Citation Nr: 1603323 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 10-31 971A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a compensable evaluation for the bilateral hearing loss disability. 2. Entitlement to service connection for a lumbar spine disability with right and left lower extremity radiculopathy. 3. Entitlement to service connection for a left ankle disability. 4. Entitlement to service connection for a right eye disability. 5. Entitlement to service connection for erectile dysfunction. 6. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity. 7. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity. 8. Entitlement to service connection for hypertension. 9. Entitlement to service connection for headaches. 10. Entitlement to service connection for a right ankle disability. 11. Entitlement to service connection for torn stomach muscles. 12. Entitlement to service connection for an acquired psychiatric disorder. 13. Entitlement to service connection for a right knee disability. 14. Entitlement to service connection for a right middle finger disability. 15. Entitlement to service connection for a left knee disability. 16. Entitlement to service connection for residuals of a rib injury. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to April 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2009, March 2010, and February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, the Veteran testified at a videoconference hearing held at the RO before the undersigned. A transcript of the hearing is associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system. FINDINGS OF FACT 1. At worst, the Veteran's hearing acuity was level II in the left ear and level II in the right ear during the appeal period. 2. A chronic lumbar spine disability was not manifested during active service, is not related to active service, and arthritis was not manifested within one year from the date of separation from service. 3. A chronic left ankle disability was not manifested during active service, is not related to active service, and arthritis was not manifested within one year from the date of separation from service. 4. At the July 2015 Board hearing, the Veteran withdrew his appeals pertaining to the claims for service connection for a right eye disability, erectile dysfunction, carpal tunnel syndrome of the right upper extremity, carpal tunnel syndrome of the left upper extremity, hypertension, headaches, a right ankle disability, torn stomach muscles, an acquired psychiatric disorder, a right knee disability, a right middle finger disability, a left knee disability, and residuals of a rib injury. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2015). 2. A lumbar spine disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). 3. A left ankle disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). 4. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for a right eye disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 5. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for erectile dysfunction have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 6. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for carpal tunnel syndrome of the right upper extremity have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 7. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for carpal tunnel syndrome of the left upper extremity have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 8. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for hypertension have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 9. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for headaches have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 10. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for a right ankle disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 11. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for torn stomach muscles have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 12. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 13. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for a right knee disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 14. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for a right middle finger disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 15. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for a left knee disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 16. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for residuals of a rib injury have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The VCAA applies to the instant claims for entitlement to service connection for a lumbar spine disability and a left ankle disability, and entitlement to a compensable evaluation for the bilateral hearing loss disability. The claim for a higher rating arises from the Veteran's disagreement with the initial rating assigned in connection with the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-7 (2007); VAOPGCPREC 8-2003 (2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Regarding the claims for service connection, the RO provided pre-adjudication VCAA notice by a letter dated in April 2009 for the Veteran's back disability and in October 2011 pertaining to the left ankle disability. The Veteran was notified of the evidence needed to substantiate the claims for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and effective dates of the claims. VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. Service treatment records (STRs), post-service treatment records, Social Security Administration (SSA) records, and lay statements have been associated with the record. In July 2015, the Veteran testified at a Board hearing. The Veteran has not identified any prejudice in the conduct of the hearing, and the record reflects that the undersigned VLJ clarified the issues on appeal, elicited testimony on the elements necessary to substantiate the appeal, and sought to identify any further necessary development to substantiate the claims. These actions satisfied the duties a VLJ has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See 38 C.F.R. § 3.103(c)(2). The Veteran was afforded VA examinations in February 2010, June 2010, July 2011, November 2011, and August 2013. As the examinations included reviews of the pertinent medical history, clinical findings, and diagnoses, and were supported by medical rationale, the Board finds that the examinations are adequate to for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, the Veteran has not reported that his bilateral hearing loss disability has worsened since his last examination nor does the evidence show that the bilateral hearing loss disability underwent a material change to require a re-examination under 38 C.F.R. § 3.327 (2015). As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. II. Increased Evaluation A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). As will be discussed, the bilateral hearing loss disability has not significantly changed and will result in a uniform rating for the entire appeal period. Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Under the applicable criteria disability ratings are determined by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See 38 C.F.R. § 4.85. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level V and the poorer ear has a numeric designation Level VII, the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies of: 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a), (b). In a March 2010 rating decision, the Veteran was granted service connection for his bilateral hearing loss disability and assigned a noncompensable evaluation effective October 31, 2008. The audiograms of record during the appeal period do not support findings that would warrant more than the assigned zero percent (noncompensable) rating under Diagnostic Code 6100. 38 C.F.R. §§ 4.85, 4.86. The Veteran was afforded a VA examination in February 2010, at which time his puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 20 40 15 21.25 LEFT 5 20 45 45 28.75 The Maryland CNC controlled speech discrimination test revealed speech recognition of 94 percent in the right ear and 94 percent in the left ear. From Table VI of 38 C.F.R. § 4.85, Roman Numeral I is derived for the right ear and Roman Numeral I for the left ear when intersecting the percent of speech discrimination row with the puretone threshold average column. A zero percent evaluation is derived from Table VII by intersecting row I, the left ear, with column I, the right ear. The Veteran was another provided a VA examination in November 2011, which revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 20 30 20 20 LEFT 10 20 45 45 30 The Maryland CNC controlled speech discrimination test revealed speech recognition of 90 percent in the right ear and 94 percent in the left ear. From Table VI of 38 C.F.R. § 4.85, Roman Numeral II is derived for the right ear and Roman Numeral I for the left ear when intersecting the percent of speech discrimination row with the puretone threshold average column. A zero percent evaluation is derived from Table VII by intersecting row I, the left ear, with column II, the right ear. The Veteran's was last afforded a VA examination in August 2013, which revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 5 15 35 15 18 LEFT 15 10 40 35 25 The Maryland CNC controlled speech discrimination test revealed speech recognition of 96 percent in the right ear and 88 percent in the left ear. From Table VI of 38 C.F.R. § 4.85, Roman Numeral I is derived for the right ear and Roman Numeral II for the left ear when intersecting the percent of speech discrimination row with the puretone threshold average column. A zero percent evaluation is derived from Table VII by intersecting row I, the right ear, with column II, the left ear. Moreover, the VA examinations do not demonstrate an exceptional pattern of hearing, as the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz, or a puretone threshold of 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2,000 Hertz. Additionally, there is no examiner certification that the use of speech discrimination testing was not appropriate due to factors such as language difficulties, inconsistent scores, etc. As such, there is no basis to alternatively rate this claim under Table VIA. See 38 C.F.R. § 4.85(c). Thus, all of the VA examinations of record have resulted in findings corresponding to a noncompensable evaluation. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. The Board acknowledges that there is an August 2013 private audiogram of record. This audiogram is inadequate for rating purposes as it did not include controlled speech discrimination testing. 38 C.F.R. § 4.85(a) provides that an examination for hearing impairment for VA purposes "must include a controlled speech discrimination test (Maryland CNC)." As this regulation requires Maryland CNC discrimination tests, the Board will not consider the audiometric results contained in the treatment records in its analysis. The Board notes that this is not a case in which clarification of the audiological reports is required. Rather, the reports reflect that they did not comply with 38 C.F.R. § 4.85(a). After a careful review of the evidence of record, both subjective and objective, the Board finds that based on the reports during the period of the appeal, the Veteran's hearing tests are against findings that would warrant more than the assigned noncompensable rating under Diagnostic Code 6100. See 38 C.F.R. §§ 4.85, 4.86. The Veteran's subjective reports of difficulty hearing have been considered. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. This criteria measures hearing acuity directly in a controlled laboratory environment. In this regard, VA audiometric examinations showed no basis for any increase in disability evaluation. The application of the rating schedule to the numeric designations assigned based on the VA audiological examination reports demonstrate that the appropriate rating for the bilateral hearing loss disability is a noncompensable one throughout the appeal period. See 38 C.F.R. § 4.85. The Veteran did not meet the criteria for a compensable rating during any discrete period involved in this appeal. Additionally, the Board has considered whether a referral for an extraschedular rating is warranted. See Thun v. Peake, 572 F. 3d 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.321(b)(1). Here, the rating criteria describe the Veteran's disability level and symptomatology pertaining to his service-connected bilateral hearing loss disability. The Board is of the opinion that the rating schedule measures and contemplates each aspect of the Veteran's hearing loss disability. As explained in the proposed rule for the current version of Diagnostic Code 6100, the criteria of Diagnostic Code 6100 were revised in 1987 with the goal of recognizing the impact of hearing loss in higher frequencies, and to provide a more accurate picture of true hearing impairment. See 52 Fed. Reg. 17607 (May 11, 1987). As a result, VA changed its testing methods and, in conjunction with the Department of Medicine and Surgery, developed amendments to 38 C.F.R. §§ 4.85, 4.86a, 4.87a and Tables VI and VII. In particular, puretone averaging was to be accomplished using tone bursts at 1000, 2000, 3000 and 4000 Hertz, and speech recognition was to be measured using the Maryland CNC word lists which contained words with sounds in the 3000 and 4000 Hertz range. Overall, the schedule was intended to evaluate hearing loss based on a combination of puretone averages and speech discrimination, which was thought to provide for a more accurate representation of actual hearing impairment by recognizing that individuals with slight to moderate decibel loss as determined by puretone averaging may have significant impairment of speech and vice versa. Additionally, the rating schedule was revised to accommodate language difficulties and other factors which produced inconsistent speech audiometry scores and to recognize exceptional patterns of hearing impairment. Notably, VA determined that "Table VII was developed during months of consultations with our Department of Medicine and represents the best judgment of experts in this field." Based upon the stated factors and considerations undertaken by VA and medical experts in developing the current criteria of Diagnostic Code 6100, the Board finds that the schedular rating currently assigned reasonably describes the Veteran's disability level and symptomatology. The Veteran's description of difficulty hearing has been measured according to puretone averages and speech discrimination. Moreover, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual condition fails to capture all the service-connected disabilities experienced. However, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple service-connected conditions. Thus, no basis for referring the case for an extraschedular consideration is presented in this case. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the Board must deny the claim. See U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Service Connection The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 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; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). A. Lumbar Spine The Veteran testified that he injured his back while he was in boot camp. He stated that he was ordered to fall on his back onto a concrete floor by his drill instructor, which caused him to injure his back. The Veteran's August 1974 entrance examination showed the spine as normal and the corresponding report of medical history denied any back problems. In a February 1976 Annual Certificate of Physical Condition, the Veteran denied having any physical defects which would restrict him from performance on active duty. He also denied having an injury or illness within the past 12 months that required hospitalization or caused him to be absent from work or school for more than 3 consecutive days. The Veteran was seen in August 1975 after pulling a muscle in his back while bathing. There were no muscle spasms and slight tenderness was noted below the left scapula. The Veteran's spine was normal at his December 1976 annual examination. In December 1978, the Veteran was recommended for administrative discharge from the Marines Corps Reserve "under other than honorable conditions by reason of misconduct premised upon an established pattern of shirking." In a January 1980 VA Medical Certificate and History, the Veteran claimed that he injured his back in November 1979. A February 1980 radiographic report showed that the vertebral heights and disc spaces were normal. There was no fracture or dislocation. In March 2009, J. T. and A. D. wrote separate statements indicating that the Veteran injured his back between October and November 1974 when he was ordered to fall backwards onto a concrete floor. The instructions were given several times, which resulted in injuries requiring the Veteran to spend several days in the post hospital. After discharge, the Veteran spent days bedridden, because of injuries sustained during basic training. In June 2010, the Veteran was afforded a VA examination to determine the nature and etiology of his claimed low back disability. The VA examiner reported that the Veteran was seen in August 1975 for back pain. Tenderness to the left of the scapula was noted. In subsequent examinations dated in December 1976 and May 1978, there were normal examination findings and the Veteran provided a negative history. In January 1980, the Veteran reported injuring his back in a lifting accident at work in November 1979. He indicated that he was laid off following his injury. At the examination, the Veteran stated that he first injured his back while falling in 1974 and had been under a doctor's care for his back since discharge. Imaging studies conducted in August 2009 showed degenerative disc disease at L5-S1. The VA examiner diagnosed lumbar degenerative disc disease with clinical evidence of left lumbar radiculopathy. The VA examiner opined that it was less likely than not that the Veteran's current back disability was related to his military service. He elaborated that service medical records documented no complaints, diagnoses, or treatment for a back problem. The Veteran's private medical records showed that the Veteran injured his back approximately four years after leaving the military. The Board has considered the lay statements regarding the Veteran's lower back disability. The Veteran is competent to provide evidence of t which he experiences, including his symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the Veteran to be competent to report what he experienced and J. T. and A. D. to be competent to report what the Veteran told them. However, the Board does not find the statements to be as probative or credible as the VA examiner's opinion, which was based on an extensive review of the record, a thorough examination, and the VA examiner's medical expertise. The assertions of ongoing symptoms are inconsistent with the January 1980 VA Medical Certificate where the Veteran stated he injured his back at work in November 1979. Additionally, a February 1980 radiographic report was negative for arthritis. To the extent that the Veteran has asserted a continuity of symptomatology regarding his back disability, these assertions are inconsistent with the normal findings of the December 1976 annual examination. Therefore, the evidence is against a finding that arthritis of the lumbar spine was present at separation from service or within one year of separation of service. The lay assertions of ongoing manifestations are not credible. In essence, arthritis was not noted during service and there were not characteristic manifestations sufficient to identify the disease process of arthritis during service. The evidence is against a finding that arthritis of the lumbar spine manifested during service or within one year of separation. Therefore, service connection for a low back disability may not be granted on a presumptive basis. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). In sum, for the reasons expressed above, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a lumbar spine disability with right and left lower extremity radiculopathy. Therefore, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise. The benefit sought on appeal is accordingly denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. 49, 55-57 (1990). B. Left Ankle The Veteran testified that he injured his left ankle when he stepped in a hole while he was running during physical training. The Veteran's August 1974 entrance examination showed the ankles as normal and the corresponding report of medical history denied any ankle problems. STRs show that the Veteran injured his left ankle while running in January 1975. In a February 1976 Annual Certificate of Physical Condition, the Veteran denied having any physical defects which would restrict him from performance on active duty. He also denied having an injury or illness within the past 12 months that required hospitalization or caused him to be absent from work or school for more than 3 consecutive days. The Veteran's ankles were normal at the Veteran's December 1976 annual examination. In November 2003, the Veteran was seen for a left ankle sprain by a private medical provider. The Veteran reported a history of recurrent left ankle sprain. He stated that he injured his ankle when he jumped out of a truck. X-ray studies were unremarkable. In July 2011, the Veteran was afforded a VA examination to determine the nature and etiology of his left ankle disability. The VA examiner reported that the Veteran stated he stepped in a hole and twisted his left ankle and was forced to finish his run. His ankle was wrapped and he was placed on light duty for two months and that he has had pain in his ankle ever since. STRs show a note dated in January 1975 that documented a left ankle sprain while running with conservative treatment. No further notations were found in the STRs. VA medical records showed a history of bilateral ankle degenerative joint disease and chronic instability. Bilateral ankle x-rays showed osteoporosis. The VA examiner diagnosed a left ankle sprain. The VA examiner opined that it was less likely as not that the Veteran's left ankle strain was incurred in or the result of an injury sustained in-service. He elaborated that the Veteran's injury in-service was transitory and self-limiting as there were no further notes found to indicate any ongoing problems from the in-service injury either during or within one year following separation from service. Current x-rays showed osteoporosis, but not degenerative joint disease of the left ankle. The Board has considered the lay statements regarding the Veteran's left ankle disability. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. See Layno, 6 Vet. App. at 465. In addition, 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. See Jandreau, 492 F.3d at 1377. The Board finds the Veteran to be competent to report what he experienced. However, the Board does not find the statements to be as probative as the VA examiner's opinion, which was based on an extensive review of the record, a thorough examination, and the VA examiner's medical expertise. The assertions of ongoing symptoms are inconsistent with the February 1976 Annual Certificate of Physical Condition, the Veteran denied having any physical defects which would restrict him from performance on active duty. He also denied having an injury or illness within the past 12 months that required hospitalization or caused him to be absent from work or school for more than 3 consecutive days. The Veteran's ankles were normal at the Veteran's December 1976 annual examination. Furthermore, in November 2003 treatment notes, which show the Veteran injured his ankle jumping out of a truck post service. Additionally, the X-ray studies were negative for arthritis. Therefore, the evidence is against a finding that arthritis of the left ankle was present at separation from service or within one year of separation of service. The lay assertions of ongoing manifestations are not credible. In essence, arthritis was not noted during service and there were not characteristic manifestations sufficient to identify the disease process of arthritis during service. The evidence is against a finding that arthritis of the left ankle manifested during service or within one year of separation. Therefore, service connection for a left ankle disability may not be granted on a presumptive basis. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). In sum, for the reasons expressed above, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a left ankle disability. Therefore, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise. The benefit sought on appeal is accordingly denied. See 38 U.S.C.A. § 5107(b); Ortiz 274 F.3d at 1364 ; Gilbert, 1 Vet. App. at 55-57. IV. Withdrawal The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. At the July 2015 Board hearing, the Veteran withdrew his appeals pertaining to the claims for service connection for a right eye disability, erectile dysfunction, carpal tunnel syndrome of the right upper extremity, carpal tunnel syndrome of the left upper extremity, hypertension, headaches, a right ankle disability, torn stomach muscles, an acquired psychiatric disorder, a right knee disability, a right middle finger disability, a left knee disability, and residuals of a rib injury. Hence, there remain no allegations of errors of fact or law for appellate consideration on these issues. Accordingly, the Board does not have jurisdiction to review the issues, and they are dismissed. ORDER Entitlement to a compensable evaluation for the bilateral hearing loss disability is denied. Entitlement to service connection for a lumbar spine disability with right and left lower extremity radiculopathy is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right eye disability is dismissed. Entitlement to service connection for erectile dysfunction is dismissed. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity is dismissed. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity is dismissed. Entitlement to service connection for hypertension is dismissed. Entitlement to service connection for headaches is dismissed is dismissed. Entitlement to service connection for a right ankle disability is dismissed. Entitlement to service connection for torn stomach muscles is dismissed. Entitlement to service connection for an acquired psychiatric disorder is dismissed. Entitlement to service connection for a right knee disability is dismissed. Entitlement to service connection for a right middle finger disability is dismissed. Entitlement to service connection for a left knee disability is dismissed. Entitlement to service connection for residuals of a rib injury is dismissed. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs