Citation Nr: 1333301	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  05-26 076	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a left shoulder disability.  

2.  Entitlement to service connection for a neck disability.  

3.  Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

M. Zawadzki, Counsel


INTRODUCTION

The Veteran served on active duty from October 1980 to October 1983.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2004 and March 2005 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The RO denied service connection for bilateral hearing loss in March 2004.  In March 2005, it denied service connection for neck and left shoulder disabilities.  

In May 2007, the Veteran testified before the undersigned Veterans Law Judge via videoconference; a transcript of the hearing is of record.  

In August 2007, May 2010, and September 2011, the Board remanded these claims to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development.  After completing the additional development, the AMC continued to deny the claims (as most recently reflected in a December 2012 supplemental statement of the case (SSOC)), and returned these matters to the Board.  

The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that was associated with the Virtual VA e-folder prior to issuance of the most recent supplemental statement of the case (SSOC).  Although the additional medical evidence was not specifically listed as having been considered in the December 2012 SSOC, it was of record in the Virtual VA e-folder at that time.  It was reviewed by the AMC in conjunction with preparation of the SSOC, as the AMC did report that the claims file was reviewed.  In any event, while this evidence reflects complaints regarding and treatment for the left shoulder, neck, and hearing loss, the presence of current left shoulder, neck, and hearing loss disabilities was established by the evidence of record which was considered in the December 2012 SSOC.  Further, in December 2012, the Veteran, via his representative, submitted a 30 Day Waiver in which he indicated that, if any evidence was submitted at a later time, he waived the right to have the case remanded to the RO, instead asking that the Board consider the new evidence and proceed with the adjudication of the appeal.  Accordingly, remand for RO consideration of the additional medical records associated with the e-folder is not necessary.  See 38 C.F.R. § 20.1304 (2013).  


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished.

2.  A left shoulder disability was not incurred in or aggravated by active service.  
  
3.  A neck disability was not incurred in or aggravated by active service.  

4.  Bilateral hearing loss was noted on the Veteran's August 1980 enlistment examination.

5.  The Veteran's pre-existing bilateral hearing loss was not aggravated by active military service.


CONCLUSIONS OF LAW

1.  The criteria for the establishment of service connection for a left shoulder disability are not met or approximated. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).

2.  The criteria for the establishment of service connection for a neck disability are not met or approximated. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).

3.  The criteria for the establishment of service connection for bilateral hearing loss are not met or approximated.  38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.306 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.


Duty to Notify and Assist

The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (Court) have been fulfilled.  The Veteran's claim for service connection was received in December 2003.  The Veteran was provided notice of what evidence was required to substantiate his claims for service connection for bilateral hearing loss, a stiff shoulder, and neck pain in correspondence dated in January 2004.  A December 2004 letter advised him of what evidence was required to substantiate his claims for service connection for left shoulder and neck pain.  A September 2007 letter advised him of what evidence was required to substantiate each of the claims on appeal.  Each of these letters informed the Veteran of his and VA's respective duties for obtaining evidence.  The claims were reviewed and SSOCs were issued in July 2009, June 2011, and December 2012.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004).  See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court found that the VCAA notice requirements applied to all elements of a claim.  Notice as to this matter was provided in March 2006 and in the September 2007 VCAA letter.  

As will be discussed below, the claim for service connection for hearing loss is being addressed as a claim for service connection on the basis of in-service aggravation.  Although the Veteran was not provided a separate notice letter informing him of the elements of a claim for service connection on the basis of aggravation, the January 2004, December 2004, and September 2007 letters informed him that the first element of a claim for service connection was evidence that he "had an injury in military service or a disease that began in or was made worse during military service."  Therefore, the Board finds that there was no error in the notice provided and that VA has met its duty to notify the claimant per 38 U.S.C.A. § 5103(a).  See Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007)((in substance, observing that 38 U.S.C.A. § 5103(a) requires only that the VA give a claimant notice at the outset of the claims process of the information and evidence necessary to substantiate the claim, before the initial RO decision and in sufficient time to enable the claimant to submit relevant evidence.  This notice may be generic in the sense that it need not identify evidence specific to the individual claimant's case, though it necessarily must be tailored to the specific nature of the Veteran's claim, and need not describe the VA's evaluation of the Veteran's particular claim). 

The Veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence.  A review of the claims file and Virtual VA e-folder shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal.  His service treatment records, VA treatment records, and Social Security Administration (SSA) records have been obtained and associated with his claims file and Virtual VA e-folder.  The Veteran was also provided with VA examinations to evaluate his claimed disabilities in February 2005, January 2007, February 2009, June 2009, and November 2010, with additional medical opinions regarding the claim for service connection for bilateral hearing loss provided in February 2007 and March 2009.  

Regarding the claims left shoulder and neck disabilities, the June 2009 VA orthopedic examination included a medical opinion regarding the etiology of arthritis of the cervical spine, but did not address other diagnosed neck conditions or the claimed left shoulder disability.  In his April 2010 Informal Hearing Presentation (IHP), the Veteran's representative asserted that the June 2009 opinion was inadequate as it was not supported by a rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning).  The Board remanded the claims in May 2010 to afford the Veteran a new VA examination.  The resulting November 2010 VA examination report reflects that the examiner reviewed the claims file, interviewed and examined the Veteran, and provided etiological opinions regarding the claimed left shoulder and neck disabilities, which were supported by a rationale.  Thus, the November 2010 VA examination is adequate to evaluate these claims on appeal.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

Regarding the claim for service connection for bilateral hearing loss, the Veteran has been afforded numerous VA examinations, specifically, in February 2005, January 2007, February 2009, and November 2010, with additional medical opinions provided in February 2007 and March 2009.  As will be discussed below, the claim for service connection for bilateral hearing loss turns on whether or not the Veteran had bilateral hearing loss which existed prior to service, and whether or not that pre-existing hearing loss was aggravated (permanently worsened) during service.  The February 2005 VA examiner did not specifically address the etiology of the Veteran's claimed bilateral hearing loss.  The March 2009 opinion was based on an inaccurate factual premise, as the physician failed to consider the audiological test results recorded on the Veteran's August 1980 enlistment examination; therefore, this medical opinion is not probative.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise is not probative).  

The other medical opinions, dated in January and February 2007, February 2009, and November 2010, address the question of whether or not the Veteran's bilateral hearing loss existed prior to service and whether it was aggravated during service between August 1980 and December 1982.  The examiners indicated that they could not provide an opinion relating the Veteran's current bilateral hearing loss to service without resorting to mere speculation in the absence of in-service audiometric testing dated after December 1982.  

The Court has held that an examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation may be relied upon as long as well-supported by the facts and data of the case.  See Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010) (noting that the phrase, "without resort to mere speculation," must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence).  The examiners in this case provided a basis for their conclusions, noting the absence of in-service audiometric testing dated after December 1982.  Most recently, the November 2010 VA examiner stated that, without an audiogram performed during the final 10 months of the Veteran's service, he could not determine whether the pre-existing hearing loss underwent a worsening in service without resort to mere speculation.  The Veteran does not assert, nor does the record suggest, that the Veteran had an in-service audiogram after December 1982.  The November 2010 VA examiner also cited a report on noise exposure in the military for the premise that it is nearly impossible to determine whether hearing loss later in life is the result of noise exposure during prior military service where documentation of hearing loss at discharge from service is missing.  In light of this explanation for the examiner's conclusion, the November 2010 VA examination report is adequate.  Considered together, these VA examination reports are sufficient to address the claim for service connection for bilateral hearing loss.  See Barr, 21 Vet. App. 311; Stefl, 21 Vet. App. 124-25.  
   
The claims were most recently remanded in September 2011 to obtain outstanding SSA records and VA treatment records.  These records identified in the September 2011 remand have been associated with the claims file/e-folder.  There was substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

In one form completed for SSA, the Veteran reported that he first started receiving treatment at the Gainesville VA Medical Center (VAMC) in 2004; however, in another form, he reported that he first started receiving treatment at the Gainesville VAMC in 2005.  The earliest VA treatment records associated with the claims file are dated in March 2005.  It appears that the Veteran's reference to treatment prior to 2005 was in error.  Rather, a June 2006 VA internal medicine note indicates that the Veteran was new to "PC 4" and, while he had been seen at VA before, the physician referred to a May 2006 hospitalization for a gastrointestinal disorder.  Therefore, remand to attempt to obtain any earlier VA treatment records would impose unnecessary additional burdens on adjudication resources, with no benefit flowing to the Veteran, and is, thus, unnecessary.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).  

The Veteran's Virtual VA e-folder includes a May 2012 rating decision denying service connection for posttraumatic stress disorder (PTSD) and mood disorder, not otherwise specified.  The evidence considered in this rating decision consisted of the Veteran's service treatment records, VA treatment records dated from May 2006 through May 2012, a letter received in August 2010, an August 2010 VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD, an August 2010 application for compensation and pension, an October 2010 VCAA notice response, an October 2010 VA Form 21-4138, Statement in Support of Claim, and an April 2012 VA examination report.  

While several of this evidence, including the Veteran's service treatment records, VA treatment records, and the April 2012 VA examination report are available for the Board's review in the claims file/e-folder, several other pieces of evidence (specifically, the August 2010 letter, VA Form 21-0781, and application and the October 2010 VCAA notice response and VA Form 21-4138) are not currently available for the Board's review in either the paper claims file or the Virtual VA e-folder.  However, there is no indication that these documents pertain to the claims currently on appeal; rather, the May 2012 rating decision indicates that they pertain to the claims for service connection for PTSD and a mood disorder adjudicated in that decision.  Thus, remand to obtain any evidence referenced in the May 2012 rating decision which are not presently available for the Board's review in either the paper claims file or Virtual VA e-folder is not warranted.  See Soyini, supra.  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

During the Board hearing, the undersigned did not specifically discuss the criteria necessary to establish service connection for the claimed disabilities.  However, the Veterans Law Judge and the Veteran's representative did ask questions regarding the nature of the Veteran's in-service injuries affecting his left shoulder, neck, and hearing.  Both the Veterans Law Judge and the Veteran's representative also asked questions seeking to identify any pertinent evidence that was not associated with the claims file.  During the appeal, the Veteran has also volunteered the history of his treatment for the claimed disabilities.  Accordingly, the Veteran is not shown to be prejudiced in regard to any deficiencies in the May 2007 hearing.  Moreover, neither the Veteran nor his representative has alleged that there were any deficiencies in the Board hearing under section 3.103(c)(2).  See Bryant, 23 Vet. App. at 497-98. 

Significantly, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication that the Veteran had any additional information to submit.  In this case, given the extensive development of the Veteran's claims discussed above, the Board finds no deficiency in the Board hearing or in development of the claim.  See id. 

The Veteran has not identified any additional, relevant evidence that has not been requested or obtained.  The Veteran has been notified of the evidence and information necessary to substantiate his claims, and he has been notified of VA's efforts to assist him.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).  As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claims.

The Merits of the Claims

Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013).  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331, 1333 (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, 708 F.3d at 1339 (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 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. 

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 held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Walker, 708 F.3d at 1338.  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 the "nexus" requirement of the three-element test must be met. Id. at 1338-39.  

Sensorineural hearing loss is an organic disease of the nervous system under section 3.309(a) and arthritis is also listed in this section as a chronic disease; therefore, the provisions of subsection 3.303(b) for chronic disabilities apply.  Walker, 708 F.3d at 1338.  

Service connection can be granted for certain diseases, including arthritis and sensorineural hearing loss, if manifest to a degree of 10 percent or more within one year of separation from active service.  Such diseases shall be presumed to have been incurred in service even though there is no evidence of disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R.  §§ 3.307, 3.309.  

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

The Board must determine the value of all evidence submitted, including 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 if the evidence 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 must determine whether such evidence is also credible).  The third step of the inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

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.  Layno v. Brown, 6 Vet. App. 465 (1994).  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, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death).

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, 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, 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).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107.  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 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). 


Left Shoulder and Neck Disabilities

The Veteran asserts that he has left shoulder and neck disabilities which he alleges were caused by an in-service incident when he was thrown in a truck driving through rough terrain.  

In his December 2003 claim for service connection, the Veteran reported that he had broken ribs of the upper left chest which caused residuals of a stiff shoulder with neck pain.  He alleged that this disability began in 1982 while in Panama, noting that the incident happened while on temporary duty to Panama, although he was assigned to a Fort Campbell unit.  He added that Army doctors treated him for broken ribs in the upper left chest and said he also had shoulder/neck injuries.  He reported that these doctors had told him that "This will bother you later in life."  The Veteran stated that he was thrown from his seat in an Army vehicle while driving over rough terrain.  He added that his shoulder and neck problem still bothered him.  In a January 2004 statement, the Veteran reported that his 1982 vehicle accident happened at Fort Campbell, Kentucky.  In his October 2004 notice of disagreement (NOD), the Veteran stated that his injuries occurred in Panama, although he was stationed at Fort Campbell, Kentucky at the time.  

In a December 2004 statement, the Veteran alleged that he was injured in Panama in the summer/fall of 1983, when he fell from an Army truck and broke his 2nd and 3rd ribs.  He stated that he was treated by a field medic who thought it was just a bruise and first saw a doctor a few weeks later at Fort Campbell, Kentucky.  The Veteran added that he was then discharged a few weeks later.  

In November 2007, the Veteran reported that he was injured when he was thrown around a truck driving over rough terrain in Panama in approximately July 1982.  He reported suffering from a painful neck and left shoulder since that time.  

In his Report of Medical History at enlistment in August 1980, the Veteran denied swollen or painful joints; arthritis, rheumatism, or bursitis; a bone, joint, or other deformity; and a painful or "trick" shoulder.  On enlistment examination, clinical evaluation of the neck and upper extremities was normal.  

A July 1983 note reflects that the Veteran suffered trauma to the left side of his thoracic region white water skiing approximately four days earlier.  He reported being hit with a ski which was floating in the water.  The impression was trauma to the chest.  Another provider diagnosed the Veteran with a contusion.  The Veteran returned for follow-up the following week, with complaints of a lump on his chest which occurred while skiing.  He described sharp pains in the right upper chest, radiating to the sternum with use of his right arm.  There was swelling over the right anterior second and third ribs.  The physician noted that X-ray revealed fracture of both ribs, but the actual chest X-ray report states "no significant abnormalities."  The Veteran was given a sling to use as needed.  The Veteran was placed on a Physical Profile for right anterior fracture of the 2nd and 3rd ribs.  

In August 1983, the Veteran returned for further follow-up.  There was decreased adduction and abduction in the right arm.  The impression was status post rib fracture and mild muscle contracture secondary to slinging.  

In October 1983, the Veteran indicated that he did not desire a separation examination.  A physician signed under the following statement:  "Medical records for above named individual have been screened.  Service member's medical records indicate no medical problems that are not currently under treatment or previously evaluated."  The physician added that the Veteran did not have any permanent profiles, and PULHES scores of all 1s were assigned.  [The "PULHES" medical profile system is designed to reflect the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service).  The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition."  See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992).]

During VA treatment in October 2006, the Veteran reported that he had headaches, left shoulder pain and numbness, and pain in the left upper rib area.  However, on pain assessment, he described his pain level as 5 on a scale of 1 to 10 and reported that the location of his pain was "headache every day."  

During the May 2007 hearing, the Veteran again alleged that he was injured in Panama when he was sitting in the back of a truck which was driving over rough terrain when he was "slammed" to the other side of the truck, bruising "everything across my chest."  He added that his head hit the side of the truck and his ribs slammed against his chest.  The Veteran reported that, when he impacted the side of the truck, he felt pain going down his neck and into his arm, shoulders, and both sides of his chest.  He stated that, when he returned to the barracks, a medic told him it looked like he "might have some broke ribs" but that this medic did not have medical records to annotate.  He added that, when he returned to Fort Campbell, he was X-rayed and told he had broken ribs on the left.  The Veteran added that this incident occurred in July 1983.  He stated that he did not have any other treatment after this first visit; rather, he was given a sling to put his arm in and "that was it."  The Veteran described current pain in his neck and both shoulders, with his left shoulder worse than his right, but denied having treatment, stating that the Army doctor had told him that "basically I was gonna have to deal with it."  

VA treatment records dated from March 2005 to October 2012 include complaints regarding and treatment for the neck and left shoulder.  A May 2007 X-ray of the cervical spine revealed degenerative changes at C5-C6, but was otherwise unremarkable.  In June 2007, the Veteran presented to urgent care with complaints of pain in the left shoulder and chest following a fall.  The physician noted that X-rays were negative for fractures.  The assessment was status post fall with soft tissue injury.  A June 2007 X-ray of the left shoulder revealed no evidence of fracture or dislocation and joint space and soft tissue outlines were normal.  A June 2007 MRI of the cervical spine revealed bilateral neural foraminal narrowing at C5/6 (right greater than left).  MRI of the left shoulder revealed mild supraspinous tendinopathy and downsloping acromion with degenerative changes in the acromioclavicular (AC) joint.  The clinical history in the June 2007 left shoulder MRI report indicates that the Veteran had complaints of persistent neck pain since his motor vehicle accident 20 years earlier, with decreased range of motion.  It was noted that this neck pain did not radiate down to the shoulder.  

A September 2007 VA primary care initial intake note includes a notation that the Veteran had a motor vehicle accident in 1982 which caused his neck pain which caused headaches.  The pertinent impression was neck pain/headaches.  An October 2007 VA treatment record indicates that the Veteran was currently non-service connected, although he was in the process of changing his service-connected status due to neck and hearing issues which arose during military service.  Similarly, a record from VA hospitalization for complaints of chest pain in October 2007 indicates that the Veteran was currently non-service connected, although he was in the process of changing his service-connected status due to neck and hearing issues which arose during military service.  A nursing assessment from the following day indicates that the Veteran denied pain.  He again denied pain the next day, at which time there was also no joint swelling or tenderness and movement of all extremities was equal and strong.  A physical therapy consultation from this October 2007 VA hospitalization reflects a pain level of 0 out of 10, with range of motion within normal limits and strength 5/5.  

During a November 2007 VA cardiology consultation, the Veteran reported that he did "not have the previous arm pains anymore otherwise no pain."  A December 2007 discharge summary indicates that the Veteran had received treatment for chest pain, having presented with chest pain in the form of left shoulder pain which had been chronic.  He gave a history of intermittent left upper chest pain for about 20 years.  He denied trauma, but reported old rib fractures in that area of his chest.  A nursing assessment from this period of hospitalization reflects that movement of all extremities was equal and strong.  Regarding pain, the Veteran complained of headaches.  During an April 2008 VA cardiology consultation, the Veteran reported that he injured his left arm during service and had chronic pain with it; however, whenever he complained, it was always assumed that it was from his heart.  During treatment in April 2009, the Veteran described left neck and upper limb pain since an in-service injury.  

The Veteran underwent a VA orthopedic examination in June 2009.  The examiner stated that he had reviewed the service treatment records, but could not find a history of injury to the cervical spine during service.  The Veteran reported that he was in the back of a truck in the jungle in Panama and had an accident, which is when he injured his neck.  He reported current neck pain associated with lifting and raising his left shoulder above his neck.  The Veteran also described injuring his left shoulder in the truck.  

The examiner commented that the service treatment records documented an in-service skiing accident, but did not document a history of an in-service injury to the left shoulder.  The diagnoses following examination included residuals of cervical strain and residuals of right rib fracture, no residual deficit.  The examiner stated that he could not provide a diagnosis for the left shoulder as the Veteran would not allow him to examine the shoulder; however, from his clinical history, the examiner thought the diagnosis would be history of left shoulder contusion.  The examiner reviewed the June 2007 MRI of the cervical spine, and found that there were residuals of cervical strain and residuals of foraminal stenosis at C5-C6, but that while there was mild arthritis of the cervical spine, this was more likely than not related to age progression rather than injury to the cervical spine.  The examiner reiterated that the examination was incomplete because the Veteran would not allow him to examine him completely.  

In May 2010 SSA report, the Veteran stated that he had neck pain which radiated down his left arm. However, on examination during VA treatment in June 2010, the Veteran moved all extremities without difficulty.  

The Veteran had a VA spine examination in November 2010.  The examiner reviewed the claims file and commented that there was no evidence of a neck condition or left shoulder condition during service or for several years following.  The Veteran gave a history of injuring his neck, shoulder, and rib when he was thrown back and forth in a truck in Panama in 1982.  The Veteran was examined, but he would not allow passive range of motion to be checked.  

The examiner opined that range of motion testing of the neck yielded unreliable results.  The examiner reviewed the June 2007 MRI of the cervical spine, which noted that the Veteran had persistent complaints of neck pain since a motor vehicle accident 20 years earlier.  The diagnoses were cervical strain, degenerative joint disease (DJD) at C5-C6, and left ulnar neuropathy.  The examiner stated that he could not give a more precise diagnosis as there was no objective data to support a more definitive diagnosis.  The examiner opined that the Veteran's neck condition was not caused by or a result of military service.  He noted that based on review of the medical records, medical literature, and his clinical experience, there was absolutely no evidence of a neck problem in service or for many years following service; therefore, a nexus could not be made.  The examiner also found that the Veteran displayed poor effort during the examination.  

The Veteran also had a VA joints examination in November 2010, to evaluate his claimed left shoulder disability.  The examiner again noted review of the claims file and commented that there was no evidence of a neck condition or left shoulder condition during service or for several years following.  The Veteran gave a history of a left shoulder injury in 1982 when he was thrown down in the back of a truck.  The examiner performed range of motion testing, but noted that the Veteran displayed poor effort and, therefore, the examination yielded unreliable results.  The examiner noted that the Veteran would not even try to externally or internally rotate the left shoulder, and passive range of motion would not be allowed for any movements.  The examiner reviewed the June 2007 left shoulder MRI and X-ray.  The diagnosis was mild left shoulder DJD.  The examiner stated that a more precise diagnosis could not be given as there was no objective data to support a more definitive diagnosis.  The examiner opined that the Veteran's left shoulder condition was not caused by or a result of military service.  He noted that, based on review of the medical records, medical literature, and his clinical experience, there was absolutely no evidence of a left shoulder problem in service or for many years following separation from service.  Therefore, a nexus could not be made.  

An April 2011 evaluation by a private physician includes an impression of loss of range of motion of the left shoulder with no signs of muscle atrophy.  

In November 2011, the Veteran presented to the VAMC emergency room with a complaint of numbness and tingling in his left hand.  He gave a history of chronic neck pain due to a motor vehicle accident approximately 24 years earlier and a history of chronic left shoulder pain with a fractured clavicle and limited range of motion.  Left shoulder X-ray revealed mild AC separation and no displaced fracture.  Cervical spine X-ray revealed degenerative changes with no fracture or subluxation.  The impression was radiculopathy from chronic neck or shoulder, likely with ulnar involvement based on distribution.  On review of systems during VA treatment in December 2011, the Veteran denied joint pain, joint swelling, or weakness.  On examination, the Veteran moved all extremities.  

The preponderance of the evidence is against the claims and service connection for left shoulder and neck disabilities is not warranted. 

The May and June 2007 radiological studies reveal degenerative changes in the cervical spine and the left shoulder, respectively.  The June 2009 VA examiner diagnosed the Veteran with residuals of cervical strain, residuals of foraminal stenosis at C5-C6, and arthritis of the cervical spine.  The November 2010 VA examiner's diagnoses were mild left shoulder DJD, cervical strain, DJD at C5-C6, and left ulnar neuropathy.  Thus, the first element of each service connection claim is satisfied.  Hickson, 12 Vet. App. at 253.  

Service treatment records are negative for complaints regarding or treatment for the left shoulder or neck.  

The Veteran has repeatedly alleged that he injured his left shoulder and neck as a result of being thrown around a truck driving over rough terrain during service.  The Veteran is competent to report in-service injury from being thrown around a truck.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991).  However, in light of his inconsistent descriptions regarding this reported injury, the Board finds his reports of an in-service injury to the left shoulder and neck not to be credible.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service).

At times, the Veteran reported that his in-service injury to the left shoulder and neck occurred in 1982 (for example, in his December 2003 claim for service connection, in a January 2004 statement, and in a November 2007 statement).  At other times, the Veteran has reported that this injury occurred in 1983 (for example in a December 2004 statement and during the May 2007 hearing).  Further, while the Veteran has, on numerous occasions reported that this injury occurred while on temporary duty to Panama while assigned to a unit in Fort Campbell, he reported in the January 2004 statement that his 1982 vehicle accident happened at Fort Campbell, Kentucky.  

Despite the Veteran's reported history of his injury, the contemporaneous service treatment records document an injury to his chest in July 1983 when he was hit with a water ski.  Subsequent service treatment records show that he had sharp pain in the right upper chest with decreased range of motion in the right arm, which was treated with a sling.  There was also a finding of fractured ribs in conjunction with this incident of being hit with a water ski (contrary to the Veteran's reports of suffering broken ribs as a result of being thrown around a truck).    

The Veteran has repeatedly asserted that he was not involved in a water skiing accident, for example, as reflected in a June 2005 statement.  In that same statement, he also denied being injured on his right side.  He has suggested that the service treatment records referencing such an injury are not his.  However, the identifying information on the service treatment records regarding the July 1983 injury and subsequent treatment for the right chest and arm is that of the Veteran; specifically, his name, social security number, and military grade.  There is no evidence to suggest that VA does not have the Veteran's service treatment records.  Notably, the reported history of an injury as a result of being hit in the chest with a water ski is documented in the service treatment records on several different dates by several different health care providers.  

These contemporaneous service treatment records, documenting an injury incurred when the Veteran was hit in the chest with a water ski (as opposed to being thrown around a truck), with resulting difficulties in the right arm (as opposed to the left shoulder), are highly probative both as to the Veteran's subjective reports and their resulting objective findings.  They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than subsequently reported history).  

Accordingly, the Veteran's reports of in-service injuries to the left shoulder and neck are not credible.  

In light of the X-ray of evidence of degenerative changes in the cervical spine and left shoulder, as documented in May and June 2007, respectively, service connection based on chronicity or continuity of symptomatology is for consideration, as arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a).  The Veteran has reported left shoulder and neck pain since his claimed in-service injury; however, as his report of this in-service injury has been found not to be credible, his reports of shoulder and neck pain since such injury likewise cannot be credible.  Considering more generally his reports of left shoulder and neck pain since service (as opposed to his specific reported injury), these reports are contradicted by the evidence of record.  

For example, notes from the Veteran's VA hospitalization in October 2007 reflects that he denied pain on at least three occasions, and, a nursing assessment from one of these dates reveals no joint swelling or tenderness, with movement of all extremities equal and strong.  A physical therapy consultation from this period also reveals range of motion to be within normal limits and strength to be 5/5.  

Additionally, a November 2007 VA cardiology consultation shows that the Veteran denied previous arm pain as well as other pain.  Also of note, the Veteran was able to move all extremities without difficulty during VA treatment in June 2010.  Therefore, despite the reports of neck and left shoulder pain since service, in light of the medical records documenting the Veteran's denial of pain, the Board finds the reports of continuity of symptomatology of left shoulder and neck pain not to be credible.  See Madden, 125 F.3d at 1481; Caluza, 7 Vet. App. at 512.  Thus, service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) is not warranted. 

There is also no competent and probative evidence which otherwise relates the Veteran's current left shoulder and/or neck disabilities to service.  Rather, both the June 2009 and November 2010 VA medical opinions weigh against the claims for service connection.  While the June 2009 VA examiner did not provide an opinion regarding the claimed left shoulder disability, he opined that the Veteran's mild arthritis of the cervical spine was more likely related to age progression than injury to the cervical spine.  The November 2010 VA examiner opined that the Veteran's neck and left shoulder conditions were not caused by or a result of military service, 

The November 2010 VA examiner reviewed the claims file, noted the Veteran's reported history of an injury to the neck and shoulder during service, and examined the Veteran (to the extent allowed by the Veteran) prior to giving his opinions.  He also provided an explanation for his opinions, specifically, based on review of the medical records, medical literature, and his clinical experience, there was absolutely no evidence of neck or left shoulder problems in service or for many years following service; therefore, a nexus could not be made.  

The November 2010 VA examiner's opinion is highly probative regarding the question of the relationship between the Veteran's current left shoulder and neck disabilities and service.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).  See also Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).

The November 2010 VA examiner's opinions were based, at least in part, on the absence of left shoulder and neck problems in service or for many years following separation from service.  Where a Veteran has provided lay testimony of an in-service injury, unless the Board finds that the testimony is not credible, an examiner may not ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007).  While the Veteran has reported in-service injury to the left shoulder and neck during service, with left shoulder and neck pain since this injury, as discussed above, these reports of in-service injury and continuity of symptomatology have been found not to be credible.  The November 2010 VA examiner's opinion, based in part on the absence of a left shoulder or neck problem during or for several years after service is, therefore, adequate.

The November 2010 opinion is the most persuasive medical opinion that addresses the question of a nexus between current left shoulder and neck disabilities and service.  Regarding the claimed neck disability, this opinion is supported by the opinion of the June 2009 VA examiner, who attributed the Veteran's mild arthritis of the cervical spine to age progression rather than injury.  Thus, the competent, probative (persuasive) evidence on the question of whether a left shoulder and/or neck disability was incurred in or aggravated by service weighs against the claims for service connection.  

Although a September 2007 VA treatment records notes that the Veteran had a motor vehicle accident in 1982 which caused his neck pain and October 2007 VA records note that the Veteran was in the process of changing his service-connected status due to neck issues which arose during military service, review of these treatment records reflects that the healthcare providers were merely transcribing history provided by the Veteran.  The inclusion of the Veteran's reported history of a neck condition related to service does not therefore constitute competent evidence of the required nexus.  See Leshore v. Brown, 8 Vet App. 406, 409 (a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional).

Thus, the only competent, probative (persuasive) opinion on the question of whether the Veteran's current left shoulder and/or neck disabilities are related to service weighs against the claims for service connection.  The Veteran has not presented or identified any existing, contrary medical opinion that, in fact, supports the claims for service connection.

Additionally, there is no evidence of arthritis of the left shoulder or neck which manifested itself to a compensable degree within one year of the Veteran's separation from military service.  Arthritis is present to a degree of 10 percent only if there is X-ray evidence of that condition.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  Here, the first X-ray evidence of degenerative changes in the cervical spine and left shoulder is dated in May and June 2007, respectively.  Thus, service connection is not warranted on a presumptive basis.  See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

Accordingly, service connection for a left shoulder and/or neck disability is not warranted.  

Bilateral Hearing Loss

In his December 2003 claim for service connection, the Veteran reported that he had hearing loss which began in 1981.  He added that he had been a mortarman in service and, while earplugs were provided, he alleged that they were not sufficient to protect his hearing.  He stated that Army doctors had told him that he had hearing loss during an exit physical.  In a June 2005 statement, the Veteran denied having hearing loss prior to service.  

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established.  See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet.App. 231, 234 (2012); see also 38 U.S.C. § 1111 (presumption of sound condition).  In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service.  Wagner, 370 F3d. at 1345; Horn, 25 Vet.App. at 234; 38 U.S.C. § 1111.  "[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder." Wagner, 370 at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306.  In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation.  See Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption.  Horn, 25 Vet.App. at 234; 38 U.S.C. § 1153; 38 C.F.R. § 3.306.  To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease.  Horn, 25 Vet.App. at 235 n. 6; 38 U.S.C. § 1153.

To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report.  38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet.App. 238, 245 (1994).  History of pre-service existence of a disease does not constitute a notation of such condition.  See id. at 240 (holding that "asthma" was not noted where, although the Veteran checked a box indicating that he had a history of the disease, a clinical evaluation detected no abnormalities of the lungs).  However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided.  See Verdon v. Brown, 8 Vet.App. 529, 530 (1996). (holding that "bunions" were noted at induction examination where orthopedic examiner diagnosed "bunions," despite also stating "no problem [with] feet.").

Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b).  See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service).

VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition.  38 U.S.C.A. § 1153.  Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened.  Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991).

Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

In his Report of Medical History at enlistment in August 1980, the Veteran denied ear, nose, or throat trouble and hearing loss.  On enlistment examination, clinical evaluation of the ears revealed unilateral hearing loss, which was not considered disabling.  Audiometric testing on enlistment examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
10
45
35
LEFT
10
5
20
55
55

The examiner's summary of diagnoses and defects included unilateral high frequency hearing loss, not considered disabling.   A PULHES score of H2 was assigned.  

Interestingly, a graphical "Rudmose Audiogram" from the same date revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000

5
55
55
10
5

This graphical audiogram does not indicate whether it was the right or left ear which was tested.  

Audiometric testing in December 1982 revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
15
45
40
LEFT
10
5
25
60
55

The audiologist commented that the audiogram showed sensorineural hearing loss in both ears, beginning above 1000 Hertz for the left ear and above 2000 Hertz for the right ear.  The audiologist described the hearing loss as reaching "moderate levels" and spoke with the Veteran about the importance of ear protection.  The audiologist indicated that an H2 profile was appropriate.  

In October 1983, the Veteran indicated that he did not desire a separation examination.  A physician signed under the following statement:  "Medical records for above named individual have been screened.  Service member's medical records indicate no medical problems that are not currently under treatment or previously evaluated."  The physician added that the Veteran did not have any permanent profiles, and PULHES scores of all 1s were assigned.  

The Veteran underwent VA ear disease examination in February 2005.  He reported being exposed to significant loud noise during basic training and being in very close proximity to mortar explosions.  He described some hearing loss ever since.  The examiner reviewed the 1982 audiogram, and commented hat this showed moderate to moderately severe sensorineural hearing loss between the levels of 3000 and 6000 Hertz, with the left side being slightly worse than the right.  The pertinent impression was that the Veteran had hearing loss which was consistent with review of his 1982 audiogram.  The physician stated that it appeared the Veteran had some noise-induced trauma with decreased hearing between 3000 and 6000 Hertz.  The physician opined that the Veteran had tinnitus which was most likely caused by his in-service acoustic trauma, but he wanted to have a more recent audiogram to compare to see the change in hearing level as compared to the 1982 audiogram.  

In March 2005, the Veteran was seen in the VA audiology clinic.  He reported significant noise exposure during service.  Audiogram revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
30
55
65
60
LEFT
15
15
45
75
80

An August 2006 VA audiogram revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
30
50
55
65
LEFT
20
15
45
75
80

The Veteran was issued hearing aids in October 2006.  

The Veteran underwent VA audiological examination in January 2007.  The audiologist reviewed the claims file and stated that service treatment records revealed a moderate to mild to moderate hearing loss at 3000 to 6000 Hertz in the right ear and a moderate/severe hearing loss at 3000 to 6000 Hertz in the left ear in August 1980.  He added that there was left ear hearing loss at 3000 to 6000 Hertz in December 1982, but no records could be found from the Veteran's discharge from service.  The Veteran complained of difficulty understanding speech, especially women's voices and if people were not facing him, since exposure to a mortar blast in basic training around December 1980.  He gave a history of in-service noise exposure from mortar fire, and denied occupational or recreational noise exposure.  




Audiometric testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
55
60
70
LEFT
20
15
50
75
90

Speech recognition scores on the Maryland CNC Word List were 92 percent in the right ear and 96 percent in the left ear.  

The examiner stated that this testing indicated a moderate/severe to severe high frequency sensorineural hearing loss in the right ear and a moderate to profound mid and high frequency sensorineural hearing loss in the left ear.  The audiologist commented that, without audiometric records from when the Veteran was discharged from service in October 1983, he could not establish whether or not his hearing loss was related to his military noise exposure without resorting to mere speculation.  However, the audiologist noted that the Veteran reported that his hearing loss was due to noise exposure while in basic training around 1980 and his service treatment records indicated no change in his preexisting hearing loss as late as December 1982.  

In February 2007, the claims file was reviewed by a VA physician to obtain another medical opinion regarding the claimed bilateral hearing loss.  The physician noted that the February 2005 VA examiner did not specifically mention that he reviewed the August 1980 audiogram; therefore, it was not clear that his opinion was based on all available objective data, nor was it clear that he appreciated a pre-existing hearing loss as confirmed by the August 1980 audiogram.  The VA physician went on to opine that "It would be with resort to mere speculation to report the vet's bilateral hearing loss and tinnitus are the result of acoustic trauma during military service."  The physician explained that there was objective evidence of pre-existing hearing loss on the August 1980 audiogram that had not significantly changed as of December 1982.  She stated that there was no objective data to support aggravation of the Veteran's pre-existing hearing loss during active duty.  She added that, as an audiogram at the time of separation from service was not available for review, it would be with speculation to report that hearing loss as documented during the February 2005 and January 2007 VA examinations was the result of active duty and/or was the result of aggravation caused by active duty.  She concluded by stating that there was no objective data to support the Veteran's claim. 

During the May 2007 videoconference hearing, the Veteran described in-service noise exposure and testified that he first noticed hearing loss during basic training.  Later in May 2007, the Veteran submitted statements from his friends, indicating that he did not have hearing loss prior to service, but had problems hearing since returning from service.  He also submitted letters from his parents, in which they described the Veteran as having problems hearing since returning from service.  

In a November 2007 statement, the Veteran reported that he did not have hearing loss prior to service.  

The Veteran had another VA audiological examination in February 2009.  The audiologist reviewed the claims file and noted that the Veteran had hearing loss in the 3000 to 6000 Hertz range at enlistment in August 1980, moderate on the right and moderately severe on the left.  She commented that the December 1982 audiogram showed no significant change from the August 1980 audiogram.  She added that the next available audiogram was the March 2005 VA audiogram.  The Veteran gave a history of hearing loss since basic training, with in-service noise exposure from shooting mortar rounds and being otherwise exposed to mortars.  He denied occupational or recreational noise exposure.  Audiometric testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
20
60
60
760 [presumably an error]
LEFT
25
20
45
80
85

The diagnoses were moderately severe sensorineural hearing loss on the right and moderate sensorineural hearing loss on the left.  

The audiologist was asked to offer an opinion "as to the medical probabilities that any current hearing loss or tinnitus is attributable to the Veteran's military service."  She was also to "address the issue of preexisting hearing loss prior to military service, and to the etiology of the tinnitus."  The audiologist responded that she could not resolve the issue without resorting to mere speculation.  She provided an explanation, stating that the August 1980 enlistment examination showed high frequency hearing loss bilaterally, so his hearing loss did preexist military service.  She added that she could not determine the onset of the hearing loss, as there were no audiograms prior to August 1980.  The audiologist added that the last audiogram in the service treatment records, dated in December 1982, was completed approximately 10 months prior to the Veteran's separation from service, and showed no significant change from his enlistment audiogram; however, it was unknown as to whether the hearing loss worsened in the last 10 months of service.  She observed that the Veteran reported that his hearing loss began during basic training in 1980, but there was no significant change from 1980 to 1982, according to audiograms in the service treatment records.  

During VA treatment in March 2009, the Veteran alleged that a mortar exploded during basic training, damaging his hearing.  He added that he continued to be exposed to mortars for the rest of his service.  

In March 2009, the Chief of ear, nose, and throat (ENT) surgery at the Gainesville VAMC reviewed the claims file to provide an opinion regarding the claimed bilateral hearing loss.  The physician stated that there was a December 1982 audiogram showing a mid to high frequency hearing loss bilaterally, but there was no formal audiogram from prior to beginning his military service.  She noted that there was a "Rudmose Audiogram" from August 13, 1980.  She stated that this is a device where the patient performs the task without close supervision and only minimal coaching from a technician.  She stated that these audiogram tools were prone to error and observed that this 1980 audiogram did not specify whether it was testing the right ear, left ear, or both ears.  The physician reported that the "Rudmose Audiogram" revealed normal hearing at 250, 500, and 750 Hertz, moderate to moderately severe hearing loss with a threshold of 55 decibels at 1000, 1500, and 2000 Hertz, normal hearing again at 3000, 4000, and 5000 Hertz, and moderate hearing loss with a threshold of 45 decibels at 6000 Hertz, 35 decibels at 7000 Hertz, and 50 decibels at 8000 Hertz.  The physician opined that these results were not consistent with the 1982 audiogram, which showed a downsloping hearing loss in both ears, starting at 2000 Hertz, dropping sharply at 3000 and 4000 Hertz, with an upslope at 6000 and 8000 Hertz.  

The ENT physician stated that she "strongly suspect[ed]" a component of error in the 1980 "audiogram" as it would be very unusual for a hearing loss at 1000, 1500, and 2000 Hertz to spontaneously normalize two years later, and the 1980 "audiogram" showed no hearing loss at two of the frequencies most affected by hearing loss in the 1982 audiogram:  3000 and 4000 Hertz.  The ENT physician opined that the 1982 audiogram was very consistent with noise-induced inner ear trauma leading to hearing loss, which would lead to tinnitus, explaining that noise trauma typically caused a pattern identical to that seen in the 1982 audiogram.  She further commented that the asymmetry of the hearing loss could be easily explained by the difference in distance between an explosion and the right and left ears.  The physician stated that the 1982 audiogram was not consistent with congenital causes of hearing loss or hearing loss from other causes.  She added that the 2007 audiogram was consistent with the natural progression (worsening) of hearing thresholds over time in a person with inner ear trauma from previous noise exposure.  Therefore, the physician opined that it could not be concluded with clear and unmistakable certainty that the currently diagnosed hearing loss and tinnitus pre-existed the Veteran's entry into active military service in August 1980.  

The Veteran had another VA audiological examination in November 2010.  The audiologist reviewed the claims file and commented that the August 1980 enlistment examination revealed pre-existing high frequency hearing loss from 3000 to 6000 Hertz, mild to moderate in the right ear and moderately severe in the left ear.  He added that the December 1982 audiogram revealed bilateral sensorineural hearing loss from 3000 to 6000 Hertz with no significant threshold shift (no aggravation) from the August 1980 enlistment thresholds.  The audiologist indicated that he had been asked to provide an opinion as to the medical probabilities that any current hearing loss was attributable to the Veteran's military service, responding to the following specific questions:

a. On the basis of the clinical record and the known development characteristics of the diagnosed hearing loss, can it be concluded with clear and unmistakable certainty that any such currently diagnosed condition pre-existed the Veteran's entry into active military service in August 1980? The reviewer must discuss both of the August 1980 audiometric testing results, as well as all other in-service and post-service audiometric testing. 

b. If any current hearing loss clearly pre-existed military service, can it be concluded with clear and unmistakable certainty that the pre-existing condition did not undergo a worsening in service to a permanent degree beyond that which would be due to the natural progression of the condition? 

c. In all conclusions, the reviewer must identify and explain the medical basis or bases, with identification of the evidence of record. 

d. If the reviewer is unable to render an opinion without resort to speculation, this should be noted and explained. 

e. If the reviewer responds to the above inquiry that he or she cannot so opine without resort to speculation, the AMC/RO will attempt to clarify whether there is evidence that needs to be obtained in order to render the opinion non-speculative and to obtain such evidence.

The VA audiologist opined that he could not resolve the issue without resort to mere speculation.  He explained that as the Veteran's August 1980 enlistment examination documented high frequency hearing loss, it could be concluded with clear and unmistakable certainty that bilateral hearing loss pre-existed the Veteran's entry into active military service in August 1980.  He added that, a September 2005 Institute of Medicine Report on noise exposure in the military, "Noise and Military Service - Implications for Hearing Loss and Tinnitus" concluded that if documentation of the existence of hearing loss or tinnitus at discharge from the military was missing, it was nearly impossible to determine whether hearing loss or tinnitus later in life was the result of noise exposure during prior military service.  The audiologist stated that the last December 1982 audiogram revealed no significant threshold shift/aggravation of pre-existing hearing loss, but that no audiogram was performed during the last 10 months of the Veteran's service; therefore, he could not determine whether there was any aggravation/worsening of the pre-existing hearing loss during the last 10 months of service.  He concluded by opining that it could not be determined whether the Veteran's pre-existing hearing loss underwent a worsening in service without resort to mere speculation.  

VA treatment records reflect that, in June 2012, the Veteran was seen in the audiology clinic for a hearing evaluation.  He reported a gradual loss of hearing, worse in the left ear than the right.  Audiological testing revealed moderately severe to severe sensorineural hearing loss on the right and moderately severe to profound sensorineural hearing loss on the left.  The Veteran received new hearing aids in July 2012.  

In August 2012, the Veteran's VA audiologist, L.H., wrote that the Veteran had requested an opinion regarding the etiology of his hearing loss.  The Veteran alleged that during his peacetime service, he had been exposed to in-service noise from gunfire, grenades, anti-aircraft guns, mortars, helicopters, cargo planes, trucks, and other loud equipment.  He reported working as a mailman, and denied any occupational or recreational noise exposure.  L.H. reviewed the audiograms available in the Computerized Patient Record System (CPRS) as well as a letter from the RO, which stated that service connection was denied because the Veteran had a high frequency hearing loss at the time of induction and an audiogram 10 months prior to separation from service showed no significant threshold shift or aggravation of the pre-existing hearing loss.  

In regard to the matter of an in-service threshold shift or aggravation, L.H. stated, "Since the Veteran's service medical records are not available for me to review, I am unable to comment of that."  She continued, "However, one also has to consider the statement '... very unusual audio report of 1980 in certain frequencies.  Examiner states that it is most likely that your tinnitus was caused by noise exposure during service.'"  L.H. opined that, if the RO had conceded that the Veteran's military noise exposure caused his tinnitus it was also reasonable to conclude that the military noise exposure caused at least part of his current hearing loss.  In providing an explanation for this opinion, she noted that noise exposure can cause damage at a cellular level before becoming evident in an audiogram and, additionally, a separation audiogram was not available.  She also noted that the Veteran's current hearing loss was consistent with noise exposure and was significantly greater than normative data found for his age.  L.H. concluded by stating that, based on the Veteran's reports of no significant occupational or recreational noise exposure and the RO's finding that his tinnitus was directly related to service, his current hearing loss was at least as likely as not due to his military noise exposure.  

Considering the pertinent evidence of record in light of the law, the Board finds that the preponderance of the evidence is against the claim and service connection for bilateral hearing loss is not warranted. 

The record reflects that the Veteran has current bilateral hearing loss disability for VA purposes, as defined by 38 C.F.R. § 3.385.  Thus, the first element of the claim for service connection, a current disability, is satisfied.  

While the Board does not accord credibility to the Veteran's account of having been exposed to a mortar explosion during his peacetime service, the Veteran is competent to assert the occurrence of other in-service acoustic trauma. See 38 U.S.C.A. § 1154(a).    

Despite his reports that he did not have hearing loss prior to entry into service, the August 1980 enlistment examination reflects that bilateral hearing loss was noted at entry into service.  Audiometric testing performed in conjunction with the August 1980 enlistment examination revealed bilateral hearing loss as defined by 38 C.F.R. § 3.385.  The audiometric testing performed in conjunction with and recorded in the August 1980 enlistment examination report is more probative than the graphical "Rudmose Audiogram" from the same date, which does not indicate which ear was tested.  This conclusion is supported by the statement made by the ENT physician who provided the March 2009 opinion, that this type of testing is "prone to error" as well as her statement that she "strongly suspect[ed] a component of error in the 1980 'audiogram.'"  

The conclusion that the Veteran had bilateral hearing loss prior to enlistment into service is further supported by the February 2007 VA opinion, noting that the Veteran had a pre-existing hearing loss confirmed by the August 1980 audiogram, and the February 2009 VA examiner's opinion, that the August 1980 enlistment audiogram revealed hearing loss in the 3000 to 6000 Hertz range, bilaterally.  This February 2009 VA examiner clearly stated that the August 1980 enlistment examination showed high frequency hearing loss bilaterally, so the Veteran's hearing loss did preexist military service.  Most recently, the November 2010 VA examiner again commented that the August 1980 enlistment examination revealed pre-existing high frequency hearing loss.  Although this examiner stated that he could not respond to the questions posed by the Board in the May 2010 remand without resort to mere speculation, he clearly stated that, as the Veteran's August 1980 enlistment examination documented high frequency hearing loss, it could be concluded with clear and unmistakable certainty that bilateral hearing loss pre-existed the Veteran's entry into active military service in August 1980.  

Although the VA ENT physician who reviewed the claims file in March 2009 stated that there was no formal audiogram form prior to the Veteran's beginning military service, she failed to address the audiometric testing performed in conjunction with his August 1980 enlistment examination.  This opinion is not probative, as the physician failed to consider the results of audiometric testing included in the August 1980 enlistment examination report.  Instead, her opinion was based on the "Rudmose Audiogram."  See Reonal, 5 Vet. App. 461.

Thus, bilateral hearing loss was noted at the time of examination, entrance, and enrollment, and the presumption of soundness does not attach.  As the presumption of soundness does not apply, the evidence must establish that aggravation of the Veteran's bilateral hearing loss occurred during service.  Consequently, to the extent the Veteran seeks compensation for disability resulting from his bilateral hearing loss, the burden is on him to demonstrate an increase in disability during service, which would serve to establish the presumption of aggravation.  See Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); Horn, 25 Vet.App. at 235 n. 6.

Here, there is no competent and probative evidence to support the conclusion that the Veteran's pre-existing bilateral hearing loss was aggravated by service.  There was a slight increase in pure tone threshold levels at some levels in December 1982, as compared to the pure tone threshold levels found on audiometric testing on enlistment examination in August 1980.  For example, in regard to the right ear, the pure tone threshold level increased by 5 decibels at 2000 and 4000 Hertz.  In regard to the left ear, the pure tone threshold level increased by 5 decibels 2000 and 3000 Hertz.  However, the pure tone threshold level at 500 Hertz in the right ear decreased by 5 decibels.  In any event, the November 2010 VA examiner stated that the December 1982 audiogram revealed no significant threshold shift/aggravation of pre-existing hearing loss.  The November 2010 VA examiner also noted that no audiogram was performed during the last 10 months of the Veteran's service; therefore, he could not determine whether there was any aggravation/worsening of the pre-existing hearing loss during the last 10 months of service and concluded by opining that it could not be determined whether the Veteran's pre-existing hearing loss underwent a worsening in service without resort to mere speculation.  

The November 2010 VA examiner's opinion is clearly explained in this case, as he noted that without an audiogram performed during the final 10 months of the Veteran's service, he could not determine whether the pre-existing hearing loss underwent a worsening in service without resort to mere speculation.  The Veteran does not assert, nor does the record suggest, that the Veteran had an in-service audiogram after December 1982.  The November 2010 VA examiner also cited a report on noise exposure in the military for the premise that it is nearly impossible to determine whether hearing loss later in life is the result of noise exposure during prior military service where documentation of hearing loss at discharge from service is missing.  Therefore, this November 2010 opinion is adequate.  See Jones, 23 Vet. App. at 389-90.  

The opinion of the November 2010 VA examiner is also supported by the January 2007, February 2007, and February 2009 VA opinions.  Each of these examiners also determined that the Veteran's hearing loss was not aggravated/there was no significant change between August 1980 and December 1982, but, in the absence of in-service audiological testing dated after December 1982, an opinion relating his current hearing loss to service could not be made without resorting to speculation.  

The conclusion that the Veteran's pre-existing hearing loss was not aggravated in service is further supported by the fact that he was given an H2 profile on enlistment examination in August 1980, and the audiologist commented in December 1982 that an H2 profile was appropriate.  PULHES scores of all 1s were assigned by the physician who reviewed the Veteran's records prior to separation in October 1983.  

Although the VA ENT physician who provided the March 2009 opinion found that the 2007 audiogram was consistent with the natural progression (worsening) of hearing thresholds over time in a person with inner ear trauma from previous noise exposure, as stated above, her opinion was based on an inaccurate factual premise since she did not consider the August 1980 audiometric testing on enlistment examination noting bilateral hearing loss.  Therefore, this opinion is not probative regarding the question of in-service aggravation.  See Reonal, 5 Vet. App. 461.

The November 2010, February 2009, February 2007, and January 2007 opinions, that there was no aggravation/significant change in hearing between August 1980 and December 1982, are highly probative regarding the question of whether the Veteran's pre-existing hearing loss increased in severity during this portion of his service.  See Hayes, 5 Vet. App. 69-70; see also Guerrieri, 4 Vet. App. 470- 71.  These examiners formed their opinions after review of the claims file and the January 2007, February 2009, and November 2010 VA examiner also interviewed and examined the Veteran.  While these examiners indicated that they were unable to provide an opinion regarding whether the Veteran's current bilateral hearing loss is related to service without resorting to mere speculation, they provided a basis for this opinion, citing the absence of in-service audiometric testing after December 1982.  See Jones, supra.  

Although the Veteran's VA audiologist, L.H., wrote in August 2012 that, based on the Veteran's reports of no significant occupational or recreational noise exposure and the RO's finding that his tinnitus was directly related to service, his current hearing loss was at least as likely as not due to his military noise exposure, she did not review the Veteran's service treatment records in conjunction with forming her opinion.  A review of the claims file is not a mandatory prerequisite for providing an adequate opinion; however, the physician must be fully informed of the pertinent factual premises (i.e., medical history) of the case.  See Nieves-Rodriguez, 22 Vet. App. at 304.  The Board finds that claims file review, in particular, service treatment record review, is relevant in this case, where the claim turns on the question of whether the Veteran's bilateral hearing loss which pre-existed service was aggravated during service.  L.H. stated that she could not comment on this question, the very question for consideration in this case.  Therefore, the August 2012 opinion of L.H. does not support the claim for service connection based on aggravation.  

As here, when a Veteran has a disability that pre-exists service and is noted at entry into service, he can only seek service connection for aggravation of that disability, and the burden falls on the Veteran to establish aggravation.  In this case, the Veteran has failed to show that his bilateral hearing loss that was noted upon entry into service was aggravated by service.  Accordingly, service connection is not warranted.    

All Claims

In addition to the medical evidence, the Board has considered the Veteran's assertions that he has a left shoulder disability, a neck disability, and bilateral hearing loss related to service.  Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions, such as concerning a form of cancer.  See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (discussing this axiom in a claim for rheumatic fever); 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).

The Veteran does not have or claim to have any specialized knowledge in the field of medicine.  The Board therefore finds that the etiology of his claimed disabilities is beyond his competence.  Moreover, the question of etiology of these conditions is complex in nature. 

Therefore, to the extent he has asserted that he has a left shoulder disability, a neck disability, and bilateral hearing loss related to service, the Board finds such assertions to be of little probative value, as the Veteran is not competent to opine on these complex medical questions.  His contentions regarding etiology of his current left shoulder disability and neck disability are outweighed by the medical evidence of record, specifically the November 2010 VA examiner's opinions.  Further, he has failed to show that his bilateral hearing loss that was noted upon entry into service was aggravated by service.  

The preponderance of the evidence is against the claims and the appeal will be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

CONTINUED ON NEXT PAGE









ORDER

Service connection for a left shoulder disability is denied.  

Service connection for a neck disability is denied.  

Service connection for bilateral hearing loss is denied.  


____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs