted, so of both the lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine whether the evidence also is "credible", or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board additionally must determine whether the evidence also is credible). Only if the evidence is both competent and credible does it ultimately have probative value. See 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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (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). The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, a medical opinion was not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). In certain instances, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). On the other hand, laypersons equally have been found not competent in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). III. Analysis The Veteran contends he has a bilateral hearing loss disability that began during or as a result of repeated exposure to excessively loud noise during his service. He notes that, while in the Army National Guard, he served in Iraq and was assigned to a transportation battalion. He says he had to move equipment from Kuwait to different locations in Iraq. According to him, during that period of time, he also engaged in combat and was exposed to loud noises from small arms fire, heavy artillery, and tanks. The records concerning his service show that his Military Occupational Specialty (MOS) during his first period of service in the Army was light weight vehicle mechanic. During his second period of service in the Army National Guard, his MOS was wheeled vehicle mechanic. The records confirm he served in Kuwait and Iraq from February to December 2005. According to the records, he served in a designated imminent danger pay area. Thus, in light of this documentary evidence, and given that in a May 2012 rating decision (albeit concerning other claims) the AMC acknowledged he had engaged in combat during his service, as alleged, it also resultantly may be presumed that he had the alleged noise exposure during his service, especially in that capacity, with consequent injury (acoustic trauma), since this is consistent with his MOS and the circumstances, conditions, and hardships of his service. See 38 U.S.C.A. § 1154(a) and (b) (West 2002); 38 C.F.R. § 3.304(d) (2012). It still has to be shown, however, he has a ratable hearing loss disability as a result or consequence of that accepted acoustic trauma during his military service. In other words, it is not enough merely to show relevant injury in service since there also has to be consequent disability, even when, as here, the injury in service is said to have occurred, at least partly, while engaged in combat against enemy forces. In cases, as here, where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing VA regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and VA regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Federal Circuit Court has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the combat injury in service. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To ultimately establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). And, here, there simply is no competent and credible evidence of record showing the Veteran currently has a ratable hearing loss disability involving either ear, as defined by the applicable VA regulation, 38 C.F.R. § 3.385. As already alluded to, in March 2011 the Board remanded this claim to have him undergo a VA compensation examination to initially determine whether he has sufficient hearing loss in either ear, or both, to be considered a ratable disability according to the threshold minimum standards of this VA regulation. He had this requested examination later that year, in July 2011. During the course of the evaluation he said that he was having problems hearing clearly. According to the results of his audiogram, his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 10 10 LEFT 15 10 15 15 20 The average pure tone threshold for the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz was 11 decibels for the right ear and 15 decibels for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent for the left ear. The examiner interpreted the results as showing normal hearing, bilaterally. The results of that VA compensation examination do not show the Veteran has hearing loss in either ear, much less sufficient hearing loss to be considered an actual ratable disability according to the governing VA regulation. See again 38 C.F.R. § 3.385. Rather, the examiner stated that the audiometric evaluation had revealed hearing within normal limits, bilaterally, so no current hearing loss disability was found to be present. The Veteran therefore has not satisfied this most fundamental requirement of his claim, which is first showing he has the alleged disability of hearing loss. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Congress has specifically limited entitlement for service- connected disease or injury to cases where such incidents have resulted in actual disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). The Veteran is competent to report what comes to him through his senses, e.g., experiencing some degree of hearing impairment or loss, including in his conversations with others and daily activities. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, there is no indication he has had any relevant medical training or possesses any expertise to provide an actual diagnosis of a ratable hearing loss disability as defined by 38 C.F.R. § 3.385. This determination is based on objective (not subjective) criteria of this regulation, so is predicated on the results of specific testing of his hearing acuity at specifically defined frequencies and using specific methods including a Maryland CNC speech discrimination test. And as the Federal Circuit Court has made clear, lay evidence must "demonstrate some competence." See King v. Shinseki, 700 F3d. 1339 (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). To reiterate, when considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this particular instance, since determining whether this Veteran has sufficient hearing loss to be considered an actual ratable disability according to 38 C.F.R. § 3.385 is a medical, rather than lay, determination, and since there is not this required supporting medical evidence, the preponderance of the evidence is against his claim, so the benefit-of-the-doubt doctrine is inapplicable, and his claim of entitlement to service connection for bilateral hearing loss must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert, 1 Vet. App. at 49. ORDER The claim of entitlement to service connection for bilateral hearing loss is denied. REMAND In March 2011, the Board also remanded the remaining claims for service connection for a bilateral foot disability and a low back disability. With respect to the bilateral foot disability, the Board pointed out that, in the report of the Veteran's August 1992 enlistment examination, it was noted he had moderate pes planus (flat feet) that was asymptomatic. Thus, because his pes planus was noted during that enlistment examination, the presumption of soundness when beginning that service was rebutted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). If a pre-existing disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, only instead a claim for service-connected aggravation of that disorder. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id., at (b)(1). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Independent medical evidence generally is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Past precedent decisions have indicated that pes planus is sometimes congenital or developmental and other times post- traumatic, so the result of injury. A congenital defect is not a disease or injury within the meaning of applicable legislation and, thus, generally not service connectable for VA compensation purposes as a matter of express VA regulation. 38 C.F.R. §§ 3.303(c), 4.9 (2010). VA's General Counsel has held, however, that service connection may be granted for diseases (though not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. See also Quirin v. Shinseki, 22 Vet. App. 390 (2009); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. See, too, Winn v. Brown, 8 Vet. App. 510, 516 (1996). VA's General Counsel indicated in VAOPGCPREC 82-90 that support for this position could be found in VA regulations themselves, noting that sickle cell anemia, although a familial disease, was included for rating purposes in the Schedule for Rating Disabilities. Also, according to VA General Counsel 's opinion, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Thus, to allow for proper legal analysis of a Veteran's claim as it pertains to the claimed disability, medical clarification may be necessary as to whether the Veteran's condition is a congenital or developmental "disease" or "defect." See id.; Quirin, 22 Vet. App. at 395. If the claimed disorder is a disease, an opinion may be required as to whether it was as likely as not aggravated by the Veteran's period of active military service beyond its natural progression. If instead the claimed disorder is a defect, an opinion may be required as to whether it was as likely as not subject to a superimposed disease or injury during active military service that resulted in disability apart from the congenital or developmental defect. With all of this in mind, the Board requested that the AMC provide the Veteran a VA compensation examination for a medical opinion concerning whether his pre-existing pes planus was aggravated by his military service. As for his low back disability that is also being claimed, the Board pointed out that in February 1994, during his first period of active service, he had been treated for a 3- 4 month history of low back pain. Following physical examination, the diagnosis was muscle strain. At present, he reported continuing to experience low back pain. Thus, the Board requested that the AMC also provide him a VA compensation examination for a medical opinion concerning whether he currently has a low back disability and, if so, whether it is related or attributable to his military service and, in particular, to that muscle strain in service. But following the Board's March 2011 remand of these claims, it does not appear the AMC afforded him these requested VA compensation examinations for these necessary medical opinions. Rather, in October 2011, a VA Family Nurse Practitioner (FNP) reviewed the Veteran's claims file and provided opinions regarding his claims, but without the benefit of an actual in-person examination. Concerning the bilateral foot disability, the VA FNP opined that there was no evidence in the Veteran's claims file showing his pre-existing bilateral pes planus was aggravated by his military service. However, the VA FNP did provide any explanatory rationale for her opinion and she did not refer to any specific evidence in the claims file supporting her conclusion. In addition, she did not address VA Medical Center (VAMC) outpatient treatment records showing that in April 2006, so only approximately three months after the Veteran's discharge from the Army National Guard, he had a podiatry consultation. During that consultation he stated that he had experienced bilateral foot pain for the past few months, so seemingly dating back to his Army National Guard service. Also according to him, recent X-rays showed "something" on his right foot. He had no history of "stepping on something"; however, he indicated that he had walked on uneven terrain while in Iraq. The examiner stated that X-rays taken in April 2006 had confirmed a foreign body in the Veteran's right foot. The diagnosis was pes planus. In an addendum, it was noted that the foreign body was a metallic needle-shaped object in "two parts plantar-lateral foot at the calcaneal-cuboid joint level," and that the object would not be related to the Veteran's medial arch pain and may be an ancillary finding. It does not appear the VA FNP reviewed this evidence. In regards to the claimed low back disability, the VA FNP stated that, according to radiological studies, there was no "medically associated condition." Thus, she opined that it was less likely that the Veteran's low back pain was related to his muscle strain noted during his first period of service or to any incident of military service during his National Guard duty. But although she referred to radiological studies, no such studies were associated with her report. In addition, a review of the evidence of record is unremarkable for any radiological studies pertaining to the Veteran's lumbosacral spine or low back, so this evidence is not elsewhere in the file as best the Board can determine. Thus, it is unclear what radiological studies she was referring to. For these reasons, VA compensation examinations are needed to assist in deciding these remaining claims, including ensuring compliance with the Board's prior remand directives concerning these claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with a remand directive, and the Board itself commits error, as a matter of law, in failing to ensure compliance). Accordingly, these remaining claims are again REMANDED for the following additional development and consideration: 1. Provide the Veteran in-person VA compensation examinations, in particular: A. A VA podiatry examination to ascertain whether his military service aggravated his pre-existing pes planus. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must specifically review the Veteran's STRs showing that, during his August 1992 enlistment examination, it was noted that he had moderate pes planus that was asymptomatic. So there was clear indication of this pre-existing condition. In January 1995, he was screened for proper footwear and it was determined that he would benefit from orthotics. In October 1996, he had an expiration of term of service (ETS) examination during which he denied any foot trouble. His feet also were clinically evaluated as "normal." In July 2002, he had a periodic examination in connection with his additional service in the Army National Guard. At that time, it was noted that he had normal arches in his feet. His feet also were again clinically evaluated as "normal." In December 2004, he had a deployment examination for the Army National Guard. He again denied any foot trouble. More recent VAMC outpatient treatment records show that in April 2006, approximately three months after his discharge from the Army National Guard, he had a podiatry consultation. He stated that he had experienced bilateral foot pain for the past few months, so possibly dating back to his service in the Army National Guard. According to him, then recent X-rays had showed "something" on his right foot. He had no history of "stepping on something"; however, he indicated that he had walked on uneven terrain while in Iraq. The examiner stated that X-rays taken in April 2006 had confirmed a foreign body in the Veteran's right foot. Pes planus was diagnosed. In an addendum, it was explained that the foreign body was a metallic needle-shaped object in "two parts plantar-lateral foot at the calcaneal-cuboid joint level," and that the object would not be related to the Veteran's medial arch pain and may be an ancillary finding. In October 2006, he had a retention examination for the Army National Guard. It was noted that he had a normal arch in each foot. His feet also were clinically evaluated as "normal." So prior to commenting, in addition to considering this relevant evidence, all necessary diagnostic testing and evaluation is to be accomplished, including X-rays if deemed warranted. After review of the examination findings and the relevant evidence of record, the examiner must address the following questions: i. What is the likelihood (very likely, as likely as not, or unlikely) that the Veteran's pre-existing bilateral pes planus was aggravated by his period of active military service in the Army from January 1994 to January 1997, meaning chronically or permanently worsened beyond its natural progression? ii. What is the likelihood (very likely, as likely as not, or unlikely) his pre-existing bilateral pes planus was aggravated during his subsequent period of active military service in the Army National Guard from December 2004 to January 2006, again, meaning chronically or permanently worsened beyond its natural progression? In answering these questions, the examiner should note that a pre-existing injury or disease will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless as mentioned there is a specific finding that the increase in disability is due to the natural progression of the disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The examiner is advised that the term "as likely as not" means at least 50-percent probability. This term does not however mean merely within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of aggravation as to find against it. Very likely and as likely as not support the contention that the Veteran's pre-existing pes planus was aggravated during his service, whereas a conclusion that it is unlikely obviously instead weighs against his claim. It is most essential the examiner discuss the underlying medical rationale of the opinion, regardless of whether it is favorable or unfavorable to the claim, if necessary citing to specific evidence in the file supporting conclusions. B. A VA orthopedic examination is needed, as well, to ascertain the nature and etiology of any low back disability. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must specifically review the Veteran's STRs showing that, in February 1994, he was treated for complaints of a 3-4 month history of low back pain. The eventual diagnostic assessment was muscle strain. In October 1996, he had an ETS examination. He denied recurrent back pain. His spine and other musculoskeletal system were clinically evaluated as "normal." In July 2002, he had a periodic examination for the Army National Guard. His spine and other musculoskeletal system again were clinically evaluated as "normal." In December 2004, he had a deployment examination for the Army National Guard. He denied any recurrent back pain or any back problem. In November 2005, he had a post-deployment examination. He again denied any back pain. In July 2006, he had a post-deployment health reassessment. This time he stated that he had back pain. In October 2006, he had a retention examination for the Army National Guard. He denied recurrent back pain or any back problem. So prior to commenting, in addition to considering this relevant evidence, all necessary diagnostic testing and evaluation is to be accomplished, including X-rays if deemed warranted. After a review of the examination findings and the relevant evidence of record, the examiner must address the following questions: (i) Does the Veteran have a current low back disability? If he does, specify the diagnosis. (ii) If confirmed he has a current low back disability, what is the likelihood (very likely, as likely as not, or unlikely) it is related or attributable to his first period of active military service from January 1994 to January 1997, including the diagnosis during that period of service of muscle strain, or alternatively his second period of active military service from December 2004 to January 2006? The examiner is advised that the term "as likely as not" means at least 50-percent probability. This term does not however mean merely within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against it. Very likely and as likely as not support the posited causal relationship between the current disability and the Veteran's military service, whereas a conclusion this is unlikely obviously instead weighs against the claim. If no link to military service is found, this should be expressly indicated but, more importantly, the examiner must discuss the underlying rationale of the opinion, regardless of whether it is favorable or unfavorable to the claim. Merely the examiner saying he/she cannot respond will not suffice, unless there is explanation as to why a response is not possible. 2. Review the reports of these VA compensation examinations to ensure they contain responses to the questions posed. If not, take corrective action. 38 C.F.R. § 4.2. 3. Then readjudicate these remaining claims of entitlement to service connection for a bilateral foot disability (including especially pes planus) and for a low back disability in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs