Citation Nr: 18150291 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-35 986 DATE: November 15, 2018 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a left shoulder disorder is denied. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. FINDINGS OF FACT 1. The RO denied service connection for bilateral hearing loss in June 2006. The Veteran was notified of this decision later that month and filed a notice of disagreement after which a statement of the case was issued. He did not perfect his appeal nor was evidence received within the one-year period which would have allowed the claim to remain open. Hence, the decision became final. 2. Evidence received since the denial of service connection for bilateral hearing loss raises a reasonable possibility of substantiating the claim. 3. Any current bilateral hearing loss is not of service origin. 4. Any current tinnitus is not of service origin. 5. There is clear and unmistakable evidence that the Veteran's left shoulder disorder pre-existed his entrance into service. 6. There is clear and unmistakable evidence that the Veteran's left shoulder disorder was not aggravated in service. CONCLUSIONS OF LAW 1. The June 2006 rating determination denying service connection for bilateral hearing loss became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 4. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 5. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. § 1111 (2012); 38 C.F.R. §§ 3.303, 3.304(b), 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from March 1968 to October 1969. As to the issue of service connection for bilateral hearing loss, the Board notes that the Regional Office reopened the previously denied claim and denied service connection for hearing loss. The question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding any action which may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim). Therefore, the Board has listed the issue as such on the title page of this decision. New and Material-Hearing Loss New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the appellant’s claim in light of all the evidence. Justus, 3 Vet. App. at 512. The Court has elaborated that material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). Further, RO decisions become final “only after the period for appeal has run,” and “[a]ny interim submissions before finality must be considered by the VA as part of the original claim.” Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be “considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final.” King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question “as new claims”). In Buie, the Court explained that, when statements are received within one year of the rating decision, the Board’s inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Id. The RO denied service connection for bilateral hearing loss in June 2006. In denying service connection, the RO indicated that service medical records showed no evidence of hearing loss. The RO indicated that under 38 C.F.R.§ 3.385, hearing loss could be considered service connected when the thresholds for frequencies of 500, 100, 2000, 3000, and 4000 Hertz are all less than 40 decibels; or the thresholds for at least three of these frequencies are less than 26 decibels; and speech recognition scores are 94 percent or better using the Maryland CNC Test. The RO observed that statements were submitted from two persons who attested to the Veteran’s long history of hearing difficulties. The RO further noted that the Veteran asserted that his current hearing loss was due to noise exposure in service as a “combat engineer.” The RO noted that it had been verified that during the Veteran’s one year and six months of military service, he had worked as a construction equipment operator. There was no evidence that he served in combat. It was also noted that the Veteran worked in the mining industry for 30 years post-service before seeking any treatment for hearing loss. The RO indicated that there was no objective evidence of hearing loss in service, and a long history of post-service noise exposure which greatly outweighed any such possible exposure in service. There was also no objective medical evidence to relate a current hearing loss to any event or medical condition in military service. The RO denied service connection for bilateral hearing loss. While the Veteran filed a notice of disagreement with the June 2006 rating determination and a statement of the case was issued in March 2007, the Veteran did not file a substantive appeal nor was evidence received which would have allowed the claim to remain open. Thus, the decision became final. Evidence available at the time of the June 2006 denial included the Veteran’s service treatment records, VA treatment records, statements from two friends of the Veteran, and the statements from the Veteran. Evidence received subsequent to the prior final denial includes statements from the Veteran, VA treatment records, and the results of a December 2015 VA examination. The December 2015 VA examination revealed a bilateral sensorineural hearing loss for VA rating purposes. The basis for the prior denial was that the Veteran did not have a hearing loss for rating purposes. The Veteran also provided more in-depth detail as it related to his inservice noise exposure. The newly received evidence relates to previously unestablished elements of the claim of a current disability and a possible link between the current disability and service, and provides a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The claim is thus reopened, and the merits of service connection will now be addressed on a de novo basis below. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Bilateral sensorineural hearing loss and tinnitus are “chronic diseases” listed under 38 C.F.R. § 3.309(a). If present, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and bilateral sensorineural hearing loss becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Generally, lay evidence is competent with regard to a disease with “unique and readily identifiable features” that is “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), (citing Gilbert). Hearing Loss and Tinnitus For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. See Hensley. The Veteran maintains that he currently has hearing loss and tinnitus resulting from noise exposure in service. A review of the Veteran’s service treatment records reveals that at the time of his August 1967 pre-induction examination, the Veteran was noted to have decibel level readings of 5, 0, 0, 0 and 0 in the right ear and 0, 5, 5, 15, and 15 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. There were no complaints or problems with hearing loss during service. On his September 1969 service separation report of medical history, the Veteran checked the “no” boxes when asked if he had or had ever had ear, nose, or throat trouble. He also did not report having hearing problems or tinnitus at that time. At the time of his September 1969 service separation examination, the Veteran had decibel level readings of 0, 5, 5, -, and 5 in the right ear and 0, 5, 10, -, and 5 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. The Veteran did not report having any hearing loss or tinnitus problems at that time. There were also no complaints or problems of hearing loss or tinnitus in the years immediately following service. In a July 2006 letter, A.M. indicated that she had known the Veteran since 1959. She stated that she saw the Veteran around Christmas time in 1969 after he had been discharged from the Army. She indicated that when she was talking to him almost everything she said to him he would say “huh”. He stated at that time that his hearing had been affected by the Army. In an August 2005 statement, R.F. stated that he first met the Veteran in 1972. He noted that he was amazed that the Veteran was experiencing hearing difficulties at a young age. He stated that the Veteran told him he had problems hearing ever since he returned from Vietnam because of exposure to the heavy equipment he operated while over there and the artillery batteries constantly firing rounds. In conjunction with his claim, the Veteran was afforded a VA examination in December 2015. The examiner noted that the Veteran reported noise exposure during military service in Vietnam as a heavy equipment operator to engine noise, rockets and mortars, without the use of ear protection. The examiner further noted that the Veteran reported occupational noise exposure as a heavy equipment operator for twelve to fifteen years with the use of ear protection. The Veteran denied occupational noise exposure working in his mechanic business for ten years. He also denied recreational noise exposure. At the time of the examination, the Veteran was found to have decibel level readings of 30, 35, 65, 55, and 55 in the right ear and 30, 35, 65, 55, and 60 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. Speech recognition testing was 94 percent in each ear. Following examination of the Veteran, the examiner indicated that it was not at least as likely as not that the Veteran’s right and left ear hearing loss was caused by or the result of an event in military service. She stated that a review of the service treatment records indicated that the Veteran’s hearing was within normal limits, bilaterally, at entrance and at the time of separation from service. Per an Institute of Medicine study, in cases where entrance and separation examination, where hearing was normal or not disabling per 3.385, there was no scientific basis for concluding that hearing loss that developed afterwards was causally related to military service. She noted that the report concluded that based upon current understanding or auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was unlikely. She indicated that the IOM also stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. Therefore, given there was no significant shift in hearing levels greater than normal military service and no record of complaints or treatment of claimed conditions in service treatment records, it was less likely that the hearing loss was related to military noise exposure. As to tinnitus, the examiner opined that as no hearing loss was incurred as a result of military service and as there was no documentation of tinnitus in service treatment records, it was less likely than not tinnitus was the result of military noise exposure. Following a review of all the evidence, lay and medical, the Board finds that the criteria for service connection for bilateral hearing loss have not been met. The Board finds that the weight of the evidence shows that no evidence of hearing loss, as defined for VA rating purposes, occurred during service, and no chronic symptoms of hearing loss were manifested during service. The service treatment records do not reveal that the Veteran had a hearing loss, as defined for VA purposes at that time. As noted above, the Veteran had decibel level readings of 0, 5, 5, -, and 5 in the right ear and 0, 5, 10, -, and 5 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. Moreover, the Veteran checked the no box when asked if he had or had ever had ear trouble on his service separation report of medical history. As active service treatment records, which are complete, show no hearing loss, as defined by VA rating purposes, the weight of the evidence demonstrates that there were no “chronic” symptoms of hearing loss during service. The first objective medical finding of hearing loss was not until many years following service. The Veteran has asserted that he has experienced hearing loss since service. The Veteran did not report having hearing problems in service or at the time of his separation from service. Moreover, the Veteran did not request hearing loss for many years following service. The above evidence is more probative than are his assertions, voiced well beyond his period of service, that any claimed hearing loss problems are related to his period of service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). For these reasons, the Board concludes that the assertions of hearing loss in service and since service are not credible. Insomuch as the Veteran has attempted to establish a continuity of symptomatology or nexus through his own lay assertions, the Board finds that the etiology of the Veteran’s current hearing loss falls outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issue of causation. See Jandreau, 492 F.3d 1372, 1377 n.4. Opinions as to causation involve making findings based on medical knowledge and clinical testing. Likewise, the statements from friends of the Veteran are also of no probative value. The evidence does not show clinical documentation of hearing loss until many years after service. Consequently, the Veteran’s opinion or those of his friends that purport to establish continuity of symptomatology or relate hearing loss to active service are of no probative value. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The Veteran was afforded the opportunity to provide competent medical evidence or a competent opinion relating his current hearing loss to his period of service. He has not provided either medical evidence or an opinion to support either proposition. In contrast, the December 2015 examiner indicated that the Veteran’s current bilateral hearing loss was less likely as not related to or caused by his military noise exposure. The opinion was rendered following a thorough examination of the Veteran and a comprehensive review of the file. The examiner provided detailed rationale to support the opinion. There is no indication that the VA examiner was not fully aware of the Veteran’s past medical history or misstated any relevant fact. Therefore, the Board finds the opinion to be of great probative value regarding whether the Veteran's claimed hearing loss is etiologically related to his period of service. Because the record does not show hearing loss in service, continuous symptoms of hearing loss since service, hearing loss manifested to a compensable degree within one year of service separation, or hearing loss otherwise related to service, direct and presumptive service connection for hearing loss may not be established. 38 C.F.R. §§ 3.303, 3.307, 3.309. Following a review of all the evidence, lay and medical, the Board finds that the criteria for service connection for tinnitus have not been met. The Board finds that the weight of the evidence shows that no evidence of tinnitus occurred during service, and no chronic symptoms of tinnitus were manifested during service. The service treatment records do not contain any complaints or findings of tinnitus/ringing in the ears in service. As service treatment records, which are complete, show no tinnitus/ringing in the ears, the weight of the evidence demonstrates that there were no “chronic” symptoms of tinnitus during service. The first objective medical finding of tinnitus was not until decades after service. The Veteran has asserted that he has experienced tinnitus since service. In this regard, the Board notes that the Veteran checked the “no” box when asked if he had or had ever had ear, nose and throat trouble on his service separation report of medical history. Tinnitus problems were first reported many years subsequent to the Veteran’s period of service. This contemporaneous evidence outweighs and is more probative than are his assertions voiced years later and in connection with a claim for disability benefits. The above evidence is more probative than are his assertions, voiced well beyond his period of service, that any claimed tinnitus problems are related to his period of service. For these reasons, the Board concludes that the assertions of tinnitus in service and since service are not credible. Insomuch as the Veteran has attempted to establish a continuity of symptomatology or nexus through his own lay assertions, the Board finds that the etiology of the Veteran’s tinnitus falls outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issue of causation. See Jandreau, 492 F.3d 1372, 1377 n.4. Opinions as to causation involve making findings based on medical knowledge and clinical testing. The evidence does not show clinical documentation of tinnitus until many years after service. Consequently, the Veteran’s opinion that purports to establish continuity of symptomatology or relate tinnitus to active service is of no probative value. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The Veteran was afforded the opportunity to provide competent medical evidence or a competent opinion relating his current tinnitus to his period of service. He has not provided either medical evidence or an opinion to support either proposition. In contrast, the December 2015 VA examiner indicated that the Veteran’s current tinnitus was less likely as not related to or caused by his military noise exposure. The opinion was rendered following a thorough examination of the Veteran and a comprehensive review of the file. The examiner provided detailed rationale to support the opinion. There is no indication that the VA examiner was not fully aware of the Veteran’s past medical history or misstated any relevant fact. Therefore, the Board finds the opinion to be of great probative value regarding whether the Veteran’s claimed tinnitus is etiologically related to his period of service. Because the record does not show tinnitus in service, continuous symptoms of tinnitus since service, or tinnitus otherwise related to service, direct and presumptive service connection for tinnitus may not be established. 38 C.F.R. §§ 3.303, 3.307, 3.309. Left Shoulder Disorder A veteran is 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, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304(b), and that “[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” Id. at (b)(1). If a disorder was not “noted” on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the “increase in disability [was] due to the natural progress of the preexisting condition.” 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. In explaining the meaning of an increase in disability, the Court has held that “temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered ‘aggravation in service’ unless the underlying condition, as contrasted to symptoms, is worsened.” Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare-ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops and the claim is denied. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. A review of the Veteran’s service treatment records reveals that at the time of his August 1967 pre-induction examination, he was noted to have sustained a left shoulder injury. In the August 1967 pre-induction report of medical history, the Veteran was noted to have sustained a fractured shoulder in 1966. In August 1968, the Veteran was seen after having struck his shoulder on a corner a few days earlier. He was noted to have pain with use of the arm, particularly with external rotation. Physical examination performed at that time revealed full range of motion with slight crepitation in the glenohumeral joint with no joint tenderness. X-ray of the left shoulder revealed no bony abnormality. There were no further complaints of left shoulder problems in service. The Veteran was noted to have sustained a remote fracture of the left shoulder two years earlier. At the time of his September 1969 service separation examination, the Veteran was noted to have limitation of full abduction of both shoulders from old injuries. On his service separation report of medical history, the Veteran checked the “yes” box when asked if he had or had ever had a painful or trick shoulder or elbow. It was noted that he had sustained a compound fracture of the left humeral head prior to service. Post-service treatment records contain no complaints or findings of left shoulder problems. In conjunction with his claim, the Veteran was afforded a VA examination in December 2015. The examiner indicated that the Veteran had a diagnosis of left humeral head fracture with left shoulder injury pre-service with no residual. Physical examination revealed normal range of motion. X-rays of the left shoulder were normal. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an inservice event, injury, or illness. The examiner indicated that the Veteran had a complaint of left shoulder pain in service treatment records, however, there was no clinical pathology on examination or radiograph today and no current diagnosis. The examiner noted that the Veteran himself stated there was not a problem with the left shoulder. In this case, there is clear and unmistakable evidence that the Veteran sustained a left shoulder injury prior to service. Next, VA must show that the Veteran’s pre-existing left shoulder disability clearly and unmistakably was not aggravated by his period of active duty. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran need not produce any evidence of aggravation in order to prevail under the no-aggravation prong of the presumption of soundness. Rather, the burden is on VA to establish by clear and unmistakable evidence that it was not aggravated or that any increase in severity was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). “The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition.” Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096). This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. Conversely, the burden is not met by finding “that the record contains insufficient evidence of aggravation.” Id. For the reasons discussed below, the Board finds that there is clear and unmistakable evidence that his left shoulder disability was not aggravated by his period of active service. As there are no current diagnoses, it cannot be established that there was permanent aggravation during service. At the time of the Veteran’s December 2015 VA examination, the only diagnosis rendered was left humeral head fracture with left shoulder injury, pre-service, with no residual. In the absence of proof of present disability there can be no valid claim. See 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. § 1110 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 appeal 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). The medical evidence does not indicate that the Veteran has a current diagnosis of a left shoulder disorder. Based on the above, to the extent that the medical evidence addresses whether the Veteran has a current left shoulder disorder, it indicates that he does not. The Veteran is competent to report his current symptoms, but his reports must be weighed against the medical evidence of record. See Grover v. West, 12 Vet. App. 109, 112 (1999). To the extent that the Veteran has indicated that he currently has a left shoulder disorder, the medical evidence showing an absence of such a disability is of greater probative weight than the Veteran’s reports made during the course of his claim for VA benefits. Moreover, as the question of causation extends beyond an immediately observable cause-and-effect relationship, he is not competent to render a diagnosis or address etiology in the present case. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran currently has a left shoulder disorder, falls outside the realm of common knowledge of a lay person. The weight of the evidence is against a finding that the Veteran currently has a left shoulder disorder. A necessary element for establishing service connection-evidence of a current disability-has not been shown. Once the presumption of soundness at entry has been rebutted, aggravation may not be conceded unless the preexisting condition increased in severity during service, pursuant to 38 C.F.R. § 3.306 (2017). See VAOPGCPREC 3-2003 (July 16, 2003). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993) (citing Hunt v. Derwinski, 1 Vet. App. 292 1991). The Veteran’s service treatment records contain several notations of left shoulder pain; however, there are no diagnoses of a left shoulder disorder following service. Thus, permanent aggravation in service did not occur. Furthermore, post-service treatment records do not show treatment for left shoulder problems in the years immediately following service. In addition, there is a medical opinion of record which addresses aggravation. The December 2015 VA examiner opined that the claimed condition, which clearly and unmistakably existed prior to service was not aggravated beyond its natural progression by an inservice event, injury, or illness. Given the foregoing, there was no aggravation of a left shoulder disability to a permanent degree in service. 38 U.S.C. § 1153 (2012). Service connection is therefore denied. REASONS FOR REMAND Low Back As it relates to the claim of service connection for a low back disorder, the Board notes that the Veteran has complained of having low back problems since his period of service. He maintains that his current low back disorder is a result of the duties performed in service. The Veteran has been found to have degenerative joint disease of the lumbar spine. Given the foregoing, the Veteran should be afforded a VA examination to determine the etiology of any current low back disorder and its relationship, if any, to his period of service. Right Shoulder At the time of the December 2015 VA examination, the examiner noted that the Veteran indicated that he was seen by Coral Desert Orthopedics in July 2013 with complaints of right shoulder pain for 2 years after he fell. The onset of the problem was sudden after accident or injury. He had complaints of pain with resisted internal rotation which affected his ADLs. He was found to have a complete tear of the rotator cuff tendon. The Veteran underwent recommended surgery, arthroscopy of the right shoulder, for repair of the rotator cuff tear. The examiner indicated that notes after surgery read that the Veteran was doing much better with his complaints of right shoulder pain and he was able to stop taking narcotic pain medication. The Veteran reported having very few symptoms regarding his left shoulder. In the December 2015 medical opinion, the examiner also referenced notes from the Veteran’s PCP dated October 31, 2015. The Board notes that the above-referenced treatment records are not available for review. As the Board has been put on notice that these records exist and that they were used in the preparation of the examiner’s opinion, an attempt should be made to associate these treatment records with the file and/or to allow the Veteran the opportunity to forward copies of these identified records in support of his claim. The Board further observes that the Veteran has indicated that he injured his right shoulder prior to service in 1965 and that he aggravated it. The Board further notes that at the time of the Veteran’s September 1969 service separation examination, it was noted that the Veteran had limited abduction of both shoulders from old injuries. Given the foregoing, an opinion concerning aggravation of a preexisting disability should be obtained. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. As it relates to the Veteran’s right shoulder, attempt to obtain copies of all treatment records referenced by the December 2015 VA examiner, including, but not limited to, his private physician R. Clark and/or Coral Desert Orthopedics. If these records are not available, request that the Veteran provide proper authorization to obtain these records if he does not have an additional copy of those records to provide. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current low back disorder. All indicated tests and studies should be performed and all findings should be reported in detail. The entire record should be made available to the examiner. The examiner is requested to render the following opinion: Is it at least as likely as not (50 percent probability or greater) that any current low back disorder is related to the Veteran’s period of service? Complete detailed rationale is requested for each opinion that is rendered. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current right shoulder disorder. All indicated tests and studies should be performed and all findings should be reported in detail. The entire record should be made available to the examiner. The examiner is requested to render the following opinions: (a) Did the Veteran’s current right shoulder disorder clearly and unmistakably (obvious, manifest, undebatable) pre-exist his period of active service? (b) If it is your opinion that the right shoulder disorder clearly and unmistakably preexisted service, is there clear and unmistakable evidence that the right shoulder disorder was not aggravated by service, either because there was no increase in disability during service or because any increase in disability was due to the natural progress of the preexisting condition? (c) If you conclude that the right shoulder disorder did not clearly and unmistakably pre-exist service, is it at least as likely as not (probability 50 percent of more) that any current right shoulder disorder had its onset in service? Complete detailed rationale is requested for each opinion that is rendered. 5. Ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action must be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.Kelly, Counsel