Citation Nr: 1340652 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 08-26 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for chronic respiratory infections. 3. Entitlement to service connection for chronic bronchitis and residuals. 4. Entitlement to service connection for right ankle arthritis. 5. Entitlement to service connection for left ankle arthritis. 6. Entitlement to service connection for spondylolisthesis L5-S1, status post lumbar fusion (claimed as chronic back condition). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1968. In addition, the record shows the Veteran served in the Reserves and National Guard. The National Guard duty includes service in the U.S. Army Reserve from 1968 to 1981 and again in the U.S. Army Reserve from 1982 to 1987. The Board also notes that he had service in the Louisiana National Guard from 1981 to 1982, where he was discharged under other than honorable conditions. This appeal arises before the Board of Veterans' Appeals (Board) from rating decisions rendered in September 2007 and February 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In a January 2012 decision, the Board remanded these issues for additional development. A review of the Veteran's Virtual VA claims file shows that it contains only evidence that is already associated with the paper folder. FINDINGS OF FACT 1. A bilateral hearing loss disability was not shown during service or for many years thereafter, and the weight of the probative evidence is against a finding that a current bilateral hearing loss disability is related to active military service. 2. The competent evidence shows that the Veteran's chronic respiratory infections, which first manifested several years after his service separation, is not shown to be etiologically related to or aggravated by service connected disability, or active military service. 3. The competent evidence shows that the Veteran's chronic bronchitis and residuals, which first manifested several years after his service separation, is not shown to be etiologically related to or aggravated by service connected disability, or active military service. 4. The competent evidence shows that the Veteran's right ankle arthritis was not manifest in service, was not manifest within one year of separation and is not shown to be etiologically related to or aggravated by service connected disability, or active military service. 5. The competent evidence shows that the Veteran's left ankle arthritis was not manifest in service, was not manifest within one year of separation and is not shown to be etiologically related to or aggravated by service connected disability, or active military service. 6. The competent evidence shows that the Veteran's spondylolisthesis L5-S1, status post lumbar fusion (claimed as chronic back condition) was not manifest in service, was not manifest within one year of separation and is not shown to be etiologically related to or aggravated by service connected disability, or active military service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by the Veteran's active military service, and it may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 2. A chronic respiratory infections disability was not incurred or aggravated during service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2013). 3. A chronic bronchitis and residuals disability was not incurred or aggravated during service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3.310 (2013). 4. Right ankle arthritis was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 5. Left ankle arthritis was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 6. Spondylolisthesis L5-S1, status post lumbar fusion (claimed as chronic back condition) was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided notice to the Veteran in a February 2012 letter that explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuance of the February 2012 letter, and opportunity for the Veteran to respond, the October 2012 supplemental statement of the case (SSOC) reflects readjudication of the claims. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the reports of September 2009, January 2010, February 2012 and March 2012 VA examinations. The September 2009, January 2010, February 2012 and March 2012 VA examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. As such, the Board finds that the September 2009, January 2010, February 2012 and March 2012 VA examinations are sufficient upon which to base a decision with regard to these claims. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, in January 2012, the Board remanded the case for further development which included instructing the RO to obtain the Veteran's complete service personnel records, to include reserve and National Guard personnel records including point capture sheets, and to obtain additional service treatment records including, specifically, hospital records for the treatment at U.S. Army Hospital, at Fort Richardson, Alaska and/or U.S. Air Force Hospital at Elmendorf and any other hospital treatment the Veteran may identify. In May 2012, the Appeals Management Center (AMC) found that there were no additional treatment records from the U.S. Army Hospital, at Fort Richardson, Alaska and/or U.S. Air Force Hospital at Elmendorf. See 38 C.F.R. § 3.159(c) (2). However, in April 2012, the AMC was provided with additional service treatment and personnel records from the Louisiana National Guard which are now associated with the claims file. Despite the addition of these records, the Board notes that the Veteran's service and personnel records are not complete. In a case in which a claimant's complete service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). Under these circumstances, the Board finds that VA has fulfilled its duty to attempt to obtain the Veteran's records, and that no further action in this regard is required. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the appellant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) [the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases]. In light of the above, the Board finds that the RO and AMC substantially complied with the January 2012 remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Based on the foregoing, VA has sufficiently satisfied its duties to inform and assist the Veteran in the development of his claims, and he is not prejudiced by the Board considering the merits of the claim in this decision. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran. The Board finds that no additional RO action to further develop the record on the claims is warranted. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Law and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be established for a disability resulting from (1) a disease or injury incurred in or aggravated by active duty or ACDUTRA, or (2) an injury incurred in inactive duty training. See 38 U.S.C.A. §§ 101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.1, 3.6 (2013); see also Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden prong for certain chronic disabilities such as arthritis and organic diseases of the nervous system is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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"). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U. S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The presumption provision applies only to periods of active duty, not ACDUTRA or INACDUTRA. See Biggins, supra; see also Paulson v. Brown, 7 Vet. App. 466, 469-70 (1995) [if claim relates to period of ACDUTRA, a disease or injury resulting in disability must have manifested itself during that period]. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service-connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen with language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As will be shown below, the Veteran has provided his opinions that his claimed disabilities are related to service. In many instances, a layperson is competent to provide opinions regarding diagnosis and etiology. Jandreau, supra. However, in each case discussed herein, the Board finds that the opinions of medical professionals are more probative than the Veteran's general lay assertions. These individuals have medical training, experience, and education that the Veteran is not shown or alleged to have. As such, their opinions are more probative than the Veteran's. A. Bilateral Hearing Loss Laws and Regulations For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. Additionally, it is noted that 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). Factual Background and Analysis Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). However, the December 1965 induction hearing evaluation discussed below appears to have been conducted using the ASA standards. Therefore, in order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards. For ISO conversion, the Board added (+15) (+10) (+10) (+10) (+5). The Veteran's service treatment records are negative for treatments or complaints related to hearing loss. Audiometric testing at the Veteran's entrance examination in December 1965 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 10 10 10 5 LEFT 30 20 10 10 15 Audiometric testing at the Veteran's separation examination in October 1968 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 / 5 LEFT 0 0 0 / 0 Audiometric testing at the Veteran's entrance examination for his Reserves duty in March 1979 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 5 LEFT 20 15 5 10 10 The Veteran underwent a VA examination in January 2010. The Veteran presented with complaints of hearing loss over the past 2 to 3 years. He served in the Army as a Light Weapons Specialist and reported noise exposure from multiple weapons while training on the firing ranges. He also reported noise exposure to tanks, mortars and grenades while training troops for Vietnam. He stated that hearing protection was utilized. As a civilian, he had worked in a prison corrections facility for 24 years with very limited noise exposure. He did work at a textile plant for 3 years with some industrial noise exposure. Audiometric testing in January 2010 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 45 60 60 LEFT 25 35 55 65 75 Speech audiometry revealed speech recognition ability of 60 percent in the right ear and of 60 percent in the left ear. The diagnosis was sensorineural hearing loss with intermittent tinnitus. The examiner opined that the Veteran's hearing loss was not caused by or a result of military noise exposure. He noted that the Veteran's December 1965 enlistment examination showed normal, bilateral hearing as did his October 1968 separation examination. A March 1979 audiometric test from the Army Reserves also showed normal bilateral hearing. The evidence showed that the Veteran separated from the Army with normal hearing and that 11 years after his discharge from active duty, his hearing was still normal in both ears. There was no evidence found in the records to suggest that the Veteran's hearing was damaged while he served in the Army. Therefore, the examiner concluded that the Veteran's current bilateral hearing loss was not caused by or a result of military noise exposure. In an April 2010 letter from the Cookesville Hearing Center, the treating audiologist noted that the Veteran presented with a history of unprotected noise exposure while in the military for approximately 14 years. He also reported a recent decrease in hearing over the last 6 months. Audiometric testing revealed a mild, sloping to severe asymmetric sensorineural hearing loss. The physician indicated that "solely based upon today's results and patient report," it was likely that his history of military involvement without the use of noise protection devices had contributed somewhat to his hearing loss. The Veteran underwent a VA examination in February 2012. The examiner opined that the Veteran's hearing loss was less likely than not to have originated during active service or within the first service year. The examiner noted that the Veteran's hearing examination at the time of his enlistment in December 1965 showed normal, bilateral hearing. His second hearing test upon separation in October 1968 also documented normal, bilateral hearing. On his Report of Medical History, the Veteran provided a negative response for the question of whether he experienced hearing loss. The examiner also noted that when the results of the entrance examination were compared with that of the separation examination, no change in hearing was shown to have occurred during the Veteran's active duty service. The examiner reported that a third hearing examination conducted 11 years later in March 1979, also documented normal, bilateral hearing. The examiner also noted the favorable reports provided by private physicians and how the favorable opinions were both "solely based upon today's results and the patient's report." The examiner noted that neither clinician had the benefit of reviewing the Veteran's service records and that both stated in their reports that "the exact cause of the identified hearing loss cannot be determined." The examiner indicated that research studies have shown that hazardous noise exposure had an immediate effect on hearing and it was usually temporary at first. It did not have a delayed onset nor is it progressive or cumulative. The medical evidence strongly indicated that the Veteran's current hearing loss did not originate while on active duty or within a year of discharge. The examiner opined that the current hearing loss was less likely a result of any incident in active service or active duty for training or any injury sustained during inactive duty for training. T he Veteran's records indicate that he served in the Reserves from March 1976 to February 1987 and that complete service treatment records from his National Guard and Reserve service were unavailable for review. The single Reserve physical in March 1979 documented normal, bilateral hearing and there was no medical evidence found with the claims file that suggested the Veteran sustained any damage to his auditory system during active duty training. There was also no evidence that suggested that the Veteran sustained damage to the auditory system during inactive duty training as a review of the claims file did not reveal any indication that the Veteran claimed injury while serving in the National Guard or Reserves. The first evidence of hearing loss was found on the audiological examination in January 2010. There were multiple causes for sensorineural hearing loss and in most cases an exact etiology cannot be determined. Auditory damage from acoustic trauma occurred instantly and at the 2010 VA examination the Veteran reported noticing difficulty with his hearing over the past "2 to 3 years." Given the amount of time that passed between the Veteran's military service and documentation of hearing loss, as well as the absence of evidence indicating that some degree of hearing loss was present at active or inactive duty discharge, it was difficult to establish a causal relationship between the current hearing loss and the military noise exposure. The examiner opined that it was less likely than not that the Veteran's current hearing loss was the result of any service-connected disability, to include aggravation (increase in severity beyond the natural progression of the disorder) of a nonservice-connected condition by a service-connected condition. The medical evidence did not support the conclusion that the Veteran's hearing loss was a result of or was aggravated by his service-connected diabetes mellitus. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a bilateral hearing loss disability is not warranted. The record shows that the Veteran currently has a bilateral hearing loss disability for VA compensation purposes. The first element of medical evidence of a current disability is accordingly met. With respect to the second element of an in-service disease or injury, the Board will separately discuss disease and injury. A review of the service treatment records, including the examination report at service discharge, does not reveal diagnoses or complaints of hearing loss. Notably, the October 1968 separation examination actually demonstrated slight improvement when compared with the results of the December 1965 entrance examination. Additionally, the March 1979 audiological examination for the Veteran's Reserves duty also did not demonstrate a diagnosis or complaints of hearing loss. Thus, a hearing loss disability as defined by 38 C.F.R. § 3.385 was not shown in service and there is also no evidence in the service records of hearing loss within the one year presumptive period after service. See 38 C.F.R. §§ 3.307, 3.309(a) (2013). Accordingly, Shedden element (2) is not met with respect to disease. Turning to in-service injury, the Board notes that the Veteran has asserted that he sustained acoustic trauma during service. In particular, he has cited to a history of noise exposure from multiple weapons while training on the firing ranges as well as experiencing noise exposure from tanks, mortars and grenades while training troops for Vietnam. In this regard, the Board notes that the Veteran's service records confirm that he was a Light Weapons Infantryman, which corroborates his assertions as to exposure to noise. Furthermore, the Veteran is competent to give evidence about what he experienced, and acoustic trauma and tinnitus are subject to lay observation. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Therefore, the Board finds that the Veteran was exposed to hazardous noise during service and Shedden element (2) is satisfied. With respect to crucial Shedden element (3), nexus, the question presented, i.e., the relationship, if any, between the Veteran's current bilateral hearing loss, and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As noted above, with regard to the Veteran's lay statements, the Board finds that they are less probative than the opinions provided by trained medical professionals. The Board notes that there are conflicting medical opinions of record addressing the possibility of such a relationship between the Veteran's current bilateral hearing loss disability and service. As noted above, in an April 2010 letter, a private audiologist indicated that "solely based upon today's results and patient report," it was likely that his history of military involvement without the use of noise protection devices had contributed somewhat to the Veteran's hearing loss. Conversely, the January 2010 and February 2012 VA examiners found that the Veteran's current bilateral hearing loss disability was less likely than not a result of his military service. The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this instance, the Board finds that the February 2012 VA examiner's opinion to be the most probative. While the April 2010 opinion of the private audiologist indicated that the Veteran's in-service noise exposure contributed somewhat to his current hearing loss, the Board notes that the basis for this conclusion is the unsubstantiated history given by the Veteran as the Veteran's claims file was not reviewed, and the audiologist appears to have interpreted the Veteran's military history inaccurately. Specifically, he noted that the Veteran reported a fourteen-year history of noise exposure in service. However, the Veteran's records reveal only three year of active duty with additional years of ACDUTRA and/or INACDUTRA. The private audiologist did not account for or discuss that many of the years of noise exposure reported by the Veteran would have been limited to only those days during the year that he was participating in reserve service. Therefore, as the private audiologist indicated that his conclusion was based solely on the results of the examination and the report of the Veteran, a history that is inaccurate, his opinion is afforded little probative value. Conversely, the February 2012 VA examiner indicated that he reviewed the claims file which included the Veteran's audiometric evaluations during his entrance and separation from active duty and for his Reserve duty in March 1979. Additionally, the Board notes that unlike the February 2012 VA examiner, the April 2010 letter of the private audiologist did not address the timing of the Veteran's hearing loss disability and the great number of years where the record is silent as to hearing loss complaints or findings of a hearing loss disability since service. In contrast, the February 2012 VA examiner provided an unequivocal and detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran's claims file and an examination of the Veteran, when concluding that the Veteran's claimed bilateral hearing loss disability was not related to the Veteran's active service, active duty for training, or inactive duty for training and that it was not a result of or was aggravated by his service-connected diabetes. Significantly, the February 2012 VA examiner addressed the timing of the Veteran's hearing loss as he noted that the Veteran's hearing thresholds were within normal limits at the time of his entrance examination, separation examination and March 1979 examination for the Reserves. The examiner also noted that, based on medical research, damage from acoustic trauma occurs instantly and the first evidence of diagnosed hearing loss occurred at the VA examination in January 2010 where the Veteran reported noticing difficulty with his hearing over the past "2 to 3 years." The examiner also specifically addressed the findings of the April 2010 private audiologist when noting that the private clinician did not have the benefit of reviewing the Veteran's service records and that the clinician stated in his report that "the exact cause of the identified hearing loss cannot be determined." The examiner also noted that hazardous noise exposure did not have a delayed onset nor was it progressive or cumulative. For these reasons the Board finds the January 2012 VA examiner's assessment to be the most probative. As to the provisions of 38 C.F.R. § 3.303(b) , discussed above, relating to chronicity and continuity of symptomatology, the Board notes that the Veteran's bilateral hearing loss disability is sensorineural in nature and is therefore a disease of the nervous system. Thus, the Board will consider whether service connection based on a continuity of symptomatology is warranted. However, the Veteran's hearing loss is not "noted" in the service records. Therefore, regardless of whether the Veteran asserts that his hearing loss has existed since separation from service, his claim cannot succeed under the provisions of 38 C.F.R. § 3.303(b). Overall, the Board considers the February 2012 VA examination report to be the most probative evidence of record. As this report weighs heavily against the Veteran's claim for service connection for bilateral hearing loss, that claim must be denied. In reaching the determination, the Board has considered the doctrine of reasonable doubt but finds it inapplicable because the preponderance of the evidence is against the Veteran's claim. B. Chronic Respiratory Infections and Chronic Bronchitis and Residuals As the factual backgrounds and analyses of these issues are similar, the Board will address the issues of service connection for chronic respiratory infections and service connection for chronic bronchitis and residuals together. The Veteran's service treatment records demonstrate that the Veteran presented with complaints of a cold, fever and severe cough in April 1966. A chest x-ray was negative. The diagnosis was an upper respiratory infection with complaints of bronchitis. The Veteran's October 1966 separation examination was negative for complaints, treatments or diagnoses related to a respiratory or bronchitis disability. In July 2008 the Veteran was treated at Clinton County Hospital with a diagnosis of pneumonia. The Veteran underwent a VA examination in September 2009. The examiner noted that there was evidence that the Veteran was treated for bronchitis while in service on a single occasion and that it was associated with an upper respiratory infection. At the time he was treated with cold medication and no antibiotics were prescribed. He reported that he annually got "bronchitis" with seasonal changes. There were no primary care records available to document annual or chronic lung infections. The Veteran was hospitalized approximately a year ago and visited a pulmonologist where he underwent a bronchoscopy. A pulmonary nodule was biopsied but was negative. The Veteran had recovered from the pneumonia and was currently symptom free. He had never been on treatment for lung disease and denied all but a minimal amount of smoking in the remote past. A chest x-ray and a pulmonary function test were normal. The diagnosis was bronchitis with no current diagnosis and pneumonia with no current diagnosis. The examiner noted that seasonal bronchitis was often associated with seasonal allergies but there was no reported history of seasonal allergies. The examiner opined that the Veteran's current lung condition was not caused by or a result of the Veteran's in-service episode of upper respiratory infection with bronchitis. While the Veteran may experience recurrent upper respiratory conditions seasonally, there was no evidence from the available records that he had chronic or even recurrent bronchitis. Pneumonia occurred in the general population and does not corroborate chronic bronchitis in this individual as chronic bronchitis involves ongoing treatment and was usually detectable through x-ray and pulmonary testing. Chronic bronchitis was not a diagnosis given by a pulmonologist who performed a bronchoscopy. There was no evidence from the current information that the Veteran currently suffered from chronic bronchitis or any condition which was temporarily connected to the single episode of bronchitis noted in the service treatment records. In a November 2009 letter, a private physician noted that the Veteran's respiratory conditions "could be related to his service". However, the physician noted that he did not have any of the Veteran's medical records. According to the Veteran, his first episodes of bronchitis started while he was in the service and it "could be related to his activity in the service." The Veteran underwent a VA examination in March 2012. The examiner noted that the Veteran previously had a diagnosis of pneumonia in 2008 which had resolved. The Veteran reported that he was treated in 1966 for bronchitis as he was spitting up blood at the time. He stated that he did well for a while but had periodic episodes of bronchitis since that time. The episodes typically involved cough, congestion and occasional blood-tinged sputum. He occasionally needed antibiotics but otherwise was not on any medication for breathing. There was no wheezing or chronic cough. There seemed to be dyspnea on exertion only. The Veteran was unaware of any chronic lung diagnoses such as chronic obstructive pulmonary disease (COPD) or emphysema. The examiner indicated that the diagnosis of the Veteran's current lung condition was unclear. Critical information from his private providers was missing from the claims file. For example his private physician had repeatedly indicated a diagnosis of COPD but evidence in the claims file does not support this diagnosis as there is no evidence of airway obstruction and two pulmonary function tests are negative for COPD. The diagnosis of pneumonia was also based upon physician reports in the claims file. Since the Veteran had acute pulmonary findings, with necrosis of the lung in the presence of a known thrombogenic disease (polycythemia), one must presume that test to rule out the possibility of pulmonary embolus were done but these could not be located in the claims file. The examiner noted that the Veteran was seen for cough and sputum production in 1966 where a diagnosis of upper respiratory infection with bronchitis was provided. There were no other respiratory conditions identified in the claims file within one year of separation of service. In general, upper respiratory infections with bronchitis were simple, self-limiting conditions with no sequelae. The Veteran's current pulmonary diagnosis was unclear. A diagnosis of pneumonia was rendered based upon physician reports and supported to a certain level of confidence by other findings. A review of the private records also indicate entries of COPD, walking pneumonia, bronchitis and one entry for an upper respiratory infection. The diagnosis of COPD was in doubt as pulmonary function tests did not support this diagnosis. Diagnoses of upper respiratory infections and bronchitis were considered transitory infections of little consequence. The diagnoses of pneumonia and walking pneumonia (if true) also referred to single episodes which were not likely to persist. A current respiratory condition was therefore not identified. The examiner concluded that the Veteran's respiratory condition appeared less likely as not related to service, was not identified within one year after service and did not appear to be the result of any other service-connected disability to include aggravation. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a chronic respiratory infection disability and chronic bronchitis and residuals are not warranted. The Board initially notes that there is a question as to whether the Veteran has a current respiratory disability. The September 2009 VA examiner specifically diagnosed the Veteran with bronchitis with no current diagnosis and pneumonia with no current diagnosis while the March 2012 VA examiner indicated that the diagnosis of the Veteran's current lung condition was unclear and that a current respiratory condition was therefore not identified. The claims file also contains evidence of a previous diagnosis of pneumonia in 2008 and a general diagnosis of a "respiratory condition" as identified by the private physician. Accordingly, when affording the Veteran the benefit of the doubt the Board finds that the Veteran has a current respiratory disability and the first element of service connection is satisfied. However, the evidence must establish not only the existence of a disability, but also an etiological connection between military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). In this regard, the Board notes that even if the Veteran was found to have a current diagnosed respiratory disability, the claim must still be denied as the most probative evidence is against a relationship between a current respiratory disability and the Veteran's service. The Board notes that there are conflicting medical opinions of record addressing the possibility of such a relationship between the Veteran's current respiratory disability and service. As noted above, the November 2009 private physician indicated that the Veteran's respiratory conditions "could be related to his service." Conversely, the March 2012 VA examiner specifically found that that the Veteran's respiratory condition appeared less likely as not related to service, was not identified within one year after service and did not appear to be the result of any other service-connected disability to include aggravation. Again, the Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owen; supra. Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson; supra. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar, supra. In this instance, the Board finds that the March 2012 VA examiner's opinion to be the most probative. Regarding the private physician's November 2009 opinion which indicated that the Veteran's respiratory conditions "could be related to his service", the Board notes that an examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature and of little probative value. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). Additionally, while the November 2009 letter related the Veteran's respiratory disability to service, no rationale was provided for this opinion, the physician did not provide any specific evidentiary or medical basis for the opinion and he admittedly noted that he did not have any of the Veteran's medical records. The Board notes that, in assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In contrast, the March 2012 VA examiner provided an unequivocal and detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran's claims file and an examination of the Veteran, when concluding that the Veteran's claimed respiratory disability was not related to the Veteran's service. Significantly, the examiner noted that the Veteran's in-service episode of an upper respiratory infection with bronchitis was likely transitory as generally, "upper respiratory infections with bronchitis were simple, self-limiting conditions with no sequelae" and diagnoses of upper respiratory infections and bronchitis were considered transitory infections of little consequence. Unlike the March 2012 VA examiner, the November 2009 private physician did not address the transitory nature of the Veteran's claimed respiratory condition and also did not discuss the normal pulmonary function test readings throughout the claims file. For these reasons the Board finds the March 2012 VA examiner's assessment to be the most probative. Given that the most probative opinion is against a finding of a relationship between a respiratory disability and service, the Board finds that service connection is not warranted. C. Left and Right Ankles and Back Disabilities As the Veteran's claims for service connection for a left ankle, right ankle and back disability have similar factual backgrounds and analyses, they will be addressed together. The Veteran's service treatment records reveal that in January 1968 the Veteran injured his left ankle while skiing. The Veteran was placed on light duty for 2 days with a left ankle sprain. The Veteran's October 1966 separation examination was negative for complaints, treatments or diagnoses related to a left or right ankle disability. His service treatment records are negative for complaints, treatments or diagnoses related to a back disability. An August 2004 neurosurgical consultation noted that the Veteran had a diagnosis of spondylolisthesis of L5-S1. Subsequently in August 2004, the Veteran underwent a decompressive lumbar laminectomy with partial facetectomy and foraminotomies, disc excision and interbody fusion with internal fixation and lateral mass fusion. A June 2009 VA treatment record noted that the Veteran had ankle pain. The Veteran underwent a VA examination in September 2009. The examiner noted that the Veteran injured his ankle in service while skiing in January 1968. There was no further mention of an ankle condition until he came for an initial primary care visit in July 2009 and informed the provider that he had bilateral ankle pain. X-rays demonstrated mild osteoarthritis and calcaneal spurs of the bilateral ankles. The diagnosis was bilateral degenerative joint disease. The examiner opined that it was less likely than not that the Veteran's current ankle conditions were related to his left ankle sprain noted in his service treatment records. The examiner noted that there were no records to document that the Veteran had an ongoing ankle condition following the ankle sprain noted in the service treatment records. There was x-ray evidence of old trauma to the right ankle. There were no complaints or findings of an ankle condition at the time of the separation physical examination. There were no records to indicate any ankle conditions until the Veteran reported the in-service injury in July 2009. There was no available nexus to connect any current ankle condition to the condition noted while in the military service. In a November 2009 letter, a private physician noted that the Veteran had bilateral ankle arthritis and degenerative disc disease status post lumbar fusion that "could be related to his service." However, the physician noted that he did not have any of the Veteran's medical records. According to the Veteran, he had some injuries to his ankles in service. In March 2012, the Veteran underwent a VA examination. Regarding his ankle disabilities, the examiner noted that the Veteran had an in-service left ankle sprain which resolved. The Veteran reported that he injured his right ankle in service and continued to have instability in his ankle. The examiner noted that a review of the record reveals that in January 1968 the Veteran injured his left ankle while skiing. There were no other mentions of an ankle injury in service or of an ankle condition within one year of separation from service. The evidence was insufficient to support a level of severity in excess of a very mild left ankle sprain while in service as such injuries generally resolve without sequelae. The examiner indicated that the findings on the Veteran's x-rays were compatible with simple degenerative changes and appear to bear no relationship to the original injury. The examiner also determined that there was no plausible relationship between the Veteran's service-connected diabetes and his ankle conditions. Regarding the Veteran's back disability, the examiner noted that the Veteran had a diagnosis of degenerative disc disease of the lumbosacral spine, post-surgery, without radiculopathy. The Veteran reported that he developed back pain in service which he related to carrying heavy gear. He noted that he had been seeing doctors for about 20-25 years for his back. The examiner indicated that it was less likely than not that the Veteran's back disability was incurred in or caused by a claimed in-service injury, event or illness. There was no evidence of a back condition either in service or within one year of separation from service. In the absence of signs, symptoms, test results and final diagnoses, a relationship of the Veteran's current back condition to service is not possible to establish. The examiner concluded that the Veteran's bilateral ankle condition and low back disabilities were less likely than not related to service, was not identified within one year after service and did not appear to be the result of any other service-connected disability to include aggravation. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a left and right ankle disability and a low back disability is not warranted. There is a current diagnosis of degenerative joint disease of the bilateral ankles and degenerative disc disease of the lumbosacral spine, post-surgery, without radiculopathy; hence, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer; supra; D'Amico; supra; Hibbard; supra. Initially, as noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such diseases are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In this instance however, service connection for arthritis on a presumptive basis is not warranted as the first evidence of arthritis of the lumbar spine is the August 2004 neurological consultation report and the first evidence of arthritis of the right and left ankle is the September 2009 x-ray reports. The record does not show characteristic manifestations of arthritis within one year of the Veteran's service separation. Accordingly, service connection for arthritis on a presumptive basis is not warranted for either his bilateral ankle disability or his low back disability. With regard to service connection on a direct basis for the Veteran's bilateral ankle and low back disabilities, the Board notes that the Veteran's service treatment records are negative for complaints or treatments related to a back disability. However, the service treatment records do demonstrate that the Veteran sprained his left ankle in January 1968 while skiing. The service treatment records, however, were negative for any symptoms or diagnoses of any chronic ankle disability as the left ankle complaints were medically addressed in service, and appear to have been of an acute and transitory nature. Significantly, the Veteran was only placed on light duty for 2 days after the injury and the Veteran's October 1968 separation examination was negative for treatments, complaints or diagnoses related to a left ankle disability. While the Veteran had an in-service left ankle injury, there are no clinical findings or diagnoses of lumbar back or bilateral ankle disabilities until many years after service. The first post-service evidence of a lumbar spine disability was the August 2004 neurological consultation report and the first post-service evidence of a bilateral ankle disability was the June 2009 VA treatment record which noted that the Veteran had ankle pain. To the extent that the Veteran is asserting a continuity of symptomatology since service, the Board does not find the Veteran to be credible with regard to any assertions that he has had symptoms of these disabilities since service. While the Veteran contends that he had back and ankle complaints that progressed in severity since service, his separation examination report is negative for any treatment, complaint, or diagnosis pertinent to the low back or bilateral ankles. Additionally, while the Veteran claimed that he had been treated for his back for the past 20 to 25 years, the record does not contain evidence of this reported treatment. Regarding his ankle, the Board also notes that while the Veteran at his March 2012 VA examination claimed that he injured his right ankle in service which had resulted in continual symptoms, the record, including a previous VA examination, demonstrates that the Veteran actually injured his left ankle in service. Accordingly, the documented medical history is in conflict with the Veteran's more current assertions that his current symptoms have continued since service. As the Veteran was not diagnosed with a low back and bilateral ankle disability until many years after service and there was a significant period between his service injury and his post-service complaints where the medical record was silent for complaints of a back or bilateral ankle disability, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson; supra. Having found that there is no credible evidence of a continuity of symptomatology since service, the Board notes that the relationship between his bilateral ankle and low back disabilities and service will turn on the conflicting medical opinions of record addressing the possibility of such a relationship. As noted above, in a November 2009 letter, a private physician indicated that the Veteran had bilateral ankle arthritis and degenerative disc disease status post lumbar fusion that "could be related to his service." Conversely, the March 2012 VA examiner specifically found that the Veteran's current low back and bilateral ankle disabilities were less likely than not a result of his military service. The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens; supra. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri; supra. Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson; supra. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar; supra. In this instance, the Board finds that the March 2012 VA examiner's opinion to be the most probative. Regarding the November 2009 letter of the private physician which indicated that the Veteran had bilateral ankle arthritis and degenerative disc disease status post lumbar fusion that "could be related to his service," the Board notes that an examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature and of little probative value. See Bostain; supra; quoting Obert; supra (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren; supra (a doctor's statement framed in terms such as "could have been" is not probative). Additionally, while the November 2009 letter related the Veteran's bilateral ankle and low back disabilities to service, no rationale was provided for this opinion and the physician did not provide any specific evidentiary or medical basis for the opinion. Significantly, the treating physician also noted that the Veteran's records were not available for him to review. In contrast, the March 2012 VA examiner provided an unequivocal and detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran's claims file and an examination of the Veteran, when concluding that the Veteran's bilateral ankle condition and low back disabilities were less likely than not related to service, were not identified within one year after service and did not appear to be the result of any other service-connected disability to include aggravation. For these reasons the Board finds the March 2012 VA examiner's assessment to be the most probative. Given that the most probative opinion is against a finding of a relationship between a bilateral ankle and low back disability and service, the Board finds that service connection is not warranted. ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for chronic respiratory infections is denied. Entitlement to service connection for chronic bronchitis and residuals is denied. Entitlement to service connection for right ankle arthritis is denied. Entitlement to service connection for left ankle arthritis is denied. Entitlement to service connection for spondylolisthesis L5-S1, status post lumbar fusion (claimed as chronic back condition) is denied. ____________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs