Citation Nr: 1615577 Decision Date: 04/18/16 Archive Date: 04/26/16 DOCKET NO. 09-45 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a bilateral leg disorder, claimed as shin splints. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to November 1973. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which confirmed and continued a previous denial of entitlement to service connection for bilateral hearing loss and denied a claim for service connection for paralysis of the right and left leg median nerves. The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in May 2014. A transcript is of record. The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). At this juncture, the Board notes that the Veteran initially filed a claim for a bilateral leg condition in May 2006. See VA Form 21-526. He later indicated that he was also seeking service connection related to his left shin. See amended VA Form 21-526 received May 2006. In a March 2007 rating decision, the Houston RO denied service connection for a right leg condition and a left leg condition, the latter noted to also be claimed as shin splint. The Veteran did not file a timely notice of disagreement pertaining to this rating decision. In August 2007, the Veteran's representative specifically sought entitlement to service connection for paralysis of the median nerves, bilateral legs. The December 2007 rating decision that is the subject of the current appeal limited its determination to this issue. In August 2014, the Board remanded the claims, styled as entitlement to service connection for bilateral hearing loss and entitlement to service connection for a bilateral leg disorder, claimed specifically as paralysis of the median nerves, and also claimed as shin splints, for additional development. It appears from VA treatment records obtained on remand that the Veteran is already service-connected for paralysis of the median nerve. In looking at the record, the Board notes that this is true, as he is service-connected for numbness of the lateral aspect of the right fifth metacarpal and the median nerve involves the arm, not the leg. Given the fact that the median nerve does not involve the legs, that the Veteran has also asserted he has shin splints affecting both legs, see May 2014 hearing transcript, and in light of the case law stipulating that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record, see Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79 (2009), the Veteran's claim has been characterized as reflected on the title page. The Veteran appears to be attempting to reopen a claim for service connection for dental treatment, and to be seeking service connection for foot cramps, a rib cage disorder, a disorder affecting his bilateral hand, and a right ankle disorder. See February 2007 VA Form 21-4138; June 2008 statement from Disabled American Veterans; November 2009 VA Form 9. These claims were previously referred to the Agency of Original Jurisdiction (AOJ), but remain unadjudicated. Therefore, the Board still does not have jurisdiction over them and they are again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The RO should also ascertain whether the Veteran's representative intended to file a claim for increased rating for the service-connected numbness of the lateral aspect of the right fifth metacarpal when the claim for paralysis of the median nerves was filed. FINDINGS OF FACT 1. The Veteran entered service in November 1971 with a preexisting bilateral hearing loss as shown on pre-induction audiometric testing as well as on audiometric testing done at the time of his induction in November 1971. 2. Audiometric testing done in connection with the Veteran's September 1973 separation examination indicated an increase in the severity of the Veteran's bilateral hearing loss when compared to the testing done in November 1971 at the time of his induction. 3. The Veteran has a current hearing loss disability as defined under VA regulation section 3.385. 4. A current diagnosis involving the bilateral leg, to include shin splints, is not of record. CONCLUSIONS OF LAW 1. The presumption of aggravation of the Veteran's preexisting bilateral hearing loss has been raised by an increase in pure tone thresholds on audiometric testing between the time of induction in November 1971 and the time of separation in November 1973. 38 U.S.C.A. §§ 1110, 1153 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.385 (2015). 2. There is no specific finding in this case that the increase in bilateral hearing loss during service was due to the natural progress of the disease, and there is no clear and unmistakable evidence to rebut the presumption of aggravation during service of the pre-existing hearing loss; the criteria for service connection for bilateral hearing loss based on aggravation in service have been met. 38 U.S.C.A. §§ 1110, 1153 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.385 (2015). 3. The criteria for service connection for a bilateral leg disorder, claimed as shin splints, have not been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Where a pre-existing disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection. 38 C.F.R. § 3.385. "[I]mpaired 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 Test are less than 94 percent." 38 C.F.R. § 3.385. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Section 3.385 does not preclude service connection for a current hearing loss "disability" where hearing was within normal audiometric testing limits at separation from service. See Hensley, 5 Vet. App. at 159. When audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service. Id. at 160. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran seeks service connection for bilateral hearing loss. He testified in May 2014 that he was exposed acoustic trauma during active duty service due to his military occupation specialty of Hawk missile crewman. He indicated that he was exposed to loud noise when he first went to basic training in the form of rifle shooting and machine gun and hand grenade training, where he was given ear protection, and that he went to missile training during AIT before he was told he had a Code J limitation (he was not supposed to be exposed to loud areas). The Veteran indicated that despite the Code J limitation, he was still exposed to acoustic trauma. The Veteran denied that he had a preexisting hearing loss prior to his entry into service and denied seeking treatment for bilateral hearing loss during service. He indicated it was not until his discharge examination that his hearing was tested. The Veteran reported that he worked as a mechanic after service and was not exposed to loud noises. Service treatment records document that a September 1970 pre-induction report of medical history revealed that the Veteran reported ear, nose or throat trouble; running ears; and hearing loss. More specifically, the Veteran reported deafness in his left ear since birth and denied any ear infection. On the examination report and the audiogram card, it was noted that audiometric testing results were reported using the standards of the American Standards Association (ASA). Specifically, ASA 1951 was noted on the bottom left corner of the audiogram card, and the examiner wrote in "ASA 1951" on Item 71, Audiometer, of the examination report. The Board notes that, in general, before November 1, 1967, audiometric results were reported by the military in standards set forth by the American Standards Association (ASA). (VA used ASA standards on or before June 30, 1966.) Since the mid-1960s, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI) and have been used by the military, for the most part, unless otherwise noted. (VA has used ISO-ANSI standards, unless otherwise noted, since July 1, 1966.) Although the September 1970 examination was nearly three years later than the period when the military generally stopped using the ASA standards, since those standards were specifically noted by the examiner on the September 1970 report, the Board will assume that ASA standards were reported on this report, and in order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses below: HERTZ 500 1000 2000 3000 4000 RIGHT 20 (35) 15 (25) 20 (30) X 20 (25) LEFT 80 (95) 75 (85) 85 (95) X 75 (80) See September 1970 report of medical examination, Item 71. Additional audiometric testing was conducted in April 1971, the results of which were reported on the September 1970 report of medical examination. These results were reported in ISO standards, as was again noted in a handwritten notation by the examiner as "ISO 1964" on the examination report. An audiogram card is also in the service treatment records depicting "ISO 1964" in the lower left corner. The results of this testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 X 15 LEFT 60 65 5 X 25 On the September 1970 examination report, it appears that the examiner first found that the Veteran was not qualified for induction and assigned a designation of "3" under "H" for hearing in the physical profile block (Item 75) on the report. (In a physical profile block on an examination report there are six categories (P, U, L, H, E, S), including "H" for hearing. See Odiorne v. Principi, 3 Vet.App. 456, 457 (1992), quoting Para. 9-3(c)(1) AR 40-501, Change 35 (Feb. 9, 1987) ("An individual having a numerical designation of '1' under all factors is considered to possess a high level of medical fitness and, consequently is medically fit for any military assignment."). However, the checkmark for "not qualified" for induction is crossed out on the report and a checkmark for "is qualified" for induction was made. Similarly, the report reflects that the designation of "3" for hearing was crossed out and a "2" entered above. Thus, it appears on audiometric retesting in April 1971, the Veteran was found qualified for induction. In November 1971, the Veteran underwent an induction physical. This time he denied hearing loss but again noted ear, nose, or throat trouble. See report of medical history. Two audiograms are included in the November 1971 report of medical examination, one dated November 11, 1971, and the other, November 16, 1971. Both results were reported using ISO standards. The first shows pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 35 25 X 30 LEFT 90 85 90 X 85 "Previous rejection" was noted next to this audiogram. The other shows pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 X 25 LEFT 80 65 90 X 75 The examiner diagnosed unilateral hearing loss, not considered disqualifying (NCD), and it was noted that "ENT found fit H2", a reference the "2" assigned under "H" for "hearing" in the physical profile block on the report. Code J limitations were noted, but the Veteran was not found to have any disqualifying defects and was found qualified for induction. On a September 1973 examination conducted for the purpose of separation from active duty, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 30 N/A 35 LEFT 95 95 95 N/A 95 The examiner noted hearing loss, left ear, and stated, "Currently tests better than ever before in Army. Nonetheless significant, but [no significant change.]" The RO scheduled the Veteran for two VA examinations to address his claim for service connection for bilateral hearing loss. During the September 2006 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 45 55 60 65 LEFT 105 95 105 110 110 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of zero percent in the left ear. The diagnoses were a moderate sensorineural hearing loss in the right ear and a profound sensorineural hearing loss in the left ear. The report reflects that the examiner was asked to "provide a statement as to whether or not the current hearing loss . . . [was] due to acoustic trauma during the military." In response the examiner stated, "Excessive noise exposure is a known causative agent for hearing loss . . . . This claimant was exposed to excessive noise while in the military. Therefore, it is as least as likely as not that the claimant[']s reported hearing loss . . . is due to military noise exposure." Although this opinion is favorable to the claim for service connection, the September 2006 VA examiner did not indicate that the claims file or service treatment records were made available, and the examination report reflected no awareness on the part of the examiner of the audiometric testing results done in service. Moreover, the Board notes that the examiner was only requested to provide an opinion about whether current hearing loss was likely the result of noise exposure in service and was not asked to provide an opinion about whether a preexisting hearing loss may have been aggravated beyond natural progression during service. During the January 2007 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 50 60 65 LEFT 105 105 105 105 105 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of zero percent in the left ear. The diagnoses were mild to moderately severe sensorineural loss in the right ear with normal middle ear function and profound sensorineural hearing loss in the left ear with normal middle ear function. This examination report reflects that the claims file was reviewed, and the examiner noted the audiometric results in service and noted that the Veteran entered service with a mild hearing loss in the right ear and severe to profound hearing loss in the left ear. The examiner then noted, "Discharge exams show no change in hearing from enlistment to discharge. Military noise exposure could not have contributed to [the Veteran's] current hearing loss." Based on the audiometric findings during the September 2006 and January 2007 VA examinations, it is clear that the Veteran meets the definition of a bilateral hearing loss disability per VA regulation. See 38 C.F.R. § 3.385. The Board previously determined, however, that the opinions provided in September 2006 and January 2007 were not adequate, and the claim was remanded in order for another audio examination to be conducted. The Board specifically sought an opinion as to whether the evidence of record clearly and unmistakably showed that the Veteran had hearing loss in the right and left ears that existed prior to his November 1971 entry onto active duty and, if the answer to that question was in the positive, whether the evidence clearly and unmistakable showed that the preexisting condition was not aggravated by service or that any increase in disability was due to the natural progression of the disease. The Veteran failed to report to the audio examination scheduled in conjunction with the Board's August 2015 remand instructions, and the claims file was not sent to an examiner to render an opinion about aggravation of a preexisting hearing loss based merely on a review of the audiometric testing results in service. The Board could remand the case again for such an opinion but has decided that there is sufficient evidence of record on which to base a decision. Although the Board remanded for an opinion as to whether the evidence of record clearly and unmistakably showed that the Veteran had hearing loss in the right and left ears that existed prior to his November 1971 entry onto active duty, such an opinion is not necessary because the it is clear from the audiometric testing results in September 1970 and the two tests in November 1971, that the Veteran entered service with bilateral hearing loss. Although the April 1971 testing showed normal hearing in the right ear, the other three tests showed right ear hearing loss when the test results are considered based on the standard for some degree of hearing loss noted in Hensley. Hensley, 5 Vet. App. at 157 (The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss). Specifically, the Board notes that all three tests showed pure tone thresholds above 20 at every frequency level on the right. Moreover, the January 2007 VA examiner noted that the pre-induction and induction audiometric tests revealed that the Veteran entered service with mild hearing loss on the right and severe to profound hearing loss on the left. Accordingly, the Board finds that the Veteran entered service in November 1971 with a preexisting bilateral hearing loss as shown on pre-induction audiometric testing and as noted by audiometric testing results on his induction examination reports in November 1971. Therefore, the Veteran was not presumed sound at entrance to active service because bilateral hearing loss was noted at the time of induction, and the presumption of soundness as to hearing loss does not attach. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Moreover, audiometric testing done in connection with the Veteran's September 1973 separation examination indicated a possible increase in the severity of the Veteran's bilateral hearing loss when compared to the testing done in November 1971 at the time of his induction. Although the September 1973 separation examiner noted, "Currently tests better than ever before in Army," that statement certainly is not true considering the results on the April 1971 pre-induction test, and the test results at separation showed increases in pure tone thresholds ranging from 10 to 30 decibels when compared to the pure tone thresholds on the November 1971 induction examination reports. For example, the pure tone thresholds for the right ear on the November 16, 1971, induction examination were all 25 decibels at 500, 1000, 2000, and 4000 Hertz, whereas on separation the pure tone thresholds were 40, 35, 30, 35 decibels, respectively, at those frequencies. Similarly, the thresholds shifts in the left ear were 80, 65, 90, 75 decibels at 500, 1000, 2000, and 4000 Hertz at induction compared to 95 decibels at all four frequencies at the time of separation. "Since there is no regulation that defines when a change in hearing is significant or constitutes an increase in disability, if there is a change in preexisting hearing loss between entrance and separation," VA is required to get an audiologic opinion on the matter. "The audiologist should be asked to assess the significance of any changes in level of hearing in service, and to provide an opinion as to whether they represent normal variability in audiometric measurement, normal progression of hearing loss, or are indicative of worsening due to the circumstances of service." VA Training Letter 10-02, Adjudicating Claims for Hearing Loss and/or Tinnitus, page 13. Although the January 2007 VA examiner noted, "Discharge exams show no change in hearing from enlistment to discharge" which was consistent with the September 1973 separation examiner's note of "no significant change", neither examiner provided any further explanation for their conclusion that the threshold shifts between induction and separation were not "significant" and did not represent a "change in hearing." In order for the Board to properly assess the adequacy of medical evidence, "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). Rather than remand the case again for an addendum opinion on this question, the Board concludes that, because pure tone thresholds increased by a range of 5 to 15 decibels in the right ear and a range of 5 to 30 decibels in the left ear, the shifts likely represented an increase in the severity of the preexisting hearing loss disability during service sufficient to raise the presumption of aggravation of the preexisting hearing loss in this case. In so concluding, the Board notes that, because the VA examiner provided no supporting data for the conclusion that there was "no change in hearing from enlistment to discharge," the Board has looked for some supporting data for a determination on this matter. Regarding this, the Board notes that "a standard threshold shift (STB) is a change in hearing threshold relative to the baseline audiogram of an average of 10 dB or more at 2000, 3000, and 4000 Hz in either ear." Occupational Safety & Health Administration, United States Department of Labor, https://www.osha.gov/dts/osta/otm/noise/hcp/ audiometric_testing.html#sts, citing 29 C.F.R. § 1910.95(g)(10)(i). Although in this case an average decibel change cannot be obtained from the audiograms in service using 3000 Hertz because the hearing threshold was not reported at that frequency on the audiograms in service, the average decibel shift in the right ear was 10 decibels when considering all four frequencies that did show hearing threshold results (500, 1000, 2000, and 4000 Hertz) and comparing the November 16, 1971, induction examination report, which reflected 25 decibels at each of the four frequencies of 500, 1000, 2000, and 4000 Hertz, with the April 1973 separation examination report, which reflected the pure tone thresholds of 40, 35, 30, 35 decibels, respectively, at those frequencies (15+10+5+10=40÷4=10 decibels). Similarly, the thresholds shifts in the left ear were 80, 65, 90, 75 decibels at 500, 1000, 2000, and 4000 Hertz at induction compared to 95 decibels at all four frequencies at the time of separation, and so the average decibel change using the results at all four frequencies was 17.5 (15+30+5+20=70÷4=17.5). The Board notes that these averages are higher if the comparison is done using the audiometric results on the April 1971 pre-induction examination report when the Veteran was first found qualified for induction. Based on these results, the Board finds that the threshold shifts that occurred in service in this case between induction and separation appear roughly consistent with the OSHA criteria for a standard threshold shift indicating a significant change in hearing ability or a hearing loss. Given the apparent increase in severity, the Board concludes that the presumption of aggravation during service of the preexisting bilateral hearing loss has been raised. 38 C.F.R. § 3.306(a). Finally, the Board notes that there is no specific finding in this case that the increase in bilateral hearing loss during service was due to the natural progress of the disease, and there is no clear and unmistakable evidence to rebut the presumption of aggravation during service of the preexisting hearing loss. Accordingly, the Board concludes that the criteria for service connection for bilateral hearing loss based on aggravation in service have been met. 38 U.S.C.A. §§ 1110, 1153 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.385 (2015). The Veteran also seeks entitlement to service connection for a bilateral leg disorder, claimed as shin splints. He testified in May 2014 that during service in 1971 while stationed in Okinawa, Japan, he fell down from a missile launcher and hit his legs on the steel bars. He indicated that after the maneuvers, he went in for treatment to see what was going on and he was given some crutches. The Veteran testified that he was unable to move his feet or move for three months. He reported that since service, he continued to have problems and that he had fallen down on several occasions due to his legs giving out. The Veteran noted that it was about 10 years after his discharge from service that he got a diagnosis of shin splints, that he had been using a cane for 10 years, that he had a current diagnosis of shin splints, and that he was prescribed pain medication for shin splints. Service treatment records are devoid of reference to, complaint of, or treatment for, any problems with either of the Veteran's legs. Despite the foregoing, the Veteran is competent to report that he fell off a missile launcher in 1971, hurt his legs, and was on crutches, and the Board finds these assertions to be credible. The preponderance of the evidence of record, however, is against the claim for service connection for a bilateral leg disorder, claimed as shin splints. A current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Board has reviewed the post-service evidence of record dated since the Veteran filed his claim for service connection, and there is no evidence that he has been diagnosed with a disorder affecting his legs, to include shin splints. On a October 2006 VA examination, x-rays of the bilateral tibia and fibula were within normal limits, and the VA examiner found not pathology on physical examination to render a diagnosis of a right or left leg condition. While the Board acknowledges the Veteran's assertion that he has shin splints, as a lay person without the appropriate medical training and expertise, he simply is not competent to provide a probative opinion that he has a current disorder after his legs. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Without probative evidence of a current diagnosis involving the bilateral leg, to include shin splints, service connection is not warranted and the claim must be denied. See 38 C.F.R. § 3.303. As the preponderance of the evidence is against the claim, the statutory provisions regarding resolution of reasonable doubt are not applicable. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54. ORDER Service connection for bilateral hearing loss is granted. Service connection for a bilateral leg disorder, claimed as shin splints, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs