Citation Nr: 1302902 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 03-16 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for residuals of injuries to the neck, left shoulder, left knee, left leg and left testicle during participation in a program of vocational rehabilitation. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from March 1982 to November 1983. This appeal to the Board of Veterans' Appeals (Board) is from a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2009, the Veteran testified at a hearing at the RO before a local Decision Review Officer (DRO). In September 2009, the Veteran also testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. In November 2009 and May 2011, the Board remanded the claim to the RO, via the Appeals Management Center (AMC), for further development and consideration. A May 2007 VA progress note shows the Veteran was diagnosed with headaches likely secondary to myoafascial referral to the occiput. He has additionally reported, including while testifying in September 2009 during his hearing before the Board, that his headaches worsened significantly after his August 2006 horseshoeing accident (the claimed injury at issue in this appeal). And as the Board is granting entitlement to section 1151 compensation for cervical paraspinous and trapezious muscle myofascial pain in this decision. Thus, given his contentions of additional disability related to the same incident, a derivative claim for compensation for the headaches as secondary to the myofascial pain has been raised by the record. The RO has not had opportunity to consider this additional claim, however, much less denied it and the Veteran appealed the decision to the Board. So the Board does not presently have jurisdiction to consider this additional claim for headaches and, therefore, is referring this claim to the RO for its initial consideration as the Agency of Original Jurisdiction (AOJ). See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). Also, to the extent the Veteran is claiming entitlement to § 1151 compensation for other residuals of injury to his cervical spine (neck) in the incident mentioned, the Board is remanding this portion of his claim to the RO via the AMC for still further development and consideration. FINDINGS OF FACT 1. In August 2006, the Veteran was involved in a horseshoeing accident while participating in farrier training authorized and approved for his VA vocational rehabilitation under 38 U.S.C.A. Chapter 31. 2. His cervical paraspinous and trapezious muscle myofascial pain is shown to have been caused by that horseshoeing accident, but his left shoulder acromioclavicular arthritis, left knee disability, diagnosed as degenerative arthritis, and left testicle and leg disability, diagnosed as left ilioinguinal nerve neuritis, are not shown to have been caused or aggravated by that horseshoeing accident. CONCLUSIONS OF LAW 1. The criteria are met for § 1151 compensation for the cervical paraspinous and trapezious muscle myofascial pain. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). 2. But the criteria are not met for § 1151 compensation for the additionally claimed disability, namely, the left shoulder acromioclavicular arthritis, left knee disability, diagnosed as degenerative arthritis, and left leg and left testicular disability, diagnosed as left ilioinguinal nerve neuritis. Id. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), upon receipt of a complete or substantially complete application, VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002). These VCAA notice requirements apply to all five elements of a claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is preserved, not frustrated, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). That is to say, VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, a letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in April 2008, prior to initially adjudicating his claim in the September 2008 decision at issue in this appeal, thus in the preferred sequence. The letter informed him of the evidence required to substantiate his § 1151 claim and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. The letter also informed him of the how disability ratings and effective dates are assigned in accordance with Dingess, also keeping in mind that a disability compensated under § 1151 is treated for all intents and purposes the same as a service-connected disability, meaning one related to the Veteran's military service. VA also satisfied its duty to assist the Veteran by obtaining all relevant evidence in support of this claim that is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The evidence of record includes his VA treatment records, VA vocational rehabilitation records, Social Security Administration (SSA) records, an April 2012 VA examination report and statements from him and his representative. The Veteran also testified at the March 2009 DRO hearing and September 2009 videoconference hearing before the Board. He has in the past reported believing there are outstanding vocational rehabilitation records pertinent to this claim. So, as directed in the Board's remands, the AMC attempted to obtain all such additional records. After repeated efforts, however, including multiple inquiries to the RO and an in-house search for any additional records, the AMC determined that all efforts to obtain these records had been exhausted and that any further attempts would be futile. The Veteran was duly informed of this in a May 2012 letter and resultantly asked to submit these records, himself, if they were in his personal possession or if he was able to obtain them. The letter also indicated the AMC might make a decision on the claim if he did not respond in 10 days. In August 2012, so well after that grace period for responding, the AMC put a memorandum in the file documenting its unsuccessful attempts in obtaining these records. Then, in a subsequent August 2012 SSOC, the AMC confirmed these records were unavailable. The AMC met its duty to attempt to obtain these records and its concomitant duty to document its efforts. This included notifying the Veteran of the unavailability of these records 38 C.F.R. § 3.159(c)(2) and (e)(1). The Board therefore is satisfied that VA has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A. II. Factual Background In an unrelated January 2004 claim, the Veteran indicated "my knees still bother me." In a June 2004 rating decision, the RO denied his claim of entitlement to service connection for a bilateral (left and right) knee condition. All of that occurred well before the injuries that are the subject of this appeal. A June 2006 letter from a VA vocational rehabilitation counselor shows the Veteran had been approved to attend the 15-week Horseshoeing, Blacksmithing and Applied Horsemanship Program at the Oklahoma Horseshoeing School. It was noted that an authorization for sponsorship under the Chapter 31 Vocational Rehabilitation Program had been submitted to the facility and that a starting date of July 10, 2006 had been selected. A June 2006 VA vocational rehabilitation plan shows he was scheduled to receive the training from the Horseshoeing School from July to December 2006. The ultimate program goal for him was to obtain and maintain employment as a Farrier. An August 2006 leave-of-absence request shows he requested leave from the Horseshoeing school from August 8, 2006 to October 1, 2006 due to neck and shoulder injuries. An August 11, 2006 VA physician's assistant note shows the Veteran indicated that, when shoeing a horse, it was necessary to pull the horse's leg up and stand with his knees partially bent. He reported that, just one week prior, while engaging in this activity, a horse had knocked the back of his knee causing his legs to buckle. As a result he dropped to a foot off the ground but the horse did not roll over on him. Ever since he had been having pain mainly on the medial side of his left scapula. His knees would also get stiff if he extended them completely and he reported swelling sometimes. Physical examination showed mild tenderness on the left side of his neck and medial to his left scapula. There was no tenderness or swelling of his knees and full range of motion. There also was good collateral/cruciate ligament stability. The diagnostic assessment was muscle strain. In an August 11, 2006 letter, the VA physician's assistant recommended the Veteran rest through August 14, 2006. An August 11, 2006 VA left shoulder X-ray showed there were no fractures or dislocations, the humeral head was well-approximated within the glenoid fossa and the surrounding soft tissues were unremarkable. An August 11, 2006 VA left knee X-ray showed no acute fracture or dislocation and unremarkable joint spaces, articular margins and surrounding soft tissue. An August 18, 2006 VA progress note shows the Veteran continued to complain of neck and left shoulder pain. In a September 2006 letter, a VA physician, Dr. P, indicated the Veteran had been a patient of hers since August 11, 2006, when he came in with complaints of pain in his neck, back and abdomen after the horseshoeing incident. He was treated conservatively and released. He was also ordered to rest from horseshoeing. He was seen again on August 18, 2006, for continued pain in his neck and for left shoulder pain. She noted he was still having quite a bit of pain and was not scheduled to see his primary care physician until September 26, 2006. She recommended he be released from the horseshoeing school until seeing his primary care physician. In a subsequent September 2006 letter, Dr. P noted the Veteran was still having considerable neck and upper shoulder pain. She opined that he had a muscle strain, which was causing his musculoskeletal pain. He was still having neck stiffness and an inability to flex and extend his neck. She could not tell exactly how long it would take for him to heal. However, based on her medical opinion, she felt that he should be given the opportunity to continue and finish his schooling and to continue treatment under the care of a physician. A March 2007 VA physical medicine and rehabilitation (PM & R) progress note shows the Veteran reported having bilateral knee pain for many years with no inciting trauma. He indicated that he had been a truck driver for many years and that that had aggravated his condition. He also indicated that his pain had increased since the August 2006 horseshoeing incident. Additionally, he reported neck pain since that August 2006 horseshoeing incident. He further noted that, prior to the accident in August 2006, he had had minor low back pain but no other significant problems. A March 2007 VA X-ray of his left knee resulted in a diagnostic impression of mild osteoarthritis with a small joint effusion. Physical examination showed full range of flexion and extension of the knees, albeit with crepitus on extension. There was tenderness to palpation along the medial joint line and patellar tendon and greater pain on the left. Examination of the neck and shoulders showed scapular dyskinesia and tenderness to palpation over the left upper border of the trapezius and along the cervical spine. There was full range of motion of the shoulders but limited lateral rotation of the cervical spine. There was also pain with neck flexion and extension and positive axial loading. The diagnoses were cervical spine osteoarthritis with myofascial neck pain and bilateral knee osteoarthrtitis. A May 2007 VA telephone contact note shows the Veteran was complaining of left knee pain radiating up to his hip and left groin. He also reported a temperature of 100.6. It was noted that he had been advised to take non-steroidal anti-inflammatory drugs (NSAIDS) for the pain. A May 2007 VA (PM & R) progress note shows he was seen for follow up for knee and myofascial neck pain. Physical examination showed findings similar to March 2007. A trial of Neurontin was implemented to control neuropathic pain and a soft collar provided. He was also referred to the pain clinic where he began receiving pain injections. A June 2007 VA MRI of his left knee resulted in a diagnostic impression of very minimal joint effusion, otherwise negative study. A June 2007 scrotal echogram resulted in a diagnostic assessment of minimal fluid, right scrotal sac, otherwise a negative study. In a June 2007 statement, the Veteran indicated he was filing claims for left shoulder, neck and left knee disabilities due to injuries while attending the horseshoeing school. He noted that he was injured when a horse sat on top of him. A June 2007 VA nurse's note shows the Veteran reported left testicular pain every 2 to 3 days. He denied any swelling or redness, but there was slight tenderness. He noted that the pain was brought on by squatting a lot of getting up and down. An August 2007 VA nurses note shows he reported that he had been having ongoing leg and testicular pain since the horseshoeing incident. A September 2007 VA urology consultation note shows he reported left testicular pain, which had started about one week after a horse fell on his lap in August 2006. Physical examination showed that one spot on the lateral wall of his left testicle was tender to palpation once but not on repeat examination. The diagnostic assessment was left testicular pain. The consulting physician noted the pain was most likely neuropathic in nature given the examination findings and radiogenic imaging. As the Veteran was already a patient of the VA pain clinic, it was recommended that an inguinal anesthetic injection be performed to assess the nerve pain status of the inguinal/testicular region. In October 2007, a diagnostic left ilioinguinal nerve block was performed. A January 2008 VA pain procedure note shows the Veteran reported that the ilioinguinal nerve block had helped his groin pain as well as his left knee pain. He requested a repeat injection along with left trapezius and lumbar paraspinous injections, which were administered. An April 2008 VA left shoulder X-ray resulted in a diagnostic impression of mild osteoarthritis at the left acromioclavicular (AC) joint. An April 2008 VA emergency department note shows the Veteran reported chronic left-sided pain beginning after the horseshoeing incident. He reported scrotal pain, left arm pain and left leg pain. An April 2008 pain clinic note shows he was given ilioinguinal and genitofemoral nerve block injections. An August 2008 VA pain clinic note shows he was requesting his usual trigger point injections and ilioinguinal and genitofemoral nerve block injections since they were helpful but only lasted for five to six weeks. During an October 2008 disability evaluation done in conjunction with his claim for SSA disability, the Veteran reported pain in his cervical spine radiating into both shoulders. He also reported pain in the posterior aspect of his left lower extremity and into his groin. Physical examination showed reduced range of motion of his cervical spine. He ambulated in a normal manner with an upright station. He did not utilize the assistance of any orthopedic device. He was able to stand and walk on both heels and toes, perform a full squat, and stand on either leg singly. The pertinent diagnostic impression was chronic neck pain. During the March 2009 DRO hearing, the Veteran testified that during the horseshoeing incident he was holding his left hind foot in a squatting position. He was getting ready to start nailing a shoe when the horse's right leg went out from under him and he "completely come down on me." The horse just completely collapsed and went to the ground, resulting in the beginning of the Veteran's pain. He said the injury had affected his neck, shoulder, left leg and testicle. During his subsequent September 2009 hearing before the Board, he testified that during the horseshoeing incident he was shoeing the left hind foot of a 1200-pound quarter horse. He was in the squatting position employed to put on the shoe. As he was preparing to drive the first nail into the foot, the horse's right hind leg just went out from under him and the horse came right down on his lap. The horse did not cause him to fall completely on the floor but did cause him to come within 12 inches of the floor. Since that time he had experienced trouble with his left leg and testicle, left knee, neck and left shoulder. He also had been experiencing headaches and low back problems. He noted the headaches had begun in service but had gotten much worse after the horseshoeing incident. In a June 2010 decision, the SSA determined he was disabled due to chronic neck and back pain with bulging lumbar discs, degenerative joint disease of his lumbar spine, depressive disorder and personality disorder. During an April 2012 VA examination, the examiner noted that the original August 2006 description of the injury showed the Veteran was shoeing a horse when his left knee gave out. The horse fell on him and, as a result, he began having pain in his back, left shoulder and neck. That initial description indicated he was probably pushed forward onto his outstretched hands in a protective gesture, probably straining the scapula stabilizers of his left upper back. During the objective clinical portion of that examination, the Veteran reported that he was standing behind the left rear of the horse at the time of the accident, perhaps somewhat to the left side of the rear quarter, flexed at the knees and hips, and holding the left rear foot when the right leg of the horse suddenly and completely collapsed. He was forced to the ground on his back with the horse sitting on top of him causing injuries to his neck, left shoulder and left knee, as well as the immediate onset of left testicular pain. The Veteran indicated he was currently totally disabled by severe neck pain despite multiple interventions of epidural steroid injections, facet joint injections, trigger point injections, use of a transcutaneous electrical nerve stimulation (TENS) unit, and use of other standard pain management therapies The examiner commented that, where the reported history of the mechanism of injury had changed over time, the initial history given to and recorded by the clinical health care provider who had first evaluated the injury is more likely than not the most reliable description of the incident. He also noted that in the Veteran's case some care was clearly taken to make sure that the medical record correctly characterized the nature of the accident. Thus, it was more likely than not that the initial characterization of the injury recorded by the physician's assistant on August 11, 2006 best represented the mechanisms of injuries sustained by the Veteran during the horseshoeing accident. The examiner diagnosed left cervical paraspinous and trapezius muscle myofascial pain. He noted this diagnosis was consistent with injury to the scapular stabilizers that could be expected from an injury according to the description of the accident as recorded by the physician's assistant on August 11, 2006. Collapse of the Veteran's left knee would have been expected to cause the torso to lurch forward and downward with a protective response from the outstretched arms, the left outstretched arm and shoulder as likely as not taking the brunt of the force transmitted from the hand contacting the ground through the shoulder to keep the torso and face from striking the ground. Regarding the Veteran's left shoulder and arm, however, the examiner noted that the Veteran's primary complaint of shoulder pain was localized between the muscle groups between the shoulder blade and distal cervical and upper thoracic spine-the trapezius, cervical paraspinal muscles and stabilizers of the shoulder scapula. He did not have a significant complaint of pain in the actual shoulder joint itself. He did have limitation of range of motion in the left shoulder due to pain with abduction and forward flexion caused by the stretching of the shoulder stabilizers and trapezius through normal motion of the scapula and those ranges of motion. An AC joint osteoarthritis diagnosed in 2008 was of unknown significance; there was no indication in the original August 2006 medical treatment records of the horseshoeing accident to indicate the Veteran had sustained any trauma to his anterior shoulder area. Physical examination showed that left shoulder flexion and abduction were limited to 90 degrees with pain on movement and guarding. The examiner indicated the limited motion of the left shoulder would be expected to interfere with all occupational activities requiring overhead work or repetitive use of the left upper extremity. The examiner found that the Veteran did not have a separate condition of the shoulder joint. His limited excursion of the left shoulder was due to the cervical and trapezius muscle myofascial pain condition. Regarding the left knee, the Veteran reported that he never had had a problem with this knee prior to the horseshoeing incident. He indicated that his current symptoms were recurrent swelling and pain. The examiner noted that review of the claims file showed the Veteran submitted a claim of entitlement to service connection for a bilateral knee condition in 2004, and that the claim was denied. The examiner also observed that the initial August 11, 2006 medical evaluation showed there was no tenderness or swelling of the left knee, full range of motion, and good collateral/ligament stability. Plain radiographs of the knee were read as normal and the Veteran was given some tramadol for knee arthralgia. Subsequent to that, neither knee came up for discussion until March 2007. That physician also determined the Veteran had normal flexion and extension of both knees. The Veteran acknowledged having had bilateral knee pain for many years with no inciting trauma, although the pain reportedly had increased in severity since August 2006. Examination of the left knee had been mostly unremarkable aside from the tenderness to palpation along the medial joint line, the positive patellar apprehension test, and the positive distraction and compression test. The left knee X-ray showed mild osteoarthritis with a small joint effusion and a June 2007 MRI was read as normal with the exception of the small joint effusion. The VA examiner's current physical examination of the left knee showed flexion to 130 degrees with pain at 130 degrees (so not until this endpoint) and extension to 0 degrees with no objective evidence of painful motion. There was pain on palpation of the joint line and soft tissues. Stability testing was normal and there was no evidence of recurrent subluxation or dislocation. The Veteran regularly used a cane to assist with ambulation. The examiner diagnosed degenerative arthritis of the left knee. He commented that there was no evidence the Veteran had suffered a significant or severe left knee injury at the time of the August 2006 accident in question. In explanation, this examiner reiterated that examination on August 11, 2006 was essentially normal with no limited excursion nor evidence of swelling. Also, the Veteran had indicated as early as 2004 a prior history of recurrent bilateral knee pain as evidenced by his claim for service connection. Given the normal knee examination on the day of the initial medical examination for horseshoeing injuries and a normal MRI one year later, it was quite unlikely that he had some occult asymptomatic injury to the left knee as a result of the horseshoeing accident. The examiner found that the condition of the left knee, instead, was due to normal aging and that there was no evidence that any injury on the day of the horseshoeing accident had aggravated any pre-existing condition beyond its normal progression. Regarding left testicular and leg (i.e. groin and thigh) disability, the examiner noted that the Veteran's current complaint of injury to this area was first noted in the May 2007 VA progress note. He was referred for the urologic consultation and the impression was probable neuropathic pain, as the physical examination and diagnostic testing had been normal. As he was already receiving injections from the pain management service, a diagnostic injection of the ilioinguinal nerve was performed. He experienced relief of the groin and anterior thigh pain after the injection leading to a diagnosis of ilioinguinal nerve neuritis. The examiner indicated there was no evidence of a report or complaint of groin, anterior thigh or testicular pain at the time of the initial medical treatment for the left upper back and neck pain about a week after the horseshoeing accident. The Veteran currently reported that he had immediate onset of the left groin/testicular/thigh pain at the time of the acute injury, but there was no objective documentation of this history. Physical examination showed that his penis, testes and epididymis were all normal. The examiner noted that the June 2007 diagnostic testing of the scrotum was negative other than minimal fluid in the right scrotal sac. The examiner diagnosed left ilioinguinal nerve neuritis. He concluded the neuritis was less likely than not related to the horseshoeing accident of August 2006 based on the absence of any report of left groin, testicle or anterior thigh pain during early medical evaluations after the accident. III. Governing Statutes and Regulations and Precedent Cases Under 38 U.S.C.A. § 1151, compensation is awarded for "qualifying additional disability" in the same manner as if such additional disability or death were service-connected. To be considered a "qualifying additional disability," a disability must meet two criteria. First, it must not be the result of the Veteran's willful misconduct. 38 U.S.C.A. § 1151(a). Second, the disability must have been proximately caused by participation in a VA vocational rehabilitation program. 38 U.S.C.A. § 1151(a)(2)(A). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d) (2011). To establish that a VA Vocational Rehabilitation program proximately caused a Veteran's additional disability, it must be shown that his participation in an essential activity or function of the VA Vocational Rehabilitation program proximately caused the disability or death. The activity in which he was participating must have been provided or authorized by VA as part of a Vocational Rehabilitation program under 38 U.S.C.A. Chapter 31. It need not be shown that VA approved that specific activity or function, as long as the activity or function is generally accepted as being a necessary component of the training or services that VA provided or authorized. 38 C.F.R. § 3.361(d)(3). In order to determine whether a Veteran has an additional disability, VA compares his condition immediately before the beginning of training and rehabilitation activity upon which the claim is based to his condition after such activity has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b) (2012). When considering the evidence, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). IV. Analysis The record clearly shows that the farrier training in which the Veteran was participating in July and August 2006 was a program authorized by VA vocational rehabilitation under 38 U.S.C.A. Chapter 31. This is shown by the June 2006 vocational rehabilitation counselor's letter indicating the Veteran had been approved and authorized to participate in the program and by the June 2006 VA vocational rehabilitation plan indicating he would indeed be participating in this program. Also, the specific activity resulting in his injury in August 2006, the shoeing of the horse, is generally accepted as being a necessary component of farrier training. 38 C.F.R. § 3.361(d)(3). Consequently, the only remaining questions to be answered are whether his August 2006 injury resulted in any chronic disability of his neck, left shoulder, left knee, left leg and/or left testicle (i.e., thigh and/or groin). After reviewing the relevant records and examining the Veteran personally, the VA examiner provided medical opinions concerning this appeal. He based his opinions on the more general premise that the history initially given to and recorded by the clinical health provider who first evaluated the Veteran's injuries was more likely than not the most reliable description of the incident and all that had resulted from it, since most contemporaneous to the relevant time at issue, also noting that some care was clearly taken to ensure the medical record correctly characterized the nature of the incident. The Board finds this conclusion persuasive as it stands to reason that a near contemporaneous report given in conjunction with receiving necessary medical care or evaluation and taken down by a careful healthcare practitioner would be more reliable than recollections provided significantly later, long after the fact. See Struck v. Brown, 9 Vet. App. 145 (1996) (discussing how contemporaneous medical findings may be given more probative weight than contrary evidence offered years later); Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later). See, too, Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Also, as the Veteran's reports of the accident appear somewhat inconsistent, and as the initial report given to the clinical health provider is his first report of the incident of record, the Board credits it over subsequent inconsistent later reporting. Additionally, the record does not contain any other reports of the accident, such as from any eyewitnesses who may have been present to corroborate his written and oral testimony. For all these reasons, the Board accepts the VA examiner's conclusion that the initial history given to and recorded by the clinical health provider who first evaluated the Veteran's injuries was more likely than not the most reliable description of the incident and insofar as what exactly was hurt. Regarding the neck and shoulder, the VA examiner specifically found that the diagnosis of cervical paraspinous and trapezious muscle myofascial pain was consistent with an injury to the scapular stabilizers that could be expected to result from the injury suffered by the Veteran as recorded by the VA physician's assistant. Collapse of the Veteran's left knee would have been expected to cause the torso to lurch forward and downward with a protective response, with the left outstretched arm and shoulder as likely as not taking the brunt of the force transmitted from the hand contacting the ground through the shoulder to keep the torso and face from striking the ground. Given this finding, and the lack of any medical or other competent and credible evidence to the contrary, it is reasonably established that the August 2006 horseshoeing injury has caused the Veteran's current cervical paraspinous and trapezious muscle myofascial pain. Accordingly, § 1151 compensation is warranted for this consequent disability. Regarding other shoulder disability, the VA examiner pointed out that AC joint osteoarthritis had been diagnosed in 2008. He found, however, that there was nothing in the original August 2006 medical treatment records pertaining to the horseshoeing incident suggesting the Veteran had sustained any relevant trauma to his anterior shoulder area. This conclusion clearly weighs against a finding that the August 2006 accident caused or aggravated his AC joint arthritis, and there is no medical opinion to the contrary. Moreover, because this is a complex medical issue, it is not readily amenable to mere lay comment. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (indicating 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, varicose veins, tinnitus (ringing in the ears), pes planus (flat feet), 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); and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (38 U.S.C.A. § 1154(a) requires that VA give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue requiring expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). See, as well, Kahana v. Shinseki, 24 Vet. App. 428 (2011) (When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent). Accordingly, as in this particular instance it is not, the weight of the evidence is against an award of § 1151 compensation for the left AC joint arthritis. Regarding the left knee, the examiner confirmed the Veteran has degenerative joint disease (i.e., arthritis) in this knee. The examiner did not find that this disability was caused or aggravated by the horseshoeing accident, however. Given the Veteran's reported history of having previously had recurrent bilateral knee pain as early as 2004, so even some 2 years before his horseshoeing injuries at issue in 2006, also the normal knee examination on the day of the initial medical examination for his horseshoeing injuries, and the normal MRI even one year later, the VA examiner surmised that it was quite unlikely the Veteran had some occult asymptomatic injury to the left knee as a result of the horseshoeing accident. To the contrary, the examiner found that the condition of the left knee was instead due to normal aging and that there was no evidence that any injury on the day of the horseshoeing accident had caused or even aggravated any pre-existing condition beyond its normal progression. There is no medical opinion of record suggesting otherwise, that is, any opinion tending to indicate the Veteran's current left knee disability was either caused or aggravated by the horseshoeing accident. He has reported continuity of knee symptomatology since the August 2006 accident and that his left knee pain increased after the accident, so was aggravated by it. He is competent to make this proclamation since lay testimony is competent when it concerns the readily observable features or symptoms of injury or illness. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). But lay evidence must be both competent and credible to ultimately have probative value. See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). Moreover, although the Court has held that VA cannot ignore a Veteran's testimony simply because he is an interested party, his personal interest may affect the credibility of his testimony. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); Pond v. West, 12 Vet. App. 341, 345 (1999). And to reiterate, contemporaneous evidence has greater probative value than history as reported by him long after the fact. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Also, ultimately, even the question of whether his left knee arthritis, since preexisting, was aggravated by his horseshoeing injuries in 2006 is a medical, not mere lay, determination. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease or rheumatic fever). And the Board must consider all of the relevant evidence, medical and lay, in deciding his claim, so not just his unsubstantiated lay assertions. See Baldwin v. West, 13 Vet. App. 1, 8 (1999) (The determination as to whether the requirements for a claim are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to the other relevant evidence.). Consequently, the weight of the evidence is against finding that his left knee disability was caused or aggravated by his August 2006 accident. And since the most probative evidence concerning this claimed disability is against his claim, there is no reasonable doubt to resolve in his favor. Gilbert, 1 Vet. App. 49, 55 (1990). Accordingly, § 1151 compensation for left knee disability must be denied. Regarding the left groin/thigh and left testicle, the VA examiner diagnosed left ilioinguinal nerve neuritis. He did not find that this disability was caused by the horseshoeing accident, however. In explanation, he pointed out there was no evidence of a report or complaint of groin, anterior thigh or testicular pain at the time of the initial medical treatment for the left upper back and neck pain about a week after the horseshoeing accident and that the Veteran's current complaint of testicular, groin and thigh pain was not first noted until May 2007 when he reported experiencing pain from his left knee radiating into his left groin. The Board cannot summarily discredit a Veteran's credibility merely because there is not documentation of actual treatment for his now claimed disability at some earlier point in time, more contemporaneous to the injury in question. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records); Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence); and Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). It is entirely acceptable, though, to at least have expectation of the reporting of a relevant complaint, especially when treated in the immediate aftermath of an injury. Recognizing this, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since the event in question, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). The VA examiner found that the neuritis was less likely than not related to the horseshoeing accident of August 2006 based on the absence of any report of left groin, testicle or anterior thigh pain during early medical evaluations immediately after the accident. So this VA examiner considered the absence of any relevant complaints more contemporaneous to the time of initial evaluation and treatment of the injuries a significant and, indeed, determining factor in disassociating this now claimed about disability from the August 2006 horseshoeing incident. There is no medical opinion of record to the contrary (again, meaning an opinion tending to indicate the current ilioinguinal nerve neuritis was caused by the horseshoeing accident. The Veteran has affirmatively reported continuity of leg and testicular symptomatology since the August 2006 accident and is competent to do so. As emphasized by the VA examiner, however, the Veteran made no report of any such symptomatology at the time he first received medical treatment after the accident, nor did he make a subsequent report at any point prior to May 2007, so even for several ensuing months approaching a year. Also, in his initial May and June 2007 VA medical contacts, he did not report that he had experienced these problems ever since the August 2006 accident. Additionally, in his initial June 2007 § 1151 claim, he did not allege disability of his leg or testicle, only instead disability of his neck, left shoulder and left knee. Moreover, he has not provided any explanation as to why, if he was experiencing such significant symptomatology continuously since the accident, he waited approximately nine months before bringing it to the attention of medical personnel and did not include it in his initial claim for VA compensation. Given all these factors, the Board does not find his report of continuity of symptomatology credible. In determining whether his statements and testimony are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Additionally, inasmuch as he is alleging that his now claimed about left leg or testicular disability is otherwise related to the horseshoeing accident, as a layman he is not competent to give a probative opinion on this determinative issue of causation. See e.g. Espiritu, 2 Vet. App. 492, 494 (1992). Accordingly, given the VA examiner's opinion, the lack of any contrary medical opinion of record, and the lack of credibility of the Veteran concerning continuity of symptomatology, the weight of the evidence is against a finding that his left testicle/leg disability was caused or aggravated by his August 2006 accident. Gilbert, 1 Vet. App. 49, 55 (1990). Accordingly, § 1151 compensation for this disability also must be denied. ORDER Entitlement to § 1151 compensation for cervical paraspinous and trapezious muscle myofascial pain is granted, subject to the statutes and regulations governing the payment of VA compensation. However, § 1151 compensation for the additionally claimed left shoulder AC joint arthritis, left knee disability, including arthritis in this knee, left leg disability, and left testicle disability, is denied. REMAND As already explained, according to 38 U.S.C.A. § 1151, compensation is awarded for a "qualifying additional disability" caused by injury incurred during participation in a vocational rehabilitation activity in the same manner as if such additional disability or death were service-connected. Thus, in cases where there may have been an underlying pre-existing disability, the Board may be required to determine whether such disability was aggravated by the injury in question. At the conclusion of the April 2012 VA examination, the examiner diagnosed degenerative disc disease (DDD) of the cervical spine with anterolisthesis at C4-5. He opined that degenerative cervical spine disease was present on the initial X-rays taken after the injury and that these findings were indicative of a prior injury to the cervical spine of unknown etiology. He found that the findings were not caused by the August 2006 injury, rather represented the residual of prior, probably cumulative injury, axial loading and torsional stress consistent with normal aging. He also noted there was no credible evidence the Veteran had suffered any significant cervical spinal injury as a result of the horseshoeing accident. While this opinion clearly indicates the Veteran's cervical spine disability was not likely caused by the August 2006 horseshoeing accident, and appears to more generally disassociate the cervical spine degenerative disease from that accident, it does not provide explicit comment on the likelihood the horseshoeing accident alternatively aggravated any pre-existing degenerative disease of the cervical spine. Thus, as the Board is not permitted to make its own independent medical determinations (see Colvin v. Derwinski, 1 Vet. App. 171 (1991)), an addendum or supplemental opinion from the April 2012, which specifically addresses the likelihood that the horseshoeing accident aggravated the underlying degenerative disc disease of the cervical spine, is required prior to final adjudication of this claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, this remaining component of the claim is REMANDED for the following additional development and consideration: 1. Return the claims file to the April 2012 VA compensation examiner for supplemental comment (i.e., an addendum opinion) regarding the likelihood (very likely, as likely as not, or unlikely) that the Veteran's August 2006 horseshoeing injury, even if not causing, nonetheless aggravated, meaning chronically or permanently worsened, any pre-existing cervical spine degenerative disc disease. The examiner must discuss the underlying rationale for his/her medical opinion, if necessary citing to specific evidence in the file. So, prior to commenting, the examiner should again review his April 2012 examination report and any other pertinent information contained in the claims file, including a copy of this decision and remand. If, for whatever reason, the April 2012 VA examiner is unavailable to provide this addendum opinion, then have someone else comment that is qualified to make this necessary additional determination. In this eventuality, however, the Veteran may need to be reexamined, but this is left to the designee's discretion. 2. Ensure this supplemental opinion, whoever provides it, is responsive to the question of whether the August 2006 horseshoeing accident aggravated the cervical spine degenerative disc disease. If not, take corrective action to avoid another remand. 38 C.F.R. § 4.2. See also Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with a remand directive, and the Board itself commits error as a matter of law in failing to ensure compliance). 3. Then readjudicate this claim for § 1151 compensation, but only as it concerns this additionally claimed disability (DDD of the cervical spine), in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining component of the claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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. 2012). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs