Citation Nr: 1301240 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 00-16 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for a low back disability and if so, whether service connection is warranted. 2. Entitlement to service connection for a neck (cervical spine) disability. 3. Entitlement to service connection for a bilateral foot disability. 4. Entitlement to service connection for a skin disorder, to include pseudofolliculitis barbae, herpes simplex, pityriasis rosea, and condyloma acuminata. 5. Entitlement to service connection for a bilateral hip disability. 6. Entitlement to service connection bilateral hearing loss. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The issue of entitlement to service connection for an ankle disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue and it is referred to the AOJ for appropriate action. The Veteran, who is the appellant in this case, served on active duty from January 1973 to December 1985. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an October 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas and July 2001 and April 2003 rating decisions of the VARO in New Orleans, Louisiana. The claims file has since been transferred back to the RO in Waco, Texas. The October 1999, July 2002, and April 2003 rating decisions, in pertinent part, denied reopening service connection for a low back disability and bilateral hearing loss because evidence received was not new and material; granted service connection for hepatitis C with a noncompensable initial disability rating; and denied service connection for posttraumatic stress disorder (PTSD), hypertension, tinnitus, and disabilities of the neck, skin, bilateral feet, and bilateral hips. In a March 2006 decision, the Board denied the appeal to reopen service connection for a low back disability and service connection bilateral hearing loss; affirmed the denial of service connection for PTSD, hypertension, tinnitus, and disabilities of the neck, skin, bilateral feet, and bilateral hips; and remanded the appeal for a higher initial disability rating for hepatitis C. The Veteran appealed the March 2006 Board decision to the United States Court of Appeals for Veterans Claims (Court or CAVC). In a May 2008 memorandum decision, the Court vacated and remanded the portions of the March 2006 Board decision that denied service connection for hypertension, tinnitus, and disabilities of the neck, skin, bilateral feet, and bilateral hips, and denied reopening service connection for a low back disability and bilateral hearing loss. The Court affirmed the remainder of the Board decision, specifically, the denial of service connection for PTSD, and the Board's remand of the claim for a higher initial disability rating for hepatitis C. In a May 2008 decision, the Board denied the appeal for a higher initial disability rating for hepatitis C. The Veteran did not appeal this Board decision to the Court. In February 2009, the Board reopened service connection for bilateral hearing loss, and remanded the case for further development. In a subsequent December 2011 rating decision, the RO granted service connection for hypertension and tinnitus; the Veteran did not appeal the initial assigned ratings. For these reasons, the Board finds that the only remaining issues on appeal are whether new and material evidence has been received to reopen service connection for a low back disability and, if so, whether service connection is warranted, and service connection for a bilateral foot disability, a neck disability, a skin disorder, bilateral hearing loss, and a bilateral hip disability. The case is once again before the Board for review. The issues of entitlement to service connection for left ear hearing loss and for a bilateral hip disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. In an unappealed June 1994 rating decision, the RO denied service connection for a back disability, finding that service treatment records did not establish the presence of a back disability in service. 2. The Veteran did not submit a timely NOD to the June 1994 rating decision. 3. Evidence received since the June 1994 rating decision relates to an unestablished fact necessary to substantiate a claim for service connection for a low back disability. 4. The Veteran was seen on one occasion for a back ache in service; he did not sustain an injury or disease of the lumbar spine in service. 5. Lumbar spine symptoms were not chronic in service and have not been continuous since service separation. 6. Currently diagnosed lumbar spine degenerative disc disease is not related to service. 7. The Veteran did not sustain an injury or disease of the cervical spine in service. 8. Cervical spine symptoms were not chronic in service and have not been continuous since service separation. 9. Currently diagnosed cervical spine degenerative disc disease is not related to service. 10. A bilateral foot disability was not "noted" at service entrance. 11. The Veteran was seen on one occasion for left foot pain in service; he did not sustain an injury or disease of the either foot in service. 12. Bilateral foot symptoms were not chronic in service and have not been continuous since service separation. 13. Currently diagnosed bilateral pes cavus and hammertoes are not related to service. 14. The Veteran was treated for recurrent symptoms of herpes simplex (fever blisters) in service. 15. The Veteran had recurrent symptoms of herpes simplex after service separation. 16. Herpes simplex is related to active service. 17. The Veteran was seen for pseudofolliculitis barbae, pityriasis rosea (rash), and condyloma acuminate in service; however, skin symptoms related to these diagnoses were not chronic in service. 18. Skin symptoms have not been continuous since service separation. 19. The Veteran does not have a currently diagnosed skin disorder (other than herpes simplex), to include pseudofolliculitis barbae, pityriasis rosea, and condyloma acuminate, which is related to service. 20. The Veteran experienced acoustic trauma in service. 21. The Veteran did not experience chronic symptoms of right ear hearing loss in service. 22. The Veteran did not experience continuous symptoms of right ear hearing loss after service separation, including that a right ear hearing loss disability did not manifest to a compensable degree within one year of service separation. 23. The Veteran's right ear hearing impairment does not meet the criteria for a hearing loss disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The June 1994 rating decision which denied service connection for a low back disability became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. The evidence received subsequent to the June 1994 rating decision is new and material to reopen service connection for a low back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 3.303, 3.307, 3.309, 3.317, 20.1105 (2012). 3. The criteria for service connection for low back disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 4. The criteria for service connection for a neck disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 5. The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 6. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for herpes simplex have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 7. The criteria for service connection for a skin disorder other than herpes simplex, to include pseudofolliculitis barbae, pityriasis rosea, and condyloma acuminata, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 8. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Id. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. With respect to new and material evidence claims, VA must notify a claimant of the evidence and information that is necessary to (1) reopen a claim, and (2) establish entitlement to the underlying claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Kent v. Nicholson, 20 Vet. App. 1 (2006). Thus, VCAA notice must include an explanation of the meaning of both "new" and "material" evidence, and must describe the particular type of evidence necessary to substantiate any service connection elements found to be insufficiently shown at the time of the prior final denial. In a December 2002 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection as well as what information and evidence must be submitted by the Veteran, what evidence VA would obtain, and of what assistance the VA could provide the Veteran in obtaining this evidence. A March 2006 VCAA notice letter included provisions for disability ratings and for the effective date of the claim. Pursuant to a February 2009 Board remand order, the Veteran was provided additional VCAA notice addressing his new and material evidence claim consistent with Kent. Because the February 2009 letter also provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection for these disabilities, and the Veteran was afforded an opportunity to present evidence and argument on the merits of these claims, the Board may proceed with adjudication on the merits without prejudice to the Veteran. The RO readjudicated the claims currently on appeal in a December 2011 supplemental statement of the case (SSOC), thereby, curing any deficiency in VCAA notice timing. The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a statement of the case (SOC) or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Veteran was afforded VA examinations in August 2009 and August 2011 to address the claims of service connection for a bilateral foot disability, cervical spine disability, skin disorder, and bilateral hearing loss, and addendum opinions were provided in October 2011 and November 2011. 38 C.F.R. § 3.159(c)(4) (2012). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations and/or opinions obtained in this case are adequate. VA examinations included a review of the claims file and examination of the Veteran. The VA examinations and nexus opinions provided with regard to service connection for a bilateral foot disability and a cervical spine disability consider all of the pertinent evidence of record, to include the statements of the Veteran, and provided a rationale for the opinion stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of a low back disability has been met. 38 C.F.R. § 3.159(c)(4). Because the undisputed evidence shows the Veteran does not have a current right ear hearing loss disability, and because the Board is granting service connection for a skin disorder, claimed as herpes simplex (viral fever blisters), it is not necessary to address the adequacy of the VA opinions rendered in relation to these specific disabilities. While the Veteran's representative contends in a July 2012 statement that VA examinations were not thorough because they did not consider the Veteran's lay statements, and instead relied on a lack of medical records, upon review of the initial August 2009 and August 2011 VA examination reports, the Board finds that the Veteran's lay statements were discussed and considered by the VA examiner during the course of examination. While the VA examiner may not have relied fully on the Veteran's lay reports in rendering the addendum opinions of record, the Board finds, contrary to the Veteran's representative's assertion, that the opinions were rendered based on a correct factual basis consistent with the Board's own findings in this case, and were accurately based on objective findings of record in the case where the Veteran's own statements were determined by the Board to be not credible. The Board notes that the absence of evidence of medical treatment in service is one factor in may be legitimately be used in weighing the Veteran's credibility, and it was correctly treated as only one factor in this case in the Board's credibility determination below. Thus, the reliance on such evidence by the VA examiner in rendering an opinion, and by the Board in fact finding, is not legal error. Additionally, as the Board will discuss more in the decision below, the VA examiners provided an adequate rationale for the opinions rendered. During the VA skin disorder examination, the Veteran was not shown to have any other current skin diagnoses, and claimed pseudofolliculitis barbae, pityriasis rosea (rash), and condyloma acuminate were not shown on physical examination. Additionally, the Veteran did not have a history of recurrence of such skin conditions to warrant reexamination. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994) (concluding that examination during remission phase did not accurately reflect elements of disability that caused veteran to miss three to four months of work at a time). The Veteran's representative contends that the August 2009 VA examiner failed to adequately explain how he reached his conclusion that the Veteran's skin conditions were not related to service in light of his finding that some of these conditions occurred while he was in service. The Board finds, however, that, absent current diagnoses, an additional nexus opinion is not necessary as there is reasonable possibility that a VA opinion could aid in substantiating the claim for service connection. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Veteran has not been afforded a VA medical examination with respect to the service-connected low back disability; however, the Board finds that a VA examination is not necessary in order to decide this claim. VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. See McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). Because the weight of the evidence demonstrates no in-service injury or disease of the lumbar spine, including no chronic symptoms a lumbar spine disability in service, there is no duty to provide a VA medical examination. As the Board will discuss in more detail below, the Veteran has not provided credible evidence of an in-service injury to the lumbar spine in this case, and he has not provided credible evidence with regard to the presence of chronic in-service symptomatology. Absent evidence of an in-service injury to the lumbar spine or disease to which a competent medical opinion could relate the claimed disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection. See 38 U.S.C.A. § 5103A(a)(2) (West 2002); 38 C.F.R. § 3.159(d). The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, in the absence of evidence of an in-service disease or injury, or even symptoms of an orthopedic back disability, referral of this case to obtain an examination and/or an opinion as to the etiology of degenerative joint disease of the lumbar spine would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's current lumbar spine disability and service would necessarily be based on an inaccurate history regarding what occurred in service or within one year of service, so would be of no probative value. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected); Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). The holding in Charles was clearly predicated on the existence of evidence of both an in-service injury or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, VA and private treatment records, VA examinations, and the Veteran's statements. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including arthritis and sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113. A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (2012). Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). Where the presumption of soundness attaches (where it was not "noted" at entrance into service), in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service, and there must also be clear and unmistakable evidence that the disorder was not aggravated by service. See 38 C.F.R. § 3.304(b). 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. VAOPGCPREC 3-2003. In rendering a decision on appeal the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Reopening Service Connection for a Low Back Disability The RO previously considered and a denied claim for service connection for a back disability in an unappealed June 1994 rating decision. The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the appellant's claim in light of all the evidence. Justus, 3 Vet. App. at 512. Service connection for a back disability was initially denied by the RO, on the merits, in an unappealed June 1994 rating decision, which found that a back condition was not shown service. Evidence of record at the time of the June 1994 rating decision contained only the Veteran's service treatment records. The Veteran did not submit a timely NOD to the June 1994 decision, and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Veteran filed the current claim to reopen service connection for a low back disability in June 1999. In light of the foregoing, the Board finds that new and material evidence must tend to show that a currently diagnosed low back disability began in service, was manifest to a compensable degree within one year of the Veteran's separation from service, or is otherwise related to service. Evidence received subsequent to the June 1994 rating decision, relevant to the claim for service connection for a back disability includes: VA treatment records dated from 1996 to 2011, treatment records from the Texas Department of Criminal Justice Health Services Division dated from 1998 to 1999, and lay statements and argument in support of his claim. The Board finds that the new evidence submitted since the final rating decision in June 1994 is material. VA treatment records reflect a current diagnosis of lumbar spine degenerative joint disease. Treatment reports from a prison physician show that the Veteran was treated for chronic back complaints starting in 1998. Lay statements submitted by the Veteran in support of his claim and lay statements associated with the VA treatment records show that the Veteran has reported the onset of back pain in service. Specifically, in VA treatment records dated in December 1999, the Veteran reported that he first noticed back pain in 1985 with sleeping for too long, walking, and bending; and he has alternately attributed his current back disability to a 1985 motor vehicle accident service, compounded by a post-service motor vehicle accident in approximately 1996, and to a diagnosis of scoliosis in 1981. The Veteran additionally reported in his July 2000 substantive appeal that he was separated from service and barred from reenlisting for medical reasons, and that he was given a permanent profile due to his spine. In an October 2002 statement, he contends that service treatment records show that he was in a motor vehicle accident while on active duty and that he had a back injury at that time. The Board finds that the new evidence submitted by the Veteran since the June 1994 rating decision is material. VA treatment records reflect a current diagnosis of lumbar spine degenerative disc disease. The Board finds that the Veteran's lay statements attest to the onset of chronic low back pain in service, or as due to an in-service motor vehicle accident. The Board emphasizes that evidence is presumed to be credible for the purpose of determining whether the case should be reopened. See Justus, 3 Vet. App. 513. The Board finds that the Veteran's statements tend to suggest a nexus between the currently diagnosed back disability and service, and as such, relate to this unestablished fact that is necessary to substantiate the claim for service connection for a low back disability. Accordingly, the Board finds that new and material evidence sufficient to reopen service connection for a low back disability has been received. See 38 C.F.R. § 3.156. In Bernard v. Brown, 4 Vet. App. 384, 392 (1993), the Court held that claims reopen previously and finally denied claims, implicated both the question of whether there is new and material evidence to reopen the claim and the question of whether, upon such reopening, the claimant is entitled to the requested benefits. Therefore, the "matter" over which the Board has jurisdiction under 38 U.S.C.A. § 7104(a) is the veteran's claim of entitlement to VA benefits. The Court held, however, that when the Board addresses in its decision a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Id. at 394. The Board finds that it may proceed with the adjudication of the claim for service connection for a low back disability on the merits without prejudice to the Veteran. The RO has provided the Veteran notice as to the requirements for service connection. The Veteran has presented evidence and argument throughout the instant appeal addressing the merits of service connection for a back disability. For these reasons, the Board finds no prejudice to the Veteran based on de novo review. Analysis for Service Connection for Low Back and Neck Disabilities After reviewing all the lay and medical evidence, including the Veteran's statements and testimony asserting that he had back complaints in service and symptomatology since separation from service, the Board finds that the weight of the evidence demonstrates that currently diagnosed low back disability and neck disabilities were not incurred in service. The Board finds that the Veteran has currently diagnosed lumbar and cervical spine disabilities. VA treatment records show that the Veteran has currently diagnosed degenerative disc disease of the lumbar and cervical spine. The Board finds, however, that the Veteran did not sustain an injury or disease of the lumbar spine or cervical spine in service, nor did he exhibit chronic symptoms of a lumbar or cervical spine disability in service. The Veteran has reported that the onset of low back and neck pain in service and has reported that his current back and neck disabilities are related to an in-service motor vehicle accident. While the Veteran is competent to report sustaining a back or neck injury in service, and while he is competent to report symptoms related to such disability, the Board finds that the Veteran has not provided credible lay evidence with regard to the onset of his current lumbar and cervical spine disabilities, nor has he provided credible lay evidence showing chronic back or neck symptoms in service or continuous back or neck symptoms since service separation. Service treatment records show that the Veteran was seen on one occasion in February 1983 with complaints of back ache and penile discharge with similar pain noted in the past. On examination, the Veteran had evidence of penile discharge and prostate enlargement. He was assessed with probable prostatitis and a urine culture was taken. Follow-up treatment dated in April 1983, however, shows that the Veteran had a diagnosis of gonorrhea on previous examination, but it was unrecognized until that time. He was treated with penicillin. No further back complaints were noted at the time of the Veteran's follow-up treatment. For these reasons, the Board finds that while the Veteran complained of a back ache in February 1983, service treatment records indicate that this complaint was made in conjunction with a gonorrhea infection, and chronic back complaints were not indicated at that time. There were no further complaints relating to the back in service. In a March 1985 periodic examination report, the Veteran specifically denied having any problems with the spine or other musculoskeletal problems. Service treatment records show that the Veteran was in a motor vehicle in May 1985. He was treated for pain to the left side of the hip and for a laceration to the right side of the scalp. There was no mention of any injury to the back or neck in conjunction with this incident. The Veteran opted not to have a service separation examination done in October 1985. The Board finds that the evidence demonstrates that the Veteran was seen on one occasion for back ache in service, in February 1983, associated with a gonorrhea infection and not a back injury, without evidence of a chronic symptoms of a disability related to such. The Veteran was not seen for injury or complaints related to the cervical spine. Additionally, the Veteran did not sustain an injury or disease of lumbar or cervical spine in conjunction with an in-service motor vehicle accident in May 1985. In an October 2002 statement, the Veteran contends that service treatment records show that he was in a motor vehicle accident while on active duty, and that he had a back injury at that time. He attached a copy of the May 1985 emergency room report which was associated with service treatment records; however, a careful review of the record shows that a back or neck injury was not indicated. The evidence shows that chronic lumbar or cervical spine symptoms were not shown in service or continuously for many years after the Veteran's separation from service. The Veteran reported in a July 2000 substantive appeal that he was separated from service and barred from reenlisting for medical reasons, and that he was given a permanent profile due to his spine; however, the DD Form 214 and service treatment records do not reflect a medical separation due to the spine. The Veteran declined a separation medical examination in October 1985, and a disposition form shows that a medical examination for separation was not required. Service treatment records do not show that the Veteran was medically separated, nor was he put on permanent profile due to his spine. The Board finds it probative that the Veteran did not have chronic complaints or treatment for a lumbar or cervical spine disability in service. Service treatment records show that the Veteran repeatedly sought treatment for other physical complaints unrelated to the back or neck in service, during which time he did not complain of continuing low back pain or neck pain or other related symptoms. For example, he was seen on numerous occasions for various complaints relating to the skin and he was seen for ankle pain on several occasions during service, all without a mention of back complaints. Additionally, the Veteran specifically denied having spine or other musculoskeletal symptoms present at the time of a March 1985 periodic examination. The Board finds it probative that the Veteran was noted to have left hip pain at the time of his motor vehicle accident, without reference to back or neck pain. The Board finds it unlikely that the Veteran would report the presence of hip pain, but not back or neck pain, in conjunction with his accident if such symptoms were present, where the service treatment records in this case appear to be complete. See Kahana v. Shinseki, No. 24 Vet. App. 428, 439 (2011) (citing Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (Lance, J., concurring) (VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). Additionally, the Veteran's DD Form 214 shows that the Veteran served as a medical specialist for over 11 years in service. Had the Veteran been suffering from chronic back or neck pain or other lumbar or cervical spine symptoms, given his MOS duty, he had multiple opportunities to mention such symptoms to service health care providers. Had he done so, such complaints would have been reflected in the service treatment records at the time of his accident. The absence of chronic in-service complaints, findings, diagnosis, or treatment for an orthopedic disability of the back or neck is one factor that tends to weigh against a finding of a lumbar or cervical spine injury or disease or chronic lumbar or cervical spine symptoms in service. See Buchanan, 451 F.3d at 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). Regarding the question of whether low back and neck symptoms were chronic during service, the Veteran indicated in recent lay testimony, as part of the current claim for VA compensation, that he had the onset of onset of chronic low back and neck pain in service due to a motor vehicle accident. The Board finds that the lack of contemporaneous in-service complaints or treatment for a chronic back or neck disability, when considered along with the inconsistencies in the Veteran's reported histories with regard to the onset of his claimed lumbar and cervical spine disability, weigh against the Veteran's credibility as to this assertion. The Veteran has provided many different histories with regard to the nature and etiology of his back and neck disabilities which he has reported in both statements made in support of his claim and in statements made during the course of post-service medical treatment. The Veteran has reported that he had the onset of back pain in the early 1970s or 1980s which became more pronounced in 1985, that he injured his back and neck in an in-service motor vehicle accident in 1985, that he first noticed back pain in 1985 with sleeping, walking, or bending without mention of an accident, that he had congenital scoliosis which he did not report on entry into service, that he had scoliosis that was first diagnosed in 1981, that he had injured his back and neck in a post-service motor vehicle accident in 1996, and that he had injured his back during the course of two separate motor vehicle accidents that occurred in service, and that he had the insidious onset of neck pain in service without specific injury. While the Veteran mentioned having scoliosis in VA treatment reports, the Board finds that the weight of the evidence does not reflect a current diagnosis of scoliosis in the spine. In an August 2001 VA mental health treatment note, the Veteran reported that he had scoliosis of the spine when he entered service, which he did not report; however, the physician conducting the interview noted that earlier in the same interview the Veteran reported that he was diagnosed with scoliosis in 1981. Scoliosis was not indicated in service treatment records, at enlistment, or in clinical records dated in 1981. A December 1999 VA orthopedic consultation for neck and back pain shows that the Veteran did not have scoliosis on examination, nor do VA treatment records otherwise reflect a current diagnosis of scoliosis. For these reasons, the Board finds that the weight of the evidence does not reflect current scoliosis, and the Veteran has not provided credible evidence with regard to having a past or present diagnosis of scoliosis. Scoliosis is "a lateral curvature of the spine." Guetti v. Derwinski, 3 Vet. App. 94, 95 (1992). Even if the Veteran had evidence of a current diagnosis of scoliosis, because scoliosis is a congenital defect, such a finding would only tend to weigh against the claim. 38 C.F.R. § 3.303(c) (2012). The Board finds that the weight of the evidence demonstrates that lumbar and cervical spine symptoms have not been continuous since service separation. The Veteran more recently contends that his back and neck symptoms have been continuous since service. The Board finds that, due to multiple discrepancies in the Veteran's statements, and due to the lack of lay or medical evidence for many years after the Veteran's separation from service showing even complaints of a lumbar or cervical spine disability, the Veteran's more recent lay statements and testimony that he had continuous back and neck symptoms since service, which he made to obtain VA compensation, are not credible. The earliest credible indication of a chronic back disability was in 1998, 13 years after service separation. VA treatment records show that the Veteran first complained of neck pain in 1999. Treatment reports from the Texas Department of Criminal Justice Health Services Division dated from 1998 to 1999 show that the Veteran was treated for chronic back complaints starting years after service in 1998. VA treatment records from reflect treatment for chronic neck and back pain from 1999 to present. The Board notes that these complaints of back and neck pain were made was subsequent to a 1996 post-service motor vehicle accident in which the Veteran has reported injury to the back and neck. While the Veteran is competent to report continuous symptoms after service, the Board finds that the absence of contemporaneous medical evidence for 13 years after his separation from service is one factor, along with the other evidence of record including inconsistent statements made by the Veteran in relation to the onset of symptoms of a back and neck disability, weighs against his credibility. In an April 2000 VA treatment report, the Veteran complained of neck and back pain and reported being in a post-service motor vehicle accident four years prior, in approximately 1996, when he was hit from behind while driving a cab. In a June 2001 treatment report, however, the Veteran reported that he was in the Army from 1973 to 1985 and was in two car accidents that affected his back; therefore, he could not reenlist. In an August 2001 VA mental health treatment report, the Veteran reported that, while he was serving in Germany, he was in two separate car accidents that affected his back and, therefore, he could not reenlist. Given the fact that service treatment records, which are complete, reflect only one motor vehicle accident in service with no injury to the back or neck noted, the Board finds it highly unlikely that the Veteran was involved in two separate car accidents in service affecting his spine. To the contrary, in VA treatment records dated from dated in December 1999, the Veteran reported that he first noticed back pain in 1985 with sleeping for too long, walking, and bending without mention of an associated injury, and during an August 2011 VA examination, the Veteran reported the insidious onset of cervical spine pain in service, without injury or treatment for such in service. The Board finds that, due to the many inconsistent histories rendered with regard to the nature and the onset of his claimed lumbar and cervical spine disability, the Veteran is not credible in his reports of having been in two motor vehicle accidents in service, nor is he credible in his reports of having chronic back and neck symptoms in service. Because the Board finds that the Veteran is not credible, even in reports rendered to his physicians during the course of VA treatment after the initiation of his claim for benefits, the Board has accorded greater probative weight to the more contemporaneous lay and objective evidence of record in this case. Prior to 1998, there is no objective evidence of chronic back or neck symptoms, either in service or for many years after service. All of the Veteran's back and neck complaints, treatment, and diagnoses as shown by the record were made after a post-service motor vehicle accident which occurred in 1996. Contemporaneous to service, the Veteran did not have any chronic complaints or problems related to the back or neck, including during treatment after a 1985 motor vehicle accident. The Board finds that the singular complaint of back ache made in February 1983, made in conjunction with the onset of symptoms related to gonorrhea, and was not shown to be related to any injury in service and was not chronic. The Board finds that such absence of chronic complaints, findings, or treatment during service or for many years after service, in this context, is highly probative, contemporaneous evidence that the Veteran did not experience chronic back or neck problems in service or continuous symptoms since service. For these reasons, the Board finds that the Veteran is not credible in his more recent statements asserting chronic symptoms in service and continuous symptoms since service, which were made for VA compensation purposes. The Veteran's recent statements, which are not contemporaneous to service but were made recently pursuant to the VA compensation claim, are inconsistent with, and outweighed by, the more contemporaneous service treatment record evidence, which show that the Veteran did not have chronic back or neck complaints or injuries in service. For these reasons, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain an injury or disease of the lumbar or cervical spine in service, nor did he exhibit chronic symptoms of a lumbar or cervical spine disability in service, including lumbar and cervical spine degenerative disc disease. Additionally, the Board finds that the Veteran did not exhibit continuous low back or neck disorder symptoms since service separation and his recent assertions in that regard are not credible. Arthritis in the lumbar spine did not manifest to a compensable degree within one year of separation from service. The earliest diagnosis of arthritis of the lumbar and cervical spine shown by the evidence of record was in VA treatment records dated in 2000, 15 years after the Veteran's separation from service; therefore, the one year post-service presumption for arthritis is not met in this case. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Board further finds that currently diagnosed lumbar and cervical spine degenerative disc disease is not otherwise related to service. On the question of the relationship between a current low back and neck disabilities and service, the Board finds that the Veteran is neither competent nor credible to relate a current lumbar or cervical spine disability to service. The competent and credible evidence of record shows that the Veteran was initially treated for a chronic lumbar spine disability in 1998, and he was initially treated for a chronic cervical spine disability in 1999, 13 to 14 years after service separation. Moreover, in an October 2011 addendum opinion, an August 2011 VA examiner opined that the Veteran's cervical spine disability was not related to service. The August 2011 VA examiner reasoned that the record was silent for any complaints or treatment for the cervical spine while the Veteran was on active duty, and there were no complaints in regard to a cervical spine injury at the time of a May 1985 motor vehicle accident. The VA examiner correctly noted that there was no interim data proximate to discharge, pertaining to the cervical spine. The Board finds that the VA examiner's opinion was based on the correct facts as shown by the record, and that the VA examiner provided adequate reasons and bases for the opinion rendered; therefore, the Board finds that the VA opinion provides probative evidence which weighs against the claim for service connection for a cervical spine disability. For the reasons discussed above, the Board finds that a lumbar and cervical spine disability was not incurred or aggravated in service, nor did arthritis manifest within one year following the Veteran's separation from service. The preponderance of the evidence is against a finding of an injury or disease of the lumbar or cervical spine in service, against a finding of even chronic symptoms in service, and no nexus has been established between the Veteran's current lumbar and cervical spine degenerative disc disease and his military service. For these reasons, the Board finds that a preponderance of the evidence is against the claims for service connection for a low back disability and a neck disability, and the claims must be denied. Because the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Analysis for Service Connection for a Bilateral Foot Disability The Veteran contends that he has a bilateral foot condition that should be service-connected. After reviewing all the lay and medical evidence, including the Veteran's statements and testimony, the Board finds that the weight of the evidence demonstrates that a currently diagnosed bilateral foot disability was not incurred in service. An August 2011 VA examination revealed current diagnoses of bilateral pes cavus and hammertoes which were asymptomatic at the time of examination. While the VA examiner provided an opinion as to whether any preexisting conditions such as pes cavus were aggravated in service, in this case, a bilateral foot disorder was not "noted" at service entrance. An enlistment examination is not of record, and there was no clinical indication of any problems or complaints relating to the feet around the time of the Veteran's service-entrance; therefore, the presumption of soundness of the feet at service entrance attached. See 38 U.S.C.A. § 1111. The Board finds that the evidence is not clear and unmistakable that a bilateral foot disability preexisted service. A chronic foot disability, including pes cavus and hammertoes, is not shown to have been diagnosed or treated prior to service. There is no clinical evidence of a preexisting foot disability, including pes cavus and hammertoes, prior to service or at service entrance. There is also no medical board or other medical opinion tending to show preservice foot disability. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). As such, the Board finds that the Veteran's feet were in sound condition when he entered service. Having determined that the Veteran's feet were sound at entrance, the Board must determine if a currently diagnosed bilateral foot disability was incurred in service. The Board finds that the Veteran was seen on one occasion for left foot pain in service; however, he did not sustain an injury or disease of the either foot in service and bilateral foot symptoms were not chronic in service. Service treatment records show that the Veteran complained of left foot pain on one occasion in service in February 1985. He denied any trauma. X-rays revealed a possible bone growth on the bottom of the left foot. The Veteran was assessed with extremity pain in the left foot and was put on protocol to avoid activity. Further examination completed that same day showed a normal examination. No residual symptoms were noted on reevaluation in March 1985. A periodic examination conducted in March 1985 contained no complaints concerning the feet, and the examination of the feet was normal. The Board finds that the weight of the evidence demonstrates that bilateral foot symptoms not been continuous since service separation. The Veteran did not have any foot complaints at the time of a March 1985 periodic examination completed the same year as his separation from service, and the evidence of record does not reflect continuing foot complaints after service separation. VA treatment records reflect treatment for chronic bilateral foot pain in beginning many years after service in August 2002. An August 2011 VA examination, the Veteran had no complaints related to his feet and did not recall an injury to his feet in service. He stated, instead, that his claim was for his ankles and not the feet. Based on the evidence, lay and medical, the Board finds that bilateral foot symptoms were not continuous since service separation. The Board further finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed bilateral foot disability is not related to service, to include treatment for acute left foot pain in service. An August 2011 VA examination reflects current diagnoses of bilateral pes cavus and hammertoes which were asymptomatic at the time of examination. Pes cavus and hammertoes were not noted in service and were not shown on a March 1985 periodic examination. In an October 2011 addendum opinion, the VA examiner opined that bilateral pes cavus and hammertoes were not related to military service, nor were they aggravated by military service. While the VA examiner did note acute treatment for a left foot condition in February 1985, the examiner reasoned that further examination revealed a normal foot, and there was no further evidence of any complaints for a foot condition, bilateral or otherwise, to include during a March 1985 periodic examination. The VA examiner also noted that there was no evidence for treatment for the feet for many years after discharge. The Board finds that the VA examiner provided sufficient reasons for the opinion rendered based on an accurate factual background consistent with the Board's own findings; therefore, the opinion is probative. For these reasons, the Board finds that a bilateral foot disability was not incurred or aggravated in service. The preponderance of the evidence is against a finding of a chronic injury or disease of either foot in service or continuous symptoms since service, and the most probative evidence of record is against a nexus between the Veteran's current bilateral foot disability and his military service. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a bilateral foot disability and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Analysis for Service Connection for Herpes Simplex The Veteran contends that he was treated in service for a skin condition in service. After reviewing all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that herpes simplex was incurred in service. The Veteran was treated for recurrent herpes simplex (fever blisters) in service. Service treatment records reflect treatment for herpes simplex on the penis and for recurrent fever blisters. However, herpes simplex was not noted on a March 1985 periodic examination completed a few months prior to service separation. The Board finds that the weight of the evidence demonstrates that the Veteran had recurrent symptoms of herpes simplex after service separation. During an August 2009 VA skin examination, the Veteran reported that he still had some fever blisters which showed up on areas of the lips and arms. He reported that he had a blister show up on the penis, which was treated. On physical examination, the body was examined in its entirety with no evidence of herpes simplex or fever blisters active at the time of examination. The Board finds that the Veteran is competent to report that he has recurrent fever blisters, and given the nature of his disability, the Board finds that his statement is likely credible. Resolving the benefit of the doubt in favor of the Veteran on the question of current disability, the Board finds that the Veteran has currently diagnosed herpes simplex which is recurrent. The Board finds that herpes simplex is related to active service. The August 2009 VA examiner opined that viral fever blisters (herpes simplex) was less likely than not caused by military service, but was as likely as not the same problem that was observed in service. The VA examiner reasoned that herpes simplex was caused by a virus and was well documented in service records. The Veteran was treated for recurrent herpes simplex in service, he continues to have recurrent symptoms of herpes simplex, and an August 2009 VA examiner has indicated that the Veteran's herpes simplex was likely the same problem documented in service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for herpes simplex is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis for Service Connection for a Skin Disorder (Other than Herpes Simplex) The Veteran contends that he was treated in service for a skin condition and that he was advised not to shave. After reviewing all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a currently diagnosed skin disorder other than herpes simplex that is related to service. The Veteran was seen for pseudofolliculitis barbae, pityriasis rosea (rash), and condyloma acuminate in service; however, skin symptoms related to these diagnoses were not chronic in service. Service treatment records reflect treatment for ingrown facial and neck hair, diagnosed as pseudofolliculitis barbae; condyloma acuminate on the penis, treated with application of podophyllum and later, nitrogen; and an erythamotous maculopapular eruption diagnosed as pityriasis rosea. While the Veteran was treated on several occasions for these conditions in service, and there was no indication of recurrence at the time of a March 1985 periodic examination completed a few months before service separation. A separation examination is not of record. The Board finds that the Veteran was treated for skin disorders in service, to include pseudofolliculitis barbae, pityriasis rosea (also diagnosed as a rash), and condyloma acuminate; however, skin symptoms related to these diagnoses were not chronic in service and have not been continuous since separation. In that regard, a skin disorder was not noted at the time of a March 1985 periodic examination and there is no medical evidence showing treatment for a skin disorder for many years after service. A March 2000 VA treatment record reflects an incident of treatment for a chronic generalized skin rash characterized by generalized erythematous macules. The Veteran also had scaly scars from a previous healed rash on the upper extremities. The Veteran had no further complaints related to a skin rash until July 2005. A July 2005 dermatology consultation shows that the Veteran was treated again for itchy areas on the arms and face. He was assessed with seborrheic dermatitis, post-inflammatory hypopigmentation, and xerosis; however, there is no indication that seborrheic dermatitis, post-inflammatory hypopigmentation, and xerosis were related to specific findings in service. The July 2005 diagnosis of seborrheic dermatitis and related post-inflammatory hypopigmentation and xerosis was not chronic and resolved as they was not shown at the time of an August 2009 VA examination, and further treatment for such was not indicated in VA treatment records. The Board finds that, while the Veteran was treated for pseudofolliculitis barbae, pityriasis rosea, and condyloma acuminate in service, he does not have a current disability related to such. In that regard, an August 2009 VA examination, which included a review of the Veteran's in-service medical history, shows that while the Veteran was treated for pseudofolliculitis barbae, pityriasis rosea, and condyloma acuminate in service, he does not have an active disability related to such. During examination, the Veteran admitted that he did not have any active lesions or residuals related to pseudofolliculitis barbae, nor was there any evidence of active pseudofolliculitis barbae lesions or residuals on examination. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). Because the Veteran is not shown to have currently diagnosed pseudofolliculitis barbae or residuals of such, the Board finds that service connection for pseudofolliculitis barbae is not warranted. The August 2009 VA examiner noted treatment for a nonspecific, erythematous macular papular rash, consistent with pityriasis rosea in service; however, the VA examiner stated that it did spontaneously resolve without specific treatment as was the case with that condition, and the Veteran had no recurrence of such on examination that day. While the Veteran was treated for a skin rash with generalized erythematous macules in March 2000, this treatment occurred prior to the Veteran's present claim for service-connection and apparently resolved as there was no indication of such a rash on examination in August 2009. For these reasons, the Board finds that the weight of the evidence shows that the Veteran does not have a current diagnosis of pityriasis rosea, nor does he have a current generalized skin rash for which service connection can be granted. Because the Veteran is not shown to have currently diagnosed pityriasis rosea, the Board finds that service connection for pityriasis rosea is not warranted. The August 2009 VA examiner also noted treatment for condyloma acuminate (venereal warts) in service; however, there were no active venereal warts shown on examination, and the Veteran reported that after follow-up treatment in service with nitrogen, the Veteran related that the lesions fell off and stated that he did not have recurrence of the problem. For these reasons, the Board finds that the Veteran does not have a current diagnosis of condyloma acuminate. The weight of the evidence demonstrates that the Veteran does not have a currently diagnosed skin disorder, to include pseudofolliculitis barbae, condyloma acuminate, and pityriasis rosea, and the claim must be denied. The Board finds that the Veteran does not have any other currently diagnosed chronic skin disorders, other than herpes simplex, for which service connection can be granted. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Because the preponderance of the evidence is against the claim for service connection for a skin disorder (other than herpes simplex), the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Analysis for Service Connection for Right Ear Hearing Loss The Veteran contends that service connection is warranted for bilateral hearing loss due to noise from gunfire and tanks in service. (The remaining aspect of the claim for service connection for left ear hearing loss is addressed in the Remand section of this Board decision.) Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), service connection for a combat-related injury may be based on lay statements, alone, but do not absolve a claimant from the requirement of demonstrating current disability and a nexus to service, as to both of which competent medical evidence is generally required. Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). Thus, the provisions of 38 U.S.C.A. § 1154(b) do not allow a combat veteran to establish service connection with lay testimony alone. Rather, the statute relaxes the evidentiary requirements for determining what happened during service and is used only to provide a factual basis for a determination that a particular disease or injury was incurred or aggravated in service, not to link the service problem etiologically to a current disability. Gregory v. Brown, 8 Vet. App. 563, 567 (1996). After reviewing all the lay and medical evidence, including the Veteran's statements and testimony, the Board finds that the Veteran was exposed to some degree of acoustic trauma during service, but right ear hearing impairment still does not meet the criteria for a hearing loss "disability" under 38 C.F.R. § 3.385 that is required for VA disability compensation purposes. In lay statements and during his VA audiological evaluation, the Veteran reported exposure to noise from gunfire and tanks in service. In relation to a statement made in conjunction with a prior claim for PTSD, the Veteran stated that he was exposed to noise from a shell explosion during a training exercise while stationed in Germany. During the August 2011 VA audiological examination, the Veteran reported that he Veteran served as a combat medic. The Veteran is competent to describe noise exposure in service. The Board finds that the Veteran's statement with regard to experiencing at least some noise exposure from artillery or tank fire during training exercises in service is credible, as it is consistent with the circumstances of his service. The Board does not find credible the Veteran's assertion that he served as a combat medic, or that he was exposed to combat-related noise exposure associated with combat medic duties. The Veteran's DD Form 214 shows that he served as a medical specialist for 11 years and 9 months in service, and he served for 2 years as a computer repair specialist. There was no indication that the Veteran received any awards or decorations indicative of participation in combat with the enemy. While Veteran's DD Form 214 reflects 4 years of overseas service, service treatment records show that the Veteran worked at an aid station in Germany. During August 2001 VA mental health treatment and in an August 2011 VA skin examination, the Veteran specifically denied combat exposure in service. For these reasons, the Board finds that the Veteran has not provided credible evidence of combat-related noise exposure. Additionally, while the Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus does not include a specific listing for the Veteran's duty MOS; a similar listing shows that individuals with a duty MOS as a health care specialist had a low probability of exposure to hazardous noise in service. The Board finds that the specific duties required to the Veteran in the performance of his MOS as a computer repair specialist are not indicative of exposure to hazardous noise. Based on the foregoing, the Board finds that while the Veteran experienced some degree of noise exposure during training exercises in service, he did not have frequent or prolonged exposure to hazardous noise in service. The evidence in this case shows that, even though the Veteran experienced some acoustic trauma in service, symptoms of right ear hearing loss were not manifest in service or within one year of service separation, were not continuous after service separation, and still has not manifested to a degree of severity to be recognized as a hearing loss disability under 38 C.F.R. § 3.385. A review of service audiograms dated in January 1975, November 1979, and March 1985 shows that hearing loss outside the normal ranges did not manifest in service. The earliest post-service indication of hearing loss was in August 2001. An August 2001 VA treatment note indicates a diagnosis of sensorineural hearing loss bilaterally; however, audiometric data was not included. The Board further finds that the Veteran does not have a current right ear hearing loss "disability" according to VA disability compensation regulation 38 C.F.R. § 3.385. On an August 2011 VA audiological evaluation, puretone thresholds for the right ear, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 35 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. As the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is not 40 decibels or greater and the thresholds for at least three of these frequencies are not 26 or greater on the August 2011 audiogram, the criteria for a current right ear hearing loss "disability" have not been met as required by 38 C.F.R. § 3.385. While VA treatment records indicate a diagnosis of sensorineural hearing loss, the criteria for establishing a hearing disability for VA purposes is clearly defined under 38 C.F.R. § 3.385. Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Based on the current audiogram of record, the criteria for establishing a right ear hearing loss disability have not been met. Because the evidence does not show that the Veteran's right ear hearing loss is disabling according to 38 C.F.R. § 3.385, the weight of the evidence demonstrates that the Veteran's right ear hearing loss has not met the threshold to establish a current hearing loss "disability," and the claim must be denied. See Brammer, 3 Vet. App. at 225 (holding that Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability); see also Rabideau, 2 Vet. App. at 143. Because the preponderance of the evidence is against the claim for service connection for right ear hearing loss, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER New and material evidence having been received, service connection for a low back disability is reopened. Service connection for a low back disability is denied. Service connection for a neck disability is denied. Service connection for a bilateral foot disability is denied. Service connection for herpes simplex is granted; service connection for a skin disorder other than herpes simplex, to include pseudofolliculitis barbae, herpes simplex, pityriasis rosea, and condyloma acuminata, is denied. Service connection for right ear hearing loss is denied. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i). VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McClendon, 20 Vet. App. at 81. Service Connection for a Bilateral Hip Disability Service treatment records show that the Veteran was in a motor vehicle accident in service on May 1985. He was treated for pain to the left side of the hip. The August 2011 VA examiner stated in an October 2011 addendum opinion that the there was no medical data indicating complaints or treatment for a bilateral hip condition while on active duty in rendering a negative nexus opinion; however, the VA examiner did not adequately address the "hip complaint" noted in service, as required in the February 2009 Board remand directives, also noted in a May 2008 CAVC memorandum decision. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the VA Secretary a concomitant duty to ensure compliance with the terms of the remand). For these reasons, the Board finds that a remand for a supplemental VA opinion is necessary to address the relationship between the current hip disability and the complaint of pain to the left side of the hip noted in service. Service Connection for Left Ear Hearing Loss An August 2011 VA audiological evaluation shows that the Veteran has a current left ear hearing loss "disability" according to VA disability compensation regulation 38 C.F.R. § 3.385. Service treatment records reflect an increase in hearing threshold levels measured in service. In that regard, a January 1975 graphical audiogram was within normal limits. On the March 1985 service audiological evaluation, puretone thresholds for the left ear, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 10 10 15 10 While the March 1985 periodic examination did not reflect a left ear hearing loss disability for VA purposes, at least some degree of hearing loss was indicated in service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss) (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988)). While the August 2011 VA examiner noted findings from relevant service audiograms in a November 2011 addendum opinion, the examiner reasoned that current hearing loss was less likely as not a result of noise exposure during military service because hearing thresholds in service were within normal limits for rating purposes; however, in Hensley, the Court held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. For these reasons, the Board finds that a supplemental opinion that addresses the increase in hearing threshold levels for the left ear shown in service is necessary. In rendering the addendum opinion, the VA examiner should consider noise exposure the Veteran sustained during the course of training exercises in service; however, the Veteran has not provided credible lay evidence of exposure to combat noise in service. Accordingly, the issues of service connection for a bilateral hip disability and service connection for left ear hearing loss are REMANDED for the following action: 1. The RO/AMC should refer the case to the VA examiner who conducted the August 2011 VA examination (or a suitable substitute) for a supplemental medical opinion regarding service connection for the bilateral hips. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's question without examination of the Veteran, such should be afforded the Veteran. The relevant documents in the claims folder should be made available for review in connection with this request. The examiner should offer the following opinion: Is it at least as likely as not (a 50 percent or greater probability) that a currently diagnosed left and/or right disability began during service or is otherwise linked to some incident in service? In the supplemental opinion, the examiner should address relevant findings of record. In that regard, service treatment records show that the Veteran was treated for pain to the left side of the hip following a motor vehicle accident in May 1985. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a rationale for his or her opinion with reference to the evidence of record and should provide a discussion of the facts and medical principles involved. 2. The RO/AMC should refer the case to the VA examiner who conducted the August 2011 VA audiological examination (or a suitable substitute) for a supplemental medical opinion regarding service connection for left ear hearing loss. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's question without examination of the Veteran, such should be afforded the Veteran. The relevant documents in the claims folder should be made available for review in connection with this request. The VA audiology examiner should offer the following opinion: Is it at least as likely as not (a 50 percent or greater probability) that currently diagnosed left ear hearing loss began during service or is otherwise linked to noise exposure during training exercises in service? In the supplemental opinion, the examiner should address the increase in hearing threshold levels for the left ear shown in service audiograms. See Hensley v. Brown, 5 Vet. App. 155 (1993) (holding that the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a rationale for his or her opinion with reference to the evidence of record and should provide a discussion of the facts and medical principles involved. 3. The RO/AMC should review the VA opinions to ensure that they are in complete compliance with this remand. If it is deficient in any manner, the RO/AMC should implement corrective procedures at once. 4. After all development has been completed, the RO/AMC should readjudicate the issues of service connection for a bilateral hip disability and left ear hearing loss. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case, and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claims. See 38 C.F.R. § 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the 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. 2011). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs