Citation Nr: 1012292 Decision Date: 04/01/10 Archive Date: 04/14/10 DOCKET NO. 04-15 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a hearing loss disability. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for post-operative residuals of a back injury. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for tension headaches. 5. Entitlement to service connection for disability manifested as swelling of the leg, ankle, and foot. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD J.G. Reinhart, Counsel INTRODUCTION The veteran served on active duty from November 1961 to May 1962. He also had subsequent service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. In connection with this appeal, per his request, the Veteran was scheduled to appear at a video conference hearing in July 2004. He failed to report for this hearing and provided no explanation for his failure to report. His request for a video conference hearing is therefore deemed withdrawn. 38 C.F.R. §§ 20.702(d); 20.704(d). FINDINGS OF FACT 1. In an unappealed January 1994 decision, the RO denied service connection for back and hearing loss disabilities. 2. Since the January 1994 decision, evidence which was not cumulative or redundant of evidence already of record has been added to the record and raises a reasonable possibility of substantiating claims of service connection for back and hearing loss disabilities. 3. Tinnitus, a hearing loss disability, a back disability, chronic headaches, and a disability manifested by swelling of the legs, ankles and feet did not have onset during the Veteran's active military service, did not manifest within one year of separation from of active duty, and are not otherwise related to the Veteran's active military service. CONCLUSIONS OF LAW 1. The January 1994 decision, in which the RO denied service connection for back and hearing loss disabilities, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2009). 2. New and material evidence has been submitted since the RO issued the January 1994 rating decision and the requirements are met to reopen claims of service connection for back and hearing loss disabilities. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 3. The criteria for service connection for tinnitus, a hearing loss disability, a back disability, chronic headaches, and a disability manifested by swelling of the legs, ankles and feet, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2009). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). "Active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a). Active duty for training includes full time duty in the Armed Forces performed by Reserves for training purposes and full time duty performed by members of the National Guard of any State, under 32 U.S.C. 316, 502, 503, 504, or 505. 38 C.F.R. § 3.6(c)(1),(3). Inactive duty for training includes duty other than full time duty prescribed for Reserves or performed by a member of the National Guard of any State. 38 C.F.R. § 3.6(d)(1),(4). Presumptive periods do not apply to active duty for training or inactive duty for training. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Of note is that in January 2010 the Veteran indicated that he waived his right to have his case sent back to the RO to review newly submitted evidence and requested that the Board proceed to adjudicate his appeal. Hence, all evidence and argument will be considered by the Board irrespective of when it was submitted. 38 C.F.R. § 20.1304(c) (2009). New and material evidence Once a claim has been denied the submission of new and material evidence requires that VA consider that evidence along with all other evidence of record to determine if the benefit sought is warranted. Following issuance of an RO decision on a claim for VA benefits, the claimant has one year to initiate an appeal of that decision to the Board by filing a notice of disagreement with that decision. 38 U.S.C.A. § 7105. If no notice of disagreement is received within one year of the mailing of that decision, the decision becomes final. Id. 38 C.F.R. § 3.156 (b) provides that evidence received within the one year period prior to the decision becoming final is to be considered as having been received in connection with the claim which was pending at the beginning of the appeal period. In Jennings v. Mansfield, 509 F.3d 1362, 1368, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "a claim becomes final and subject to a motion to reopen only after the period for appeal has run. Any interim submissions before finality must be considered by VA as part of the original claim." New and material evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2009). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In cases where and RO decision becomes final, the claim which has been denied may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. In Muehl v. West, 13 Vet. App. 159 (1999) the Veterans Court addressed the issue of whether a decision becomes final if new and material evidence is submitted in within the one year period and the benefit is ultimately granted. Mr. Muehl, in December 1992, filed a claim to reopen a previously denied claim for VA benefits and the RO denied his request to reopen in September 1993. Id. In January 1994 SSA records were submitted and the RO issued a decision in March 1994 stating that it was reopening the claim and denying the claim on the merits. In February 1995 the Veteran requested reconsideration of the decision and in February 1996 the RO granted a VA pension. Id. Mr. Muehl appealed the February 1996 decision, challenging the effective date of the award. The Board determined that the September 1993 decision had become final because the Veteran had never appealed that decision and that the January 1994 submission of SSA records was an informal claim. Id. The Court held that because the SSA records were received within one year of the September 1993 decision the September 1993 decision did not become final. Id. Muehl, Jennings, and another case in that line, Young v. Shinseki, 22 Vet. App. 461 (2009) all involve disputes over the effective date to be assigned for benefits which were ultimately granted based on the evidence submitted in the one year period following the denial of a claim. In February 2002 the RO denied service connection for tinnitus and mailed that decision to the Veteran and his representative on March 5, 2002. The basis for that denial was that the service records contained no diagnosis of tinnitus or evidence of head injury or acoustic trauma. In July 2002, the Veteran submitted a writing from in which "E.C." reported as follows: My friend [the Veteran] has a hearing problem. He and I feel this is probably service connected. [The Veteran] and I served in the 489 Engineering Co (Floating Bridge) located in Helena, Phillips County, Arkansas. During the early and mid 1960's we would go to summer camp for a two week period for training. Ft. Polk, Louisiana or Ft. Hood, Texas were our usual destinations. While attending camp we would go to the rifle range for target practice and John said he had gone to the machine gun range and shot the 50 caliber machine gun. I have no reason to doubt his word and am sure he did go to the machine gun range as well as the rifle range! Of course we were not issued ear plugs and I feel this intense noise affected [the Veteran's] hearing. Because the basis for denying service connection for tinnitus in the February 2002 decision included that there was no evidence of acoustic trauma during service and E.C.'s letter provides evidence of acoustic trauma on the rifle range, the Board considers this to be new and material evidence regarding the claim of tinnitus and this evidence would therefore warrant a review of all of the evidence of record and an adjudication of the claim on the merits. Under the particular facts of this case, the claim that gave rise to the issue on appeal with regard to tinnitus was received by VA in August 2001 and is the first claim for service connection for tinnitus filed by the Veteran. In a writing received in March 2003, the Veteran reported that a noncommissioned officer had refused the Veteran's request to seek medical treatment for ringing in the ears. This evidence is new and can be viewed as going to the basis for the RO's denial of the service connection for tinnitus. Hence, even if the Veteran's February 2002 rating decision had become final, the claim would have to be reopened and considered on the merits. The Board will now turn to the Veteran's claims for service connection for hearing loss and back disabilities. VA first received an application for VA disability benefits from the Veteran in November 1976. He reported a back injury and nerves. In a letter dated later that month the RO denied his claim treating the claim as one for service connected disability and/or non service connected disability pension. The Veteran did not appeal that decision and the decision became final. In August 1987, VA received another application from the Veteran for VA benefits; this time for a hearing loss disability. In October 1987 an RO denied the claim on the basis that he was shown to have no hearing loss during service and at separation from active service. The Veteran did not appeal that decision and the decision became final In February 1993 the Veteran requested that VA reopen his claim for a hearing loss disability and requested service connection for a back disability. In January 1994 the RO determined that his hearing loss claim could not be reopened, considered the claim for a back disability on the merits and denied service connection for a back disability. The Veteran did not appeal that decision and the decision became final. In August 2001 the Veteran requested that VA evaluate service connected "disability on Spinal back operation Hearing Impaired, Tinnitus." He stated that he had ringing in his ears because of not using ear plugs during training and that he had hurt his back while loading a truck of steel and recently had a back operation. On March 5, 2002, the RO mailed a February 2002 rating decision in which it denied service connection for tinnitus and determined that a service connection claim for a back disability was not reopened. In May 2002 VA received six pages from the Veteran. In the first page the Veteran stated that the other five pages were in reference to claims for hearing loss, a back disability, and psychiatric symptoms related to service. The second page was a statement from the Veteran with three labeled substantive paragraphs. First, the Veteran expressed his belief that his hearing loss was due to shooting a machine gun while on Army Reserve training from November 21, 1961 to September 19, 1967. Second, he stated that while in the Army Reserves he reported to his sergeants his hearing loss and an annoying ringing in his ears, and complained to his primary care physician who referred him for testing, that the test results were filed in his medical records and showed that "I had extensive nerve damage that resulted from me shooting the M-60 machine gun without the use of ear plugs" (original all in upper case). Third, that he had tried to obtain his medical records from his primary care physician but was unable to do so because the physician had died and that he requested his service records from St. Louis Missouri (the National Personnel Records Center or NPRC) but was told that the records were destroyed by water damage. He also stated that he was enclosing medical records and statements and would like VA to reconsider its decision. The third document is an Affidavit which was subscribed and sworn before a Notary Public "this 4 day of 9, 2002", inconsistent with receipt of the document by VA on May 23, 2002. The Board assumes the notary intended to show April 9, 2002 as the date of the statement. In that statement "J.S." reported that in 1964 he and the Veteran were building a bridge on annual training with the 489 Engineer Corp. He stated that the Veteran "was injured when one of the steel beams dropped down on him. His spine was injured at that time. When this accident happened I was witness to same." The fourth document was a January 1985 letter in which "H.C.", M.D. stated that he had seen the Veteran status post op herniated nucleus pulposus with evidence of chronic low grade arachnoiditis and degenerative disc disease of the spine. Dr. H.C. reported that the Veteran had not worked in the previous three years. There is no mention of the Veteran's military service. The fifth document is a March 1985 letter in which "W.E.", M.D. reported that the Veteran had been a patient of his for several years, upon examination had a well healed laminectomy scar, had degenerative disc disease of his spine, and had not worked for 3 years. There is no mention of the Veteran's military service. In July 2002, VA received a writing in which E.C. stated that he had served with the Veteran in the 489 Engineering Company and during he early 1960's, he and the Veteran would go to "summer camp" for a two week period of training. He stated that while attending camp they would go to the rifle range and that the Veteran shot the 50 caliber machine gun. He reported that they were not provided with earplugs. E.C. stated his opinion that these noises affected the Veteran's hearing. In July 2002, the RO issued another rating decision addressing the Veteran's hearing loss and back claims, and listed the evidence received since the February 2002 rating decision. The RO explained that with regard to the Veteran's claims for service connection for both disabilities, the evidence received was not considered to be new and material evidence and therefore the claims were not reconsidered. The RO listed as headings for the two claims that new and material evidence had not been received to reopen the claims. The Board understands that at the time of submission of the evidence, and indeed at the time of the July 2002 rating decision, the February 2002 rating decision had not become final. The RO did not state that it had become final. However, the January 1994 rating decision had become final and the RO merely acknowledged that new and material evidence had not been received to reopen either claim. Following the July 2002 rating decision, the RO received copies of the statement of E. C. and J.S. and a letter from the Veteran reporting that he was released from his active duty service in 1962 after which he engaged in "weekly, monthly, and two weeks training at summer camp" with the 959th and 489th Reserve units. He reported that this took place for over 5 years. In March 2003, the RO received the writing in which the Veteran reported that during his tour of duty with Company A and B of the 100th Division at Fort Chafe, Arkansas the chain of command denied him access to clinical treatment on several occasions. He went on to state that during his tour of duty in the active reserve units, with the 959th and the 489th, he asked a First Sergeant for permission to see a doctor for clinical treatment for his complaints but was denied permission. He stated that his complaints to this sergeant were for headaches, hearing problems, ringing in the ears, leg, ankle and foot swelling, and a back injury. The Veteran reported that his sergeant also denied a promotion and stated that the Veteran was a troublemaker. The Veteran had not previously provided the information that he provided in the March 2003 writing so that writing is "new" evidence. This evidence going to the bases of the previous denials for service connection for hearing loss and back disabilities - that these disabilities were not shown during service - is also material (the standard is very low). Hence, the Board will reopen these claims. Merits Although VA presumes evidence credible when determining if evidence is new and material, once it is determined that the evidence is new and material the Board has both the duty and authority to consider the credibility of all evidence of record. The Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Federal Circuit has also provided that " the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc." Buchanan v. Nicholson, 451 F3.d 1331, 1336-37 (Fed. Cir. 2006). Similarly, the Veterans Court has stated that "The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character." Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Service treatment records from the Veteran's six month period of active duty contain no reports of back injury, hearing loss, ringing in the ears, headaches, or any reports involving his lower extremities, providing evidence against these claims. In a May 1962 report of medical history, the Veteran endorsed that he did not then have or ever had ear trouble, frequent or severe headache, swollen or painful joints, bone, joint or other deformity, arthritis or rheumatism. This is highly probative evidence against these claims as, at this time, there was no reason for the Veteran not to indicate he had these problems. The Veteran's First Sergeant would also have no reason to stop the Veteran from reporting these problems at this time. In effect, the Veteran himself has provided highly probative evidence against this owns claims, refuting his current statement that he had these problems during service, but was unable to seek treatment due to his First Sergeant. The May 1962 report of separation examination lists normal clinical evaluations of the Veteran's ears, spine, lower extremities, and neurologic system, and normal whisper tests of his hearing. These service treatment records are evidence that the Veteran did not have any of the claimed disabilities as of the time of his separation from his period of active duty and are thus evidence against a grant of service connection for any of the claimed disabilities. Nor is there any evidence establishing that any of the claimed disabilities manifested within one year of separation from the Veteran's only period of active duty, which ended in 1962, and therefore the presumptive provisions for chronic diseases are not for application. All of the Veteran's military service after 1962 is either active or inactive duty for training in the Reserves. As explained above, as to the Veteran's inactive duty for training, service connection is only available for disabilities resulting from injuries and a very few other conditions, such as a cerebrovascular incident, which are not at issue in this case. As to any period of active duty for training, service connection is only available for disabilities resulting from injury during such service or disease with onset during such service. In a letter dated in March 1976, R.G., M.D, of a neurology practice, stated that he had evaluated the Veteran and found him to suffer from arachnoiditis primarily of the lumbosacral area. Dr. R.G. reported that the Veteran also complained of visual problems and a headache. Dr. R.G. stated that he could assign no etiology but believed that the reported headache was related to anxiety of his recurrent low back pain. There is no mention of the Veteran's military service and the earliest date referred to in the letter is September 1975. This then is evidence only that the Veteran had pathology of his low back in 1975, underwent a surgical procedure for treatment of a herniated disc, and reported in 1976 that he had headaches. Dr. R.G. also stated that there was a significant chance that the arachnoiditis would progress and cause some strength and mobility problems in the Veteran's lower extremities. This is not evidence that the Veteran had a disability of the lower extremities as of 1976 or that his arachnoiditis was in any way related to his service. This letter thus does not support a grant of service connection for disability with symptoms of swelling of the legs, ankles, and feet. Because Dr. R.G. did not mention the Veteran's service, the letter tends to show that the Veteran did not mention onset of any of his claimed disabilities during service or provide any information relating the claimed disabilities to service. This follows not only from the absence of mention of military service in Dr. R.G.'s letter but is also a logical conclusion from Dr. R.G.'s statement regarding the etiology of the Veteran's reported headache. If, for example, the Veteran had reported, as he seems to now, that he had chronic headaches since his military service, it would make no sense for Dr. R.G. to then conclude that he could assign no etiology to the reported headaches but not even mention the alleged long term symptoms. A VA hospital summary shows that the Veteran was hospitalized for approximately 5 weeks in November - December 1981 for complaints of nervousness, seeing something that was not there, sleep problems, hearing difficulties, and ringing in the ears. At that time he reported that he had suffered from ringing in the ears for 4 or 5 years. He speculated that this may have been the result exposure to noise on the rifle range for two weeks while on Reserve duty in 1964. It is clear from this summary that the Veteran did not have continuity of symptomatology with regard to ringing in his ears. If he had suffered continuously from ringing in the ears it makes no sense that he would report that he had ringing in the ears for 4 or 5 years because this places the symptom in 1976, almost a decade after separation from active service. His report that noise exposure in 1964 led to his tinnitus is thus not a report of continuity of symptomatology but only speculation as to the cause of his tinnitus. Significantly, in a writing from July 2002 the Veteran stated that in 1961, after firing a rifle during his period of active duty, began having ringing in the ears and gradual decrease in hearing. The Veteran has repeatedly stated that he had no hearing protection during service. Yet, a VA audiology consultation note from May 2002 includes that the Veteran reported that he used some hearing protection and that he had a sudden change in hearing when firing a machine gun. There are obvious inconsistencies here. These inconsistencies are present throughout the record and lead the Board to the conclusion that the Veteran does not have any knowledge of onset of any of his claimed disabilities at any point during his active military service but has merely hypothesized that these disabilities had onset during active military service. Simply stated, his statements are not consistent with each other, undermining his credibility with the Board. This December 1981 report of the Veteran of ringing in the ears of 4 to 5 years duration places the symptom no earlier than 1976, and is therefore highly probative evidence that the Veteran did not have this symptom during any period of his service, whether during active duty or training duty with the Reserves. Also of note is that here the Veteran reports that he believed his symptoms were due to noise exposure on a rifle range in 1964. Later he would report a wider range of dates for his noise exposure. This tends to show that the Veteran has no knowledge of any symptoms of hearing loss or tinnitus in connection with any specific event. Indeed, given that he did not experience any ringing in the ears until nearly a decade after any inactive or active duty for training, or for that matter any active duty, he could not realistically place what noise exposure up to 1976 resulted in his hearing loss. This summary is thus evidence that any attribution by the Veteran of hearing loss or tinnitus to events during active duty or Reserve training is pure speculation made in the context of seeking financial gain. The evidence contains some inconsistencies that diminish the reliability of the Veteran's current recollections. Based on the Veteran's conflicting statements, the Board finds that the Veteran is not credible to the extent that he reports the onset of his disabilities. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.)." This summary also documents that the Veteran reported that he had been working with a tractor building company when he fell and hit his back on one of the tire tools and that he had a low back operation in 1974. This is compelling evidence that the Veteran had no back disability or injury prior to 1974 and therefore not during any period of active duty or inactive or active duty for training. This then is evidence against his claim for service connection for a back disability because this summary tends to show that his back pathology followed a post service industrial injury. Physical examination in 1981 was negative other than for a past laminectomy scar of his low back and his complaint of ringing of the ears. He was referred to the audiology department and the diagnostic impression was bilateral neurosensory hearing loss due to acoustic trauma. The Board has not ignored that this report of hearing loss due to acoustic trauma coupled with the Veteran's report of exposure to gunshot noise during service tends to substantiate his claim. However, given the timing of the Veteran's reports the Board does not find that this report of noise exposure in the military necessarily constitutes all of the Veteran's exposure to acoustic trauma. Whether or not he reported any later trauma, or whether that exposure to loud noise during service without hearing protection is accurate depends on whether the Veteran is deemed credible. As explained in this decision, the Veteran is not a credible historian. Hence, the timing of his reports of hearing loss, and that he filed a claim for a back disability and nerves in 1976 but not a hearing loss disability, tends to show that there is no connection between the Veteran's hearing loss disability and his service. If he actually had reason to believe that his hearing loss was due to service it follows that he would have sought service connection for hearing loss in 1976 as he clearly knew at that time that compensation could be obtained from VA for disability resulting from service and was not averse to seeking such compensation. On a factual basis, the Board finds that the Veteran's statements, overall, actually provide factual evidence against his own claims. There are several reports of back pain, lower extremity pain or numbness, and headaches in VA treatment records in the 1980s and 1990's. For example, a December 1983 VA neurology consultation sheet again documents that the Veteran had an industrial accident and back injury and laminectomy in 1974 and had back pain and right foot numbness. March 1985 VA treatment notes document the Veteran's reported history of back pain and some right leg pain in 1974, and that he continued to have back pain and a little pain in both legs, worse on the right. He also reported headaches. The diagnosis was radiculopathy. A November 1989 report of a routine audiologic examination documents that the Veteran complained of constant tinnitus over the past several years and a report of noise exposure in the military. He was found to suffer from what was likely sensorineural hearing loss. The audiology examination report showed what is classified under regulation as a hearing loss disability. See 38 C.F.R. § 3.385. This establishes only that the Veteran had a hearing loss disability, and presumably tinnitus. The report of acoustic trauma during service does not establish that his hearing loss and tinnitus are due to his service. It only establishes that the Veteran has reported such. That he reported that he had symptoms over the past several years, and was released from all military duty more than twenty years earlier, is evidence that there has not been continuity of symptomatology since any of his military service. This is thus evidence against a grant of service connection for hearing loss and tinnitus. These treatment notes are evidence against the Veteran's claim for a back disability and for a disability involving his lower extremities because he relates the symptoms to 1974, long after service and at the time of his reported post service industrial accident. There is no mention of swollen legs, ankles, or feet so these treatment records are not evidence of any connection between his report of leg pain in this 1985 note and his statement later that he had swollen legs, ankles, and feet at some time during his Reserve training or active duty. A November 1991 VA treatment record documents that the Veteran had a headache for three weeks following a personal assault during which time he hit his head and lost consciousness. Again, this tends to show an injury with resultant headaches many years after service and is therefore evidence against granting service connection for headaches experienced anytime after November 1991. Also of note is that the Veteran reported that he had a headache for three weeks. If he had suffered chronic headaches since service it makes little sense that he would report a headache of three weeks duration but not mention that he had suffered headaches for over twenty years. In the late 1990's, for example in January 1997, the Veteran was found to have a toenail fungus and foot care was discussed. There is no mention of his military service or of leg, foot, or ankle swelling. This is not evidence of a connection or any relationship with any foot, leg, or ankle swelling which he reported as occurring during active military service. 1997 and 2002 VA treatment notes show that the Veteran was receiving treatment for diabetes including instruction regarding foot care. There is no evidence relating any problems with his feet or lower extremities to active service. In his August 2001 request for VA benefits the Veteran reported that he had hurt his back while loading a truck of steel and a recent back operation. He stated that he had reported this to a sergeant. He does not provide any dates as to when this occurred but from other evidence of record, such as the letter submitted by the Veteran from J.S., it appears that the Veteran is reporting this as having occurred during Reserves training. This is of some significance because he has also alleged that he began having disc problems in 1961-62. Thus he appears to assign the onset or cause of his current back disability to two different periods of service; which the Board finds to be inconsistent. The inconsistency impacts negatively on his credibility. In July 2003 the Veteran underwent a VA examination with regard to his claim for service connection for headaches. Although the examiner stated that the claims file was not reviewed the examiner obtained a relevant history from the Veteran. Given that the claims file documents reports of headaches no earlier than 1976, and even then does not indicate chronic headaches, the history obtained from the Veteran is adequate. Moreover, during the examination the Veteran had the opportunity to inform the examiner as to how long he had the headaches and did so. Since the information in the claims file is not any more favorable on this issue than the Veteran's statements, the lack of the claims file does not render the examination inadequate. During that examination the Veteran reported that he has had recurrent headaches for the past few years and that he had the headaches almost every day and the headaches lasted for 30 minutes or less. Results of physical examination were essentially normal. The RO did not request an etiology examination but rather requested information as to whether the Veteran had a current headache disability. The examiner provided the information requested by the RO. The Board finds this examination adequate. Whether or not the Veteran's headaches had onset during his period of active duty, are the result of an injury during a period of inactive duty for training, or are the result of an injury during active duty for training or a disease with onset during active duty for training, in this case, amounts to a determination of credibility. Whether his headaches had onset during active duty or he was injured during a period of Reserve training is a finding of fact not answerable by a physician, given the normal physical examination results, but determined only by the record and whether of not the Veteran's reports of his active duty and Reserve training are credible. Credibility is determined by the Board by examination of all evidence of record, not by asking a physician if he or she believes the Veteran as to symptoms experienced decades ago or events that he reports as occurring decades ago. As the Board concludes in this decision that the Veteran's reports are not credible, further development in the way of another examination would not be of any benefit to the Veteran. Simply stated, a VA examination can not provide a basis to grant any claim based on facts the Board does not believe. As already mentioned in the section addressing reopening his claims, there are letters from January and March 1985, in which Dr. W.E. and Dr. H.C. report that they had seen the Veteran for degenerative disc disease including following surgery for a herniated disc. As neither letter referred to the Veteran's military service, neither letter provided evidence that the Veteran's back pathology was related to military service. In October 2003, VA received a writing in which "M.M.", M.D. stated as follows: "This pt was seen in our office for knee degenerative joint disease. He claims this was after an injury in the service. If he indeed had an injury this may have lead to his pathology." Dr. M.M. provided all of this statement in cursive handwriting other than the word "IF" which he printed in upper case. He placed two lines under the word "may". This indicates to the Board that Dr. M.M. found these two words to be significant. The obvious significance is that the Veteran is not particularly believable and that the occurrence of a prior injury is speculative, at best. Submitted by the Veteran are several lay statements. Also described in the earlier section of this decision are the statements of E.C. and J.S. In summary, E.C. reported that that he and the Veteran went on reserve training in the early 1960's, the Veteran fired a machine gun during Reserve training, and E.C. believes this affected his hearing. J.S. reported that during Reserve training in 1964 he witnessed a steel beam dropped on the Veteran injuring his spine. In October 2003 VA received a letter dated in April 2003 written by "J.M." who identified himself as the pastor of a church of which the Veteran is or was a member. J.M reported with regard to the Veteran that "over the years he has suffered from injuries sustained during his military career." J.M. described the injuries as follows: He has a very aggravating problem with his hearing. His knees, ankles, and legs have given him problems since his military duty, along with severe headaches and foot pain. The older he gets, the more aggravating and worse it becomes. The pain gradually gets worse as time moves on. He's been a personal friend of mine for the past forty years. J.M. goes on to report that the Veteran is "suffering through stages of cancer and other various aggravating injuries sustained during his military career." The statements from E.C. and J.S. regarding the effect of gunfire on the Veteran's hearing and a spine injury are not competent evidence that the machine gun fire resulted in hearing loss or tinnitus or that the reported steel beam incident caused injury of the Veteran's spine. While E.C. is competent to report that gunfire was subjectively loud or that the Veteran fired a gun, he has not demonstrated medical expertise that would allow for a competent opinion as to the chronic effect of exposure to gunfire. Similarly J.S. is competent to report that a steel beam was dropped on the Veteran or that the Veteran complained of back pain, but J.S. is not competent to report that the Veteran sustained an injury to his spine let alone any chronic condition involving pain. Under the facts of this case, these questions of etiology are not subject to other than expert evidence. See 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"). This is not to say that as nonexperts these individuals are never competent to offer lay opinion evidence as to relevant facts, including diagnoses and etiology of medical or psychological disabilities. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Whether such opinions are competent evidence depends on whether the relevant fact lends itself to lay opinion evidence. Several cases provide guidance to the Board in making this determination. The Federal Circuit has held as follows: 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In Jandreau, the Federal Circuit provided an example stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at footnote 4. This indicates to the Board that the complexity of the question at issue is a factor to be considered when determining if a layperson's opinion is competent evidence. For example, the Veterans Court has held that varicose veins that have become visibly tortuous or dilated are observable by lay people and because varicose veins may be diagnosed by these unique and readily identifiable features, the determination that the layperson has varicose veins is not one restricted to medical experts. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). This case echoed the Veterans Court's explanation as to the foundation necessary to support lay testimony in Layno v. Brown, 6 Vet. App. 465 (1994). In Layno, the Court explained that "lay testimony is competent only so long as it remains centered upon matters within the knowledge and personal observations of the witness." Id. at 470. Common to these cases is that a layperson is competent to provide evidence that is based upon that person's observations and personal knowledge. It requires no specialized knowledge to observe a broken bone or tortuous and dilated veins, to describe personally observed symptoms, or to hear and repeat the words of a medical professional relating a diagnosis. Determining whether an individual had an injury of the spine due to some trauma or whether noise from a firearm caused hearing disabilities are complex medical questions not answered by mere observation. Hence the opinions of etiology or cause and effect offered by E.C. and J.S. are not competent evidence. Nor for that matter is the opinion of the Veteran as to these issues other than as his statements relate to continuity of symptomatology. The Board has considered the Veteran's report of being denied access to medical care during service for swelling of the legs, ankles and feet. Even if the Veteran was competent to diagnose a disease which had these symptoms he has not done so. He has merely reported that he was denied access to care during service. Furthermore, although the Veteran has been diagnosed with diabetes, cancer, and other medical conditions and the record shows that he has received instruction for foot care with regard to his diabetes, the record does not show any disability with these symptoms. Hence, the Veteran has not diagnosed a disease or injury manifested by swollen legs, ankles and feet during service. A nonexpert witness is competent to report that which he or she has personal knowledge through observation with his or her senses. Layno v. Brown, 6 Vet. App. 465 (1994). At issue in Layno was whether persons could provide competent evidence that the claimant had been treated for asthma on a certain occasion. Id. The Veterans Court explained that because the witnesses did not accompany the claimant into the clinic they had no personal knowledge of for what condition he was treated and were therefore not competent to report that he was treated for asthma. Id. at 471. E.C.'s report of the Veteran firing a machine gun is not competent evidence. E.C. states that the Veteran told him he was going to fire the machine gun on another range. This is no different than the witnesses in Layno. E.C. had no personal knowledge of the Veteran firing a machine gun so his statement to that effect is not competent evidence. The only statement by E.C. that is competent evidence is his report that he and the Veteran trained on a rifle range. But this report does not support the Veteran's reported acoustic trauma. In a statement received in November 2001 the Veteran stated that his hearing loss and ringing in the ears followed firing M-1 rifles in 1961-62 and a machine gun in 1964. E.C. reports that he and the Veteran trained on the rifle range during Reserve duty. Hence, the acoustic trauma to which the Veteran reports his hearing loss is not that witnessed by E.C. J.M.'s letter for the most part is merely a repetition of the report from the Veteran that his disabilities had onset during his active service. According to J.M.'s letter he has been a friend of the Veteran since 1963. J.M. however does not refer to any details as to when he personally observed the Veteran to have any of the reported symptoms or disabilities. For example, J.M. has no personal knowledge of pain suffered by the Veteran, at least he has not demonstrated so. J.M. does not specify when the Veteran's reported disabilities or symptoms began. J.M. also refers to "cancer and other various aggravating injuries sustained during his military career" (emphasis added). The use of the words "and other" is evidence that J.M. is attributing all of the Veteran's health problems to service, whether cancer or the disabilities that gave rise to this appeal. This tends to show that J.M. has no actual knowledge of these disabilities having onset during or shortly after service because the Veteran's cancer was not diagnosed until many years after service. More importantly, J.M.'s statements are simply inconsistent with the objective evidence of record. The Board finds it unbelievable that the Veteran would have informed J.M. at some point during the time of the Veteran's military service that he had hearing difficultly and severe headaches, but there would be no medical records of such until many years after service. Hence, the Board finds that the J.M.'s letter is to be afforded some minimal weight, but on balance to be outweighed by the reports by the Veteran in clinical settings, the timing of his reports, and the content of his reports. The Veteran is not a credible historian and his reports to others as repeated by others are of therefore little value. The Board now turns to statements from the Veteran, including the March 2003 writing from the Veteran which was the basis for reopening his claims for hearing loss and back disabilities as well as the first mention by the Veteran of headaches or lower extremity disability symptoms (swelling) during his military service. That writing in its entirety is as follows: To whom it may concern, during my tour of duty with Co A and B 100th Division at Ft. Chaffee, Ar. I was denied access for clinical treatments several times, by the chain of command. During tour of duty in the Active Reserve units with the 959 the and 489 the I ask the First Sgt. St. [P] for permission a doctor (sic) to get clinical treatments for my complaints. I was also denied permission to see a doctor. . . . My complaints to my 1st Sgt was (sic) 1. Headache new 2. Hearing Problems, ringing in the ears prev. denied 3. Back Injury - prev denied 4. leg, Ankle and foot swelling - new. P.S. my first Sgt [P] denied my E5 promotion on the account me asking permission to seek clinical help. He stated I was a trouble "maker." Of note is that in a letter dated in May 2003 and received in October 2003 the Veteran reported that his headaches, legs, ankles and knees, and discs conditions began during his period of active duty from November 1961 to July 1962. This statement is inconsistent with the Veteran's reports that he injured his spine during Reserve training. Service treatment records show that the Veteran did not have any of these claimed disabilities or symptoms of such during his period of active duty or when he was separated form active duty (the Veteran's own statements at separation support this finding). Those records, taken together with his other statements which appear to place the bulk of his claimed disabilities or symptoms during his Reserve training, again tend to show that the Veteran is not credible. The March 2003 statement is the earliest report that the Veteran had a headache during service or that he had any abnormal condition involving his lower extremity or extremities during active duty or a period of Reserve training. If his statement is accurate it would follow that there is no service report of these complaints. Determining the credibility of the Veteran's statement of suffering the described physical symptoms and being refused permission to seek medical treatment necessitates that the Board consider this statement in relation to all of the evidence of record as well as the interests of both the Veteran and the military. Most importantly, the content of his statement tends to show that he is not credible. The Veteran's March 2003 statement is incredible on its face. He does not merely assert that military personnel denied permission for him to seek medical care on one occasion or that only one individual did so. In his first sentence he reports that he was denied access to medical care on several occasions during his six month tour of active duty. Thus, the Veteran would have VA believe that he was denied medical treatment more than once during a short period of active duty and again during Reserve training, this time by a noncommissioned officer who had such a bias against the Veteran that he denied a promotion on the basis that the Veteran requested medical treatment. This is simply unbelievable on its face. There are no private records of treatment for any medical condition earlier than 1976. The Board would expect that if the Veteran had conditions requiring medical treatment sometime between 1962 and 1967 and was refused medical treatment, he would have seen a private clinician to address his needs. The Board is aware that the Veteran has provided a reason for the lack of such records but finds that his reason tends to provide even more evidence that he is not credible. In his May 2002 writing the Veteran reported that during Reserves duty he had informed his sergeants of his hearing loss and ringing in the ears and complained to his primary care physician who sent him to have his ears tested with the results filed in his medical records showing nerve damage from shooting a machine gun. In that writing he also reported as follows (original all in upper case): I tried to gather a copy of my medical records from my primary care physician, but was unable to do so because he is deceased. I was unable to get a copy of my military medical records from the main records center in St. Louis, MO because I was informed that they were destroyed by water damage. But according to the Veteran's March 2003 letter he was refused permission to seek medical care for ringing in the ears and hearing loss. If this were true, it makes no sense that he would then request his military treatment records in order to show that he was seen for hearing loss and ringing in the ears. In effect he has offered two conflicting explanations for onset of his claimed disabilities during Reserve training (presumably from an injury) and why there are no records. Treatment records from his period of active duty in 1961-62 are of record and show no treatment or complaints. If the Veteran had symptoms of all of these disabilities during his period of active duty it is unbelievable that he would have endorsed the separation report of medical history as he did. The timing of the March 2003 writing also diminishes the credibility of its content. Although VA has repeatedly informed the Veteran that the lack of evidence contemporaneous to his service poses an obstacle to a grant of benefits, the Veteran never before reported that he was refused medical treatment. Now, many years after VA began informing him of the importance of this evidence, now he alleges that he was refused permission to seek medical treatment for a host of symptoms. His statement has the trappings of a fabricated explanation to account for the lack of evidence. On a factual basis, the Board finds that this provides highly probative evidence against these claims. A question that naturally arises is why the military would refuse to allow the Veteran to seek medical care. The military would obviously have an interest in the physical well being of its members. But here, the Veteran offers another explanation which, maybe if taken without the other evidence already described would be believable, when viewed as a whole is unbelievable. He contends that his sergeant simply did not like him and considered him to be a "trouble maker" and thus not only refused him permission to seek medical treatment, but also prevented him from advancing in rank. On the other hand, the Veteran has the obvious motivation of obtaining VA compensation benefits. This motivation appears to be of more likely relevance to his statements than what amounts to theory that the military repeatedly refused the Veteran access to medical care, particularly in light of the factual inaccuracies in his statements, as cited above. His lack of credibility impacts negatively on his explanation regarding a primary care physician documenting hearing loss, apparently in the 1960's. The earliest reports of hearing loss in the record, from 1981, includes the Veteran's report that he had suffered from ringing in the ears for 4 or 5 years. In 1981, he was evaluated for hearing loss by a VA audiology department and it is that report that is in the record. If the Veteran had hearing loss and ringing in the ears during Reserve training in the 1960's, as he has alleged, it makes little sense that in 1981 he reported ringing in the ears for 4 or 5 years. Taking all of this into account the Board finds the facts alleged by the Veteran in his March 2003 writing are incredible. That the Veteran has so obviously manufactured facts impacts negatively on all of his statements. The Veteran has sought to explain away why there is no evidence to support his claims. These explanations, taken together with the Veteran's reports when he has reported his symptoms in clinical settings, and the record itself, leads to the conclusion that the reason that there is no evidence of any of his claimed disabilities contemporaneous to his service or for nearly a decade after his separation from any type of military service is the most obvious one - none of his claimed disabilities have anything to do with his military service. Thus, the Board finds as fact that the Veteran is not credible, he did not report headaches, hearing loss, ringing in the ears, problems with his lower extremities or a back injury during service, and he did not have any of these conditions during his military service. That J.S. recalls the Veteran was hit by a steel beam is afforded some probative weight but is outweighed by the other evidence of record, including his post service on the job injury and resultant surgery, and the attribution of his back problem in the letters form private physicians in 1976 and 1985 to that injury. With regard to his headaches and swelling of the legs, ankles, and feet, even if the Veteran experienced a headache and swollen lower extremities during Reserve training such would not form a basis for a grant of service connection. He reports no injury during a period of Reserve training or any disease with onset during a period of active duty for training, so the presence of a headache and swollen lower extremities during service, even if the Board found to be accurate, (which the Board does not), would not form the basis for a grant of service connection. Nor is there any evidence that the Veteran has ever been found to have swollen legs, ankles or feet since service. Numerous reports show that he has been negative for edema of the extremities. Hence, even if the Board accepts that the Veteran had swollen legs, feet, or ankles during some period of training in the Reserves, there is no evidence that he has since had such symptoms or that those symptoms were the result of or connected to any injury or disease which had onset during a period of training. In January 2008, VA received records of treatment of the Veteran at Lee County Cooperative Care. These records document that in 2003 and 2004 the Veteran reported headaches, pain in his feet, back, legs, and knees, breathing problems, general body complaints, and hearing problems. These records provide no evidence that any of these complaints are related to the Veterans active service. Summary of the Merits In summary, the preponderance of the evidence shows that the Veteran injured his back not in service, but many years after service, that he had no chronic headaches or disability of the lower extremities at any point during his active military service, did not have an injury during or disease involving headaches or swelling of the lower extremities with onset during any period of Reserve training, reported hearing loss/tinnitus many years after service and reported in a clinical setting that the first onset of these symptoms was many years after any military service. There is no expert evidence linking any of his claimed disabilities to any period of service. As explained above, the evidence presents an overall picture of the Veteran suffering no injury or symptoms during his active duty in 1961-62 or during any period of Reserves training. Rather, over the years the Veteran has constructed explanations for why there is no evidence of treatment or complaints to support his claims. His own explanations are internally inconsistent. He has enlisted acquaintances to submit statements that say little other than repeat what the Veteran has said. Although at this point the Veteran may be of the belief that what he has alleged is accurate, the longitudinal review of the record leaves the Board with the no doubt that the Veteran is not at all credible. Injuries and symptoms that are now present or have been present from 1976 forward are the result of events and conditions that occurred after the Veteran's active service. Based on these facts, the Board must deny this appeal. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty 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, 3.326(a) (2009). 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 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). Proper notice from VA 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. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Veterans Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Veterans Court clarified VA's duty to notify in the context of claims to reopen. As the Board has reopened the Veteran's claims and considered all of his claims on the merits, any defect in the notice specified in Kent is harmless error. VA satisfied the VCAA duty to notify by way of letter sent to the Veteran in October 2001, April 2003, and December 2007 that fully addressed all necessary notice elements. These letters informed the Veteran of the evidence required to substantiate the claims for service connection for tinnitus, a back disability, a hearing loss disability, headaches, and a disability manifested by symptoms of leg, ankle and foot swelling. These letters informed the Veteran of his and VA's respective duties for obtaining evidence. Only the December 2007 letter provided notice as to the elements of effective dates and disability ratings. Some of the notice was sent after the initial adjudication by the RO. However, since the last notice letter was sent the Veteran has had a meaningful opportunity to participate effectively in the processing of his claim and the RO readjudicated his claims by issuance of a decision in February 2009. Based on these facts, the defects in the timing of the notice have been cured. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment record, VA treatment records, and associated with the claims file are statements from private practitioners. In 2001-02, the Veteran requested VA's assistance in obtaining treatment records from private practitioners. In January 2009 the RO sent a letter to the Veteran informing him that VA's requests for the records had been returned as undeliverable and that there were no listings for two of the identified sources. VA also informed him that he failed to provide an address for another physician identified. In a writing received in February 2002 the Veteran informed VA that the physicians he had identified were either deceased, no longer in business, or that their whereabouts were unknown to the Veteran. Based on these communications the Board finds that VA has discharged its duty to assist the Veteran in obtaining evidence. In July 2003 the Veteran underwent a VA examination with regard to his claimed headaches. The RO asked that the examiner determine if the Veteran had a current headache disability and the severity of his headaches. The examiner provided the requested information. Although the claims file was not available for review, the examiner interviewed the Veteran, who is the best source of information as to how long he has had chronic headaches. Thus, the absence of the claims file does not render this examination inadequate because the examiner had sufficient information and data upon which to provide the requested information. This examination was adequate. VA has not afforded the Veteran examination with regard to the other disabilities which form the basis for this appeal. In this case the evidence does not establish that a relevant event, disease, or injury occurred during service or that any of the claimed disabilities manifested within a presumptive period. As to the Veteran's reports of his claimed disabilities during service (including his reported swollen legs, ankles and feet) the Board finds his statements to not be credible and therefore his statements cannot form the basis for finding that an event, disease, or injury relevant to his claims occurred during his active military service. Therefore, VA has no duty to provide the Veteran with examinations. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case. The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, the outcome of this claim hinges on what occurred, or more precisely what did not occur, during service. In the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the veteran's claimed disability would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical opinion which provided a nexus between the veteran's claimed disability and his military service would necessarily be based solely on the veteran's uncorroborated assertions regarding what occurred in service. The U.S. Court of Appeals for Veterans Claims (Court) has held on a number of occasions that a medical opinion premised upon an unsubstantiated account (or, in this case, an account that the Board has rejected as a matter of fact) of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected.) The holding in Charles was clearly predicated on the existence of evidence of both in-service incurrence and of a current diagnosis. Simply stated, referral of this case for an examination or obtainment of a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked, even under Charles, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." See also 38 U.S.C.A. § 5103A(a)(2) (West 2002). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The claims for service connection for a back disability and a hearing loss disability are reopened. The appeal is denied as to service connection for tinnitus, hearing loss, a back disability, headaches, and a disability of the lower extremities. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs