Citation Nr: 1635622 Decision Date: 09/12/16 Archive Date: 09/20/16 DOCKET NO. 08-16 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a left ankle disability, to include Achilles bursitis. 4. Entitlement to service connection for a lower respiratory disease, to include bronchitis and asthma. 5. Entitlement to service connection for a gastrointestinal disability, to include gastroesophageal reflux disease (GERD). 6. Entitlement to service connection for a headache disability, to include as secondary to service-connected allergic rhinitis. 7. Entitlement to an initial compensable rating for left ear hearing loss. 8. Entitlement to an initial compensable rating for allergic rhinitis. REPRESENTATION Veteran represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from April 1985 to February 1992. These matters come before the Board of Veterans' Appeals (Board) from the November 2007, February 2011, and December 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Waco, Texas, Houston, Texas, and Washington, D.C., respectively. In the November 2007 rating decision, the RO denied entitlement to service connection for a left shoulder disability, bilateral shin splints, a left ankle disability, sinusitis, GERD/gastritis, and headaches. In the February 2011 decision, the RO denied entitlement to service connection for right ear hearing loss, and granted service connection for left ear hearing loss, assigning an initial noncompensable disability rating, effective July 14, 2010. The issue of entitlement to service connection for a respiratory disability has also previously been found to be in appellate status. The Veteran testified at a September 2012 videoconference hearing at the RO. A transcript of the hearing has been associated with the record. A December 2013 rating decision granted service connection for allergic rhinitis assigning a noncompensable rating, effective August 27, 2007. In the July 2014 decision, the Board denied the Veteran's claims seeking entitlement to service connection for right ear hearing loss, bilateral residuals of shin splints, left shoulder disability, lower respiratory disease, and gastrointestinal disability. The Board also denied the claim for an initial compensable rating for the left ear hearing loss. In addition, the Board remanded the claims of entitlement to service connection for a left ankle disability, headache disability, and an initial compensable rating for allergic rhinitis for additional procedural and evidentiary development. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) the portion of the Board's July 2014 decision that denied service connection for the left shoulder disability, lower respiratory disease, gastrointestinal disability, right ear hearing loss, and an initial compensable rating for left ear hearing loss. In an April 2015 Order, the Court vacated that portion of the July 2014 Board decision and remanded these issues to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). In the Joint Motion, the parties indicated that a remand of the Board's July 2014 decision denying the claims of service connection for the left shoulder disability, lower respiratory disease, gastrointestinal disability, right ear hearing loss, and an initial compensable rating for left ear hearing loss was necessary to ensure compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010). Specifically, in adopting the Joint Motion, the Court found that a remand of the issues was necessary because the Veteran was not advised at his September 2012 hearing the reasons as to why some of his claims had been denied, and of the relevant evidence that could be submitted to substantiate his claims. (See April 2015 Joint Motion, pp. 3-5). The Joint Motion notes that the appellant abandoned his appeal as to service connection for shin splints. In August 2015, the Board remanded the issue for a hearing. This hearing was scheduled for March 2016 with the appropriate notice mailed to the parties; the record indicates that the Veteran and his attorney did not appear for this hearing. As discussed in greater detail below, as the Veteran and the attorney did not attend this hearing or provide good cause for not appearing, the Board finds that no additional hearing is necessary and the Board can proceed with adjudication of this appeal. Further in this regard, in April 2016, the Veteran was notified that the VLJ that participated in the prior hearing was not available to participate in the appeal. Neither he nor his attorney responded to this letter. The Board notes that review of the record reveals questions as to whether the issue of an initial compensable rating for allergic rhinitis was perfected following the issuance of the Statement of the Case (SOC) in August 2014 (following the Board's remand for the issuance of this SOC). In the subsequent Board remand in August 2015, however, the issue was treated as in appellate status. For this reason, the Board will continue to consider it in appellate status. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). The issues of entitlement to service connection for a left shoulder disability, a left ankle disability, and a headache disability, to include as secondary to service-connected allergic rhinitis, are remanded and addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran does not have current hearing loss in the right ear to an extent recognized as a disability for VA purposes. 2. Since July 14, 2010, the Veteran has had at worst level I hearing loss in the left ear. 3. The Veteran's current lower respiratory disease did not have its clinical onset in service and is not otherwise related to active duty. 4. The Veteran's current gastrointestinal disability did not have its clinical onset in service and is not otherwise related to active duty. 5. The Veteran's allergic rhinitis is productive of congestion, sneezing, itchy/watery eyes and itchy nose, coughing with purulent sputum, "puffy eyes"; the disability is not manifested by polyps or greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. CONCLUSIONS OF LAW 1. The Veteran does not have right ear hearing loss that is the result of a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1113(b), 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2015). 2. The criteria for an initial compensable rating for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100 (2015). 3. The Veteran's current lower respiratory disease was not incurred or aggravated in service. 38 U.S.C.A. 38 U.S.C.A. §§ 1110, 1113(b), 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.304(b) (2015). 4. The Veteran's current gastrointestinal disability was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1113(b), 1131, 5107(b) (West 2014); 38 C.F.R. § 3.303 (2015). 5. The criteria for an initial compensable disability rating for allergic rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 6522 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VCAA notice consistent with 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159 (b)(1) (2015). To the extent possible, VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2014), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The duty to notify was satisfied prior to the initial RO decision by way of September 2007, July 2010, and February 2013 letters sent to the Veteran. VA also has a duty to assist the Veteran in the development of the claims for service connection for right ear hearing loss, lower respiratory disease, GERD, and entitlement to initial compensable ratings for left ear hearing loss and allergic rhinitis. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. In its December 2012, June 2013, and August 2015 remands, the Board instructed the AOJ to, among other things: ask the Veteran to identify any additional relevant VA and private treatment records; attempt to obtain any additional relevant private treatment records for which appropriate release forms had been submitted; obtain any relevant treatment records from the VA Medical Center in Houston, Texas (VAMC Houston) and the VA outpatient clinic in Lufkin, Texas (VAOPC Lufkin) dated prior to March 6, 2007 and since March 30, 2012 and any other sufficiently identified and relevant VA treatment records; and afford the Veteran VA examinations to assess the severity of his left ear hearing loss and allergic rhinitis disabilities and to obtain opinions as to the nature and etiology of his claimed right ear hearing loss, gastrointestinal disability, and respiratory disease. The Veteran was also afforded another opportunity for a hearing. VA obtained the Veteran's service treatment records (STRs) and all of the available identified relevant post-service VA treatment records. All relevant VA treatment records from VAMC Houston and VAOPC Lufkin dated since March 2012 have been obtained and associated with the record. Also, VA examinations were conducted in March and October 2013. These examinations included an assessment of the severity of the Veteran's service-connected left ear hearing loss and allergic rhinitis and assessments as to the nature and etiology of his claimed right ear hearing loss, gastrointestinal disability, and respiratory disease. Review of these examinations reveal that they are adequate upon which to adjudicate the claims adjudicated on the merits in this appeal. In July 2013, the AOJ sent the Veteran a letter and asked him to identify any additional relevant treatment records and to submit the appropriate release form so as to allow VA to obtain any identified relevant private treatment records. Copies of the release form (VA Form 21-4142) were included with the letter. The Veteran did not respond to the July 2013 letter. The AOJ contacted VAMC Houston (which is also the parent facility of VAOPC Lufkin) in December 2012 and November 2013 and requested copies of all treatment records dated prior to March 31, 2007 and March 6, 2007, respectively. VAMC Houston responded that there were no such records in its possession or at its storage facility. Hence, the Board finds that any further efforts to obtain treatment records from VAMC Houston and VAOPC Lufkin dated prior to March 2007 would be futile. 38 C.F.R. § 3.159(c)(2). Further, there is no indication there exists any additional evidence that has a bearing on this case that has not been obtained and that is obtainable. The Veteran and his attorney have been accorded ample opportunity to present evidence and argument in support of this appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2015). In addition, the Veteran was afforded VA examinations to assess the severity of his service-connected left ear hearing loss and allergic rhinitis and to obtain opinions as to the nature and etiology of his other claimed disabilities. With regard to hearing loss, the VA audiology examiner fully described the functional effects caused by a hearing disability. Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007). Finally, the Veteran testified at a Board hearing in September 2012. Pursuant to the JMR, the Board offered the Veteran and his attorney another hearing in order to comply with the duties imposed by Bryant v. Shinseki, 23 Vet. App. 488 (2010). In April 2016, the Veteran and his attorney received notice that the Veterans Law Judge (VLJ), who conducted the September 2012 hearing, was unavailable to participate in the appeal and that the appeal was reassigned to another VLJ. They had 30 days to respond from the date of the letter or it would be assumed that another hearing was not desired. As noted in the Introduction, the Veteran and his attorney did not respond so the Board will proceed with the appeal. Pursuant to the JMR, the Board responded in scheduling the Veteran for the additional hearing; this was the remedy to correct the due process error discussed by the JMR. As the Veteran did not appear for the scheduled hearing or provide a reason for the failure to appear, the Board finds that VA has made reasonable efforts to assist in this appeal and provide an adequate hearing; no additional development is necessary in this regard under the facts of this appeal. See Wamhoff v. Brown, 8 Vet. App. 517 (1996). Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claims in this Board decision. II. Service Connection-In General Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). 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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if such is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the absence of proof of present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as a current disability, there must be evidence of the condition at some time during the claim period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). III. Service Connection for Right Ear Hearing Loss In this case, the Veteran contends that he began to experience right ear hearing loss around the time of his separation from service in 1992 and that such hearing loss is the result of exposure to loud noises in service associated with military equipment and weaponry. However, there is no medical evidence of current right ear hearing loss as defined by VA at any time since the Veteran's claim was received in July 2010. During an April 2010 VA audiological examination, the Veteran's pure tone thresholds, in decibels, were as follows: For the right ear, at Hertz 500 1,000, 2,000, 3,000, 4,000; 10, 10, 15, 10, and 15, respectively. Speech audiometry revealed speech recognition ability of 96 percent in the right ear. An August 2010 VA audiological examination report reflects that the Veteran's pure tone thresholds, in decibels, for the right ear were as follows at 500, 1,000, 2,000, 3,000, and 4,000 Hertz: 25, 30, 25, 25, and 25. Speech audiometry revealed speech recognition ability of 96 percent in the right ear. Treatment records from the VAMC Houston from March 2007 to March 2012 were reviewed and considered in this evaluation for VA benefits. The records show on going evaluation and treatment for multiple medical conditions. The VA Hearing Loss Disability Benefits Questionnaire was conducted at the VAMC Houston TX on March 28 2013. The medical examiner noted that the claims file was reviewed. The medical examiner was of the opinion that the right ear hearing loss condition was not related to or incurred from military service. The rationale was premised on normal right ear hearing loss. During a March 2013 VA audiological examination the Veteran's pure tone thresholds, in decibels, for the right ear were as follows at 500, 1,000, 2,000, 3,000, and 4,000 Hertz: 10, 10, 15, 15, and 15. Speech audiometry revealed speech recognition ability of 96 percent in the right ear. The Veteran has not undergone any other reported hearing examinations during the claim period. He is competent to report the symptoms and history of his claimed right ear hearing loss and the Board has no legitimate basis to challenge the credibility of his contentions. However, the determination of whether a Veteran's hearing impairment constitutes a hearing loss disability for VA purposes is determined by a mechanical application of the definition found in 38 C.F.R. § 3.385 to audiometric (pure tone threshold and Maryland CNC) testing results. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. As application of 38 C.F.R. § 3.385 reflects that the Veteran does not have current right ear hearing loss under VA law at any time since his claim was received in July 2010, service connection for this disability is not warranted. Thus, the preponderance of the evidence is against the Veteran's claim and the claim of service connection for right ear hearing loss must be denied. See 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.385. IV. Service Connection for GERD and Respiratory Disability The VA examination report dated in March 2013 includes diagnoses of GERD, asthma, and acute bronchitis. The Veteran contends that he has a current gastrointestinal and respiratory disabilities that are related to service. Specifically, he claimed in his January 2008 notice of disagreement (NOD) that the training exercises and physical activities in service were "the cause of all [his] aches and pains." He has also reported an extensive history of tobacco use. For example, he reported during a March 2013 VA respiratory examination that he began smoking at the age of 18 and that he continued to smoke a half pack per day at the time of the examination. Initially, the Board acknowledges that the Veteran has reported a history of respiratory problems prior to service. For instance, he reported on a February 1985 report of medical history form completed for purposes of entrance into service that he was treated for asthma at an unidentified hospital in Texas when he was "a very small child," but that there were no exacerbations or evidence of the disease since that time. There was no evidence of a currently diagnosed respiratory disability, however. A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Although the Veteran is certainly competent to report a history of respiratory problems prior to service, a veteran's report of history, even when related by a medical professional, without an independent basis in the record, is insufficient to rebut the presumption of soundness. Miller v. West, 11 Vet. App. 345 (1998). There is no other evidence of any pre-existing respiratory disease (including asthma) and the Veteran's February 1985 entrance examination was normal other than for a left arm vaccination scar. Under these facts, the Veteran is presumed sound at service entrance as to his respiratory system. 38 U.S.C.A. § 1111. The Veteran has not reported, and the evidence does not otherwise indicate, a continuity of symptomatology with regard to his gastrointestinal disabilities and lower respiratory disease. STRs include October 1986, September 1987, and March 1991 reports of treatment for upper respiratory infections with associated nasal congestion. There is no diagnosis of asthma. Although the Veteran was coughing up yellowish phlegm at the time of the September 1987 evaluation, examinations revealed that his lungs were clear. He was examined and found physically qualified for duty. There is no evidence of any other gastrointestinal or respiratory complaints in the Veteran's STRs. A separation examination report is not included among his STRs. The objective evidence otherwise indicates that the Veteran's current gastrointestinal and respiratory disabilities did not manifest until many years after service. The earliest post-service clinical evidence of gastrointestinal and respiratory problems are a March 2007 VA nursing education note and a March 2007 VA primary care nursing note which include history of GERD and asthma. During the March 2013 VA examination, the Veteran reported that he began experiencing gastrointestinal problems approximately 15 years prior to the examination, respectively (i.e. since approximately 1998. There is no objective clinical or lay evidence of any earlier gastrointestinal or lower respiratory problems following service. The absence of any objective clinical or lay evidence of gastrointestinal or lower respiratory problems for many years after the Veteran's separation from service in February 1992 weighs against a finding that his current gastrointestinal disability or lower respiratory disease were present in service or in the year or years immediately after service. In addition, the medical opinions of record reflect that the Veteran's current gastrointestinal disability and lower respiratory disease are not related to service. The physician assistant who conducted the March 2013 VA examination opined, in part, that the Veteran's current gastrointestinal disability and lower respiratory disease were not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. The examiner explained that the Veteran specifically reported that gastrointestinal symptoms began after service and that there were no STRs indicating treatment for gastrointestinal problems in service. Also, the Veteran had given differing accounts of his symptomatology and its onset, thus making his reliability as a historian questionable. With respect to the current lower respiratory disease, the examiner reasoned that there was evidence that the Veteran reported a history of childhood asthma, but that he had reportedly not had any symptoms since that time and there was no evidence of any treatment for asthma since service. He was treated for bronchitis twice since 2007, but there was no indication that this ever occurred in service. While he did experience a cough with an acute illness in service (and he was competent to report such symptoms), the medical providers who treated him at the time were trained to assess his illness and provide a diagnosis. He was diagnosed as having upper respiratory infections in service and not bronchitis. The bronchitis that he experienced in the years since service (as well as intermittent shortness of breath) was very likely related to his smoking history. An October 2013 VA examination report includes an opinion that it was not likely ("less likely than not") that the Veteran's bronchitis was incurred in or otherwise related to service. This opinion was based on the fact that he was never diagnosed as having or treated for bronchitis in service. There was no objective evidence of a diagnosis of bronchitis until 2009. The March and October 2013 opinions were otherwise based upon examinations of the Veteran and a review of his medical records and reported history and they are accompanied by specific rationales that are not inconsistent with the evidence of record. Thus, these opinions are adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The Veteran has expressed his belief that his claimed disabilities are related to his various physical activities and duties in service. However, as a lay person, he can only comment as to symptoms and immediately-observable relationships. He lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that his current disabilities are related to any specific activities in service, as opposed to some other cause. Rather, it would require medical expertise to evaluate the disabilities, consider all the potential causes, and determine that one was a more likely cause than another. Hence, the Veteran's opinion on this question is not competent evidence. 38 C.F.R. § 3.159(a)(1), (2). Lastly, the Board notes that the Veteran has reported a history of tobacco use since the age of 18 and that this implies that he also used tobacco in service. However, compensation is not payable for disability resulting from the use of tobacco products in service. 38 U.S.C.A. § 1103 (West 2014). This prohibition applies to all claims received after June 9, 1998. Pub.L. 105-178, Title VIII, § 1005; 112 Stat. 866 (Jul. 22, 1998). The Veteran's current claim of service connection for a respiratory disease has been recognized as being received in August 2007. Hence, service connection for a lower respiratory disease is not warranted on the basis of any tobacco use in service. The Veteran's smoking history cannot be the basis of service connection on a direct basis. There is no other evidence of a relationship between the Veteran's current gastrointestinal disability and lower respiratory disease and service, and neither he nor his representative has alluded to the existence of any such evidence. Also, as discussed above, the record fails to demonstrate a continuity of symptomatology. Thus, the preponderance of the evidence is against a finding that the Veteran's current gastrointestinal disability and lower respiratory disease are related to service, manifested in service, or manifested within a year after his February 1992 separation from service. The preponderance of the evidence is against the Veteran's claims. The benefit-of-the-doubt doctrine is therefore not for application in this case and the claims of service connection for a gastrointestinal disability and a lower respiratory disease must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. VI. Higher Ratings-In General Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. VII. Higher Initial Rating for Allergic Rhinitis After a careful review of the evidence of record, the Board finds that the Veteran's allergic rhinitis does not warrant a higher initial disability rating under Diagnostic Code 6522. The Veteran's service-connected allergic rhinitis is currently rated as noncompensable (0 percent disabling) under DC 6522. See 38 C.F.R. § 4.97 (2015). Under DC 6522, a 10 percent disability rating is assigned to allergic or vasomotor rhinitis when accompanied by a greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side, without nasal polyps. A 30 percent disability rating is assigned when the allergic or vasomotor rhinitis is accompanied by nasal polyps. Id. In this case, the evidence of record, including the October 2013 VA examination and the Veteran's lay statement, demonstrates that the Veteran's allergic rhinitis was productive of congestion, sneezing, itchy/watery eyes and itchy nose, coughing with purulent sputum, "puffy eyes.". This disability has not been productive of greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side, without nasal polyps, so as to warrant a higher disability rating under DC 6522. 38 C.F.R. § 4.97. Specifically, on examination there was normal nasal mucosa and midline nasal septum. There was no indication of obstruction or of nasal polyps. The Board has considered the Veteran lay statements regarding the severity of his allergic rhinitis and has relied his report in determining appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. He is competent to report on factual matters of which he has firsthand knowledge, e.g., experiencing sneezing, nasal congestion, etc., and his statements are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). The Board, however, accords greater probative weight to objective medical findings of record. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The record as a whole does not show symptoms that equal or more nearly approximate the criteria for an initial compensable disability rating at any time since the date of claim. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The benefit sought on appeal is accordingly denied. VII. Higher Initial Rating for Left Ear Hearing Loss Hearing loss is rated on the basis of examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. Id. If impaired hearing is service-connected in only one ear, as in this case, in order to determine the percentage evaluation from Table VII, under the facts of this case, the non service-connected ear (right ear in this case) will be assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing loss exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. In the latter situation, the higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. During the April 2010 VA examination, the Veteran's pure tone thresholds for the left ear, in decibels, were as follows at 1,000, 2,000, 3,000, 4,000 Hertz: 15, 15, 20, 25, 19, respectively. Speech audiometry revealed speech recognition ability of 94 percent in the left ear. Using Table VI, the April 2010 VA examination revealed level I hearing in the left ear. Combining level I hearing for both ears according to Table VII yields a rating of 0 percent. During the August 2010 VA examination, the Veteran's pure tone thresholds, in decibels, were as follows at 1,000, 2,000, 3,000, 4,000 Hertz: 30, 30, 25, 30 . The average was 29. Speech audiometry revealed speech recognition ability of 96 percent in the left ear. Using Table VI, the August 2010 VA examination revealed level I hearing in the left ear. Combining level I hearing for both ears according to Table VII yields a rating of 0 percent. Using Table VI, the March 2013 VA examination revealed level I hearing in the left ear. Combining level I hearing for both ears according to Table VII yields a rating of 0 percent. Specifically, the 1,000, 2,000, 3,000, 4,000 Hertz: 10, 15, 20, 20. This represents an average of 16. Speech audiometry revealed speech recognition ability of 98 percent in the left ear. Using Table VI, the March 2013 VA examination revealed level I hearing in the left ear. Combining level I hearing for both ears according to Table VII yields a rating of 0 percent. The Veteran has expressed his belief that the severity of his hearing loss warrants a higher rating. He is competent to report the symptoms of his hearing disability. However, ratings for hearing loss are determined by a mechanical application of the VA rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran's statements do not show that he meets the specific pure tone thresholds and speech discrimination percentages required for a compensable rating for left ear hearing loss at any time since the effective date of service connection. The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected left ear hearing loss is so exceptional or unusual as to warrant the assignment of a higher rating on an extra- schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the Board finds that the rating criteria used to evaluate the Veteran's service-connected left hearing loss reasonably describes his disability level and symptomatology. Moreover, the Veteran's claim hinges on a mechanical application of specifically defined regulatory standards. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). In reaching its decision in this appeal, the Board has resolved reasonable doubt in the Veteran's favor, where applicable. The record does not show that the evidence is so evenly balanced as to warrant an initial compensable rating for left ear hearing loss, nor does the evidence show that the Veteran's left ear hearing disability more closely approximates the criteria for a compensable rating. ORDER Service connection for right ear hearing loss is denied. An initial compensable rating for left ear hearing loss is denied. Service connection for a lower respiratory disease, to include bronchitis and asthma, is denied. Service connection for a gastrointestinal disability, to include GERD, is denied. An initial compensable rating for allergic rhinitis is denied. REMAND In December 2015, the Veteran and his attorney submitted a private opinion from an orthopedic surgeon. He rendered a positive nexus opinion for service connection, in pertinent part, for headaches, ankle, and shoulder disabilities. Specifically, he stated a bone scan documented changes consistent with inflammatory reaction at multiple joints with likely degenerative joint disease that caused that muscular skeletal pain involving ankles and shoulders. He also provided a differential diagnosis of polyarthralgia, rheumatoid arthritis or degenerative osteoarthritis. In light of the recent diagnoses and nexus opinions, another VA examination must be afforded to the Veteran for clarification. An adequate VA examination considers the relevant history, provides a sufficiently detailed description of the disability, and provides a rationale to support the conclusions or opinions offered. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008) (stating that the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). With regard to his left ankle disability, the Veteran underwent a VA examination in April 2015. The examiner found no evidence of an ankle disability. (See also the March 2013 VA examination and December 2013 addendum). The examiner stated that "his symptoms appeared to be superficial and related to the skin." This examination is inadequate because the Veteran has proffered evidence of a disability. With regard to headaches, the Veteran underwent a VA examination in October 2013. The VA examiner was asked "whether the current headaches were a symptom related to his sinus/respiratory disorder, or whether such [was] a separate and distinct disease entity/process." The examiner did not opine as to whether the Veteran's headaches could stem from his muscular skeletal pain. The examiner, in part, based his conclusion on that there were no notes in the claims file documenting treatment for sinus-type headaches. The Veteran should be afforded an adequate examination on remand addressing any distinct disease entity/process. With regard to shoulder disability, the Board finds that the medical evidence of file is insufficient on which to adjudicate the appeal. The Board remands the appeal for an opinion. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete VA treatment records, dated from December 2013 forward. 2. Make arrangements to obtain any private treatment records particularly that of the orthopedic surgeon Dr. F. G., not associated with the electronic claims folder. 3. Schedule the Veteran for a VA examination to determine the etiology of his current left ankle and left shoulder disabilities. All indicated tests and studies shall be conducted, to include any referral for appropriate neurological testing and anatomical testing if indicated. All evidence of record, including a copy of this remand and all relevant records contained in the Virtual VA and VBMS systems, must be sent to the examiner for review. For each current left ankle disability and shoulder disability identified (i.e., any disability diagnosed since August 2007), the examiner shall answer the following questions: Is it as least as likely as not (50 percent probability or more) that the current left ankle and shoulder disabilities have their onset during service, have their onset in the year immediately following service (in the case of any currently diagnosed arthritis), are related to the Veteran's physical activities performed in service, or is otherwise the result of a disease or injury in service? In formulating the above opinions, the examiner must acknowledge and comment on all disabilities diagnosed since August 2007, all instances of treatment in the Veteran's STRs (including the May and July 1985 reports of treatment for left ankle pain and swelling and a diagnosis of Achilles bursitis and complaints of left shoulder pain), the Veteran's reports of physical activities in service, and his report of a continuity of the symptomatology in the years since service. The examiner is advised that although the May 1985 STR indicates that he may have experienced left ankle problems prior to service; he was presumed sound at service entrance. Also, please comment on the December 2015 private opinion by Dr. F. G., orthopedic surgeon. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms or a continuity since service, the examiner must provide a reason for doing so. The absence of evidence of treatment for left ankle problems for many years after service cannot, standing alone, serve as the basis for a negative opinion. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his current headaches. All indicated tests and studies shall be conducted. All evidence of record, including a copy of this remand and all relevant records contained in the Virtual VA and VBMS systems, must be sent to the examiner for review. For any current headaches identified (i.e. any headaches experienced since August 2007), the examiner shall answer all of the following questions: (a) Do the headaches represent a separate and distinct disease entity or are they a symptom of the Veteran's service-connected allergic rhinitis? (b) If the Veteran has a current disability manifested by headaches that is separate and distinct from his service-connected allergic rhinitis, is it at least as likely as not (50 percent probability or more) that the current headache disability had its onset during service, is related to the Veteran's headaches in service, or is otherwise the result of a disease or injury in service? (c) If the Veteran has a current disability manifested by headaches that is separate and distinct from his service-connected allergic rhinitis, is it at least as likely as not (50 percent probability or more) that the current headache disability was caused (in whole or in part) by his service-connected allergic rhinitis? (d) If the Veteran has a current disability manifested by headaches that is separate and distinct from his service-connected allergic rhinitis, is it at least as likely as not (50 percent probability or more) that the current headache disability was aggravated (made chronically worse) by his service-connected allergic rhinitis? In formulating the above opinions, the examiner must acknowledge and comment on all headaches diagnosed since August 2007 and all instances of treatment for headaches in the Veteran's service treatment records The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so. 5. The AOJ shall review the examination reports to ensure that they contain the information and opinions requested in this remand and are otherwise complete. 6. If any benefit for which a sufficient substantive appeal has been submitted remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran and his attorney are given an opportunity to respond, the case shall be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs