Citation Nr: 1140002 Decision Date: 10/27/11 Archive Date: 11/07/11 DOCKET NO. 05-03 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Whether new and material evidence to reopen a claim for service connection for a prostate disorder has been received and if so whether service connection is warranted. 3. Entitlement to service connection for gastritis. 4. Entitlement to service connection for diverticulitis. 5. Entitlement to service connection for a left shoulder disorder. 6. Entitlement to an initial rating in excess of 10 percent for left testicular and cord pain. 7. Entitlement to an initial rating in excess of 10 percent for bilateral hernia surgical scarring. 8. Entitlement to a compensable rating for bilateral hernia post-surgical residuals. 9. Entitlement to a compensable rating for a right ring finger disability. 10. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran had active service from December 1971 to October 1978. This appeal to the Board arises from a July 2004 rating action that denied service connection for back and left knee disabilities, and a prostate disorder, on the grounds that new and material evidence to reopen the claims had not been received. That rating decision also denied service connection for gastritis, diverticulitis, and a left shoulder disability, and denied compensable ratings for bilateral hernia post-surgical residuals and a right ring finger disability. Finally, the action granted service connection for left testicular and cord pain and assigned an initial 10 percent rating therefore from 17 October 2003. The Veteran appealed the effective date of the grant of service connection as well as the initial 10 percent rating assigned for the left testicular and cord pain, claiming an earlier effective date (EED) and a higher rating. By a decision of July 2006, the Board denied service connection for diverticulitis and a left shoulder disability; compensable ratings for bilateral hernia post-surgical residuals and a right ring finger disability; and initial ratings in excess of 10 percent each for left testicular and cord pain and for bilateral hernia surgical scarring, and remanded the claims for service connection for back and left knee disabilities and a prostate disorder on the basis of new and material evidence and service connection for gastritis to the RO for further development of the evidence and for due process development. Subsequently, the Veteran appealed the denied service connection and higher rating issues to the United States Court of Appeals for Veterans Claims, hereinafter the Court. By a September 2007 Order, the Court vacated the Board's July 2006 decision that denied service connection for diverticulitis and a left shoulder disability; compensable ratings for bilateral hernia post-surgical residuals and a right ring finger disability; and initial ratings in excess of 10 percent each for left testicular and cord pain and for bilateral hernia surgical scarring, and remanded the matters to the Board for compliance with the instructions contained in a September 2007 Amended Joint Motion to Vacate and Remand the Board Decision of the appellant and the VA Secretary. Upon receipt of the action by the Court, the Board, in December 2007, remanded the issues that had been reversed by the Court. The claim was again remanded in November 2008. The issues of entitlement to service connection for a back disorder, a left knee disorder, gastritis, diverticulitis, and a left shoulder disorder as well as whether new and material evidence has been received to reopen a claim of entitlement to service connection for a prostate disorder, and entitlement to higher ratings for a left testicular disorder, a bilateral hernia disorder, bilateral hernia surgical residuals and for a right finger disorder were remanded to the RO via the Appeals Management Center (AMC), in Washington, DC in May 2010. The claim has been returned to the Board and is ready for further review. In Rice v. Shinseki, 22 Vet. App. 447 (2009).the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Veteran's representative has argued that the veteran is unemployable due to his service-connected disorders. Therefore, that issue is before the Board for consideration. The issues of entitlement to service connection for a prostate disorder, entitlement to service connection for a left knee disorder, entitlement to an initial rating in excess of 10 percent for left testicular and cord pain entitlement to an initial rating in excess of 10 percent for bilateral hernia surgical scarring entitlement to a compensable rating for bilateral hernia post-surgical residuals, entitlement to a compensable rating for a right ring finger disability, and entitlement to a TDIU are remanded to for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of gastritis. 2. The Veteran was not treated in service for diverticulitis, and his currently diagnosed diverticulitis is not related to his military service. 3. The Veteran was not treated in service for a left shoulder disorder, and his currently diagnosed left shoulder disorder is not related to his military service. 4. In November 1979, the RO denied the Veteran's claim for service connection for a prostate condition, and he was informed of the denial in December 1979. The Veteran did not appeal. 5. In July 1994, the RO informed the Veteran by a letter determination that new and material evidence was needed to reopen his claim for service connection for a prostate disorder. The Veteran did not appeal. 6. In August 1998, he was informed by a letter determination that new and material evidence was necessary to reopen the claim. The Veteran did not appeal the determination. 7. Evidence received since August 1998 for a prostate disorder relates to an unestablished fact necessary to support the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for gastritis have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). 2. The criteria for service connection for diverticulitis have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). 3. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). 4. The August 1998 letter determination denying reopening of a claim for a prostate disorder is final. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2011). 5. New and material evidence has been received since the RO's August 1988 letter determination, and the claim for service connection for a prostate disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Service Connection 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in November 2003that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was sent another VCAA letter in August 2010. There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in August 2010, the RO provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to all issues on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him 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) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations of certain diseases during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; 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). With respect to the third factor above, the types of evidence that "indicate" that a current disability "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. 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). First, the RO has obtained VA treatment records, private treatment records, records from the Social Security Administration and records from the Office of Personnel Management. Next, specific medical opinions pertinent to the issues of gastritis and of diverticulitis were obtained. The report of the examinations, and the other evidence in the file, contains the findings needed to make these critical determinations. So another examination or additional medical comment concerning this is not needed. 38 C.F.R. § 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). And see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated). Furthermore, in obtaining this medical opinion concerning these critical issues of current disability and nexus, there was compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). See also Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008) and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As to the issue regarding a left shoulder disorder, given the absence of in-service evidence of chronic manifestations of the disorder no evidence of the disorder for many years after separation, and no competent evidence of a nexus between service and the Veteran's claim, a remand for a VA examination would unduly delay resolution. Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to these claims. 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 claims that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. 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). New and Material In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. As the Board is reopening the claim for service connection noted below, there is no need to discuss compliance with VA duties to notify and assist the claimant, found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); and Kent v. Nicholson, 20 Vet. App. 1 (2006), concerning the attempt to reopen this claim. New and Material Evidence In a November 1979 rating decision, the RO denied the Veteran's initial claim of service connection for a prostate disorder. The basis of the denial was that there was inservice treatment but that there was no showing of a current prostate disorder. The Veteran was notified of this decision and of his appellate rights by a letter dated in December 1979. He did not appeal. This decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.1100. In July 1994, the RO informed the Veteran by a letter determination that new and material evidence was needed to reopen his claim for service connection for a prostate disorder. The Veteran did not appeal. In August 1998, he was informed by a letter determination that new and material evidence was necessary to reopen the claim. The Veteran did not appeal the determination. To reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. "New" evidence is defined as 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. 38 C.F.R. § 3.156(a). The evidence received subsequent to the final RO decision is presumed credible for the purposes of reopening the appellant's claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 1(995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). The relevant evidence of record regarding the Veteran's prostate disorder at the time of the November 1979 rating decision consisted of the Veteran's service treatment records showing treatment for prostatitis in 1977 and 1978. VA medical records showed on VA examination in August 1979 that there was a history of prostatitis. The RO determined that service connection for a prostate disorder was not warranted. The RO found that service connection was not warranted because there was no showing of a current disability. Evidence related to the prostate disorder since the November 1979 rating decision consists of VA outpatient treatment records, VA examination reports, and private medical records. Among this evidence are diagnoses of chronic prostatitis in VA records dated in July 1997, October 1997, and January 1998 and of prostatitis in July 1997. This evidence is new and it is also material because it relates to an unestablished fact necessary to substantiate the claim--a current diagnosis -and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the Board finds that the evidence received subsequent to the November 1979 decision is new and material and serves to reopen the Veteran's claim for service connection for a prostate disorder. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Service Connection Service connection is granted if the evidence shows a current disability resulted from an injury or a disease that was incurred or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Stated somewhat differently, direct 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 relevant disease or injury; and (3) medical evidence of a nexus or link between the claimed in- service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Thus, service connection is established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski,3 Vet. App. 223, 225 (1992); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to some time in the distant past). A disorder may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Evidence relating the current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves medical causation or medical diagnosis, there generally must be competent evidence to the effect that the claim is plausible; lay assertions regarding this generally are insufficient. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A layperson generally is incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). There are exceptions to this general rule, however. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Evidence The Veteran was treated in service for gastrointestinal complaints and gastroenteritis was diagnosed as was enteritis. There is no showing in the service treatment records of a complaint, diagnosis or treatment for a left shoulder disorder or for diverticulitis. At separation in 1978, he denied a history of a painful or trick shoulder. He denied a history of frequent indigestion as well as a history of stomach, liver or intestinal trouble. On clinical evaluation, no pertinent disorder was documented. Private records show that in July 2003, the Veteran was seen for diverticulitis and it was noted that this was his first episode. Private records show that a December 2003 colonoscopy showed severe diverticulitis. Private records show that the Veteran was treated for a left shoulder disorder beginning in 2004. In a November 2005 letter, a private examiner stated that the Veteran was being treated for a bilateral shoulder disorder. The Veteran was examined by VA in October 2006. The claims file was reviewed. The Veteran was examined. The examiner found that there was no evidence of gastritis. He also stated that gastritis and diverticular disease are less likely than not related to service. The Veteran was examined by VA in September 2010. The claims file was reviewed. As to diverticulitis, the date of onset was noted to be uncertain. The Veteran reported having intermittent LLQ pain about 10 years prior and that he had a severe episode of diverticulitis in 2003 which led to resection of part of the sigmoid colon. The examiner noted that he was seen in service for gastroenteritis and UGI symptoms but nothing that sounded like diverticular disease. History of diverticulitis was diagnosed. The examiner opined that diverticulitis is not caused by or a result of service. The rationale was that the symptoms in service were not suggestive of diverticulitis and that diverticulitis in adults 20 to 30 years of age is very rare. The examiner stated that if the Veteran did have diverticulitis it would be highly improbable that he would go 20 plus years without symptoms. Discussion Diverticulitis As to the claim for diverticulitis, the Board notes that there is no indication of the disorder in service. There is a current diagnosis, first shown in the record in 2003, over twenty years after service. Additionally, the disorder has not been shown to be related to service. Thus two critical requirements for this claim have not been met. A VA examiner has offered an opinion that the disorder is not related to service. This determination was made after a review of the record and examination of the Veteran. Further the examiner offered rationale for the finding. This opinion is a great probative value and stands uncontradicted in the record. As such service connection is not warranted. Gastritis As noted above, service connection requires a diagnosis of a current disorder. Here, a review of the file shows that the Veteran does not have a current diagnosis of gastritis. A VA examiner has stated that the Veteran does not have the disorder and there is nothing in the record to contract this finding. As such, the claim must be denied. Left Shoulder The Veteran's service records are negative for a left shoulder disorder. A current left shoulder disorder has been diagnosed. The disorder is first noted in the record in 2004, over twenty years after service. There is no medical evidence in the file relating the disorder to service on any incident therein. The disorder has not been shown by the evidence to be related to service. Thus the claim must be denied. Lay Evidence The Board has considered the lay statements submitted in support of the Veteran's claims. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example difficulty hearing, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1992) (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")). See Barr v. Nicholson, 21 Vet. App. 303 (2007). In Robinson v. Shinseki, the Federal Circuit held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Federal Circuit set forth a two-step analysis to evaluate the competency of lay evidence. The Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury-to determine whether to grant service connection. See Robinson v. Shinseki, 312 Fed. Appx. 336 (2009) (confirming that, "in some cases, lay evidence will be competent and credible evidence of etiology"). The Board observes that this Federal Circuit decision is nonprecedential. See Bethea v. Derwinski, 252, 254 (1992) [a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"]. The Board finds that if Bethea applies to Court decisions, it is logical to apply the guidance set forth therein to those decisions of a superior tribunal, the Federal Circuit. Here, the Board finds that, while the Veteran has asserted that his left shoulder disorder and his diverticulitis are related to service, he has not demonstrated the medical knowledge required to establish an etiological nexus between these disorders and his service. Further, while he asserts that he has gastritis related to service, he does not have the medical knowledge to diagnose a disorder. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Therefore, although the statements of the Veteran in support of his claim have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to establish a diagnosis of gastritis or a medical nexus between the claimed disorders and the Veteran's period of service. Further, to the extent that the Veteran's statements are offered as evidence of continuity of symptomatology, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, supra. As noted, in adjudicating his claims, the Board must evaluate the Veteran's credibility. See Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). As noted, competency of evidence differs from weight and credibility. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, supra; see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). While the Board acknowledges that the Veteran is competent to provide evidence of his own experiences, the fact that the Veteran's treatment records do not reflect a diagnosis of diverticulitis or a left shoulder disorder until over 20 years after service weighs heavily against any claim he may now make that he has had problems ever since service. The Board is not holding that corroboration is required. Rather, the Board finds his assertions to be less credible than the negative contemporaneous records. The Board notes that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. However, with respect to a merits review, the lack of evidence of treatment may bear on the credibility of the evidence of continuity. Further, the Veteran has asserted in private records that his first episode of diverticulitis occurred in 2003. As he is not competent to offer a diagnosis of gastritis, a discussion on credibility is not necessary. As such, the Board finds that the probative evidence is against the claims based on continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). The preponderance of the evidence is against finding that the Veteran has diverticulitis, gastritis or a left shoulder disorder that are etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER New and material evidence to reopen a claim of entitlement to service connection for prostatitis has been received and the claim is reopened. To this extent the claim is granted. Service connection for gastritis is denied. Service connection diverticulitis is denied. Service connection for a left shoulder disorder is denied. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Left Knee The Veteran was examined by VA in October 2006. The examiner stated that the Veteran's left knee disorder is not due to or the result of injury inservice. The rationale was that the service records do not note knee injury or knee related restrictions and that a significant injury 30 plus years would usually result in more obvious degenerative changes on X-ray. However the record shows that the Veteran was treated in service for left knee complaints. Service treatment records show that the Veteran was treated for left knee complaints in June 1976 when he injured his left knee after he fell while running. Thus the finding by the examiner is inadequate. The Court has held that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Further in August 1979, shortly after service, the Veteran was diagnosed with chondromalacia of the left knee with mild intermittent derangement with congenital bipartite patella. Additionally in a September 2005 letter, a private examiner stated that the Veteran was being treated for a left knee disorder which he described as being related to his military service. He noted that in the military, the Veteran injured his left knee in jump school and would repeatedly jump and land on the left knee. It was noted that the Veteran had progressive arthritis since that time. He stated that the injury to the knee is directly related to military service. In a November 2005 letter, a private examiner stated that the Veteran was being treated for arthritis of the left knee. He stated that while in the military, the Veteran injured his left knee in jump school and that he believed that this directly related to the Veteran's present health problems. The examiner has not addressed this evidence. Prostatitis The Board notes that the Veteran was treated on multiple occasions during service for prostatitis. Private records show that the Veteran had an enlarged prostate in March 1982, and prostatic urethitis was diagnosed. On VA examination in June 1994, the examiner included prostatitis in this diagnoses. In 1997 and 1998, VA records show diagnoses of prostatitis, in the July 1997 and October 1997 records, the examiners noted prostatitis since 1971. The Veteran has current diagnoses of prostatitis and he was treated in service for the disorder on several occasions. He claims that he has prostatitis that was incurred in service. A VA opinion regarding the nature and etiology of the Veteran's prostate complaints has not been obtained. Thus a remand of this claim is necessary. In May 2010, the Board remanded this claim for further development. The Board mandated that the Veteran be evaluated under clearly specified conditions and the Board directed that specific questions be answered by the examiners regarding the disorders on appeal. Specifically, the Board pointed out that the Veteran claims to be unemployable due to his service-connected disorders. The examiners were requested to comment on the Veteran's employability during the course of his examinations. This was not done. Review of the file reveals that the mandates presented by the Board were not adequately followed or addressed. A remand of this claim is necessary to ensure compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The appellant is hereby notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2011). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). Accordingly, the case is hereby REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his prostate complaints. The claims file and a copy of this remand must be made available to the examiner for review and the examiner must indicate in the examination report that this has been accomplished. All indicated tests and studies should be accomplished. The claims file and a copy of this remand must be made available to the examiner for review and the examiner must indicate in the examination report that this has been accomplished. All indicated tests and studies should be accomplished. The examiner should offer an opinion with complete rational as to whether it is at least as likely as not (a 50 percent probability or greater) that any currently diagnosed prostate disorder is related to the Veteran's military service. 2. Refer the file to the VA clinician who evaluated the Veteran's left knee complaints for an addendum opinion. If that clinician is not available, have the file reviewed by another VA physician to offer the requested addendum. The clinician should offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's current left knee disorder is related to service. In doing so the doctor should discuss the inservice treatment and the findings concerning the left knee after service, including the findings on the August 1979 VA examination report. Further the clinician should address the private records dated in September and November 2005. Complete rationale should be offered for all opinions and conclusions reached. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to it being the result of some other factor or factors. 3. Have the VA clinician(s) who evaluated the Veteran's left testicular and cord pain, bilateral hernia surgical scarring, bilateral hernia post-surgical residuals, and right ring finger disability disorders offer addendum opinions as to the employability of the Veteran. If that clinician is not available, have the file reviewed by another VA physician to offer the requested addendum. Complete rationale should be offered for all opinions and conclusions reached. 4. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, specific studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2011); See also Stegall v. West, 11 Vet. App. 268 (1998). 5. Following completion of the above, the claim should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs