Citation Nr: 1005259 Decision Date: 02/04/10 Archive Date: 02/25/10 DOCKET NO. 03-34 311 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a left eye injury. 2. Entitlement to service connection for a disability manifested by stress. 3. Entitlement to service connection for a bilateral leg disability. 4. Entitlement to service connection for hearing loss in the left ear. 5. Entitlement to service connection for a cervical spine disability (claimed as a neck condition). REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The Veteran served on active duty from March 1978 to March 1981; he had additional active duty for training (ACDUTRA) and inactive duty for training (INACCUTRA) with the Georgia Army National Guard from August 1982 to August 1984 and from March 1985 to October 1991. In June 2002, the Board denied a motion for reconsideration of an August 1997 Board decision, which in pertinent part, denied service connection for residuals of an eye injury. In an April 2002 rating decision, the RO, in part, determined that no new and material evidence had been received to reopen the Veteran's previously-denied claim for service connection for residuals of an eye injury. The Veteran did not perfect appeals to either of these decisions. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 2003, March 2006 and April 2008. In an April 2003 rating decision, the RO, in pertinent part, denied the Veteran's claims for service connection for a disability manifested by stress and for a bilateral leg disability. In May 2004, the Veteran testified during a Travel Board hearing before the undersigned at the RO; a copy of the transcript is in the record. In a November 2004 decision, the Board confirmed the denial of the Veteran's claims of entitlement to service connection for a disability manifested by stress and for a bilateral leg disability. The Veteran perfected a timely appeal of the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2007 Order, the Court entered judgment consistent with a February 2007 single-judge Memorandum Decision, which vacated the Board's November 2004 decision with regard to both issues and remanded the case to the Board for action consistent with the Memorandum Decision. In August 2007, the Board remanded the issue of entitlement to service connection for a disability manifested by stress to the RO via the Appeals Management Center (AMC), in Washington, DC. In a March 2006 rating decision, the RO determined that no new and material evidence had been received to reopen the Veteran's previously-denied claim for service connection for residuals of an eye injury and denied entitlement to service connection for hearing loss in the left ear. The Veteran perfect appeals with regard to both issues. In an April 2008 rating decision, the RO denied the Veteran's claim for service connection for cervical radiculopathy (claimed as a neck condition), which has been recharacterized as listed on the title page. The Veteran perfected an appeal to this denial. The issue of service connection for a bilateral leg disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. In an unappealed June 2002 decision, the Board denied the Veteran's motion to reconsider an August 1997 Board decision, denying service connection for residuals of an eye injury. In an unappealed April 2002 rating decision, the RO determined that no new and material evidence had been submitted to reopen the Veteran's previously-denied claim for service connection for residuals of an eye injury. 2. The evidence added to the record since the April 2002 rating decision and June 2002 Board decision, is cumulative and redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and does not raise a reasonable possibility of substantiating the claim. 3. There is no competent medical evidence relating the Veteran's currently diagnosed depression NOS (Not Otherwise Specified) to service; the most probative opinion is against the claim for service connection. 4. There is no competent medical evidence relating the Veteran's hearing loss of the left ear to service or showing that it was diagnosed within one year following the Veteran's discharge from active duty. 5. There is no competent medical evidence relating the Veteran's current cervical spine disability to service or showing that arthritis was diagnosed with one year following the Veteran's discharge from active duty. CONCLUSIONS OF LAW 1. The April 2002 rating decision and the June 2002 Board decision are final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.110, 20.1103 (2001). 2. As new and material evidence has not been received, the criteria for reopening the previously-denied claim for service connection for residuals of an eye injury are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 3. The criteria for service connection for a disability manifested by stress are not met. 38 U.S.C.A. §§ 101, 106, 1110, 1111, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 4. The criteria for service connection for hearing loss in the left ear, to include on a presumptive basis, are not met. 38 U.S.C.A. §§ 101, 106, 1110, 1111, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2009). 5. The criteria for service connection for a cervical spine disability (claimed as a neck condition), to include on a presumptive basis, are not met. 38 U.S.C.A. §§ 101, 106, 1110, 1111, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). Specific to requests to reopen a previously-denied claim for service connection, VA must provide notice that describes the basis for the previous denial, as well as the reopening criteria and the criteria for establishing the underlying claim for service connection found to be unsubstantiated in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Initially, the Board acknowledges that the RO did not provide the Veteran with the VCAA notice that complies with the Kent requirements, in that the January 2005 pre-rating notice letter mistakenly indicated that the last final denial was the June 1995 rating decision. Even so, the Board notes that, in the March 2006 rating decision, the RO informed the Veteran that his claim had been previously denied because the evidence failed to show that an eye condition was due to service; that new (existing evidence not previously submitted to VA) and material (evidence relating to an unestablished fact necessary to substantiate the claim) evidence must be submitted to reopen his claim; and that new and material evidence can be neither cumulative nor redundant of 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. Moreover, statements made by the Veteran's attorney suggest actual knowledge of the evidence needed to support reopening the previously-denied claim for service connection for residuals of an eye injury. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, any VCAA notice error in regard to the Veteran's petition to reopen in this case is deemed harmless and does not preclude appellate consideration of the claimant's petition to reopen. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was recently removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (Apr. 30, 2008). VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Collectively, pre-rating letters dated in February 2003, January 2005 and October 2007 described the evidence necessary to substantiate a claim for service connection and met all of the requirements noted above, including informing the Veteran that it was ultimately his responsibility to see to it that any records pertinent to his claims are received by VA and/or to send any evidence in his possession that pertains to his claims. In the present appeal, although the Veteran was not specifically provided the notice required by Dingess prior to the initial adjudication of his claims for service connection except for that pertaining to service connection for a cervical spine disability, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision on the claims herein decided. As the Board's decision herein denies the claims, no disability rating or effective date is being, or is to be, assigned. Accordingly, there is no possibility of prejudice to the Veteran under the notice requirements of Dingess. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters decided herein. Pertinent medical evidence associated with the claims file consists of the Veteran's service treatment records, private and VA treatment records, and the reports of VA examinations conducted in May 1995 and May 2009, along with a July 2009 addendum. In this regard, the Board notes that both the Cleveland and Columbus, Ohio VA Medical Centers (VAMCs) responded that they have no records pertaining to the Veteran. Instead VA medical records from the Columbus, Georgia, Tuskegee, Montgomery and Birmingham, Alabama VAMCs have been associated with the record and the Veteran was afforded a VA mental disorders examination in 2009 is fully adequate for the purposes of determining the extent of the Veteran's disability in light of the applicable diagnostic criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Also of record and considered in connection with the appeal are various written statements provided by the Veteran or by his attorney, on his behalf. Given the foregoing, the Board finds that the RO has substantially complied with the Court's order and Board's previous remand with regard to the claims decided herein. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Moreover, no further development to create any additional evidence for consideration in connection with the claims herein decided is warranted. As explained in more detail below, these claims for service connection are being denied because there is no competent medical evidence whatsoever that the claimed disabilities are related to service. As the current record does not reflect even a prima facie claim for service connection, there is no requirement for VA to arrange for a medical examination and/or to obtain a medical opinion in connection with the claims being denied. See 38 U.S.C.A. § 5103A(d); Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003). In summary, the duties imposed by VCAA have been considered and satisfied. Through notice of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the service-connection claims herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the matters decided on appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided on appeal, at this juncture. II. Petition to Reopen In an August 1997 decision, the Board, in part, denied service connection for residuals of an eye injury, noting that service treatment records reflected no complaints or findings of an eye disability, disease, or injury during active duty. Although the Veteran splashed paint into his eyes while on INACDUTRA in November 1986, there was no medical evidence that the Veteran had a current eye disability other than refractive error (which is considered a development disability and not service connectable) that had its onset or was the result of a disease contracted in service or of an injury sustained in service, including while on INACDUTRA in November 1986. At the time of that denial, the Board notes that the Veteran's January 1978 and June 1982 enlistment examination reports for the Army and the Army National Guard reveal defective distant and near vision, not considered disabling, and a May 1995 VA eye examination reveals that the Veteran had presbyopia and slightly decreased visual acuity with no ocular etiology findings. In June 2002, the Board denied the Veteran's petition for reconsideration of the August 1997 Board decision and informed him of his appellate rights; but he did not appeal the denial to the Court. Thus, the decision is final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In an April 2002 rating decision, the RO, in pertinent part, determined that no new and material evidence had been received to reopen the Veteran's previously-denied claim for service connection for residuals of an eye injury. He was informed of the decision and his appellate rights later the same month; but he did not file an appeal with regard to this issue. Thus, as the Veteran did not file a notice of disagreement (NOD) within one year of notification of the decision, the April 2002 rating decision became final as to the evidence then of record with regard to this issue. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. Here, the Veteran's petition to reopen service connection for residuals of an eye injury was received in December 2004. Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decisionmakers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not "merely cumulative" of other evidence that was then of record. This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denials were in April and June 2002. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Under the legal authority in effect currently, and at the time of the prior denials, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 C.F.R. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease first diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA or injury incurred or aggravated by INACDUTRA. 38 U.S.C.A. §§ 101 (24), 106, 1110, 1131. Evidence added to the record since the prior denial(s) include copies of additional VA treatment records, a hearing transcript, and statements submitted by the Veteran and his attorney, on his behalf. The hearing transcript does not pertain to this issue and additional VA treatment records reflect eye evaluations but show no treatment for residuals of an in-service injury to the Veteran's eyes. The Veteran's and his attorney's statements reiterate that the Veteran was treated after paint was splashed in his eyes for decrease in vision, blurred vision, and other symptoms; and that he had been diagnosed with a refractive condition in February 2002. Many of the records submitted by the Veteran are cumulative or redundant of the evidence of record at the time of the last final denial, and, thus, are not material for purposes of reopening the claim. Although much of evidence is "new", it too is not material, because it fails to raise a reasonable possibility of substantiating the Veteran's claim. Finally, although the lay statements are presumed under the holding in Justus to be credible, lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108. Moray v. Brown, 5 Vet. App. 211 (1993); Hickson v. West, 11 Vet. App. 374 (1998). In YT v. Brown, 9 Vet. App. 195 (1996), the Court found that the appellant's opinion was not material to the issue of medical causation. While the Veteran as a lay witness could certainly provide an eyewitness account of his in-service symptoms, neither he nor his attorney is a licensed health care professional and their statements regarding whether the Veteran has a specific diagnosed disability and whether such disability was caused by an in-service injury is not competent evidence. See, e.g., Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony which is cumulative of previous contentions which were considered by the decisionmaker at the time of the prior final disallowance of the claim is not new evidence). The Board emphasizes that neither the Veteran nor his representative is shown to possess the appropriate medical expertise and training to competently offer a probative opinion as to whether he has a current eye disorder that is medically related to an in-service injury. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Accordingly, where, as here, the claim turns on a medical matter(s), unsupported lay statements without more, even if new, can never serve as a predicate to reopen a previously-denied claim. See Moray, 5 Vet. App. at 214. Under these circumstances, the Board concludes that the additional evidence added to the claims file since the April 2002 RO denial and the Board's June 2002 denial of the Veteran's petition for reconsideration does not constitute new and material evidence sufficient to reopen a claim for service connection for residuals of an eye injury. As such, the Board's June 2002 decision remains final, and the appeal to reopen must be denied. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the previously-disallowed claim, the benefit-of- the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). III. Service Connection Service connection will be granted if it is shown that a veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as arthritis, sensorineural hearing loss and psychoses, which are manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection also may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA or injury incurred or aggravated by INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. Under 38 U.S.C.A. § 101(22) (a) and (c) ACDUTRA means, in pertinent part, full-time duty in the Armed Forces performed by Reserves for training and full-time duty as members of the Army National Guard or Air National Guard of any State. ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserves or the National Guard of any State. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Therefore, for disorders claimed to have been incurred or aggravated during ACDUTRA or INACDUTRA, the appellant must establish a service-connected disability in order to achieve status as a veteran. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). A. Disability Manifested by Stress The Board acknowledges his attorney's statements that service treatment records show that the Veteran was treated for hyperventilation syndrome in 1978 and that he reported nervousness because of a fever in 1979; that, while serving on active duty in Germany in December 1978, he was assaulted by civilians; that the Veteran testified that he continued to be depressed by thoughts of the beating whenever he felt pain in his knees and legs; and that VA medical records dated in 2001 reflect that the Veteran suffered from stress and anxiety. During his Travel Board testimony, the Veteran indicated that, at the time he was attacked, he was "stressing over a lot of other issues like not just that issue because [his] kids were small and I thought about them back in American and my ex-wife, [he] had just divorced." After a full review of the record, including the medical evidence, testimony and statements made by the Veteran and others on his behalf, the Board finds that service connection for a disability manifest by stress is not warranted. Service treatment records reflect that the Veteran complained of chest pains in August 1978 and that, after a normal examination, the assessment was hyperventilation syndrome. In September 1979, the Veteran complained of loss of hearing in the right ear, dizziness and fever the night before, reporting that usually he gets very nervous when he has a fever. On examination, wax build up was found in the left ear. The assessment was hearing lost. A separation examination was not performed at the time of the Veteran discharge from active duty in March 1981. However, on his June 1982 National Guard enlistment examination report, clinical findings for the psychiatric system were noted to be normal and, in the medical history portion of that report, the Veteran denied having frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. Subsequent National Guard treatment records are silent for any complaints of, or treatment for, nervousness, stress or any psychiatric disorder. Private treatment records reflect no treatment of complaints of stress or any psychiatric disorder but show treatment for several work-related injuries and injuries sustained in a 1985 motor vehicle accident (MVA). A May 1995 VA general medical examination report reveals that the Veteran was competent and that psychiatric and personality findings were within normal limits. A VA outpatient mental health/behavioral medicine assessment on November 28, 2001 reflects that the Veteran's chief complaint was depression on and off, with the precipitating event being his brother's suicide in 1976. He reported a history of substance abuse (alcohol) when feeling depressed beginning at age 18, with last use four years ago, and no prior history of psychiatric treatment. However, the Veteran indicated that he was on psychiatric medication about ten years ago. He denied the need for pain management. However, when seen by a VA psychiatrist the same day, the Veteran complained of being under a lot of stress; that he was in chronic pain from injuries he received during an in-service assault in Germany; that he was frustrated that people did not believe the amount of pain he was in; that he was worried about his wife who needed a liver transplant and his finances; and that his job in security was stressful. He was diagnosed with depression NOS related to his pain and his wife's health. A February 2002 VA social work note reflects that the Veteran was seen for counseling due to depression which appeared to be aggravated by his wife's chronic illness and his stepson's behavior problems. When seen two months later, his depression had slightly improved but he was still having problems with his stepson and worried about his son who was stationed in Somalia. By July 2002, the Veteran was feeling better. He reported that his son was to be stationed in Germany, his stepson was more cooperative, and his wife was doing better. Overall in November 2002, the Veteran was feeling less depressed as his wife had received a liver transplant in July 2002; however, he still had problems with his stepson and worried about finances. At a July 2003 VA psychiatrist follow-up, the Veteran felt that he had regressed, noting that he had been denied service connection as the RO stated that his depression was due to his wife's illness. He pointed out that in the original note that his stress started when he was "shot" by civilians in Germany and that other stressors were in addition to that- chronic pain and worries about finances. In November 2003, the Veteran reported that he had depression on a daily basis and admitted that he had not taken his Remeron on a regular basis as he was worried he would get addicted to it. He still worried about his son in Iraq and finances in view of his wife's medications and still had pain related to an in- service assault (but was not shot by civilians) in Germany. When seen in April 2004, the Veteran had stopped his Remeron again because of heartburn and he was treated with Maalox in the past. His son was back from Iraq but had what sounded like posttraumatic stress disorder (PTSD). When seen by the VA psychiatrist in July 2004, the Veteran reported that his depression had decreased; that his wife was doing better since her liver transplant; and that his son was better but might be redeployed to Iraq in October. A January 2005 VA psychiatrist note reflects that worrying about his wife and son could be exacerbating the Veteran's depression but that it was documented in the initial note that he felt that his depression was related to pain which originated from an in-service assault in Germany. His wife's health was better and his son was trying to get out of the service. He was off his medications. At a July 2005 follow- up, the Veteran reported that he was doing okay off meds and he denied recent depression. An April 2008 VA follow-up psychiatrist note reflects that the Veteran was last seen in July 2005 and he reported that he was hospitalized for two days in October 2007 for diverticulosis. He had been stressed and depressed recently particularly due to continued denial of his claim. During a May 2009 VA mental disorders examination, the Veteran reported sleep difficulties and experiencing nightmares regarding an episode in which he was beaten by three African students while in Germany. Following a review of the claims file and an examination, the Veteran was diagnosed with depressive disorder NOS (mild). The examiner added that the Veteran asserted that his depressive symptoms and/or PTSD symptoms arose from an in-service assault by three males. Indeed, review of the record supports the Veteran's claims of treatment for depression during recent years and a diagnosis of depressive disorder NOS by a VA clinician. However, a detailed VA response to the Veteran's claim during November 2004 cited a lack of evidence of treatment for depression prior to the early 2000s and evidence that suggests his depressive symptoms were initiated by family complications and perhaps other issues rather than the distant in-service assault to which the Veteran refers. The examiner added that the Veteran's decision to forego treatment during recent years is also somewhat troubling. However, he referred to financial deficits and the strength of his spirituality to explain such in the past. The Veteran's reports regarding possible panic symptoms were not fully consistent with formal criteria for panic disorder. In a July 2009 addendum, the VA examiner clarified his opinion and indicated that a "not" should be added to make the following statement: "In any event, the examiner can NOT assert (at least 50/50) the [V]eteran's depressive symptoms result from military service without additional evidence." All other aspects of the previous report should remain. Based on the above, the Board concludes that the preponderance of the evidence is against service connection of a disability manifested by stress as the only competent medical opinion of record, that of the May 2009 VA examiner is against the claim. In this regard, the Board acknowledges that the Veteran's VA treating psychiatrist recorded at an initial evaluation in November 2001 that the Veteran reported that he was in chronic pain from injuries he received during an in-service assault in Germany and that he was frustrated that people did not believe the amount of pain he was in. Any statements of the Veteran that he had sustained the claimed disability as a result of an alleged in-service injury are not transformed into "competent medical evidence" merely because the transcriber of the statements happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). The Board notes that as a medical opinion can be no better than the facts alleged by the appellant, an opinion based on an inaccurate (or, unsubstantiated) factual premise has limited, if any, probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1993). Unlike the VA examiner, the Veteran's treating psychiatrist did not review the Veteran's service treatment records. If he had, he would have noted that less than two weeks after the in-service assault, the only complaint the Veteran had was loss of hearing in the left ear and on examination a brown hematoma was found in the left ear. He was placed on a physical profile for two weeks to prevent duty which might expose the ear directly to water exposure. On reexamination in September 1979, the ear examination was normal. On the Veteran's June 1982 enlistment examination for the Army National Guard, clinical findings for the ears, upper and lower extremities, and musculoskeletal and psychiatric systems were normal. Audiograms were also normal. Moreover, the Board finds that the Veteran's claims that he continues to have pain from the in-service assault are not credible. Initially, he was treated for cuts to his right arm and back and fist blows to his face; he was not knocked unconscious. As noted above, his chief complaint while in service related to his left ear. Moreover, during his initial VA mental health assessment on November 28, 2001, he denied the need for pain management. The very same day he reported to the VA psychiatrist that he was in chronic pain from injuries he received during an in-service assault in Germany. Post-service treatment records reflect that he sustained work-related lifting injuries to his back in March and September 1983 and January 1989, the latter from lifting a 400-pound roll at a textile company. In 1985, the Veteran was treated for injuries to his neck, shoulder, left upper extremity and foot sustained in a MVA accident on September 30, 1985. Therefore, the Board finds the May 2009 VA examiner's opinion more probative with regard to his opinion of whether the Veteran's depressive disorder is due to service, particularly an in-service assault. His opinion that it is not is bolstered by the Veteran's own admissions at his initial VA mental health assessment and subsequent treatment records showing that his depressive symptoms revolved around financial and family issues-his son's postings in Somalia and Iraq, his third wife's illness (liver transplant), his brother's suicide, and his stepson's behavior problems. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (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 he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision). Therefore, his claim for service connection for a disability manifested by stress is denied. B. Hearing Loss in the Left Ear The Veteran and his attorney assert during his testimony and in written statements that his current left ear hearing loss is due to his in-service assault, not to noise exposure during service. The Board notes that the threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). For VA purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or 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. For service connection, in-service noise exposure need not be the only source of acoustic trauma; it must only be a contributing source. The absence of in-service evidence of hearing loss during the Veteran's period of active duty is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley, 5 Vet. App. at 159. After a full review of the record, including the medical evidence, testimony and statements made by the Veteran and others on his behalf, the Board finds that service connection for hearing loss in the left ear is not warranted. Here, service treatment records confirm that eleven days after his in-service assault, the Veteran was seen for complaints of hearing loss in the left ear. On observation, he was found to have a partial perforation with dried blood. The assessment was temporary and suspected ossicular discontinuity, partial. The first audiogram performed that day shows that, on audiological testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 10 10 LEFT 40 45 40 55 45 The second audiogram performed that day shows that, on audiological testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 5 5 LEFT 25 40 40 35 50 When seen by the Audiology Service at the 97th General Hospital, the assessment was unilateral mild hearing loss in the left ear, air/bone gap indicates conduction component. An audiogram performed that day shows that, on audiological testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 -5 -- -5 LEFT 35 30 30 -- 25 When seen in August 1979 for a follow-up, his ears were slightly congested on examination. The assessment was questionable hearing loss. Two audiograms performed show that, on audiological testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 85 80 80 -- 75 LEFT 80 75 85 -- 85 HERTZ 500 1000 2000 3000 4000 RIGHT 75 75 75 -- 75 LEFT 75 75 75 -- 80 At a September 1979 follow-up, the Veteran complained of difficulty hearing in the right ear. He had a normal ear examination. On audiological testing in October 1979, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 -- 20 LEFT 10 10 15 -- 20 The assessment was nonorganic hearing loss resolved, acuity well within normal for both ears. On the Veteran's June 1982 enlistment examination for the Army National Guard, clinical findings for the ears were normal. Audiograms were also normal, as pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 5 10 LEFT 5 0 0 5 0 On a February 1990 National Guard retention examination, clinical findings for the ears were normal and the Veteran denied ear trouble but claimed hearing loss. Audiograms appeared to be normal, as pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 30 25 LEFT 25 20 25 25 Illegibl e During a May 1995 VA audio examination, the Veteran reported "hearing pretty good" until he was attacked, beat up and got his right eardrum busted. He was unsure whether the hole in his eardrum healed up. The Veteran indicated that he heard much better with his left ear. An otoscopic examination was within normal limits. On audiological testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 80 90 95 100 LEFT 25 45 50 55 70 The Veteran's speech recognition score using the Maryland CNC Word List was 80 in the right ear and 86 percent in the left ear. The diagnoses included moderate sensorineural hearing loss in the left ear and severe sensorineural hearing loss in the right ear. The examiner did not opine that the Veteran's hearing loss was due to service. First addressing the question of a current disability, the Board notes that the May 1995 audiometric test results clearly establish hearing loss disability in the left ear as defined in 38 C.F.R. § 3.385. The question remains, however, as to whether there exists a medical nexus between such hearing loss and service. Considering the totality of the evidence, to include the Veteran's credible assertion of an in-service assault, subsequent treatment for what turned out to be a temporary and episodic hearing loss as shown by the audiological evaluations performed in October 1979 and June 1982, and the lack of any medical opinion linking his current hearing loss to service, the preponderance of the evidence is against a finding that service connection for hearing loss in the left ear is warranted. This is particularly so here, where the October 1979 assessment was nonorganic hearing loss resolved, acuity well within normal for both ears; the Veteran denied ear trouble and hearing loss during his June 1982 National Guard enlistment examination, and the Veteran was not in combat and does not assert acoustic trauma due to noise exposure in service. Therefore, his claim for service connection for hearing loss in the left ear is denied. C. Cervical Spine The Veteran contends that his current cervical spine disability is due to an injury to his neck during service in 1979. After a full review of the record, including the medical evidence, testimony and statements made by the Veteran and others on his behalf, the Board finds that service connection for a cervical spine disability is not warranted. Service treatment records reflect that, in September 1978, the Veteran was treated for complaints of back pain starting at the lumbosacral region and radiating to just below the left shoulder, due to an injury when he hit his back with a pole three days earlier. On examination, pain was located in the lumbosacral region and under the left clavicle. The assessment was back pain. In January 1980, the Veteran injured his back while playing football and heavy lifting. He was noted to have decreased range of motion without spasm or deformity. The assessment was possible muscle spasm, lower back. In May 1980, the Veteran was treated for a small lump to the left side of the head and a laceration inside of the lip twelve hours after being in a fight. The assessment was bump and laceration of lip. In August 1980, the Veteran indicated that he injured his back the previous day and complained of lower back pain, not radiating, mainly in the upper back. Tenderness was noted in the thoracic region. Assessment was lower back pain. On his June 1982 National Guard enlistment examination report, clinical findings for the spine and musculoskeletal system were noted to be normal and, in the medical history portion of that report, the Veteran denied having recurrent back pain, a bone, joint or other deformity, arthritis, rheumatism or bursitis. Subsequent National Guard treatment records show that the Veteran complained of low back pain while helping unload a supply truck during field training in August 1989. It was determined that it was not likely to result in a claim against the Government for future medical care. On a February 1990 National Guard retention examination, clinical findings for the spine and musculoskeletal system were noted to be normal. In the medical history portion of that report, the Veteran indicated that he had recurrent back pain, arthritis, rheumatism or bursitis. The examiner noted that the Veteran reinjured his back in August 1989. The Veteran was sent for further evaluation in April 1990, during which he reported having had a back injury in 1987 which had been evaluated by a civilian doctor for low back pain and which the Veteran stated precluded normal military function. X-rays revealed mild lipping of L4-L5 disc space but no congenital, mechanical, inflammatory or neoplastic abnormalities was seen. The impression was low back pain (resolving). Private treatment records reveal that the Veteran was treated for complaints of injury to his neck, shoulder, left upper extremity and foot following an MVA on September 30, 1985. October 1985 x-rays of the cervical, dorsal and lumbosacral spine failed to show any evidence of any acute active pathology. X-rays of the right foot showed no evidence of fractures, dislocations, or any other abnormality. He was diagnosed with acute sprain and strain of the spine, cervical and dorsal. By April 1986, he was noted to be working and doing well with no permanent disability or residuals as a result of the MVA. Following a January 1989 work-related accident while lifting a 400-pound roll, the Veteran developed pain and discomfort in his back. Private x-rays and a CAT scan were negative. An examination in May 1989, following physical therapy and injections, was essentially negative. The impression was pain of questionable etiology. A June 1989 bone scan of the thoracic and lumbar spine was essentially negative. He was hospitalized at St. Francis Hospital for a myelogram with was normal. The diagnosis remained pain of questionable etiology. A December 1989 nerve conduction study (NCS) and an electromyelogram (ECG) did not appear to support conclusive evidence of a neuropathic or denervating process occurring in both lower extremities. A February 1990 physical therapy preliminary assessment of the Veteran's continuing complaints of low back and neck pain as well as bilateral lower extremity pain revealed cervical spine range of motion of: forward flexion to 40 degrees, extension to 30 degrees, and right and left rotation to 55 degrees, all limited by complaints of pain. Overall muscle strength for the upper extremities was 4+/5 with complaints of lower back pain. In May 1992, the Veteran was attempting to lift a large garbage can into a trash dumpster when it slipped and kind of jerked him. He felt a popping sensation in his neck. From that time on, he complained of pain from his neck radiating down into his back, which was worsened by lying on his side, and occasional pain in both legs as well. May 1992 x-rays of the cervical spine showed no specific abnormalities. The impression was cervical facet syndrome. His pain persisted and, when seen in August 1992, the impression again was cervical spine facet joint syndrome. A January 1993 magnetic resonance imaging (MRI) of the cervical spine was normal with the exception of some mild central bulging of the posterior annulus at C6-C7. No lateralizing signs were associated with this bulge. When seen in February 1993, the neck had full range of motion with some pain with neck extension. Motor examination was normal and sensory examination revealed a decreased pinprick in the right arm when compared to the left. The impression was herniated nucleus populous C6-C7. At a May 1995 VA general medical examination, the Veteran complained of low back pain, but not of neck pain, and was diagnosed with low back strain following a physical examination. In May 2001, the Veteran was seen at the VAMC for complaints of pain in head radiating from head down neck to shoulder at level 7 and was given extra strength Tylenol. During a February 2002 VA spine examination, the Veteran reported a history of neck pain and back pain going back to 1990. There also was a history of some numbness in his arms and also pain in the left shoulder of about 1-month's duration. X-rays of the cervical spine revealed early changes consistent with spondylosis and was otherwise within normal limits. The diagnoses include early degenerative changes consistent with spondylosis of the cervical spine by x-ray. At a May 2002 VA primary care visit, the Veteran complained of pains in his neck for 15 years and in the lower back for 10 years, no known injury. The lower cervical spine was tender on palpation with full range of motion and pain in the lower cervical spine. The assessment included pain in neck. A June 2002 VA physical therapy consult reflected that x-rays showed cervical arthritis, osteoarthritis, and spondylosis with spurring. An April 2004 VA nurse practitioner general note revealed complaints of cervical neck pain with pain radiating to the left shoulder and the first three ribs and down under his arm pits. The assessment included cervical radiculopathy. February 2007 VA x-rays of the cervical spine revealed spondylosis without compression fractures. The Board's review of the record shows that Veteran's service treatment records are negative for any complaints of neck pain or medical findings for a cervical spine injury or disability. It was not until February 2002, more than 20 years after the Veteran's discharge from active duty, that he was first diagnosed with arthritis. Previously he had been diagnosed with neck pain and cervical facet syndrome following a September 1985 MVA and work-related injuries in January 1989 and in May 1992. Subsequently, the Veteran was diagnosed with cervical radiculopathy. Considering the totality of the evidence and the lack of any medical opinion linking his current cervical spine disability to service, to include the in-service assault, the preponderance of the evidence is against a finding that service connection for a cervical spine disability is warranted. This is particularly so here, where his June 1982 National Guard enlistment examination had shown normal clinical findings for the spine and musculoskeletal system and the first instance of neck pain was reported following a MVA in 1985 and later after two work-related injuries in 1989 and 1992. Moreover, in May 2002, the Veteran reported that he had had neck pain for 15 years linked to no known injury. Therefore, the Board concludes that the preponderance of the evidence is against the claim for service connection for a cervical spine disability, and it is denied. IV. All Issues In addition to the medical evidence, the Board has considered the Veteran's testimony and written assertions and those of his attorney that the claimed disabilities are the result of service, to include an in-service injury; however, none of this evidence provides a basis for allowance of the claims. As laypersons without the appropriate medical training and expertise, they are not competent to provide a probative opinion on a medical matter, such as diagnosis of or the medical relationship, if any, between a specific disability and service. See Bostain, 11 Vet. App. at 127, citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, their lay assertions in this regard have no probative value. In reaching the above determinations, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER As new and material evidence sufficient to reopen a claim for service connection for residuals of an eye injury has not been received, the appeal to reopen is denied. Service connection for a disability manifested by stress is denied. Service connection for hearing loss in the left ear, to include on a presumptive basis, is denied. Service connection for a cervical spine disability (claimed as a neck condition), to include on a presumptive basis, is denied. REMAND The Board's review of the claims file reveals that additional development of the remaining claim for service connection is warranted. In the February 2007 Memorandum Decision, the Court noted that during the May 2004 hearing the Veteran reported treatment at the Columbus, Ohio VA outpatient clinic since 1991 and having been examined for a leg condition as recently as six weeks prior to the hearing. The Board denied his claim on the basis that there was no evidence of a current bilateral leg condition, without addressing the Veteran's testimony or whether any efforts had been made to obtain the VA treatment records mentioned by the Veteran. The Court found that the Board's November 2004 decision was based on an incomplete record due to its failure to make reasonable efforts to obtain VA treatment records. On remand, after any additional evidence is obtained, the Court instructed the Board to consider whether a VA examination was required. On remand, in a January 2009 response, the Columbus, Ohio VA outpatient clinic indicated that it had no medical records pertaining to the Veteran. However, it appears that the Veteran was referring to the Columbus, Georgia VA outpatient clinic which is part of the Central Alabama VA Healthcare System and includes the Montgomery and Tuskegee VA Medical Centers. On remand, VA medical records were obtained from the Central Alabama VA Healthcare System dated from May 25, 1995 to November 9, 2007. However, the Veteran's claim was not readjudicated in a supplemental statement of the case (SSOC) following receipt of these records. This must be done on remand. During his testimony, the Veteran reported that he developed a bilateral leg condition after his in-service assault. He also indicated that he had surgery on his right leg for torn ligaments and broken cartilage, that he suffered left leg pain and that he had sought treatment for his legs at the Columbus VA outpatient clinic. However, no treatment records showing surgery on his right leg are associated with the record. On remand, the Veteran should be asked to identify and sign releases for any medical records showing treatment for any leg disability, in particular for surgery on his right leg. Accordingly, the case is REMANDED for the following action: 1. Send a letter to the Veteran and his attorney and ask him to provide the names, addresses, and approximate dates of treatment of all healthcare providers, VA and private, who have treated him for any leg disability, in particular for surgery on his right leg, since service. After securing any necessary authorizations, request copies of all indicated records which have not been previously secured and associate them with the claims file. This should include all treatment records pertaining to the Veteran from the Birmingham VAMC since June 12, 2007 and from the Central Alabama VA Healthcare System since November 9, 2007. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his attorney of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 2. If and only if the records associated with the claims file show a current leg disorder, schedule the Veteran for a VA orthopedic examination to determine the nature and etiology of any currently diagnosed leg disorder. The claims file must be made available to and reviewed by the examiner prior to the examination so that pertinent aspects of the Veteran's medical history may be reviewed. Based on examination findings, medical principles, and historical records, including any available service treatment records, the examiner should indentify any leg disorder found on examination. For each such diagnosed disorder, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (50 percent or greater probability) that any such disorder (1) was first manifest during active duty, or is the result of any injury suffered or disease contracted during active duty, ACDUTRA or INACDUTRA in the Army National Guard, or (2) had its onset within one year of the Veteran's discharge from active duty on March 13, 1981, if arthritis is identified. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the Veteran's remaining claim. If any benefit sought on appeal remains denied, furnish to the Veteran and his attorney an appropriate SSOC, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain additional evidence and ensure that the Veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. No action is required by the Veteran until contacted. The Veteran and his attorney have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs