Citation Nr: 1221981 Decision Date: 06/22/12 Archive Date: 07/02/12 DOCKET NO. 07-07 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES Whether there is new and material evidence to reopen a claim for service connection for stomach trouble and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1943 to August 1944. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been submitted to reopen the Veteran's claim of service connection for stomach trouble. In January 2008, the Veteran and his wife testified at a personal hearing before a decision review officer (DRO). A copy of the transcript is of record. The Board notes that in the Veteran's VA Form 9, Appeal to the Board of Veterans' Appeals, received in March 2007, the Veteran indicated that he wanted to have a hearing before the Board at the RO. The Veteran was scheduled for a travel board hearing on May 4, 2011. However, the record reflects that he failed to report for the scheduled hearing. The Board finds that there is no Board hearing request pending at this time. 38 C.F.R. § 20.702(d) (2011). In November 2011, the Board remanded this claim to the RO via the Appeals Management Center in Washington, DC. All requested actions have been completed and the claim is once again before the Board for adjudication. 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. An unappealed March 1991 RO rating decision denied reopening the Veteran's claim because there was no objective indication of an injury or disease of the stomach in service. 2. Some of the additional evidence since received, however, is not cumulative or redundant of the evidence already considered in that prior decision and relates to an unestablished fact needed to substantiate this claim. 3. This additional evidence, along with that previously of record, indicates the Veteran's stomach disorder as likely as not began while he was on active duty in the military, and that he has continued to experience pain and other symptoms associated with this disorder during the many years since his discharge from service. CONCLUSIONS OF LAW 1. The RO's March 1991 rating decision denying service connection for a stomach disorder is final and binding based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2011). 2. But new and material evidence has been received since that decision to reopen this claim. 38 U.S.C.A. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156, 3.159 (2011). 3. Resolving all reasonable doubt in his favor, the Veteran's stomach disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Here, though, since the Board is reopening the claim for a stomach disorder on the basis of new and material evidence, and then granting this claim on its underlying merits, the Board need not determine whether there has been compliance with these notice and duty to assist provisions - including insofar as apprising the Veteran of the specific reasons for the prior denial of this claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006); VA Gen. Cons. Memo., para. 2, 3 (June 14, 2006). The claim is being fully granted, regardless. 38 C.F.R. § 20.1102 (2011) (harmless error); Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating that, as the pleading party, the Veteran, not VA, has the evidentiary burden of proof of showing there is a VCAA notice error in either timing or content and, moreover, that the error is unduly prejudicial, meaning outcome determinative of his claim). II. Whether there is New and Material Evidence to Reopen the Claim for Service Connection for a Stomach Disorder The RO originally considered and denied this claim in a November 1948 decision. The RO denied this claim in that initial decision because there was no objective indication of this claimed disorder while in service. He did not appeal that decision, so it became final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. The Veteran was again denied service connection for this disorder in March 1991. In May 1991, the RO sent the Veteran a letter notifying him of that March 1991 decision and apprising him of his procedural and appellate rights in the event he elected to appeal. However, he failed to file a notice of disagreement (NOD), so that decision became final and binding on him based on the evidence then of record. Id. The Veteran filed a petition to reopen this claim in November 2005. Therefore, the amended regulations with respect to new and material evidence are for application. See 66 Fed. Reg. at 45,620, indicating to apply the revised version of 38 C.F.R. § 3.156 to petitions to reopen filed on or after August 29, 2001. The May 2006 RO decision at issue in this appeal denied the petition to reopen this claim - concluding there was not new and material evidence. Regardless, so, too, must the Board make this threshold preliminary determination, before proceeding further, because this initial determination affects the Board's jurisdiction to adjudicate the claim on its underlying merits, i.e., on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen previously and finally denied claims); and VAOPGCPREC 05-92 (March 4, 1992). See also Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant as further consideration of the claim is neither required nor permitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). If, on the other hand, there is new and material evidence, then the claim must be reopened and the former disposition reconsidered. 38 U.S.C.A. § 5108. When determining whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). According to VA regulation, "new" means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Second, if VA determines the evidence is new and material, it may then proceed to evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, so irrespective of whether a prior decision on the underlying merits or, instead, a prior petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In determining whether evidence is new and material, the credibility of the evidence in question is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This presumption only applies when making a determination as to whether the evidence is new and material. It does not apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim. Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits. See, too, Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). In the recent case of Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." So there is no requirement the evidence in question be new, material, and raise a reasonable possibility of substantiating the claim. The Veteran repeatedly has alleged that his stomach disorder began while he was in the military and, specifically, initially manifested as seasickness. Further, he claims that he has continued to experience pain in his stomach during the many years since. His service treatment records (STRs) dated from August 1944, note the Veteran was admitted to the base hospital in August 1944 for complains of bad breath, vomiting, and anorexia for four years. He also lost a significant amount of weight from April to August 1944. The Veteran was diagnosed with gastric neurosis, but his x-ray findings were normal. Thereafter, a psychiatric examination dated August 1948 notes his belief that this was the inception of his stomach problems. Additionally, a January 1954 VA compensation examination notes numerous attacks of gastric upset accompanied by headaches. While the Veteran failed to submit any evidence prior the March 1991 rating decision at issue in this appeal, he nevertheless has continued to allege continuous problems with his stomach. Continuous symptoms, not necessarily continuous treatment for a disorder, is the essence of continuity of symptomatology contemplated by 38 C.F.R. § 3.303(b) and the holding in Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). See also Kahana v. Shinseki, No. 09-3525 (U.S. Vet. App. June 15, 2011) (indicating the Board cannot make categorical exclusions of competency of lay evidence, such as in this circumstance; rather, there has to be discussion of the reasons and bases for rejecting the lay evidence). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of showing chronicity (i.e., permanency) of disease or injury in service to in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Since the March 1991 decision most recently reconsidering and denying this claim, the Veteran has submitted additional evidence in support of this claim. In particular, VA treatment records dated from January 2004 to June 2008 and private treatment records October 1997 to May 2008 continue to document his complaints of and treatment for various stomach disorders. Since the March 1991 decision, the Veteran has been diagnosed with gastroesophogeal reflux disorder (GERD), constipation, diverticulitis, chronic reflux, heartburn, abdominal bloating, chronic nausea, and ulcers. Specifically, however, the Veteran has submitted statements from his treating physician, Dr. A.Z., dated in December 2006, August and December 2007, etiologically attributing his stomach disorder to his military service, and attesting to the continuity of symptomatology for the various disorders since that time. So unlike when the RO reconsidered and denied this claim in March 1991, there is now competent and presumed credible evidence indicating his stomach disorder is attributable to his military services. As this additional evidence is both new and material, this is sufficient reason to reopen this claim. Shade, 24 Vet. App. at 117. II. Entitlement to Service Connection for a Stomach Disorder Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). In July 2003, VA's General Counsel issued a precedent opinion holding that, in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The United States Court of Appeals for the Federal Circuit has adopted the General Counsel's position. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. This holding replaced the previous standard under 38 C.F.R. § 3.304(b), which had required that if a condition was not noted at entry but was shown by clear and unmistakable evidence to have existed prior to entry, the burden then shifted to the claimant to show that the condition increased in severity during service. If a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but he may bring a claim for service-connected aggravation of that disability. In that case, § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). If an increase is shown, the presumption of aggravation may be rebutted only by clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence.") It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Independent medical evidence is needed to support a finding that the pre-existing disorder increased in severity in service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). The presumption of aggravation applies where there was a worsening of the disability in service, regardless of whether the degree of worsening was enough to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). The Court has held on multiple occasions that lay statements by a Veteran concerning a pre-existing condition, alone, are insufficient to rebut the presumption of soundness. See, e.g., Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners); Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a layperson's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition); see also LeShore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional.) Importantly, only such conditions as are recorded in examination reports are considered as "noted." 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). The disorder need not be symptomatic, but only noted on entrance. Verdon v. Brown, 8 Vet. App. 529, 534-535 (1996). Here, a June 2007 VA examiner noted the complaints of stomach problems for four years prior to his military service, according to his STRs. Unfortunately, the Veteran's entry examination is not of record, so there is no indication any type of stomach disorder was documented (i.e., "noted"). Once in service, however, there are reports of stomach problems, such as nausea and vomiting, anorexia and weight loss. He was diagnosed with gastric neurosis. The Veteran has repeatedly maintained that his stomach problems began in service, as noted in the November 2008 RO hearing and his several statements in support of his claim. Because of this equivocality, there is not the required clear and unmistakable evidence the Veteran had a pre-existing stomach disorder. Cotant, 17 Vet. App. at 131, citing Laposky, 4 Vet. App. at 334. The Board notes the June 2007 VA examiner stated that the Veteran's stomach disorder began prior to his military service based on the Veteran's STRs. However, these STRs are also based on the Veteran's statements. And, lay statements like this are considered competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, Vet. App. 398, 403 (1995). But as already explained, the Court has held on multiple occasions that mere lay statements by a Veteran concerning a pre-existing condition, alone, are insufficient to rebut the presumption of soundness. See e.g. Gahman v. West, 13 Vet. App. 148, 150 (1999), Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238 (1994); see also LeShore v. Brown, 8 Vet. App. 406 (1995). In essence, then, there is no clear and unmistakable evidence that a stomach disorder existed before he began serving in the military. Thus, he is still presumed mentally sound at entrance into service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). When no pre-existing condition is noted upon entry into service, if the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111 by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service, then his claim is one of service connection by direct incurrence. Wagner at 1096; see also VAOPGCPREC 3-2003. Therefore, a service connection analysis by way of direct (or presumptive) incurrence of an in-service injury or disease must follow since VA has failed to rebut the presumption of soundness for the reasons mentioned. Id. Service connection may be granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability - or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). A disorder also may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or was seen in service with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). In order to establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a 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," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. As already alluded to, establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (i.e., permanency) of disease or injury in service to in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Disorders diagnosed after discharge may still be service connected if the evidence, including that pertinent to service, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, 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, (e.g., a broken leg, separated shoulder, flat feet, varicose veins, etc.), (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). So medical evidence is not always or categorically required when the determinative issue is medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97 (1997). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (i.e., about evenly balanced for and against the claim), with the Veteran prevailing in either event. Conversely, the claim will be denied if the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All reasonable doubt is resolved in the Veteran's favor. 38 CFR § 3.102. Here, as already conceded, there is no disputing the Veteran meets the first and indeed perhaps most fundamental requirement for any service-connection claim, which is have proof he has the claimed disability - variously diagnosed stomach disorders, including GERD, constipation, diverticulitis, chronic reflux, heartburn, abdominal bloating, chronic nausea, and ulcers. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In the absence of this proof of current disability, there could be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). His VA treatment records dated from January 2004 to June 2008 and private treatment records October 1997 to May 2008 show continuous complaints of pain and treatment for his stomach disorder. Therefore, resolution of this claim ultimately turns on whether there is the required linkage between the stomach disorder and his military service, as evidence by the complaints that followed. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."); see also Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The Board notes that, while the Veteran provided VA and private treatment records from January 2004 to June 2008, and from October 1997 to May 2008, respectively, showing his continuous complaints of and treatment for his variously diagnosed stomach problems, there are no etiological opinions in these records. As previously mentioned, the Veteran had a VA examination in June 2007. The examiner noted the Veteran's complaints of chronic nausea. After a physical examination, the examiner stated the Veteran's nausea and stomach problems are less likely than not related to his military service. He based this opinion on a review of the Veteran's medical records, which reveals the Veteran's symptoms began several years prior to service. No additional rationale for this conclusion was provided. Importantly, though, December 2006 and August and December 2007 statements from his treating physician Dr. A.Z. specifically determined the Veteran's stomach trouble is due to his military service and has continued since that time. The December 2007 statement also specifically addressed the continuous nature of his symptoms, including how Dr. A.Z. believes they contributed to his discharge and continuing through the present. Dr. A.Z. notes the Veteran did not suffer from stomach problems prior to entering the military. She stated that she believes the Veteran's problems began in service and was not properly addressed at that time. The Board notes that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's statements with respect to his stomach problems are considered competent. The Board must now consider the credibility of such evidence. The Veteran has consistently submitted statements on medical records and written statements in the record that he has experienced stomach problems, variously diagnosed, for many years. Indeed, in January 1954, he was found to suffer from gastric upset. Thereafter, in June 1961, it was noted he suffered from stomach trouble. His VA and private treatment records from January 2004 to June 2008, and from October 1997 to May 2008, respectively, also report the Veteran's continuous complaints of and treatment for his stomach disorder. Additionally, the Veteran and his wife testified during the January 2008 RO hearing. The Veteran stated he did not have any stomach problems until he was on the way to Cuba. Initially, he thought it was seasickness, but he was sick everyday and couldn't keep any food in his stomach. He also stated he weighed approximately 175 pounds, but was down to 133 pounds during active duty. The Veteran's wife also testified that he was healthy prior to service in 1943 but was medically discharged in 1944. She confirmed the Veteran's in-service weight loss and stomach problems after service, including having to change her cooking for the Veteran. Therefore, the Veteran and his wife's lay statements with respect to his complaints of stomach trouble are deemed credible and provide probative evidence of chronic symptomatology since service. See Savage v. Gober, 10 Vet. App. 488 (1997). Regarding the medical evidence of record, the opinion from the June 2007 VA examiner does not have high probative value, as the examiner failed to provide any rationale for the unfavorable opinion. The examiner merely provided a conclusory statement finding it less likely than not that the Veteran's stomach trouble was attributable to his military service. The examiner did not even consider the Veteran's claims of continuous symptoms since service. Therefore the finding that the Veteran's stomach trouble is not related to his military service has no probative value. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The December 2007 opinion from Dr. A.Z., however, provides positive evidence in favor of the Veteran's claim that his stomach problems are related to service. She provided a rationale for her opinion and also considered the Veteran's history as he reported it as credible, which as noted above, is also considered credible by the Board. There is no indication Dr. A.Z. reviewed the Veteran's claim, unlike the June 2007 VA examiner. However, Dr. A.Z. sufficiently discussed the underlying medical rationale of the opinion, which, rather than mere review of the claims file, is more so where the probative value of the opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Green v. Derwinski, 1 Vet. App. 121 (1991). In weighing the evidence of record, including especially the Veteran's many years of treatment for his stomach related problems, the Board finds that the evidence is relatively equally balanced in terms of whether he a stomach disorder related to his military service, and will resolve this reasonable doubt in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Therefore, entitlement to service connection for a stomach disorder is warranted. ORDER New and material evidence has been received to reopen a service connection claim for a stomach disorder, and service connection is granted. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs