Citation Nr: 1003418 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 03-28 911A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for a back disorder. 4. Whether there is new and material evidence to reopen a claim for service connection for a right thigh disorder. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney at Law ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active military service from August 1944 to May 1946 and from August 1950 to November 1951. This appeal to the Board of Veterans' Appeals (Board) is from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a December 2005 decision, the Board denied the Veteran's petition to reopen his claims for service connection for headaches, left knee, back, and right thigh disorders. He appealed that decision to the U. S. Court of Appeals for Veterans Claims (Court). In a November 2007 memorandum decision, the Court vacated the Board's December 2005 decision and remanded the case to the Board so the Veteran could receive proper Veterans Claims Assistance Act (VCAA) notice, including concerning the requirements for new and material evidence under Kent v. Nicholson, 20 Vet. App. 1 (2006), to reopen a previously denied, unappealed claim. In a May 2008 decision, the Board reopened the claims of service connection for headaches, back and left knee disorders. The Board then remanded these claims, along with the petition regarding whether new and material evidence had been received to reopen the claim for service connection for a right thigh disorder, to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration - including obtaining additional clinical records and providing corrective VCAA notice pursuant to the Court's November 2007 decision. The Board has advanced this case on the docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In August 1995, the RO considered and denied the Veteran's claim for service connection for a right thigh disorder; and although in response he filed a timely notice of disagreement (NOD) to initiate an appeal of that decision, after receiving a statement of the case (SOC) he did not perfect his appeal by also filing a timely substantive appeal (e.g., a VA Form 9 or equivalent statement). 2. The additional evidence received since that August 1995 rating decision denying this claim is duplicative or cumulative of evidence already considered or does not relate to an unestablished fact necessary to substantiate this claim. 3. According to the probative (competent and credible) medical and other evidence on file, it is just as likely as not the Veteran's current headache, left knee, and back disorders are attributable to or date back to his military service. CONCLUSIONS OF LAW 1. The August 1995 rating decision denying the Veteran's claim for service connection for a right thigh disorder is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2009). 2. New and material evidence has not been received since that August 1995 decision to reopen this claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 3. But resolving all reasonable doubt in his favor, the Veteran's headache, left knee, and back disorders were incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West Supp. 2005); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist As provided by the VCAA, VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). For claims, as here, pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the fourth requirement that VA also request that the claimant submit any evidence in his possession that might substantiate the claims. See 73 FR 23353 (Apr. 30, 2008). These VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court may conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case. Id. The Veterans Court held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), since overturned on other grounds in Vazquez-Flores v. Shinseki, 2009 WL 2835434 (Fed.Cir.), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post- adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non- prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). Here, the Board is granting the Veteran's claims for service connection for headache, left knee, and back disorders, in full, so there is no need to discuss whether there has been compliance with these notice-and-duty-to-assist provisions of the VCAA regarding these claims. And as for the remaining issue, concerning the petition to reopen the claim for service connection for a right thigh disorder, it is worth reiterating that the Board remanded this claim to the RO in May 2008, via the AMC, in pertinent part, to provide additional VCAA notice pursuant to Kent v. Nicholson, 20 Vet. App. 1 (2006). In Kent, the Court held that VA must both notify a claimant of the evidence and information necessary to reopen the claim and of the evidence and information needed to establish entitlement to the underlying benefit being sought. To satisfy this requirement, VA adjudicators are required to look at the bases of the denial in the prior decision and provide the claimant a notice letter describing what evidence would be necessary to substantiate those elements required to establish entitlement to service connection that were found insufficient in the previous denial. VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial. VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006). The RO initially sent the Veteran a VCAA notice letter in February 2003. That letter, however, did not specify the basis of the prior denial of the claim for service connection for a right thigh disorder back in August 1995. And since that letter did not comply with the Court's holding in Kent, the Board remanded this claim in May 2008 to provide this necessary additional VCAA notice. Subsequently, in December 2008, on remand, the AMC sent the Veteran a letter that complied with Kent, inasmuch as the letter included discussion of the criteria for reopening a previously denied, unappealed claim, and provided information concerning why the claim was previously denied. The letter also informed him of how a downstream disability rating and an effective date are assigned and the type of evidence impacting those determinations, if service connection is eventually granted. See Dingess, supra. This claim also was later readjudicated in an SSOC issued in May 2009, that is, after providing this additional VCAA Kent notice. So the mere fact that the Veteran did not receive this additional notice prior to initially adjudicating this claim has been rectified (i.e., "cured") because this claim has been reconsidered since providing this additional notice. That is to say, he was given an opportunity to participate effectively in the adjudication of this claim, such that the intended purpose of this notice has been served. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In response to this additional VCAA Kent notice, the Veteran has not indicated he has other information or evidence to give VA to substantiate this claim. And as for the duty to assist, the VCAA appears to have left intact the requirement that a Veteran first present new and material evidence to reopen a final and binding decision under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist has been fulfilled and proceed to evaluate the merits of the claim. See 38 U.S.C.A. § 5103A(f); see also Paralyzed Veterans of America, 345 F.3d 1334 (Fed. Cir. 2003). Also, according to 38 C.F.R. § 3.159(c)(4)(iii), he is not entitled to a VA examination for a medical nexus opinion unless and until there is new and material evidence to reopen this claim. In any event, the Veteran has not mentioned any outstanding records that might be relevant to this claim and, therefore, would need to be obtained. Accordingly, the Board finds that no further action is necessary to meet the requirements of the VCAA or Court. II. Whether there is New and Material Evidence to Reopen the Claim for Service Connection for a Right thigh Disorder The Veteran initially claimed entitlement to service connection for a right thigh disorder in August 1993. In response, the RO sent him a letter in October 1993 asking that he submit medical evidence of treatment for this condition (and for the hypertension he was also claiming) during the first year following his discharge from service for the period ending on November 6, 1952, since his second period of service had ended in November 1951. He did not provide this requested evidence, so in a June 1994 letter the RO informed him that his claim was being summarily denied. The RO also indicated the denial did not mean he could not still submit this requested evidence, at any time, but that if he did not before October 5, 1994, benefits, if entitlement was established, could not be paid for any period prior to the date it was received. The RO also apprised him of his procedural and appellate rights (via the enclosed VA Form (VAF) 4107), in the event he elected to appeal. Later in June 1994, the Veteran requested a medical evaluation for his claimed disabilities, including concerning his right thigh disorder (wound). In August 1995 the RO issued a decision denying this claim for service connection for a right thigh disorder (wound contused on the lateral aspect). The evidence on file at the time consisted of the Veteran's service treatment records (STRs) that were limited to December 1945 treatment and hospitalization for a contusion on his right thigh that he had sustained in a fall at a military base in Texas. An X-ray of this thigh following that injury was negative, and he was returned to duty that same month. Also, no findings referable to this thigh were reported during his second period of military service from August 1950 to November 1951 or even thereafter. The RO therefore concluded the injury (wound) in service was treated and improved, leaving no residuals or disability at time of discharge. The RO also concluded there was no evidence suggesting the condition had permanently worsened since discharge. The RO sent the Veteran a letter later in August 1995 informing him of that decision denying his claim and apprising him of his procedural and appellate rights, in the event he disagreed with the decision and elected to appeal it. In response, he submitted an NOD in March 1996 to initiate a timely appeal. The RO sent him an SOC in August 1996, but he did not then perfect his appeal by also filing a timely substantive appeal (e.g., a VA Form 9 or equivalent statement). So that August 1995 rating decision became final and binding on him based on the evidence then of record. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. The Veteran attempted to reopen this claim, among others, in January 2003. A December 2005 Board decision affirmed a March 2003 RO decision denying his petition to reopen this claim, and he again did not appeal. See 38 C.F.R. § 20.1104 (indicating the Board's decision subsumed the RO's). However, the Court has since vacated the Board's decision, so in this decision the Board must consider the additional evidence that has been submitted or otherwise obtained since the last final and binding denial of this claim in August 1995. See Evans v. Brown, 9 Vet. App. 273 (1996). The Board must make this threshold preliminary determination of whether there is new and material evidence to reopen this previously denied, unappealed claim, irrespective of what the RO may have determined in this regard, because this threshold preliminary determination affects the Board's jurisdiction to adjudicate this claim on its underlying merits. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). If the Board determines there is no new and material evidence, that is where the analysis ends, and what the RO determined in this regard is irrelevant as further analysis of the claim is neither required nor permitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)); Butler v. Brown, 9 Vet. App. 167, 171 (1996); and VAOPGCPREC 05-92 (March 4, 1992). If there is new and material evidence, the claim must be reopened and the former disposition reviewed. See 38 U.S.C.A. § 5108. When a petition to reopen is presented, a two-step analysis is performed. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). "New" means existing evidence not previously submitted to agency decision makers. "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 cannot be cumulative or 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). Second, if VA determines the evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of the all evidence of record, but only after ensuring the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). As mentioned, VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273, 283 (1996). The newly presented evidence need not be probative of all the elements required to award the claim, but it must be probative as to each element that was a specified basis for the last disallowance. Id., at 284. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit Court reiterated this, noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. The credibility of this evidence must be presumed, albeit just for the limited purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see, too, Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). Here, the evidence received since the August 1995 rating decision consists entirely of medical and other records concerning ongoing evaluation and treatment for disabilities unrelated to the claimed right thigh disorder. So this additional evidence, even if new, is not relevant - therefore not material, to this claim. A Veteran may be awarded service connection by showing that he currently has a disability resulting from a disease or an injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). The additional evidence that has been received since the last final disallowance of this claim in August 1995 is wholly cumulative and bears nothing regarding the claim on appeal. In fact, there are no medical records suggesting the Veteran has any current right thigh disorder, much less as a residual of his injury in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). So these additional records do not provide the unestablished facts necessary to substantiate this claim. Although VA has acknowledged the Veteran sustained this injury in service, in December 1945, there continues to be no evidence suggesting he has chronic residual disability. So the stated basis of the RO's August 1995 denial of this claim has not been addressed, even with the submission of this additional evidence. The Veteran's personal lay statements in this regard are not material within the meaning of 38 C.F.R. § 3.156. In Moray v. Brown, 5 Vet. App. 211 (1993), the Court noted that laymen generally are not competent to offer opinions on diagnosis and etiology of disorders, and that such evidence does not provide a basis on which to reopen a claim of service connection. See also Routen v. Brown, 10 Vet. App. 183, 186 (1997). Moreover, the Veteran is essentially merely reiterating arguments that he made prior to the RO denying this claim in August 1995. So his additional lay statements to this same effect are not new. Cf. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992) So the additional evidence received since the RO's August 1995 decision, when considered either alone or along with all of the evidence of record, is not both new and material. Therefore, the RO's August 1995 decision remains final and binding on the Veteran. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply, and the petition to reopen this claim must be denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). III. Service Connection for Headache, Left Knee, and Back Disorders Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or a disease that was incurred or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Arthritis or degenerative joint disease will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals 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 subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves medical causation or a medical diagnosis, there generally must be competent medical evidence to the effect that the claim is plausible; lay assertions of causation generally do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). There is an exception to this general rule, however. Lay testimony is competent, for example, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As explained, the first and indeed perhaps most fundamental requirement for any service-connection claim is there must be competent evidence of the existence of the currently claimed disability. Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed, to at least confirm the veteran has it; without this minimum level of proof, there can be no valid claim). Here, VA medical examination records, most recently dated in December 2008, confirm the Veteran has tension headaches, a low back disorder diagnosed as lumbar spondylosis and osteochondrosis at L5-S1, and that he is status post total left knee replacement. So there is no disputing he has these claimed conditions. Rather, the determinative issue is whether these conditions are attributable to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The Veteran served during World War II and the Korean Conflict. And, as mentioned, the STRs concerning his World War II service confirm he sustained an injury (contused wound) to his right thigh during a fall in December 1945, but with no other pertinent findings. There also are indications he experienced back pain and headaches associated with a reaction to a vaccination. These records concerning his World War II service are otherwise unremarkable. The Veteran's later dated records from the Korean Conflict show he served as a "medical aidman," with 10 months of foreign service, but without any combat awards, medals or citations. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). These additional STRs include a nearly illegible July 1951 medical entry, but seemingly indicating treatment for residuals of a left knee injury, including swelling and tenderness. Also, at service discharge the Veteran's physical examination report reveals a history of occasional headaches since World War II, and a report of occasional swelling and pain in his left knee bothering him for the past eight or nine months. No then current abnormalities were reported on physical examination, however. The post-service clinical data includes a January 1952 VA record showing the Veteran's complaints and diagnosis of headaches that reportedly had begun during his service in Korea after a nearby explosion. These findings contemporaneous to his service are probative evidence in support of his claims. See Struck v. Brown, 9 Vet. App. 145, 155-56 (1996). A more recent VA clinical entry from May 1984 shows the Veteran received treatment for complaints of chronic back pain and headaches. Other VA medical records from the late 1980s and early 1990s show treatment for degenerative joint disease of the cervical spine and low back pain attributed to trauma he had sustained many years earlier while in the military, as well as frequent recurring headaches. In August 1997 a private physician, E.B-T., M.D., noted the Veteran's history of a fall during basic training, injuring his low back, neck and left thigh with recurrent back pain radiating to the left leg. It was also reported that, during the Korean Conflict, the Veteran had sustained injuries to his back and left leg during a mortar attack, and that headaches were noted at service discharge subsequent to a mine explosion. The diagnoses included chronic low back syndrome related to a service injury. In April 2008 another private physician, A.A., M.D., indicated he had reviewed the Veteran's service and post- service medical records in his claims folder for the pertinent medical and other history. And based on this review, this physician noted the Veteran's service medical history of treatment for a left knee injury and headaches, as well as the post-service reports of his service injuries and treatment for headaches, neck and low back pathology. This physician then opined that the Veteran had documentation of in-service as well as post-service complaints for his left knee pain, headaches, and back pain, and that the injuries were sustained in service and could cause the pain from which he complained. This physician added that it was more likely than not the Veteran's left knee pain, headaches, and back pain had their onset during his military service. The Board remanded these claims in May 2008, in part, to have the Veteran examined for additional medical comment concerning the etiology of his claimed headaches, left knee and back disorders - and specifically in terms of whether they dated back to his military service or were otherwise attributable to his service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d); and 38 C.F.R. § 3.159(c)(4). The Veteran had these requested VA examinations in December 2008 and January 2009. The neurological disorders examination was in December 2008. The designated physician was requested to determine whether the Veteran's headaches were attributable to his military service. This physician indicated she reviewed the claims file for the pertinent medical and other history. Her diagnosis was mild tension- type headaches. But more importantly, she indicated that she was unable to comment on the determinative issue of causation without resorting to mere speculation. She noted there was some evidence of headache-related complaints while the Veteran was in service, but that from 1954 to 1984, and from 1984 to the present, there was no medical evidence of him complaining of headaches or seeking treatment for headaches. Consequently, she said that it was impossible to tie his current complaint of headache to the few instances during service without relying on mere speculation. Statements like this from doctors or examiners that are, for all intents and purposes, inconclusive as to the origin of a disorder cannot be employed as suggestive of a linkage between the disorder and the Veteran's military service. Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). But by the same token, these type opinions cannot be used to rule out this purported correlation, either. Ultimately, noncommittal opinions like this amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (when considering application of the benefit- of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). So this leaves only the April 2008 statement from A.A., M.D., which is supportive of this claim for headaches. And absent any probative (meaning competent and credible) evidence to the contrary, it is just as likely as not the Veteran's current headaches date back to his military service. In this circumstance, he is given the benefit of the doubt and his claim granted. 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an absolutely accurate determination is etiology is not a condition precedent to granting service connection, nor is obvious etiology or definite etiology). The Veteran also, as mentioned, had VA examinations in December 2008 and January 2009 for medical comment regarding the etiology of his left knee and back disorders. The designated examiner reviewed the claims file for the pertinent medical and other history. The diagnoses were status post left knee replacement, lumbar spondylosis and intervertebral osteochondrosis at L5-S1. This examiner concluded the left knee and back conditions were not at least as likely as not related to the Veteran's military service, particularly the injuries he said he had sustained. But the examiner's reasoning for this opinion was fatally flawed from a legal standpoint. More specifically, he pointed out there was no evidence in the records that the left knee disorder was present while the Veteran was in service, noting there were no indications he had received any relevant treatment while in service. (Italics added for emphasis). Instead, concluded this examiner, these conditions were most likely due to the normal aging process. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), a case with a similar fact pattern, the Federal Circuit Court held that where lay evidence provided is credible and competent, the absence of contemporaneous medical documentation in the Veteran's STRs does not preclude further evaluation as to the etiology of the claimed disorder. So as the Veteran's attorney correctly argued in her most recent September 2009 statement, it was inappropriate for that VA examiner to disassociate the Veteran's claimed back and left knee disorders with his military service simply because his STRs supposedly do not show he received any relevant treatment for these conditions while in the military - especially when, in fact, they do. But irrespective of that, the more fundamental question is whether he experienced relevant symptoms, not whether he received relevant treatment. See also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Therefore, given Dr. A.A.'s affirmation of the Veteran's history of left knee and back disorders dating back to his military service, there is legitimate reason to grant these claims because the Veteran's history has not been shown to be not credible. Indeed, to the contrary, Dr. A.A. discussed, at length, this reported history - also taking time to comment on specific findings that were noted on various occasions (including the Veteran's specific complaints). Thus, the only persuasive medical nexus opinion addressing the etiology of these claimed disorders in terms of whether they date back to or are otherwise attributable to the Veteran's military service is favorable to these claims. In Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court indicated the Board may not disregard a favorable medical opinion solely on the rationale it was based on a history given by the Veteran. Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility. In another precedent decision, Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008), the Court discusses, in great detail, how to assess the probative weight of medical opinions and the value of reviewing the claims file. The Court holds that claims file review, as it pertains to obtaining an overview of the claimant's medical history, is not a requirement for private medical opinions. The Court added, "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." In the Neives-Rodriguez decision, the Court vacated the Board's underlying decision because the Board had dismissed one of the two favorable private medical opinions solely on the basis that the physician had not reviewed the claims file, without an explanation of why that failure compromised the value of the medical opinion. In contrast, the Court held that, in rejecting the other private medical opinion, the Board had offered adequate reasons and bases for doing so (the doctor had overlooked pertinent reports regarding the Veteran's medical history), and thus, the Board's rejection was not based solely on the failure to completely review the claims file. Here, the VA examiner's unfavorable opinion is predicated on a legally insufficient basis, indeed, a factually inaccurate basis, whereas Dr. A.A.'s favorable opinion is not. The discussion of the relevant evidence in Dr. A.A.'s April 2008 statement is, itself, confirmation that he did not rely exclusively on the Veteran's self-reported medical history, but rather, personally reviewed the file. And seeing as though, regardless, the Veteran's self-reported history has not been shown to be not credible, Dr. A.A.'s favorable opinion has the proper factual foundation and predicate. It therefore is probative evidence in support of these claims for left knee and back disorders. See, e.g., Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Owens v. Brown, 7 Vet. App. 429 (1995); and Swann v. Brown, 5 Vet. App. 229, 233 (1993). So all things considered, it is just as likely as not the Veteran's left knee and back disorders date back to his military service. And in this circumstance, he is given the benefit of the doubt and his claims granted. See 38 C.F.R. § 3.102. ORDER The petition to reopen the claim for service connection for a right thigh disorder is denied. Service connection for a headache disorder is granted. Service connection for a left knee disorder is granted. Service connection for a back disorder is granted. ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs