Citation Nr: 1304199 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 10-23 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a back injury. 2. Entitlement to service connection for a right hip disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had a period of active duty for training from August 1976 to November 1976 and active duty from February 1979 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. As will be explained below, new and material evidence has been received to reopen the Veteran's previously denied claim of entitlement to service connection for residuals of a back injury. Further development of the evidence is required before the Board can adjudicate the Veteran's claim of entitlement to service connection for residuals of a back injury. As such, this claim is being REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. An August 1997 rating decision denied service connection for residuals of a back injury on the basis that there was no evidence of record showing that the Veteran had a back injury in service. 2. Additional evidence received since the August 1997 rating action on the issue of service connection for residuals of a back injury raises a reasonable possibility of substantiating the claim. 3. The Veteran did not engage in combat with the enemy during service. 4. The Veteran did not sustain an injury or disease of the right hip during service. 5. The Veteran did not experience chronic symptoms of a right hip disorder during service. 6. The Veteran did not experience continuous symptoms of a right hip disorder after service. CONCLUSIONS OF LAW 1. The August 1997 rating decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for residuals of a back injury. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for a right hip disability are not met. 38 U.S.C.A. §§ 101, 106, 1110, 1112, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (CAVC) 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. In the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and respond by providing the appellant with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in August 2009 and September 2009, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claim of entitlement to service connection and his petition to reopen, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additionally, the letter from VA to the Veteran explained how a disability rating is determined for a service-connected disability and the basis for determining an effective date upon the grant of any benefit sought. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the CAVC have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for 'downstream' issues following a service connection grant, such as initial rating and effective date claims). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of VA post-service treatment, as well as the Veteran's own statements in support of his claims. As will be explained below, the Veteran's petition to reopen is granted and no further development as to his petition to reopen is required. 38 C.F.R. § 3.159(4)(c)(iii). The Veteran has not been examined by VA in connection with his claim of entitlement to service connection for a right hip disorder. However, as will be discussed below, the Board finds that the weight of the evidence does not demonstrate that a right hip injury was incurred during the period of active duty for training as claimed by the Veteran or continuity of symptoms since that period of service. Because there is no in-service injury or disease to which a competent medical opinion could relate the current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for hypertension. See 38 U.S.C.A. § 5103A(a)(2) (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"); Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). 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, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's right hip disorder 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 right hip disorder and military service would necessarily be based on an inaccurate history regarding what occurred in 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). The holding in Charles was clearly predicated on the existence of evidence of an in-service injury, disease, or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion regarding direct service connection 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 has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria to Reopen Service Connection of Residuals of a Back Injury In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured since the last final disallowance of the claim is "new and material." Under the applicable version of 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as evidence not previously submitted to agency decision- makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). Analysis of Petition to Reopen Service Connection for Residuals of a Back Injury The Veteran's claim for service connection for residuals of a back injury was denied in an August 1997 rating decision on the basis that there was no evidence of a back injury in service. The RO acknowledged that it had reviewed service treatment records for the period of April 1976 to June 1979 were of record. The Veteran was notified of the 1997 decision via a letter dated in August 1997. He did not submit a notice of disagreement, and no evidence was received within the year following that letter such that the provisions of 38 C.F.R. § 3.156(b) would apply; therefore, the August 1997 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. According to those records, the Veteran reported a history of back pain in April 1976, upon examination prior to active service, which was noted as an old football injury, since resolved; his entrance examination was normal. A March 1979 treatment record shows a reinjury to the Veteran's back due to dancing, with right sacroiliac tenderness; the assessment was reinjury right sacroilitis. At separation, in June 1979, the Veteran reported that he was in good health, despite complaints of recurrent back pain. Separation examination was normal except for his left shoulder. VA treatment records from November 1996 to January 1997 show that the Veteran complained of chronic back pain for 2 years, as well as a history of degenerative joint disease. The Veteran reported a history of football injuries. A March 1997 letter from the Casto Clinics indicates that a search for any records of the Veteran's treatment was negative. In October 2008, the Veteran filed an application to reopen service connection for residuals of a back injury. Generally, it is appropriate for the Board to consider the claim as a request to reopen the previously denied claim rather than an original claim. Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008). Since the RO's August 1997 decision, the Veteran has submitted additional evidence in support of his petition to reopen. In an October 2008 statement, the Veteran asserts that his current back disability is related to his service, as he had back problems during his 1976 period of active duty for training, and was treated for back pain during his 1979 period of active service. In October 2009, he stated that he injured his back during basic training in 1976, and reinjured his back in 1979, while dancing. In support of his claim, the RO obtained VA medical records dated July 1998 to October 2009. According to a July 1998 treatment record, the Veteran complained of chronic back pain. An October 2008 x-ray report showed degenerative changes at L2-3 and L3-4, with joint space narrowing, bony sclerosis, and hypertrophic changes. There was also increased sclerosis at the mid-right sacroiliac joint, possibly reflective of sacroilitis. Treatment records from November 1998 indicate that the Veteran reported a history of being involved in a train wreck in 1983, with advanced involvement of the entire right side. In January 2009, he reported having an old football injury which occurred before his military service. A July 2011 VA examination report indicates that the Veteran reported having been in a car that was hit by a train in 1983; he was dragged over 300 feet, and hospitalized with trauma to the back and hip, particularly on the right side. Additionally, the Veteran testified before a Decision Review Officer (DRO) at the RO, and before the undersigned VLJ. According to his testimony before the DRO in June 2011, he had a pre-service back injury, which he reinjured during service. He also testified that none of his treating providers had associated his back disorder to his service, but that he did not seek such an opinion from them, just treatment for his symptoms. According to the Veteran's testimony before the undersigned VLJ in November 2012, he injured his back during his 1976 period of service, and reinjured his back in 1979. He also testified that he sought treatment for his back since the 1976 injury, but that he was unable to get documentation from the Casto Clinic. For purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence, and not its weight, is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Because the Veteran's October 2008 and October 2009 statements, and his July 2011 and November 2012 testimony are not shown to be inherently false, they are presumed credible for the limited purpose of reopening the claim. Additionally, the Veteran is considered competent to report the onset and continuation of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir. 2007). Lay evidence may be sufficient to establish a diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Given this, and particularly in view of the Court's holding in Shade, the Board finds that the contentions by the Veteran - not previously of record - represent evidence of a reinjury to his back during his second period of service in 1979, sufficient to reopen the Veteran's previously denied claim. As such, the additional evidence, considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating his claim for service connection for residuals of a back injury. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (where the Federal Circuit Court noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim.). In conclusion, the Board finds that new and material evidence has been received to reopen the Veteran's previously denied claim of entitlement to service connection for residuals of a back injury, and this claim is reopened. The Board notes that a final decision will not be made at this time; additional development is necessary and a remand is required. Legal Criteria for Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). In this case, the Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. It is noted, however, that although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. at 57. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). The term "veteran" is defined in 38 U.S.C.A. § 101(2) as "a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable." The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24) ; 38 C.F.R. § 3.6(a) ; see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty for training (ADT) is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22) ; 38 C.F.R. § 3.6(c). Thus, with respect to the Veteran's reserve service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ADT. 38 U.S.C.A. §§ 101(24) , 106, 1110; 38 C.F.R. §§ 3.6 , 3.303, 3.304. Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service, are provided by law to assist Veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. § 1112 ; 38 C.F.R. § 3.304(b) , 3.306, 3.307, 3.309. The advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ADT or IADT. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ADT and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, if a claim relates to period of active duty for training, a disability must have manifested itself during that period; otherwise, the period does not qualify as active service, and claimant does not achieve veteran status). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Nevertheless, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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"). Analysis of Service Connection for a Right Hip Disorder The Veteran alleges that he injured his right hip in service. According to an October 2008 statement, the Veteran asserts that his in-service back pain was actually a manifestation of his right hip disorder, but that until recently, he thought his right hip disorder was due to his post-service injury to the right side during a train wreck. In an October 2009 statement, the Veteran asserts that he injured his right hip during a 1976 basic training accident. At the Veteran's June 2011 hearing before the DRO, and again in his testimony before the undersigned in November 2012, the Veteran asserts that he injured the right hip in during the period of active duty for training in 1976 during basic training and that while he thought it was initially a back injury, he now believes that he injured the right hip at that time. After a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that Veteran did not sustain an injury or disease of the right hip in service. The Veteran has testified that he believes that the onset of the claimed hip disorder was during the period of active duty for training in 1976. He has not indicated that he suffered an injury to the right hip during the period of active service in 1979. The service treatment records show that the Veteran complained of back pain at his April 1976 entrance examination and his June 1979 separation examination; physical examination of all systems was normal. The Veteran declared at both examinations that he was in good health. The Board also finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of a right hip disorder after service. VA treatment records dated July 1998 through October 2009 indicate that the Veteran underwent a right hip replacement due to avascular necrosis of the right hip. An October 1998 x-ray report indicates that the Veteran had severe degenerative changes secondary to trauma with avascular necrosis of the right femoral head; November 1998 VA treatment records discuss the Veteran's diagnosis in relation to his 1983 train accident. A January 2007 VA treatment record states that the Veteran reported that his total right hip replacement was secondary to a 1983 train accident. At a VA joints examination in July 2011, the Veteran reported that he was in a car that was hit by a train, wherein he was dragged over 300 feet, requiring hospitalization for multiple trauma to the back and hip, mostly of the right side of his body. See 38 C.F.R. § 3.303(b) (subsequent, isolated manifestations of a chronic disorder are not service connected where they are clearly attributable to intercurrent causes). Although the Veteran is competent to report certain right hip symptoms, the Board finds that his contentions relating this disability to his service are not credible. The Veteran did not assert that he had a right hip disability related to his service until he filed his claim for benefits in October 2008. His VA treatment records do not show that he reported any history of an in-service right hip injury. The Veteran did not allege that he had any right hip complaints related to his service until after his claim for benefits. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements); 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"). Furthermore, the Veteran's more recent contentions regarding the onset of a right hip disability in service are not credible because his report of the origin of this disability is inconsistent with the service treatment record evidence, the absence of complaints or treatment after service, the Veteran's own histories made for treatment purposes prior to filing a claim for VA compensation. In his initial October 2008 claim for VA benefits, the Veteran claimed that he had a chronic right hip disability that began in service and continued since that time. But in November 1998 VA treatment records, the Veteran reported that he injured his right hip when he was in a car that was hit by a train in 1983. Moreover, until he filed the claim for VA compensation, he did not assert an association between his right hip and his service. According to the Veteran's available VA treatment notes, dated November 1998 to October 2009, his right hip complaints were related to the accident with the train. The Board notes that the Veteran, upon VA treatment prior to his claim for benefits, did not make any assertions of chronic symptoms in service or continuous symptoms since service. 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. Likewise, as indicated earlier, at separation from active service in June 1979, the Veteran complained of joint pain, but made no complaints specific to his right hip and declared that he was in good health. The Board finds that the Veteran's more recently-reported history of injuring the right hip in 1976 is inconsistent with the statements provided during treatment in November 1998. Such history of non-service-related right hip injury reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. 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). For these reasons, the Board finds that the Veteran's statements are not credible and the weight of the lay and medical evidence does not demonstrate continuity of symptoms since the period of active duty for training in 1976. The record shows that the Veteran has been diagnosed with degenerative changes of the right hip. See VA treatment records. As noted above, the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service, do not extend to those who claim service connection based on a period of ADT. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) The preponderance of the evidence of record is against a finding that the Veteran has a right hip disability related to his service; therefore, the claim for service connection of this disability must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Having presented new and material evidence, the claim of entitlement to service connection for residuals of a back injury is reopened. Service connection of a right hip disorder is denied. REMAND VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not been provided with a VA examination in order to address whether he has residuals of a back injury related to his active military service. The Veteran contends that he has residuals of a back injury as a result of an in-service training exercise, as well as a reinjury of a preexisting injury due to dancing in 1979. VA medical records show treatment for symptoms in the years following active service. As such, the medical evidence is unclear whether the Veteran has residuals of back trauma which are causally or etiologically related to the Veteran's military service. As previously discussed, the Veteran was treated in March 1979 for a reinjury of his back due to dancing. The assessment was reinjury right sacroilitis. The Veteran reported experiencing recurrent back pain at his April 1976 entrance examination and his June 1979 separation examination, although both physical evaluations were normal. Nonetheless, the Board notes that an October 1998 VA x-ray report indicates that the Veteran currently has right sacroilitis, as well as degenerative changes at L2-3 and L4-5. The Veteran has also reported a history of a pre-service football injury and a 1983 injury to his right side when the car he was riding in was hit by a train. The medical evidence is unclear whether the Veteran's claimed residuals of a back injury are is causally or etiologically related to his service, including whether there was a back condition that preexisted service. VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the Board finds that the Veteran should be afforded a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). See also 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at VA health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any residuals of a back injury. The examiner should provide the following opinion: The examiner should identify each current back disability and should set forth an opinion as to whether it is at least as likely as not that any current back disability had its onset either during the period of active duty for training from August to November 1976 or the period of active service from February to August 1979 or is otherwise related to a period of active service or a period of active duty for training. If the examiner determines that a back disability did not have its onset during service or is otherwise related to a period of service, the examiner should set forth an opinion as to whether any current back disability existed prior to service and whether this disability permanently worsened or otherwise increased in severity (i.e., was aggravated), and if so, whether such increase was beyond its natural progression during his service, taking into consideration his medical history prior to and since his active service. The claims file should be made available to the examiner for review in connection with the examination. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. 2. When the development requested has been completed, the case should again be reviewed by the RO/AMC. If the claim remains denied, the appellant and his representative, if any, should be furnished a SSOC and afforded a reasonable period of time within which to respond thereto. Thereafter, the case should be returned to the Board, as appropriate. The purpose of this remand is to further develop the record and afford due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matter 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. 2012). ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs