Citation Nr: 1601103 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 12-22 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for gout in the left foot. 2. Entitlement to service connection for gout in the right foot. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for bilateral sensorineural hearing loss. 5. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Ivey-Crickenberger, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1976 and from May 1977 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran was afforded a Video Conference hearing before the undersigned Veterans Law Judge (VLJ) in October 2015. The hearing transcript is associated with the record. The appeal of entitlement to service connection for posttraumatic stress syndrome (PTSD) was not certified to the Board for its review. In view of that, and as the RO appears to be continuing to work that issue, it is not properly before the Board at this time. Accordingly, it is referred to the Agency of Original Jurisdiction for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. The Veteran's left foot gout and gouty arthritis did not manifest during service, did not manifest to a compensable degree within one year of service, and are not shown to be related to service. 2. The Veteran's right foot gout and gouty arthritis did not manifest during service, did not manifest to a compensable degree within one year of service, and are not shown to be related to service. 3. The Veteran's right knee condition did not occur as a result of service or coincident with service and is not secondary to the Veteran's service-connected left knee disability. 4. The Veteran's bilateral sensorineural hearing loss is not a result of service, did not occur coincident with service, and did not manifest to a compensable degree within one year of service. 5. The Veteran's bilateral tinnitus is not a result of service, did not occur coincident with service, and did not manifest to a compensable degree within one year of service. CONCLUSIONS OF LAW 1. The criteria for service connection for gout or gouty arthritis of the left foot have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). 2. The criteria for service connection for gout or gouty arthritis of the right foot have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). 3. The criteria for service connection for a right knee condition have not been met, to include as secondary to service-connected left knee condition. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 , 3.307, 3.309, 3.310 (2015). 4. The criteria for service connection for bilateral sensorineural hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2015). 5. The criteria for service connection for bilateral tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistant Act (VCAA), VA has duties to notify and assist the Veteran in developing his claim. The notice requirements of the VCAA provide that VA notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain on the Veteran's behalf. 38 C.F.R. § 3.159(b) (2015). These requirements were met through a June 2009 letter. The Board also finds that there has been compliance with VA's duty to assist. The record in this case includes service treatment records, VA treatment records, and several VA examination reports. The Board finds that the record as it stands includes adequate competent evidence to allow it to adjudicate the appeal, and no further action is necessary. See generally 38 C.F.R. § 3.159(c) (2015). The Veteran was afforded a pertinent VA audiology examination in June 2012. He was afforded VA knee examinations in October 2011, July 2012, and August 2013. In addition, the Veteran was afforded a VA examination for the gout in his feet in August 2013. Although the Veteran's representative has asserted that the Board has not met its duty to assist in regard to the right knee claim for failure to consider secondary service connection, the July 2012 VA examination report specifically discusses the issue of service connection for the right knee as secondary to his service-connected left knee. The Board finds that the VA examinations and related medical opinions are sufficient for adjudicatory purposes. The examination reports reflect that the examiners performed an examination of the Veteran, and the medical opinions are based upon review of the Veteran's claims file and are supported by a sufficient rationale. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. In October 2015, the Veteran was afforded a hearing before the undersigned VLJ in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the October 2015 Board hearing, the VLJ asked specific questions directed at identifying whether the Veteran met the criteria for service connection for his bilateral hearing loss, his bilateral tinnitus, his right knee, and for gout in each foot. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating the appeal. Principles of Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table decision). Additionally, service connection may be granted for a disability that is proximately due to or the result of a service-connected disability, which includes the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show: (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Certain chronic disabilities, such as hearing loss, tinnitus and arthritis (which could include gouty arthritis in certain circumstances), are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2015). Additionally, claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b) (2015). A decision of the U. S. Court of Appeals for the Federal Circuit clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), as an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a) (2015). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Weight of Evidence In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that the Board had an inherent fact-finding ability. Id. at 1076; see also 38 C.F.R. § 7104(a) (2015). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing, if relevant. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table decision). Facts and Analysis - Gout of the Left and Right Foot The Veteran contends that his gout was incurred in service. Numerous VA treatment notes reflect treatment for gout flares in the Veteran's feet since 1995, approximately 14 years after service. See, e.g., VA treatment notes dated April 1995, January 1997, April 2000, and July 2000. For purposes of service connection, the Veteran has satisfied the first element: a currently diagnosed disability. See August 2013 examination report. As far as in-service occurrence, the Veteran has two theories of entitlement. First, he asserts that his gout was caused by exposure to cold temperatures in service in Korea. Secondly, he asserts that he was treated for a left foot injury which he asserts was an early manifestation of gout. The Veteran has stated that this left foot injury kept him from walking for six to eight weeks sometime during the period from August 1979 to August 1980, and that the injury was diagnosed as a "stone bruise" by the medic on base. The Veteran asserted that he had to walk in a boot during service after this injury. See April 2012 Veteran Statement in Support of Claim. He has also stated that his left foot pain began between April and July 1980 and that the same symptoms appeared in his right foot soon after returning from Korea. Id. The Veteran's service treatment records (STRs) are silent for the complaints, findings, treatment, or diagnosis that he alleges regarding his left foot. There are no STRs reflecting the Veteran had trouble walking for six to eight weeks nor that he was prescribed a walking boot. There is a single STR dated May 1977 that indicates the Veteran reported left foot problems for approximately 10 months; the area between his toes was moist and he was diagnosed with tinea pedis (athlete's foot). There are numerous STRs during the period from August 1979 and August 1980 when the Veteran was in Korea and none of them reflect complaints or treatment for cold exposure or foot pain. The Veteran's entrance and separation examinations for both enlistments do not reflect any abnormality of the feet. Thus, there are no records supporting either the Veteran's theories of entitlement based on in-service injury or occurrence. Service connection for gout may be established on the basis that such disability has persisted since service or on a presumptive basis (for gouty arthritis as a chronic disease under 38 U.S.C.A. § 1112). The Veteran reports that he has complained of the same symptoms, now attributed to gout, continuously since service. While the Board has no reason to question that the Veteran may have a long history of foot complaints, gout is an insidious disease process that is incapable of lay observation. The diagnosis is based on clinical observation by medical professionals (and diagnostic studies, specifically elevated uric acid). The Veteran is a layperson (with no medical expertise alleged). Records do not reflect manifestation of gout to a compensable degree within one year of service. A VA treatment note from August 1994 reflects that the Veteran sought treatment for left ankle discomfort; the treatment note specifically states that the Veteran had no history of gout. The first VA treatment note that indicates a possible diagnosis of gout is dated April 1995 where the Veteran sought treatment for right foot pain but did not experience any trauma. VA treatment records on file dated from February 1988 to August 1994 reflect no foot or joint complaints and no treatment for gout. As such, a diagnosis of gout is not noted in clinical reports prior to 1995 Furthermore, there is no competent evidence that relates the Veteran's gout to his service. Regarding one of his theories of entitlement alleged, i.e., that the gout is related to cold injury in service, the Board notes that even if the Veteran was exposed to extreme cold in Korea and he declined treatment, there is no link between the Veteran's gout and his service/exposures to cold therein. There is no evidence of arthritic changes in the Veteran's feet until a February 2013 VA radiology report finding mild midfoot bilateral arthritic changes and moderate left first metatarsal-phalangeal joint arthritis. There is no evidence indicating the Veteran's arthritic changes are due to cold exposure or that arthritic changes due to exposure to cold constitute gouty arthritis. In regard to the Veteran's second theory of entitlement, i.e., that the Veteran's in-service injury to his left foot was actually gout, the Board notes that there is no evidence of the claimed in-service injury and there is no evidence that the claimed in-service injury was gout. The Veteran as a lay person is not competent to diagnose himself with gout after the fact. The only evidence that the Veteran had an in-service occurrence of gout is his own lay statements. The Veteran stated "I had a left foot injury that kept me from walking for 6-8 weeks [during service]. I was forced to walk in a boot prescribed by a medic on base. They diagnosed me with a 'stone bruise' but the symptoms are exactly what I feel today in both feet" which are attributed to gout. See April 2012 Veteran statement. The RO requested the Veteran's complete STRs and service personnel records and associated them with the Veteran's claims file. Numerous STR and service personnel records which encompass the both of the Veteran's enlistments are in the record, including numerous treatment notes from the Veteran's time in Korea. There are no STRs that reflect the Veteran had trouble walking for six to eight weeks during service. There are no treatment notes reflecting a foot injury, or diagnosis of a "stone bruise," use of a boot, or cold exposure; the only STR reflecting foot treatment note was for athlete's foot in 1977, prior to his tour in Korea. There are no line of duty determinations and no personnel records reflecting the Veteran was placed on light duty for an extended period of time. The first reference to diagnosis of a "stone bruise" is a VA treatment note dated December 2011 which reflects the Veteran's own statements regarding his medical history. The Veteran's April 2012 statement in support of his claim reasserts the "stone bruise" diagnosis but does not contain assertions regarding cold exposure. The first reference to cold exposure in Korea affecting his feet is the August 2013 VA examination report which indicates the Veteran reported episodes of frostbite but did not seek treatment. The earliest mention of cold exposure more generally is a July 2009 VA treatment note, which reflects the Veteran felt that the cold weather in Korea made his knee pain worse; there is no mention of frostbite prior to the August 2013 VA examination report. As noted above, there are numerous STRs from the period the Veteran served in Korea and none of them reflect treatment for cold exposure or the claimed left foot injury. The Veteran is competent to report that he has experienced consistent symptoms, which may be inferred from his statements; however, his lay statements lack credibility. Caluza v. Brown, 7 Vet. App. 498, 511- 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (discussing the factors to be considered in determining the weight to be assigned to evidence, including inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, and witness demeanor). Stated another way, any assertions of symptoms of gout existing from the time of service, while competent, lack credibility both because they are self-serving and because they have been inconsistent, including with other evidence of record. In addition, the Veteran filed a single claim for service connection for his left knee two days after separation from service in 1981. If he had been having problems with his feet at separation, he presumably would have filed a VA claim for disability compensation at the same time he filed for his left knee. Instead, his initial claim relating to gout was not filed until June 2009, 28 years later. He has not offered any explanation as to why he chose not to file a VA claim for gout until 2009. As far as etiology, there are two relevant medical opinions of record. A VA treatment note from January 1997 states that the Veteran's gout is likely of genetic etiology. The August 2013 VA examiner declined to connect the Veteran's currently diagnosed gout to service because there was no evidence of treatment for cold exposure during service. The Veteran's own assertions that his gout was incurred in service are not competent evidence; the etiology if gout is a complex medical question that requires medical knowledge/training. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In summary, the evidence does not show that the Veteran's gout is related to his service. Accordingly, the preponderance of the evidence is against this claim, and the appeal seeking service connection for bilateral gout of the feet must be denied. Facts and Analysis - Right Knee The Veteran asserts that his right knee disability should be service connected on a direct, presumptive, or secondary basis. He has a current diagnosis of mild osteoarthritis of his right knee. See July 2012 VA examination report. Thus, he satisfies the first element of service connection on either a direct or secondary basis, evidence of a current disability. As far as direct service connection, the second element is an in-service injury. The Veteran's service treatment records (STRs) are silent for the complaints, findings, treatment, or diagnoses related to his right knee. Although numerous VA treatment notes reflect that the Veteran reported injury to his right knee during service, which included locking and giving out, (see January 1997 VA treatment note), STRs attribute these symptoms to the left knee, (which is service connected for bursitis and degenerative changes). In the October 2015 Board hearing, the Veteran asserted that he injured his right knee at the same time he injured his service-connected left knee during service, sometime in 1980 or 1981 after he returned to Fort Bliss, Texas from Korea. There are numerous STRs reflecting treatment of the left knee but none of the right knee from this period. In the Board hearing, the Veteran asserted that the medic he saw on base was so concerned with his left knee, which seemed to be much worse at the time, that there was no annotation of the right knee injury in the record. The Board finds that the Veteran's credibility is lacking, as evidence has shown he is a poor historian. See analysis section above regarding gout. There are at least seven STRs reflecting treatment of the left knee at Fort Bliss from October 1980 to March 1981. None of these records reflect injury to either knee and nearly all of them specifically state no history of trauma or no direct injury to the left knee. An STR from December 1980 states that the left knee pain had insidious onset in October 1980. The only STR regarding knees from October 1980 reflects no history of injury. As there is no record of an in-service injury to the right knee, direct service connection is not warranted. However, even if the Board took the Veteran's assertion of in-service injury of the right knee as valid, there is no link between the Veteran's current mild osteoarthritis of the right knee and service. The only opinion regarding the etiology of the Veteran's right knee complaints is the VA examination report from December 2011 which indicates that the Veteran's right knee disability is likely due to gout. As such, direct service connection also must fail due to lack of nexus. Service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis if they manifest to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). In this case, the earliest record of medical treatment for the right knee is a September 1994 VA treatment note reflecting mild swelling, diagnosing a muscle strain, and prescribing ibuprofen and an Ace bandage. As there is no evidence that the Veteran's right knee osteoarthritis manifested to a compensable degree within one year of separation from service, service connection on a presumptive basis is not warranted. Secondary service connection may be granted when the record reflects: (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. 38 C.F.R. § 3.310. The Veteran asserts that his currently diagnosed mild osteoarthritis of the right knee is the proximate result of his service-connected mild osteoarthritis of the left knee. The first two elements needed to establish secondary service connection are thus established. Medical evidence is required to establish nexus in a secondary service connection case. The July 2012 VA examination report provides a negative nexus opinion, stating "The Veteran had no STR's of the right knee. The x-ray findings of the left knee are mild. His objective abnormalities of the left knee are minimal and would not affect the kinetic chain to the other side. He has significant magnification of limitation of range of motion that is not physiological." July 2012 VA examination report (emphasis added). The July 2012 VA examiner not only declined to provide a medical nexus for the Veteran's left and right knee problems, she implied the Veteran's assertions regarding his knee conditions were not reliable. As no nexus has been established, secondary service connection for the right knee is not warranted. In sum the Veteran is not entitlement to service connection for his right knee on a direct, presumptive, or secondary basis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. Facts and Analysis - Bilateral Hearing Loss & Tinnitus The Veteran asserts that he was exposed to acoustic trauma during his service as a radar technician and repairman and this acoustic trauma caused his hearing loss and tinnitus. Service connection for hearing loss is defined by regulation. Specifically, under 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, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Next, the Board acknowledges that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Moreover, to establish service connection for sensorineural hearing loss, the Veteran is not obligated to show that his hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). The Veteran's in-service audiometric testing conducted during an enlistment examination (August 1974), a separation examination (May 1976), reenlistment examination (February 1977), periodic examination (May 1978), periodic examination (August 1978), periodic examination (April 1979), periodic examination (January 1980), periodic examination (July 1980), and periodic examination (December 1980), do not reflect findings indicating hearing loss for VA purposes. Though there are some threshold shifts, each of the Veteran's audiograms reflect hearing within normal limits. A report of medical history from August 1980 reflects the Veteran denied ever having experienced hearing loss or any ear trouble. As noted above, the record reflects that when the Veteran submitted a prior claim, in May 1981, for a different disability, he did not seek service connection for hearing loss or tinnitus. In the October 2015 Board hearing, the Veteran testified that soldiers in his military occupational specialty routinely faked their audiology tests so that they would not be reassigned to another, less desirable, occupational specialty. In sum, the Veteran asserted that his in-service audiograms are not accurate. Without the benefit of the in-service audiograms, service connection for hearing loss may be established with evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 159. The Veteran also testified in the October 2015 Board hearing that he first experienced tinnitus in service when he was stationed in Fort Leonard Wood, Missouri. Service personnel records indicate that the Veteran was stationed there for boot camp at the beginning of his first enlistment in 1974 and approximately one week at the ending of his first enlistment in 1976. A June 2009 VA audiology treatment note reflects that initial test results indicated that the Veteran had moderately-severe hearing loss in his right ear and a profound hearing loss in his left ear. However, the provider was able to converse with the Veteran at a normal conversational level without difficulties and the provider re-tested the Veteran using different transducers and stimuli. The re-test results showed normal to near normal thresholds in the low and mid frequencies and hearing loss in the high frequencies. Word recognition scores were 100% in both ears. Re-testing also confirmed a non-organic overlay, defined by Dorland's Illustrated Medical Dictionary (32d ed. 2012) as "the emotionally determined increment [increase/addition] to an existing organic symptom or disability." The Veteran also reported that he used hearing protection during the military and that he was exposed to noise while doing construction work and using lawn equipment after service, for which he denied using hearing protection. In July 2009, the Veteran was afforded an audiology examination. The examiner diagnosed the Veteran with mild bilateral sensorineural hearing loss and idiopathic tinnitus. The July 2009 examiner did not provide any opinion, however, regarding the ideology of the Veteran's bilateral hearing loss or tinnitus. Audiometric testing during the examination revealed pure tone thresholds in decibels as follows: HERTZ CNC 500 1000 2000 3000 4000 % RIGHT 35 35 35 30 40 96% LEFT 35 35 35 30 35 96% The Veteran had a follow-up VA audiology consultation in August 2009, at which time the Veteran was informed that his hearing acuity had improved such that he was no longer a candidate for hearing aids. The treatment note reflects that the Veteran expressed frustration, stating his hearing fluctuated and seemed muffled at times. A VA otolaryngology report from April 2011 reflects that the Veteran again reported using noise protection in service, but he could hear noise through the ear protection. The provider stated that it was possible that the Veteran's hearing loss and tinnitus was due to his noise exposure during military service. The treatment note reflects no objective examination of the Veteran's ears, nose, or throat and contains no further rationale for the stated opinion. The Veteran was afforded another audiological examination in July 2012. The examiner diagnosed the Veteran with sensorineural hearing loss. Audiometric testing during this examination revealed pure tone thresholds in decibels as follows: HERTZ CNC 500 1000 2000 3000 4000 % RIGHT 20 25 30 40 45 96% LEFT 20 25 25 30 30 96% The examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service. She noted that the Veteran's entrance audiogram in February 1977 and last audiogram date August 1980 showed hearing acuity within normal limits across all frequencies bilaterally and there was no significant decrease in hearing acuity between the two audiograms. The examiner indicated the Veteran's tinnitus was a symptom of his hearing loss. The Veteran denied noise exposure outside of the military during the examination. As a preliminary matter, the Board finds that entitlement to presumptive service connection for hearing loss as a chronic condition under 38 C.F.R. § 3.309(a) is not shown by the evidence of record. The Veteran did not experience hearing loss during service or to a compensable degree during the first year after discharge from service. His audiogram scores in service showed hearing within normal limits, and the record reflects that he first reported experiencing hearing loss in June 2009 (around the same time the Veteran submitted his claim for these disabilities). The Board finds that entitlement to presumptive service connection for tinnitus as a chronic condition under 38 C.F.R. § 3.309(a) is not shown by the evidence of record either. Although the Veteran testified that he experienced the onset of tinnitus during service, he has otherwise been shown a poor historian. He denied hearing loss and ear trouble at separation from service, and the record reflects that he first reported experiencing tinnitus in June 2009 (around the same time the Veteran submitted his claim for these disabilities). As to direct service connection, the Board finds neither of the Veteran's claims to be supported by the evidence of record. The Board concedes that the Veteran is currently diagnosed with bilateral sensorineural hearing loss and tinnitus, and that he may have been exposed to noise in service. However, the Board finds that the July 2012 VA examiner's report, which declined to relate either hearing loss or tinnitus to service, is entitled to greater evidentiary weight than the Veteran's own assertion of in-service causation. Moreover, the Veteran has provided inconsistent statements to medical providers regarding his post-service noise exposure. Compare June 2009 VA audiology treatment note acknowledging post-service noise exposure without hearing protection to July 2012 VA examination report denying post-service noise exposure. Also, the June 2009 VA audiologist confirmed a non-organic overlay (i.e., emotional exaggeration of symptoms). Furthermore, given the silence in the service treatment records, the failure to mention his hearing loss and tinnitus in his earlier, May 1981 claim submitted to VA, and the absence of any such complaints in the post-service treatment records until June 2009, the Board determines that the Veteran's report that his tinnitus onset occurred in service is not credible, and thus should be afforded no probative weight. By contrast, the July 2012 examiner's medical opinion is probative and also consistent with the evidence of record, which reflects that the Veteran denied having experienced any ear trouble on separation from service, and first reported hearing loss and tinnitus in 2009, approximately 28 years after service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (holding that service connection may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The only contradictory evidence of record is a statement in a April 2011 VA treatment note from a non-audiologist, that the Veteran's hearing loss and tinnitus could possibly be related to noise exposure in service. This opinion is merely speculative and the provider did not review the Veteran's claims file. Moreover, there is no evidence that the provider conducted an objective examination at all and there is no rationale to support the opinion. The April 2011 opinion is thus afforded no probative value. Furthermore, neither the Veteran nor his representative submitted medical evidence contradicting the July 2012 VA examiner's opinion. In summary, the Board determines that the Veteran's report of a nexus between in-service noise exposure and his current hearing loss and tinnitus is not competent, and his specific assertion of his tinnitus onset in service is not credible. Because the only probative medical opinion of record failed to link the Veteran's current hearing loss or tinnitus to service, the evidence weighs against the claims for service connection. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As a result, the Veteran's claims must be denied. ORDER Service connection for gout in the left foot is denied. Service connection for gout in the right foot is denied. Service connection for a right knee disability is denied. Service connection for bilateral sensorineural hearing loss is denied. Service connection for tinnitus is denied. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs