Citation Nr: 21077241 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 19-35 559 DATE: December 29, 2021 ORDER 1. Entitlement to service connection for a traumatic brain injury (TBI) is denied. 2. Entitlement to service connection for degenerative arthritis of the spine (thoracolumbar spine disability) is denied. 3. Entitlement to service connection for right hip degenerative joint disease (right hip disability) is denied. 4. Entitlement to service connection for tinnitus is denied. 5. Entitlement to service connection for left ear hearing loss is denied. 6. Entitlement to service connection for depression, to include as secondary to TBI, thoracolumbar spine, and right hip disabilities, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the current TBI disability had its onset in service, or is caused or otherwise related to service, to include as due to a claimed injury from falling from the top bunk bed. 2. The preponderance of the evidence is against a finding that the current thoracolumbar spine disability had its onset in service, was manifested within one year of service discharge, or is otherwise related to service, to include as due to a claimed injury from falling from the top bunk bed. 3. The preponderance of the evidence is against a finding that the current right hip disability had its onset in service, was manifested within one year of service discharge, or is otherwise related to service, to include as due to a claimed injury from falling from the top bunk bed. 4. The Veteran has not had a tinnitus disability at any time during the pendency of his service connection claim, to include pain that causes functional impairment that affects earning capacity. 5. The Veteran's current left ear hearing loss disability did not onset in service, manifested to a compensable degree within one year of separation from service, and it is not otherwise related to service. 6. The preponderance of the evidence is against a finding that the current depression disability had its onset in service, or is caused or otherwise related to service, or is caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a TBI have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 6. The criteria for entitlement to service connection for depression, to include as secondary to TBI, thoracolumbar spine, and right hip disabilities, have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from June 1958 to May 1961. The Veteran originally requested a Board hearing via videoconference in the November 2019 Substantive Appeal to the Board (VA Form 9), and then elected to have a virtual Board hearing in a December 2020 statement. However, he withdrew the request for a Board hearing in a subsequent December 2020 written statement, and the Veteran's withdrawal of the hearing request was confirmed by his representative in an October 2021 written statement. Accordingly, any request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702(e). Service Connection, Generally The Veteran contends that his current TBI, thoracolumbar spine, and right hip disabilities were caused by an in-service incident in which he fell from the top bunk bed. Specifically, in the October 2017 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ), the Veteran asserted that while station in France during active duty, one day some of the soldiers thought they would pull a trick on him by removing the springs from his top bunk bed. When he jumped up on his footlocker and flipped on the bunk, it crashed down and he hit the metal railings with full force, which hurt his back and spine. He stated that he hit his head hard as well, and that he injured his right hip. He stated that he did not know how long he laid there after fallowing through the bed, and that he was unable to move or even talk. He noted that the other soldiers were standing and laughing around him because they thought it was funny. He stated that he told his commander what occurred but that the commander did nothing to the men who were responsible for his injuries. He asserted that he has suffered with pain since that time, and that he has a knot on his head from the fall. Moreover, the Veteran asserted that he has current tinnitus and bilateral hearing loss due to another soldier firing a full clip of ammunition beside his right ear on the firing range. Lastly, he contended that his depression was due to injuries to his back, head, and right hip. 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, 1131; 38 C.F.R. § 3.303(a). In order to establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from 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, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Furthermore, pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has a diagnosis of arthritis and sensorineural hearing loss, which is an organic disease of the nervous system; thus, these provisions apply to this disability. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case, the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 1. TBI In addition to the statements made in the October 2017 VA Form 21-526EZ, the Veteran has asserted on several occasions throughout the appeal that he injured his head in service during his station in France when several servicemembers played a trick on him that resulted in him crashing through his top bunk bed onto the ground. For example, he reported to a March 2018 VA examiner that he suffered headaches soon after this incident and that his headaches have continued since that time. Initially, the Board determines that entitlement to service connection for TBI is not warranted because the Veteran's current disability was not caused by any in-service incident but rather a post-service injury to his head. The reasons follow. After affording the Veteran the benefit of the doubt, the Board finds that he has a current TBI disability. Specifically, the Veteran underwent a March 2018 VA examination, which was conducted by a forensic psychiatrist, during which the Veteran was diagnosed with TBI. The examiner noted that the date of the diagnosis was 1990. The Veteran reported to the examiner that he was stationed in France and a prank was played on him by his comrades resulting in him falling and hitting the floor, and sustaining head and back injuries. The Veteran reported to the examiner that he lost consciousness and that his current symptoms are dizziness, anxiety, depression, and difficulty remembering and concentration. The examiner noted that there was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The examiner explained that the Veteran's medical records indicated a history of head injuries with loss of consciousness and memory loss. While the examination showed that the Veteran's consciousness, visual spatial orientation, motor activity, orientation, social interaction, and judgment were normal, he had residuals in subjective symptoms, neurobehavioral effects, and communication. The examiner noted that the Veteran symptoms included dizziness, headaches, insomnia, anxiety, depression, an inability to hear, and difficult to comprehend. The examiner found that the Veteran's residuals of TBI included hearing loss and/or tinnitus, headaches including migraines, Meniere's disease, and a mental disorder, including emotional, behavioral, or cognitive. Accordingly, after affording the Veteran the benefit of the doubt, the first element of service connection, i.e., evidence of a current disability, is met for this disorder. Regarding the second element of service connection, evidence of a disease or injury in service, the Board finds that the Veteran's service treatment records do not show that he had an in-service injury to his head stemming from any fall from his bunk bed or footlocker in France. For example, his June 1958 service enlistment reports of medical examination and medical history show that he had normal neurological and psychiatric systems, and that his head, face, neck, and scalp were noted as normal. The Veteran complained of headaches in a July 1958 service treatment record during his station at Fort Leonard Wood in Missouri. A March 1960 service treatment record shows that the Veteran struck his left foreleg on a footlocker while stationed in Verdun, France. The medical professional noted that he had pitting edema in the left foreleg. This injury was diagnosed as a contusion with edema of the left foreleg. A November 1960 service treatment record shows that the Veteran had a through and through laceration on the left upper lip, which was closed under local anesthesia, while stationed in Chicago, Illinois. Four days later, another service treatment record shows that the lacerated lip was healing nicely. The Veteran's March 1961 service separation report of medical examination shows that his head, face, neck, and scalp were noted as normal. He also had normal neurological and psychiatric symptoms, as well as no identifying body marks, scars, or tattoos. Furthermore, the evaluator assigned a "1" rating assessing the Veteran's psychiatric symptoms under the PULHES profile system, indicating that the Veteran's symptoms were then in a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of a veteran's capacity). The PULHES profile reflects the overall physical and psychiatric condition of a veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service, with the "P" standing for stamina, "U" standing for upper extremities, "L" standing for lower extremities, "H" standing for hearing, "E" standing for eyes, and "S" standing for psychiatric symptoms. While the Veteran noted that he previously had mumps (without complications), as well as difficulty hearing in his right ear, in the March 1961 service separation report of medical history, he did not report any previous or current symptoms that could be attributed to a TBI, including loss of memory or amnesia. He specifically noted "no" to the question as to whether he ever had any illness or injury other than those already noted. A May 1961 service medical condition statement noted that there was no change in his medical condition since his service separation evaluation in March 1961. Overall, the Veteran's service treatment records do not show that he was treated for or complained of any symptoms that could be indicative of TBI or residuals of TBI. Thus, the Board finds that the service treatment records do not support the Veteran's allegation of an in-service TBI as described by him. In fact, the record does not contain allegations of a head injury until a May 2017 VA surgery consultation note, in which the Veteran reported a history of a head injury in the 1990s with loss of consciousness and memory loss. After the Veteran filed the October 2017 claim for service connection, he underwent the March 2018 VA examination, which the Board has discussed above. Following the examination, the examiner opined that the Veteran's current TBI was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran was a recipient of a prank played by his colleagues and that he was injured by falling from the bunk, impacting on to the floor, and sustaining a loss of consciousness. The examiner noted that the Veteran was treated for a concussion and has a bump on his neck. The examiner noted that the Veteran developed headaches, back pains, and hearing issues. The examiner further noted that the Veteran also developed personality problems and was divorced twice. The examiner explained that the indications of TBI were increased irritability, changes in mood, and angry outbursts. The examiner further explained that the Veteran self-described difficulty with personality changes, onset of depression, dizziness, with thinking and with everyday activities. The examiner further noted that his replies indicated depression that was very difficult to tolerate. In a May 2018 addendum VA medical opinion, another VA examiner, a neurologist, was asked to clarify whether there was a nexus between the Veteran's current TBI symptoms and the in-service event of a footlocker accident, as determined by the March 2018 VA examiner. The May 2018 examiner noted that he reviewed the March 2018 VA examination report and records. The examiner stated that the Veteran fell in a locker room onto the concrete floor with loss of consciousness and complaints of headaches and dizziness. The examiner cited to a July 1958 service treatment record showing that he was seen for complaints of headaches. The examiner stated that according to the March 2018 VA examination report, a prank was played on the Veteran, resulting in the veteran hitting his head, causing loss of consciousness, headaches, dizziness, decrease in concentration, and short-term memory problems. The May 2018 examiner explained that there was documentation that the Veteran fell and hit his head with loss of consciousness and headaches. The examiner noted that the Veteran met the criteria for TBI, resulting in residuals of headaches, decrease in concentration, and short-term memory problems. The May 2018 examiner concluded that the records support that the Veteran's TBI was the result of the incident in the service treatment records. In addition to this medical evidence, the claims file also contains two July 2018 written statements from lay individuals discussing his in-service injuries. The Veteran's friend, "R.P.," stated that he grew up with the Veteran before his service and stayed in touch with the Veteran throughout his service, as well as during the friend's service. This friend stated that he got in touch with the Veteran again and heard about his injuries in France over and over again. R.P. asserted that he often had to tell the Veteran that he had heard about his injuries in France before non-stop. Likewise, the Veteran's niece, "A.D.," stated in a July 2018 statement that she heard and talked with the Veteran about his back injuries during his time in the service. He would get upset just talking about his injuries. She noted that she has witnessed him in physical pain due to the injuries on many occasions. The Board notes that the Veteran has asserted that his spinal and right hip injuries stem from the same in-service fall as the TBI. The preponderance of the evidence is against a finding that the current TBI disability had its onset in service, or is caused or otherwise related to service, to include as due to a claimed injury from falling from the top bunk bed. The Veteran has claimed that he sustained an injury to his head, which resulted in a bump on his neck, as well as injuries to his spine and right hip. However, he did not report this injury or residual disability and/or symptoms at service discharge. Rather, he reported diseases he experienced in childhood, including mumps, and current right ear hearing loss. The service separation evaluation showed that his head, neck, and face were normal, and did not note the presence of any bump on his neck, or any associated physical or neurological residuals. Furthermore, the Veteran reported to the March 2018 VA examiner that he had a history of head and back injuries with loss of consciousness in 1990 due to an accident, and this examiner noted that he was diagnosed with TBI in 1990. Moreover, the Veteran reported in a May 2017 VA surgery consultation note that he had a history of head injury in the 1990s with loss of consciousness and memory loss. While this is evidence against a finding that he sustained a TBI in service, it tends to support a finding that the current TBI residuals stem from a post-service injury to the head in the 1990s, or approximately almost 30 years following service separation. Thus, the preponderance of the evidence is against the second element of a service-connection claim for TBI. The Board further finds that the preponderance of the evidence is against a nexus between the current TBI and the Veteran's active duty. The Board has considered the Veteran's statements that his current TBI is caused by the claimed in-service injury in France from falling from the top bunk bed. The Board also considered the July 2018 statements made by the Veteran's friend and niece regarding his in-service injuries. The Board notes that the Veteran and these lay individuals are competent to report symptoms that they perceive through their own senses, including experiencing the fall in service or being told about the Veteran's injuries from service. See Layno v. Brown, 6 Vet. App. 465 (1994). However, while lay persons are competent to relay things they observe, such evidence is not probative unless it is also found to be credible. As noted above, the claimed in-service injury in France is not corroborated by the record, and the service treatment records, including the March 1961 service separation evaluation, do not support that he had any symptoms attributed to a TBI at service separation, including the bump on his neck. Thus, the statements made by these individuals are not probative, as they were based on an inaccurate factual premise of an in-service injury. Furthermore, the Board accords the March 2018 and May 2018 VA examiners' opinions that the Veteran's current TBI and its residuals are caused by the in-service injury no probative value as these opinions are based on the uncorroborated assumption of an in-service injury, as reported by the Veteran, which fact the Board finds is not credible. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Specifically, these opinions were based on the Veteran's own accounts of the events in service rather than independent, accurate corroborating evidence. They are speculative and of no probative value because they are based on an unsubstantiated account of the in-service injury in France. The Board is not bound to accept the Veteran's uncorroborated account of his experiences. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.). For example, the March 2018 VA examiner based his opinion in part on the Veteran reporting that he was treated for a concussion and had a bump on his neck. As noted above, the Veteran's service treatment records do not show any such complaints of or treatment for a concussion and his service separation evaluation showed that his head, face, and neck were normal with no identifying body marks, scars, or tattoos. Furthermore, the May 2018 VA examiners' opinion is based on the review of the inaccurate March 2018 VA examiner's opinion, as well as a citation to the July 1958 service treatment record in which the Veteran was seen for a headache, which the examiner attributed to the in-service TBI incident. However, the Board notes that this service treatment record, which did not address any cause for the headaches, is from approximately two years prior to claimed in-service injury, and was recorded at Ft. Leonard Wood, Missouri, rather than in Verdun, France, where the claimed injury allegedly occurred. At the present time, there is no competent evidence of a nexus between a current TBI and service that is based on a credible in-service event. Instead, the positive opinions in the claims file are based on statements provided by the Veteran, whose statements lack credibility for the reasons described above. Opinions based on inaccurate factual premises have no probative value. Accordingly, the preponderance of the evidence is against a nexus between the current TBI and service. Accordingly, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a TBI, the benefit of the doubt doctrine does not apply, and the Veteran's claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. 3. Thoracolumbar Spine and Right Hip Disability As above, the Veteran contends that his current thoracolumbar spine and right hip disabilities are caused by an injury during active duty where he fell from the top bunk bed while stationed in France. He contends that several soldiers pulled a prank on him by removing the springs from his top bunk bed, and when he jumped up on his footlocker and flipped on the bunk, it crashed down and he hit the metal railings with full force, which hurt his back and spine. He stated that he hit his head hard as well, and that he injured his right hip. He contends that that he has suffered with pain since that time. The Board has carefully reviewed the evidence of record and finds the preponderance of the evidence is against the claims for service connection for thoracolumbar spine and right hip disabilities. The reasons follow. As to evidence of a current disability, the Veteran has been diagnosed with degenerative arthritis of the spine and degenerative arthritis of the right hip in March 2018 VA examination reports. Thus, the first element of service connection for each claim, i.e., the presence of a current disability, is met. However, regarding the second element of service connection, evidence of a disease or injury in service, the Board finds that the Veteran's service treatment records do not show that he had an in-service injury to his spine and/or right hip from any fall from his top bunk bed or footlocker in France. The Veteran's June 1958 service enlistment reports of medical examination and medical history show that he had normal lower extremities and spine or other musculoskeletal systems. The Veteran indicated that he never had any arthritis or rheumatism, or bone, joint, or other deformity. A March 1960 service treatment record shows that he injured his left foreleg on a footlocker while stationed in France. He was noted to have pitting edema in the left foreleg, which was diagnosed as a contusion with edema of the left foreleg. The Veteran's March 1961 service separation reports of medical examination and medical history also show that he had normal lower extremities and spine or other musculoskeletal systems. He again reported that he has never had any arthritis or rheumatism, or bone, joint, or other deformity. The evaluator assigned a "1" rating assessing the Veteran's lower extremity symptoms under the PULHES profile system indicating that the Veteran's symptoms were then in a high level of fitness. See Odiorne, 3 Vet. App. at 457. Although the Veteran reported that he had other diseases or illness, namely mumps and difficulty hearing in his right ear, in the March 1961 service separation report of medical history, he did not report any previous or current thoracolumbar spine or right hip symptoms. He also specifically noted "no" to the question as to whether he ever had any illness or injury other than those already noted. Additionally, a May 1961 service treatment record shows that there was no change in his medical condition since his service separation evaluation in March 1961. Overall, the Veteran's service treatment records do not show that he was treated for or complained of any symptoms that could be indicative of thoracolumbar spine or right hip symptoms stemming from any injury, including a fall from a top bunk bed. In fact, the record does not contain complaints of or treatment for the right hip until a September 1999 VA x-ray report and a November 2001 VA primary care note for back pain. The September 1999 VA x-ray report of the right hip shows that the Veteran's history included being a 58 year-old with a history of polio as a child and residual weakness in the right leg. He complained of now having right hip pain. The study's impression was of no bony abnormalities, and no fracture or dislocation. The November 2001 VA primary care not showed that the Veteran complained of bilateral hip and back pain for three weeks, and that the pain was decreased since onset. X-rays of the right hip showed minimal degenerative changes in the lateral acetabular aspect of the right hip joint with no fracture. The indication for the x-ray of the spine from the same date showed that the Veteran complained of low back pain post-fall seven years ago, or in 1994. The impression was osteoporosis, facet hypertrophy at the L5-S1 spinal segment, and changes of spondylosis, which were most prominent at the L5-S1 spinal segment. A February 2002 VA orthopedic surgery note showed that the Veteran complained of right hip pain, which was symptomatic for the previous two years and not due to an injury. The record shows that the Veteran was routinely seen for complaints of thoracolumbar spine and right hip symptoms since 2002, including in May 2002, October 2005, January 2007, January 2015, April 2016, and June 2017 VA treatment records. During a March 2018 VA examination of the thoracolumbar spine, the Veteran reported that on March 12, 1960, the experienced pain to his back when he fell through the top and bottom bunk of his bed due to springs being removed. He told the examiner that he injured his head, neck, back and, right hip during this incident. The examiner noted that the Veteran became tearful when talking about the injury as he stated the military gave him hope about life and made him feel strong until this injury occurred. He told the examiner that he used to perform sit-ups and push-ups every night before going to bed on the top bunk. He also stated that often they would "dare" new recruits to attempt to beat him in the amount of push-ups he could do. He told the examiner that he went through his nightly routine on the night of March 12, 1960, and someone had removed the springs from both the top and bottom bunks. He reported that he completed his push-ups and grabbed the bars to flip onto the top bunk and proceeded to crash down, injuring his neck, head, back, and hip. The examiner noted that the Veteran continued to cry during the entirety of the exam, stating he has been suffering since that day. Following the examination, a review of the Veteran's records and self-reported history, the examiner opined that the Veteran's current thoracolumbar spine disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there was no mention of a back injury in the medical records, including when the locker fell on the Veteran. Likewise, following an examination of the Veteran's right hip, as well as a review of his records and self-reported history, this examiner opined that the Veteran's current right hip disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran was not seen for right hip pain until 2002, with history of present illness noting pain had only been going on for two years with no known injury as stated by the Veteran. In addition to this medical evidence, the Veteran reiterated in a January 2018 statement that his current right hip injury was caused by the in-service injury from falling from the top bunk in the Army barracks while in France. He stated that some of the other soldiers wanted to pull a trick on him and they removed the springs from the bed, which crashed down when he jumped up on his footlocker and flipped on the bunk. He stated that he hit the metal railings with full force, hurting his spine and hip, as well as his head. He stated that he has suffered with pain in these areas of his body ever since that time. Additionally, the Veteran's friend, R.P., asserted in a July 2018 written statement that he grew up with and stayed in touch with the Veteran before, during, and after his active duty. The Veteran's friend noted that the Veteran told him over and over again about his injuries in France, and that he often had to tell the Veteran that he had already heard about these injuries. Likewise, the Veteran's niece, A.D., stated in a July 2018 statement that the Veteran told her about his back injuries during his time service, and that he would get upset just talking about his injuries. She stated that she has personally witnessed him in physical pain due to the injuries on many occasions. Given this evidence, the Board finds that the Veteran's allegation of an in-service injury related to his thoracolumbar spine and right hip disabilities during service is not credible. The Board finds that the service treatment records do not support the Veteran's allegation of an in-service injury as described by him. In particular, the March 12, 1960, service treatment record, which the Veteran reported to the March 2018 VA examiner as showing that he fell from the top bunk bed and injured his spine and right hip, shows that he only complained of and was treated for a contusion to his left lower extremity, specifically his left foreleg, with resulting swelling (edema). This is evidence against a finding of an in-service injury to his thoracolumbar spine and right hip. The Board has also considered the July 2018 statements by the Veteran's friend and niece regarding the Veteran's reports of in-service injuries, to include to his back. The Board notes that these lay individuals are competent to report the Veteran's statements to them regarding his injuries in service. See Layno, 6 Vet. App. at 465. However, while lay persons are competent to relay things they observe, such evidence is not probative unless it is also found to be credible. As noted above, the claimed in-service injury in France is not corroborated by the record, and the service treatment records, including the March 1960 service treatment record and the March 1961 service separation evaluation, which did not note any abnormal right hip or spinal symptoms, do not support that he had an in-service injury to his thoracolumbar spine and right hip. Thus, the statements made by these individuals are not probative, as they were based on an inaccurate factual premise of an in-service injury. Additionally, the preponderance of the evidence is against a finding that arthritis in the spine and the right hip was manifested within one year of service discharge. The first evidence of degenerative changes or arthritis in the spine and the right hip come from the November 2001 VA x-ray reports, or approximately more than 40 years after service separation. In other words, there is no competent evidence that a chronic disease was manifested within one year of service discharge, and service connection on a presumptive basis involving a chronic disease is not warranted. The Board also finds that the preponderance of the evidence is against a nexus between the current disabilities and service. The Board finds the March 2018 VA examiner's findings and opinions to be highly probative evidence regarding the causal relationship between the Veteran's current thoracolumbar spine and right hip disabilities and his active duty. This examiner possessed the necessary education, training, and expertise to provide the requested opinion. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the examiner provided a rationale for her opinions, which was based on thorough review of the service treatment records, post-service treatment records, and lay statements of the Veteran. The March 2018 VA examiner's opinions considered an accurate history, were definitive, and supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, for all the reasons laid out above, the Board finds the preponderance of the evidence is against a finding that the current thoracolumbar spine and right hip disabilities had their onset in service, manifested within one year of service discharge, or are otherwise related to service. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply, and the claims for service connection for thoracolumbar spine and right hip disabilities are denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 4. 5. Tinnitus and Left Ear Hearing Loss The Veteran contends that his current tinnitus and left ear hearing loss disabilities were caused by in-service noise exposure. Specifically, in the October 2017 VA Form 21-526EZ, the Veteran asserted that his bilateral hearing loss was due to another soldier firing a full clip of ammunition right beside his right ear on the firing range and that his tinnitus was caused by the same incident. He noted that VA has already provided him with hearing aids. Furthermore, in the October 2021 informal hearing presentation, the Veteran's representative noted that service connection has been established for right ear hearing loss, and that the Veteran has hearing loss for VA purposes in both ears. The representative noted that the Veteran's military occupational specialty (MOS) as a vehicle driver has a small chance of hearing loss due to harmful noise exposure. The representative contended however, that "as his same set of ears were present when he was exposed to the harmful noise that led to the [zero percent] rating for his [r]ight [e]ar[,] it seems logical that his left ear was also exposed." Furthermore, the representative noted that the Veteran did not indicate having tinnitus at the May 2018 VA examination, but that in subsequent claims he has said he has tinnitus. The Board has carefully reviewed the evidence of record and finds the preponderance of the evidence is against the claims for service connection for tinnitus and left ear hearing loss. The reasons follow. Initially, the Board determines that the preponderance of the evidence weighs against a finding that the Veteran has a current tinnitus disability or that he has had such a disability in close proximity to filing the present claim for service connection, to include pain that causes functional impairment that affects earning capacity. The United States Court of Appeals for Veterans Claims (Court) has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim or in close proximity to the time period of the claim, even though the disability resolves prior to the Secretary's adjudication of the claim. The Veteran filed a claim for service connection for tinnitus in October 2017. Prior to this date, the claims file does not contain any complaints of or treatment for tinnitus or ringing in the ears, including in the Veteran's service treatment records and the extensive post-service medical history since 1999. Apart from the October 2017 and October 2021 lay statement noted above, the claims file contains the March 2018 and April 2018 VA examination reports that discuss tinnitus. In the March 2018 ear conditions disability benefits questionnaire (DBQ), the medical professional diagnosed the Veteran with sensorineural hearing loss, but did not indicate the presence of tinnitus. Likewise, the April 2018 audiologist noted that the Veteran did not report recurrent tinnitus. After reviewing the relevant evidence, performing an in-person audiological examination, and noting the Veteran's self-reported symptoms, the examiner opined that it is less likely than not (less than 50 percent probability that the claimed current disability was caused by or a result of military noise exposure. The examiner explained that the Veteran denied having tinnitus as defined in the medical literature, namely, Dauman and Tyler (1992) that was cited in the Tinnitus Handbook. The examiner further explained that the Veteran reported transient ear noise that occurs in the general population without auditory damage or pathology. Given this evidence, the Board finds the preponderance of the evidence is against a finding that the Veteran has a tinnitus disability and that he has had such a disability since filing the present claims for service connection or in close proximity to filing the claim, to include pain that causes functional impairment that affects earning capacity. After a thorough review of the Veteran's claims file, including active duty treatment records, as well as post-service VA treatment records, the record does not show that the Veteran has a tinnitus disability since filing his claim for service connection in October 2017. The evidence indicating the presence of this disability during the appeal period comes from the lay statements made by the Veteran and his representative. However, after being examined by a trained medical professional, an audiologist, in April 2018, the Veteran's complaints were explained as transient ear noise that occurred in the general population without auditory damage or pathology, rather than tinnitus. The Board finds the April2018 VA examiner's findings and opinions to be highly probative evidence regarding the current symptomatology and the causal relationship between the Veteran's current symptoms and his active duty as she possesses the necessary education, training, and expertise to provide the requested opinion. See Grottveit, 5 Vet. App. at 93. Additionally, this examiner provided a rationale for her opinions, which was based on thorough review of the service treatment records, post-service treatment records, and lay statements of the Veteran. Regarding the Veteran's left ear hearing loss, the Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further held that 38 C.F.R. § 3.385 then operates to establish when a hearing loss disability can be service connected. Id. at 159. For the purposes of applying the laws administered by VA, impaired hearing only will be considered to be an actual ratable 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 these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Initially, the Board determines that the Veteran has a current left ear hearing loss disability for VA purposes. Specifically, the Veteran underwent a VA audiological examination in April 2018, during which his audiogram showed that the pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 75 90 85 95 86 LEFT 60 55 55 65 59 The Veteran's speech recognition scores were 84 percent for the right ear and 86 percent for the left ear using the Maryland CNC Test. 38 C.F.R. § 3.385. Thus, the Veteran has a current left ear hearing loss disability for VA purposes. Regarding the second element of service connection, and as noted by the Veteran's representative in the October 2021 statement, in-service noise exposure is not consistent with the duties and circumstances described in the Veteran's personnel records based on his MOS as vehicle driver. Nonetheless, the Veteran has reported that his current bilateral hearing loss was caused when another soldier fired a full clip of ammunition right beside his right ear. The Board notes that although the Veteran's service treatment records show complaints of a left ear cyst and the presence of right ear hearing loss, they do not show complaints of or treatment for left ear hearing loss during service. For example, a July 1960 chronological record of medical care showed that the Veteran had a cyst in the left ear. This abscess was taken out in September 1960, with no further notations in the service treatment records of any complications or complaints. In fact, his March 1961 service separation examination showed that the physical aspect of his ears was normal. The following pure tone thresholds, in decibels, were noted during this evaluation: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 X 60 LEFT 10 10 10 X 5 The evaluator noted that the Veteran had deafness in the right ear and assigned a "2" rating assessing the Veteran's right ear hearing symptoms under the PULHES profile system indicating that the right ear hearing was a medical condition or physical defect that may require some activity limitations. See Odiorne, 3 Vet. App. at 457. In fact, the Veteran reported in the March 1961 service separation report of medical history that upon being checked, he had difficulty hearing in his right ear, but stated that he had these symptoms before he came into the Army. The Board notes that the Veteran did not assert or complain of any hearing difficulty in the left ear at service separation. The Veteran's post-service records are silent for complaints of or treatment for hearing loss until a November 2005 VA audiology consultation, during which he was seen for an initial comprehensive audiologic and hearing aid evaluation in response to a consultation received from the Veteran's referring physician. He complained of trouble hearing. The medical professional noted that the Veteran had military traumatic noise exposure in the right ear. Following an audiological evaluation, he was diagnosed with severe sensorineural hearing loss in the right ear and mild sensorineural hearing loss in the left ear. The Veteran was afforded a VA audiological evaluation in April 2018. The examiner opined that the Veteran's left ear hearing loss was less likely than not caused by or a result of an event in military service. The examiner reasoned that there was normal hearing on separation with thresholds too low for any permanent significant shift in hearing thresholds to have occurred from service entrance. The examiner observed that this is evidence of no permanent auditory damage on active duty. The examiner also noted that there was no report of decreased hearing in the claims fie or at separation. The examiner stated that a nexus was not established even though noise exposure is conceded and the relationship between noise, auditory damage, and hearing loss is well documented because auditory damage and hearing loss are not conceded based on noise alone. Given this evidence, the Board finds that the Veteran's current left ear hearing loss disability did not onset in service, manifested to a compensable degree within one year of separation from service, and it is not otherwise related to service. As previously noted, sensorineural hearing loss may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service. 38 U.S.C. §§ 1101, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition, a disorder may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service, or if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). Here, however, the evidence does not show, and the Veteran does not assert, that his left ear hearing loss disability manifested within one year of separation from service. In fact, the record shows that the Veteran complained of hearing loss in this ear for the first time in November 2005, when seen for an initial audiological evaluation and receiving hearing aids for both ears. The absence of post-service complaints, findings, diagnosis, or treatment for approximately 44 years after service is one factor that tends to weigh against a finding of continuous symptoms for this disorder since separation from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Therefore, presumptive service connection is not warranted. The Board finds the April 2018 VA examiner's findings and opinions to be highly probative evidence regarding the causal relationship between the Veteran's current left ear hearing loss disability and his active duty. This examiner possessed the necessary education, training, and expertise to provide the requested opinion, and she provided a detailed rationale for the opinions, which was based on thorough review of the service treatment records, post-service treatment records, lay statements of the Veteran. See Grottveit, 5 Vet. App. at 93. The April 2018 VA examiner's opinions considered an accurate history, were definitive, and supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez, 22 Vet. App. at 295. The Board has considered the assertions made by the Veteran and his representative that his current left ear hearing loss is related to noise exposure in service, including being exposed to noise from ammunition being fired next to his right ear. The Board acknowledges that it is within the realm of common medical knowledge that exposure to loud noises may cause hearing loss. However, determining the precise cause of the Veteran's left ear hearing loss disability is not a simple question, as there are conceivably multiple potential causes of the Veteran's current sensorineural hearing loss in that ear. Ascertaining the cause of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing. In this case, the facts are complex enough that the Veteran's and his representative's intuition about the cause of his left ear hearing loss is not sufficient to place the nexus question in equipoise. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson including both claimants and Board members must be determined on a case-by-case basis."). Thus, the preponderance of the evidence is against a finding that the Veteran's current left ear hearing loss disability is caused by or otherwise related to service. In sum, as the preponderance of the evidence is against a current tinnitus disability at any time during the claim period, to include pain that causes functional impairment that affects earning capacity, service connection for such disability is not warranted. Furthermore, as the preponderance of the evidence is against entitlement to service connection for left ear hearing loss, the benefit of the doubt doctrine does not apply, and the Veteran's claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 6. Depression The Veteran contended that his current depression is caused by the injury to his back, hip, and head in the October 2017 VA Form 21-526EZ. The Board has carefully reviewed the evidence of record and finds the preponderance of the evidence is against the claim for service connection for depression. The reasons follow. The record shows that the Veteran has been diagnosed with depression during the appeal. For example, an April 2018 VA mental disorders DBQ showed that the Veteran has been diagnosed with a persistent depressive disorder. Thus, the first element of service connection is met. Nonetheless, the preponderance of the evidence is against a finding that the current depression disability had its onset in service, or is caused or otherwise related to service, or is caused or aggravated by a service-connected disability. The Veteran's service treatment records, including the June 1958 service entrance and March 1961 service separation evaluations do not show that he complained of or was treated for any abnormal psychiatric symptoms, including depression. In fact, the March 1961 service separation report of medical examination notes that his psychiatric symptoms were normal, and the evaluator assigned a "1" rating assessing the Veteran's psychiatric symptoms under the PULHES profile system indicating that the Veteran's symptoms were then in a high level of fitness. See Odiorne, 3 Vet. App. at 457. Furthermore, the Veteran denied currently or previously having any depression or excessive worry and nervous trouble of any sort in the service separation report of medical history from the same date. In fact, the record does not show complaints of any depression symptoms until many years after service. For example, a January 2008 VA preventative medicine note showed a negative depression screening. However, a December 2008 VA preventative medicine note showed that a depression screen questionnaire indicated mild depression. Mild depression was also noted in a February 2011 VA treatment note following a depression screening, and moderate depression was shown in a February 2012 VA internal medicine outpatient note. In the April 2018 VA mental disorders DBQ, the Veteran reported worsening mood for the past three or four years due to back pain. He reported that he was not taking pain medication due to driving but had a system of wearing a ring to help him with medication. He also complained of memory problems, which upset him and where he cursed. He told the examiner that he ruminated about past mistreatments. He endorsed a dysphoria for over two years without a two-week remission. He complained of stress over his service connection claims, agitation, lack of concentration, and irritability. The examiner noted that the Veteran did not have a history of mental health treatment or learning disabilities. Given this evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran's depression disability had its onset in service, or is caused or otherwise related to service, or is caused or aggravated by a service-connected disability. The evidence does not show, and the Veteran does not assert, that this disability manifested in service. In fact, the record shows that the first depression screening indicating the presence of depression symptoms was from December 2008, or approximately 47 years following service separation. Additionally, the Veteran reported to the April 2018 VA examiner that his mood was worsening for the past three or four years, or since 2014 or 2015, due to back pain. Significantly, the Veteran has not presented or identified any medical opinion that supports the claim for service connection for depression as due to his active duty. Rather, the Veteran contends that his depression is caused by his TBI, thoracolumbar spine, and right hip disabilities. However, secondary service connection cannot be established if the underlying (primary) disability basis for the secondary service connection is not itself service connected. 38 C.F.R. § 3.310. As explained above, service connection is not warranted for TBI, thoracolumbar spine, or right hip disabilities. The record shows that the Veteran's only service-connected disability is right ear hearing loss, which is rated as zero percent disabling. The record does not suggest, and the Veteran has not asserted that his depression is due to his right ear hearing loss disability. Absent service connection for TBI, thoracolumbar spine, and/or right hip disabilities, service connection for depression cannot be granted on a secondary basis. Therefore, as the preponderance of the evidence is against entitlement to service connection for depression, the benefit of the doubt doctrine does not apply, and the Veteran's claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310; Gilbert, 1 Vet. App. at 55. D. C. JOHNSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hodzic, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.