Citation Nr: 1016174 Decision Date: 05/03/10 Archive Date: 05/13/10 DOCKET NO. 08-03 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE 1. Entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hemorrhoids 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for tinea versicolor (claimed as a skin condition). 4. Entitlement to service connection for tinea versicolor (claimed as a skin condition). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E.M. Evans, Law Clerk INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Travel Board hearing chaired by the undersigned Veterans Law Judge in February 2010. A transcript of the hearing is associated with the Veteran's claims folder. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. Bilateral hearing loss was not present in service or shown for many years thereafter, and bilateral hearing loss is not otherwise related to service. 3. Service connection for hemorrhoids and tinea versicolor was denied in an unappealed January 1983 rating decision. 4. Evidence submitted since the January 1983 rating action when considered by itself or in connection with the evidence previously assembled, does not relate to an unestablished fact necessary to reopen the claim for service connection for hemorrhoids. 5. Evidence submitted since the January 1983 rating action when considered by itself or in connection with the evidence previously assembled relates to an unestablished fact necessary to reopen the claim for service connection for tinea versicolor. 6. The Veteran's tinea versicolor is not shown to be etiologically related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active service and sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2009). 2. New and material evidence has not been received to reopen the previously denied claim of service connection for hemorrhoids. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156 (2009). 3. New and material evidence has been received to reopen the previously denied claim of service connection for tinea versicolor. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156 (2009). 4. Tinea versicolor was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to 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 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353- 23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). 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); see also 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in August 2005, prior to the date of the issuance of the appealed December 2005 rating decision. The Board further notes that, in July 2006, the Veteran was notified that a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specific to requests to reopen, the Veteran must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran was notified of this criteria in August 2006. VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim(s) adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorders described by the Veteran. Additionally, he was afforded a VA examination in October 2005 that was fully adequate for the purposes of determining the nature and etiology of any current hearing loss. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria - Service Connection for Bilateral Hearing Loss Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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 fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Certain conditions involving what are generally recognized as diseases of a chronic nature, such as a sensorineural hearing loss, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112; 1113, 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). With hearing loss claims VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Background - Service Connection for Bilateral Hearing Loss Initially, the Board notes that the Veteran contends that he suffers from bilateral hearing loss as the result of noise exposure related to weapons training in basic training, advanced infantry training, and from jumping from planes as a paratrooper in service. Service treatment records are silent as to complaints, findings, or diagnosis of any hearing loss. His reported July 1967 separation examination recorded normal hearing. The Board notes that there was evidence of hearing loss at the audiological exit examination. However, for the intent and purpose of service connection or a compensable VA evaluation the Veteran's results were within the normal range of hearing, as they did not exceed the 25 decibel threshold. In the February 2010 Travel Board hearing, the Veteran testified that he began to experience hearing loss around 1975 or 1976. The first evidence of hearing loss is a July 1996 private treatment report. The report stated that the Veteran had mild to moderate sensorineural hearing loss in the right ear and moderate sensorineural hearing loss in the left ear. The next evidence of hearing loss comes from VA treatment records from June 2004 which noted that the Veteran suffered from mild sloping to moderately severe sensorineural hearing loss in the right ear and moderate sloping to severe sensorineural hearing loss in the left. Word recognition was fair for the right ear and poor for the left ear. The Veteran was afforded a VA audiological examination in October 2005. The examiner noted that the claims folder was reviewed. Concerning noise exposure, the Veteran indicated that he was an infantryman in service and was exposed to machine gun noise and airplane noise from being a paratrooper. Concerning post-service noise exposure he had the civilian occupation of truck driver and reported no recreational noise exposure. The examiner diagnosed the Veteran with moderate sensorineural hearing loss in the right ear with 100 percent speech recognition and severe sensorineural hearing loss in the left ear with 12 percent speech recognition. The examiner opined that as the discharge hearing examination results were well within normal limits at all frequencies and no evidence of hearing changes In the range associated with damage due to noise exposure, it was her opinion that the current hearing loss was unlikely related to noise exposure on active duty. The Board additionally notes that five lay statements, from those who have known the Veteran for many years before and after his active duty, have been associated with the claims file. The lay statements indicate that the Veteran suffered from hearing loss following his active duty. Analysis - Service Connection for Bilateral Hearing Loss After consideration of all the evidence, the Board finds that service connection for bilateral hearing loss is not warranted. The Board notes that while the separation examination does indicate a loss of hearing this loss is still within the range of normal hearing. The Veteran's own testimony indicates that he did not suffer from any hearing loss until at the earliest 1975, which is eight years after his discharge from active duty. VA medical records indicate that the Veteran contends that his hearing loss is related to active service. However, there is no indication that the etiology of the Veteran's hearing loss is related to his active duty. The only medical opinion on the subject, from the October 2005 VA audiological examination, opined that it was unlikely that the Veteran's current hearing loss was etiologically related to his active duty. Similarly, the Board finds that the lay statements submitted are less probative than objective medical evidence and an opinion from a medical professional. See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Thus, as the preponderance of the evidence is against a finding that the Veteran's hearing loss is related to active service, the claim must be denied. Legal Criteria - New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2009). 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- 83 (1996). Furthermore, for purposes of the new and material analysis, the credibility of the evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Hemorrhoids In a January 1983 rating action, the RO denied the Veteran service connection for hemorrhoids. In that decision, the RO noted that the Veteran's service treatment records were absent any complaints or treatment for hemorrhoids. Although notified of that action, the Veteran did not file a timely appeal and that decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.201, 20.302. In June 2006, the Veteran requested that his claim for service connection for hemorrhoids be reopened. Evidence added to the record since the January 1983 rating decision includes private treatment records from March 1975 and VA treatment records from March 1975 through March 2007. These records reflect evidence of treatment the Veteran has received for hemorrhoids since his release from active duty. The records show the first diagnosis for hemorrhoids occurring in 1975, eight years after the Veteran's separation from active service. Additionally, the Veteran submitted a July 2009 letter from Dr. K.B., stating that the Veteran has received treatment for his hemorrhoids for several years. Furthermore, the Veteran has submitted multiple lay statements attesting to the development of the Veteran's hemorrhoids since his time of service. Additionally added to his file was the transcript of the Veteran's February 2010 BVA Travel Board hearing. During his hearing the Veteran asserted that the surgery he had on his rectum for perianal abscess and granuloma inguinale was the cause of his hemorrhoids. While much of the evidence submitted is new, the Board finds that evidence submitted since the Veteran's January 1983 rating decision is not material to the Veteran's claims for service connection for hemorrhoids. As stated above, material evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. In this case, service connection for the Veteran's hemorrhoids was denied because there was no finding of an in-service incurrence of a chronic disability and no nexus between the Veteran's service and his current diagnosis of hemorrhoids. As the evidence added since the Veteran's January 1983 rating decision has only shown evidence of treatment for a disability eight years following service, and although the lay statements attest to the development of hemorrhoids they are more likely to refer to the Veteran's perianal abscess and granuloma inguinale for which he received surgery in 1966. These conditions while similar to hemorrhoids are different disabilities and were not chronic. There has been no evidence submitted regarding any diagnosis or treatment for hemorrhoids during or related to the Veteran's service. Therefore as this evidence is not related to an unestablished fact necessary to substantiate the claim, and is not found to be material, the Veteran's request to reopen this claim must be denied. Tinea Versicolor In a January 1983 rating action, the RO denied the Veteran service connection for tinea versicolor, claimed as a skin condition. In that decision, the RO noted that the Veteran's service medical records did not show any complaints of or treatment for tinea versicolor or any skin condition. Although notified of that action, the Veteran did not file a timely appeal and that decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.201, 20.302. In June 2006, the Veteran requested that his claim for service connection for tinea versicolor be reopened. Evidence added to the record since the January 1983 rating decision includes private treatment records from March 1975 and VA treatment records from March 1975 through March 2007. These records reflect evidence of treatment the Veteran has received for his skin disorder. The Veteran submitted a July 2009 letter from Dr. K.B., stating that the Veteran has received treatment for his body, groin, and foot rashes for several years. Additionally, the Veteran has submitted multiple lay statements attesting to the development of skin conditions since his time of service. The Veteran testified in his February 2010 BVA Travel Board hearing, that he developed a skin condition around his ankles in jump school at Fort Benning. While much of the evidence submitted is new, the Board finds that the lay statements and the Veteran's hearing testimony demonstrate a possibility that the Veteran developed a skin condition while in service. As the Veteran's claim for service connection was denied due to the lack of evidence of development of a disorder during service, the hearing testimony and lay statements clearly relate to an unestablished fact necessary to substantiate the claim. Therefore, the Veteran's claim is reopened. In light of the decision below, the Board finds the Veteran is not prejudiced by review of the service connection claim on the merits. Service Connection for Tinea Versicolor - Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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 fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Background - Service Connection for Tinea Versicolor The Veteran's June 1967 Report of Medical History shows that the he reported that he either had suffered from or was suffering from skin diseases at that time. Yet, the actual separation examination shows that the Veteran's skin was normal and stated that he was in good health and qualified for separation. The remainder of the Veteran's service treatment records are silent for any other complaints or findings with respect to any skin disorder. The first evidence of a skin disorder comes from a September 1975 VA treatment record, which showed a diagnosis of tinea versicolor. There is also evidence of continued treatment since 1975. The various lay statements that state that the individuals knew the Veteran prior to and following his active duty and that he developed skin rashes after service. The Veteran testified in his February 2010 hearing that skin disorder began while he was attending jump school at Fort Benning. He stated that it began around his ankles and that he was authorized to wear low cut shoes with his fatigues. He further stated that the condition improved while in service enough to allow him to wear his boots all the time. In his testimony, the Veteran stated that the condition spread to his groin area, around his waist, his hip bone and in his armpits. The Veteran still has trouble with this skin condition to this day. Also submitted were recent treatment records which document the current treatment the Veteran receives for his tinea versicolor. Analysis The Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for tinea versicolor, or any claimed skin disorder. In this regard the Board notes that aside from the Veteran's record of medical history the service treatment records do not reflect any complaints, findings, or other references to any skin condition. The June 1967 separation examination showed the Veteran's skin as normal. The first evidence of a skin condition comes from the 1975 diagnosis of tinea versicolor which is eight years after the Veteran was discharged from active duty. The absence of clinical treatment records for many years after active duty is probative evidence against continuity of symptoms since service. Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). The passage of many years between discharge from active service and the medical documentation of a claim disability is evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The competent evidence of record demonstrates complaints of and treatment for skin conditions beginning in 1970's many years after active duty. Significantly, this disability was not linked to the Veteran's active duty service in any way. In reaching this decision, the Board has considered the Veteran's sincere belief that his tinea versicolor was first incurred in service. However, the Veteran is not a physician, and he is not qualified to express a medical opinion as to such a relationship. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board. The Board has considered the Veteran's contentions that he has experienced his disability since active service. Although the Veteran is competent to report symptoms such as rashes, in this case the Board does not find his statements to be credible. The service records are absent any indication of the Veteran's claimed authorization to wear low quarter shoes, and aside from the notation on the report of medical history there are no treatment records which reflect treatment for a skin condition. In regard to the lay statements submitted in support of the Veteran's claim, the Board finds that the service treatment records have more probative weight than these statements as they were recorded closer in time to the Veteran's service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence can have greater probative value than history as reported by the Veteran). As the evidence of record has failed to provide evidence of an in-service chronic condition or a nexus linking the Veteran's service to his tinea versicolor, the Veteran's claim for service connection for tinea versicolor, claimed as a skin condition must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran's claim. ORDER Service connection for bilateral hearing loss is denied. New and material evidence has not been received, and the Veteran's request to reopen his claim for service connection for hemorrhoids condition is denied. New and material evidence having been submitted, the claim for entitlement to service connection for a tinea versicolor (claimed as a skin condition) is reopened, and to this extent only, is allowed. Service connection for tinea versicolor is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs