Citation Nr: 1304303 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 04-28 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral ankle and foot disorders. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active military service from November 1972 to December 1980. This appeal to the Board of Veterans' Appeals (Board/BVA) is from February and March 2003 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for bilateral foot and ankle pain, as well as service connection for a chronic skin condition involving subacute eczema. In October 2006, to support his claims, the Veteran and his wife testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). In a subsequent March 2007 decision, the Board granted service connection for a skin disorder (dermatitis/eczema). The RO then effectuated the decision by assigning an initial 10 percent rating retroactively effective from August 2002. After filing a separate claim for an increased rating, the RO issued another decision in September 2008 granting a higher 30 percent rating for this skin disability. Also in that March 2007 decision granting service connection for the skin disability, however, the Board remanded this claim for service connection for bilateral ankle and foot disorders for further development and consideration - including obtaining Social Security Administration (SSA) records, VA and private treatment records, and scheduling a VA compensation examination for a medical nexus opinion regarding the etiology of the Veteran's bilateral ankle and foot disorders, especially in terms of the likelihood they are related or attributable to his military service or date back to his service. Because, however, the medical opinion resultantly obtained was inconclusive on this determinative issue of causation, the Board again remanded this claim in October 2009 to try and obtain a more definitive medical nexus opinion, which was obtained in December 2009. Upon receiving the file back, the Board issued a decision in June 2010 denying this claim for service connection for bilateral ankle and foot disorders. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court/CAVC). In a September 2011 Order, granting a Joint Motion, the Court vacated the Board's decision and remanded the claim for further development and readjudication in compliance with the directives specified in the Joint Motion. To comply with that Court-granted Joint Motion, the Board, in turn, remanded the claim to the RO in April 2012 via the Appeals Management Center (AMC). The additional development of the claim, as directed in the Joint Motion, included obtaining additional medical comment regarding the etiology of the Veteran's current bilateral ankle and foot disorders, especially, again, in terms of their claimed relationship with his military service. He had another VA compensation examination later in April 2012 for this additional, i.e., supplemental, medical nexus opinion, but the AMC issued a supplemental statement of the case (SSOC) in November 2012 continuing to deny the claim, so it is again before the Board for further appellate consideration. FINDINGS OF FACT 1. The Veteran's service treatment records (STRs) confirm he was seen on one occasion in November 1975 for consequent left ankle pain, at which time X-rays of this ankle were unremarkable. There also is historical mention in his STRs of prior injury to his feet some 3 years earlier, so in 1972 or thereabouts. 2. But even accepting that he sustained relevant injuries to his ankles and feet during his military service, in 1972 and 1975, the most probative (meaning competent and credible) medical and other evidence of record indicates those injuries did not result in chronic, i.e., permanent residual disability. 3. Even after sustaining those injuries in service, he continued to serve on active duty in the military for several more years, until December 1980, without any further mention of any complaints referable to his ankles or feet, much less a consequent or pertinent diagnosis. 4. Moreover, when filing his initial claim for VA compensation benefits rather immediately after service, in January 1981, on his claim application form (VA Form 21-526) he only mentioned having hearing loss - not also problems with his ankles and feet from the injuries in service. There equally was no mention of any problems with his ankles or feet when later examined concerning that initial claim in November 1981. The RO's subsequent January 1982 and February 1983 rating decisions, in response to that initial claim, thus only considered the claimed hearing loss (also tinnitus, i.e., ringing in the ears, and residuals of injuries to the middle and fifth fingers of the left hand), as there had been no such similar claim concerning either the ankles or feet. 5. The next mention of the ankles and feet was in the Veteran's November 1988 statement in support of claim (VA Form 21-4138), so some 7 years later when he reported having sustained relevant injuries to his ankles and feet during his military service; he said he had severely sprained his right ankle once, and his left ankle twice, while in basic training at Ft. Dix, New Jersey. He also reported having received treatment at the base's hospital for both ankles. 6. The next mention after that of complaints referable to his ankles or feet was in 2002 or thereabouts, so not until some 14 more years. 7. The lay assertions of the Veteran, his wife, and brother of the Veteran supposedly having experienced continuity of symptomatology since service, although competent, are not also credible, so not ultimately probative, especially in light of the fact that he filed that earlier claim with VA in 1981 for compensation or other benefits but did not mention or otherwise refer to any then current problems with his ankles or feet. CONCLUSION OF LAW Chronic bilateral ankle and foot disorders were not incurred in or aggravated by the Veteran's active military service and may not be presumed to have been. 38 U.S.C.A. §§ 1101, 1110, 1112 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist The Veterans Claim Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duties to notify and assist a claimant in developing a claim for VA benefits. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of (1) any information and medical or lay evidence not of record that is necessary to substantiate the claim, (2) the evidence and information that VA will obtain and assist the claimant in obtaining, and (3) the evidence and information the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So, ideally, this notice should address all elements of the claim, including the "downstream" disability rating and effective date elements. Also, ideally, this notice should be provided before initially adjudicating the claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This particular case at hand dates back several years. But letters satisfying these notice requirements of the VCAA were sent to the Veteran in August 2003, July 2007, and November 2009. Additionally, he more recently was sent a letter dated in April 2012 informing him that VA was working on his appeal and that he was being scheduled for an examination pertaining to his claim. The RO first adjudicated his claim in February and March 2003, so these letters were not sent to him before that, so not in the preferred sequence. However, since providing these several notices, the RO and AMC have readjudicated his claim on several occasions, including in Supplemental Statements of the Case (SSOCs) issued in February 2010 and even more recently in November 2012. So the claim has been reconsidered since providing all required VCAA notice. This is important to point out because the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that an 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 SSOC. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication rectifies ("cures") any timing problem from inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, showing how the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). There is no such pleading or allegation in this instance. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. To this end, VA obtained the Veteran's STRs, also his relevant post-service private and VA treatment records and his SSA records. Many of these records were obtained following and as a result of the Board remanding this claim, initially in March 2007 and more recently in October 2009 and April 2012. VA also provided him compensation examinations for medical nexus opinions regarding the etiology of his claimed bilateral ankle and foot disorders, also following and as a result of the Board remanding this claim in March 2007, October 2009, and most recently in April 2012. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Regarding the most recent remand in April 2012, in the Joint Motion that the Court granted vacating the Board's prior decision denying this claim, the parties agreed that the Board had erred by failing to provide an adequate statement of reasons and bases as required by 38 U.S.C.A. § 7104(d)(1). Specifically, the Board did not take into consideration a November 1988 lay statement from the Veteran or an August 2006 statement from his brother contradicting the portion of the Board's June 2010 decision finding there were no foot or ankle complaints by the Veteran until more than 20 years after his military service had ended. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (the Board has a duty to render factual findings and determine the credibility and probative weight of the evidence). It therefore was determined the Board must make a new credibility determination in light of this lay evidence. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence). The parties also determined that, while the Board had made a finding on chronicity, i.e., permanency of disease or injury in service, it was not apparent that the Board had made an express determination on continuity of symptomatology. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under § 3.303(b) is an alternative method of showing chronicity of disease or injury in service to in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). And the essence of § 3.303(b) is continuous symptoms, not treatment. The Board conceded there was evidence in the STRs showing the Veteran had complained of left ankle pain while in service, in November 1975, and that he reported that pain had been occurring on and off since spraining his left foot in 1972. And although there were no indications in his STRs of any such complaints or injury to his right ankle and foot, there were post-service records dated since July 2002 mentioning a history of continued foot and ankle problems since that injury in service, so suggestive of continuity of symptomatology. The parties thus agreed the Board should have considered all provisions of the law, including considering whether the Veteran had satisfied the nexus requirement based on showing continuity of symptomatology since service. 38 U.S.C.A. § 7104(d)(1). But prior to making these necessary determinations when readjudicating the claim, the parties concurred that a new VA medical examination and etiology opinion were needed because, when previously denying this claim in June 2010, the Board had relied on a December 2009 VA medical opinion that was conclusory and insufficient to determine whether there is a nexus or link between the Veteran's current foot and ankle disorders and his military service - in particular, the type of injury he claims to have sustained in 1972 or at other times during his service. The VA medical examiner's December 2009 opinion, though unfavorable to the claim, did not explain how medical reports and opinions from Drs. B. R. (2007), L. S. (2008), and J. S. (2009) did not affect the lack of nexus needed for service connection. It was pointed out that, in Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two." Neives-Rodriguez, at 301. Also, the parties pointed out that the December 2009 VA medical examiner's opinion was based on the lack of treatment records in the file and did not take into account the Veteran's reported symptoms, which, again, is the essence of 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination found inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the STRs to provide a negative opinion). These are the several reasons that prompted the Board's additional remand of this claim in April 2012. The Veteran since however has had another VA compensation examination in April 2012 to address these additional concerns, as is the Board in this additional decision. It is also worth reiterating that records shows a request was made to the National Personnel Records Center (NPRC), which is a military records repository, to determine whether there are any treatment records available from the Walston Army Hospital at Fort Dix, New Jersey, dated between December 1972 and March 1973, since the Veteran has indicated that he was treated at that facility for ankle sprains. The NPRC requested these records in July 2007, but was informed that no such records exist. Accordingly, further attempts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(2); Gober v. Derwinski, 2 Vet. App. 470, 472 (1992) (holding that the duty to assist is not a license for a "fishing expedition" to determine whether there might be some unspecified information that could possibly support a claim). The Veteran also has been appropriately notified. See 38 C.F.R. § 3.159(e)(1). Ultimately, the Veteran's claim is not again being denied for lack of proof of relevant injuries in service, instead, because it is not established those injuries in service (even assuming they occurred as alleged) resulted in chronic residual disability. So, for purposes of this decision, the Board is accepting that he was seen and treated in 1972 or thereabouts for the type of injury alleged, also later in 1975, just not also finding that his current ankle and foot disability is a result or consequence. Therefore, especially since the most recent remand of this claim in April 2012, it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate this claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources). In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. 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 and every piece of evidence). Rather, the Board's analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to the Veteran). Governing Statutes, Regulations and Caselaw Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153; 38 C.F.R. §§ 3.303(a), 3.304, 3.306. Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Certain diseases like arthritis are chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Under § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent." Savage, 10 Vet. App. at 497. However, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent." Id (citations omitted). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). So in certain instances lay evidence has been found to be competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). This is not always the case, however, as in certain other instances laypersons have not been found to be competent to provide evidence in more complex medical situations, such as concerning a form of cancer. See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires 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 VA's duty to seek a medical opinion on the issue). When this occurs, there must be supporting medical evidence. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). In essence, then, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97. When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. See also 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). But see, too, Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that, for non-combat Veterans providing non-medical related testimony regarding an event during service (or where the incident, event, injury or disease in question is not claimed to have occurred in combat), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements). A Veteran is competent to report what he/she can observe and feel through the senses. See Layno. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). 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. Kahana v. Shinseki, 24 Vet. App. 428 (2011). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology" under 38 C.F.R. § 3.303(b). Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). But once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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). In ultimately rendering a decision on appeal, the Board must analyze the competency, then credibility, and consequent probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Veteran's Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory (meaning both competent and credible), the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly 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). Service connection may be granted for a disease first diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements for service connection 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 other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. Factual Background and Analysis The Veteran's STRs reflect that he was seen on one occasion in November 1975, at which time he stated that he had previously sprained his left foot in 1972. He also indicated that ever since he had experienced on and off again pain in his left ankle. An X-ray reportedly was negative, so unremarkable. He was placed on a low-sodium diet and told to have his blood pressure checked. The remainder of his STRs do not refer to any complaints or findings referable to his ankles or feet (either ankle or either foot), and he continued to serve on active duty for several more years, until December 1980. Chonicity (permanency) of disease or injury in service therefore is not established or, at the very least, is legitimately questionable. Continuity of symptomatology thus is required to support the claim. As already alluded to, one of the reasons for vacating the Board's prior decision was failing to discuss whether the Veteran has shown continuity of symptomatology since service as a means (that is, other than having supporting medical evidence) of showing chronicity of disease or injury in service to, in turn, link his currently claimed disability to his service. And, in particular, the Court-granted Joint Motion cited the Board's failure to fully address lay statements and testimony in this regard from the Veteran and his brother (the Veteran's wife also testified during the hearing concerning this). The Board does not find that continuity of symptomatology since service has been shown, however, and the lay statements of the Veteran, his brother, and wife in this regard, although competent, are not also credible to ultimately have probative value. The Board realizes that it cannot summarily reject the Veteran's lay testimony (and that of his brother and wife) concerning this by equating the absence of documented treatment, versus symptoms, for long after service since, to reiterate, the essence of 38 C.F.R. § 3.303(b) is continuous symptoms, not treatment for the symptoms. See again also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 006) ("[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"). But what is especially noteworthy here is that it is entirely acceptable, however, to have expectation of documented complaints when the injury alleged is not said to have occurred in combat. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that, for non-combat Veterans providing non-medical related testimony regarding an event during service (or where the incident in question is not claimed to have occurred in combat), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements). And this is the situation here since this Veteran relates his ankle and foot pain back to the physical training (PT) he did during his basic training, not to any event in combat although he served partly during the Vietnam era. It therefore is permissible for the Board to draw a negative inference from the absence of more documentation in his STRs than is apparent since it appears they are complete or at least substantially complete in relevant part. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Further concerning this, although he alleges that some of his STRs are not on file, specifically, those regarding treatment he supposedly received for ankle sprains at Walston Army Hospital in Fort Dix, New Jersey, from December 1972 to March 1973, the NPRC requested these records in July 2007 but, as expected given such a long time since, was told no such records exists. Therefore, further attempts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(2), (c)(3) and (e)(1). What is as interesting, though, is that he also was able to continue on in service, after 1975, for some 5 more years with no further complaints concerning his ankles or feet. But even ignoring that, what is even more telling is that, following his discharge from the military in December 1980, when initially filing a claim for VA compensation or pension benefits just one month later, in January 1981, on his claim application (VA Form 21-526) he only mentioned hearing loss. There was no mention whatsoever of any problems with his ankles or feet, including as a residual of prior injuries or training during his service, so even accepting that he had earlier injured his ankles and/or feet during his service. There equally was no mention of any problems with his ankles or feet when later examined concerning that initial claim in November 1981. The RO's subsequent January 1982 and February 1983 rating decisions, in response to that initial claim, thus only considered the claimed hearing loss (also tinnitus and residuals injuries to the middle and fifth fingers on the left hand). This also remained true for the next several years, until receipt of his November 1988 statement in support of claim (VA Form 21-4138) when he said he had "severely sprained my right ankle once, and my left ankle twice, while in basic training at Ft. Dix, N.J." He reiterated having received treatment at the base's hospital for both ankles. But, again, even accepting that as true, the absence of any relevant complaints (not just treatment) during those several intervening years tends to refute the notion of chronicity (i.e., permanency) of those injuries in service, including by the alternative means of showing continuity of symptoms since his service. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Had he in fact been experiencing continuous symptoms since his injuries in service (again, even accepting they had occurred), it only stands to reason that he would at least have mentioned them when filing that initial VA claim in January 1981, so soon after the conclusion of his service, but he clearly did not. It seems entirely illogical that he would not have claimed this additional entitlement to bilateral ankle and foot disability, since presented this opportunity when filing that initial claim, and yet would have elected not to if, in fact, his symptoms had been persisting as he is now alleging they were. And while it is indeed true the Board cannot summarily discount the credibility of his lay testimony (and that of his brother and wife) merely because he has an interest in the outcome of this adjudication, it is entirely permissible for the Board to consider his self-interest as a factor in determining whether his lay testimony is credible. See Pond v. West, 12 Vet. App. 341 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The fact that the Veteran did not complain about his ankles and feet when filing that earlier, and initial, VA claim in 1981 undermines his and his brother's credibility insofar as the Veteran's supposedly having experienced continuity of symptomatolgy since his injuries in service. In Harvey v. Brown, 6 Vet. App. 390, 394 (1994), the Court upheld a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements years later asserting different etiology. Also, in Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), the Federal Circuit Court upheld a Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later. See also 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). Not only when filing that initial VA claim in January 1981, but also when examined concerning it for compensation purposes later that year, in November 1981, the Veteran had opportunity to additionally mention any ongoing problems he had been experiencing with his ankles or feet. Hence, the Board is not relying on the absence of any documented treatment for so relatively long after service as grounds for concluding there was a "break" of sorts in any continuity of symptomatology, rather, considering significant the fact that the Veteran had opportunity to at least complain about this additional bilateral ankle and foot disability in the interim but clearly did not. Indeed, even after finally mentioning his injuries in service in his November 1988 statement, so some 7 years later, there again is no such indication of relevant disability until 2002 or thereabouts, so for some 14 more years after that. In this circumstance, the Board may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder). When deciding claims, ultimately the Board must consider all of 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 military service, 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). Treatment records from J. S., D.P.M., show the Veteran was first seen for bilateral ankle and foot pain in October 2002. He was given diagnoses of: (1) tendinitis, Achilles tendon; (2) capsulitis of the ankle; (3) painful arthralgia of the ankle joint; and (4) sinus tarsi syndrome of both feet. In a March 2003 statement, Dr. S. indicated the Veteran had told him that he had injured his feet and ankles in service 30 years earlier, and had sought treatment many times in service without relief. This physician also noted the Veteran's disorders were made worse by a pes planus (flat feet) deformity. This doctor then stated "I can't say for certain whether the injury sustained while the [Veteran] was in the Army is the only cause of his ankle pain, but I can't say it didn't cause it." The Veteran was accorded an examination by a VA podiatrist in July 2003. He referred to complaints with his feet dating back to his service. He explained that the pain had begun in 1972 following a forced march when he collapsed. He was given a current diagnostic assessment of degenerative joint disease, i.e., arthritis, of the feet. Other evidence of record includes a March 2006 letter from another physician, J. E. S., M.D., in which a notation was made of "painful feet (onset 1972)." The record also contains a statement from P. R., M.D., dated in September 2007, in which he indicated "it is my opinion that the [Veteran] had injuries to both feet while serving in the military from 1972 to 1980. [He] still suffers from bilateral foot pain attributable to service in the U.S. Army from 1972-1980." In March 2008, A. K., M.D., stated "I have reviewed the office note[s] from Dr. [B. R.] and agree with him in regards to [the Veteran] and his disabilities. I feel [the Veteran] is 100 percent disabled due to his longstanding pain symptoms which apparently began during his basic training for the Army during 1972." J. E. S., M.D., whose 2006 letter is referred to above, stated in October 2009 that he had last seen the Veteran in August 2009 for continuing pain involving the legs, the feet, and the low back. This doctor expressed his belief that the Veteran was disabled because of symptoms related to his military experience. The claims file also contains a letter from the Veteran's brother dated in August 2006. The brother stated that the Veteran had "explained to [him] that he had left the service because he was having trouble with painful feet." These several private medical opinions, while obviously intended to be supportive of the claim, do not contain any discussion of the underlying medical rationale, which is where most of the probative value of a medical opinion is derived. See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). According to the holdings in Neives-Rodriguez, in determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304. A medical opinion is considered adequate, versus inadequate, when it is based upon consideration of the Veteran's prior medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the disability will be fully informed and permit the Board to weigh the probative value of the opinion against others. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). And to be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder, instead, must also support the conclusion with sufficient rationale and explanation. Stefl, 21 Vet. App. at 124. The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Here, though, these submitted opinions either fail because they merely suggest the possibility of a relationship or correlation between the current bilateral ankle and foot disability and the injuries sustained in service, so only at most posit that this may or may not be true (cannot say whether it is or is not true), or do not provide the required discussion of the underlying rationale of the opinion. Hence, these opinions ultimately have little to no probative value on the determinative issue of causation. "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connected or rating context if it contains only data and conclusions." Neives-Rodriguez, 22 Vet. App. at 304, citing Stefl, 21 Vet. App. at 125 (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); see also Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). In March 2007, partly because of the need to have supporting medical nexus evidence absent the required showing of continuity of symptomatology since service, the Board remanded this claim for service connection for bilateral ankle and foot disorders for further development and consideration - including to schedule a VA compensation examination for a medical nexus opinion regarding the etiology of these claimed disorders, especially in terms of the likelihood they are related or attributable to the Veteran's military service or date back to his service. Because, however, the medical opinion resultantly obtained was inconclusive on this determinative issue of causation, so, like the private opinions mentioned, was insufficient to decide the claim, the Board again remanded this claim in October 2009 to try and obtain a more definitive medical nexus opinion, which was obtained in December 2009. The Court-granted Joint Motion found even that additional opinion insufficient, however, in turn eventually necessitating another remand and opinion, which was obtained in April 2012. To obtain this additional opinion, the Veteran had another VA compensation examination in April 2012. As concerning the Veteran's ankles, the examiner indicated the Veteran reported having sustained multiple sprain injuries to his ankles and heels in service between 1972 and 1980. The Veteran referred to the heel pain being the worst and he blamed the constant running and physical training as being responsible. He stated that he had sought medical attention during service and had received treatment for the sprains. He added the pain never resolved. He denied any interval surgery, injection, or other treatment. Clinical examination was accomplished and diagnoses were given of bilateral ankle sprains and bilateral plantar fasciitis. But regarding etiology, the examiner determined the claimed conditions were less likely than not (that is, less than a 50-percent probability) incurred in or caused by any claimed injury, event, or illness in service. In so concluding, he acknowledged the Veteran was subjectively symptomatic of bilateral ankle pain, though the examiner considered it nonetheless significant that the STRs did not mention any recurrent ankle and foot problems. One of the reasons for rejecting the Board's reliance on a prior VA medical nexus opinion similarly dissociating any of the current ankle and foot disability from any injury in service was the examiner's seeming failure to acknowledge the Veteran had sustained relevant injury during his service even if not reflected to the extent alleged in his STRs. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). This most recent VA compensation examiner, however, nevertheless indicated that, if the Veteran's military service was responsible for his pathology, "I would absolutely expect subjective complaint at the time of service. This is not a pathology that I would expect to have delayed onset." He noted that the Veteran's interval complaints had been subjective only. He stated there had not been objective orthopedic evidence of ankle pathology, either clinically or radiographically, at the time of alleged onset, in the interim, or at the present time. He added that such a chronic and subjectively symptomatic problem following ankle sprain "could be sequelae of ankle sprain if there was laxity of the joint leading to chronic instability or intra-articular derangement, but I find no evidence of this today. In my opinion, whilst I note the Veteran's subjective history, there is an inconsistency between the events, the subjective complaint and the clinical and radiographic findings. The Veteran's brother's statement is subjective only. The civilian M.D. opinions were based upon the patient's subjective history and subjective examination findings (regarding the feet/ankles). There was no actual objective evidence of pathology." In Nieves-Rodriguez, as well as in Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court indicated the Board may not disregard a medical opinion solely on the rationale that it was based on the history given by the Veteran. Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on the Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility. Here, though, looking at the private doctors' supporting statements, they mention and rely on the Veteran reportedly having sustained "several" or "many" or "repeated" injuries to his ankles and feet while in service, but, in actuality, even the Veteran himself acknowledged in his November 1988 statement in support of claim that he had sprained his right ankle only once and his left ankle twice while in basic training at Fort Dix, New Jersey, although he described those injuries as severe. Hence, there appears to be a measure of embellishing the injuries in service, at least to some extent, when later describing them to the private doctors that submitted the supporting statements. Accordingly, aside from the fact that these private doctors' opinions do not contain the required discussion of the underlying medical rationale or are equivocal, these opinions also rely on this far greater extent of injury in service than is actually shown or reflected in the STRs (or, as importantly, even at other times acknowledged by the Veteran, himself), as cause for attributing the current ankle and foot disability to the reported injuries in service. This, then, is further reason these private doctors' opinions have diminished probative value because they are relying, at least to some extent, on an inaccurate, certainly not wholly accurate, factual premise. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (an opinion is only as good and credible as the history on which it is predicated). The April 2012 VA examiner, in comparison, had access to the entire claims file, including the reports of these private doctors, but still ultimately determined that it was less likely than not that any current bilateral ankle or foot disability is related to the Veteran's military service, including especially to the type of trauma he alleges to have sustained while in service. This examiner recognized the Veteran's claim of having sustained relevant trauma to his ankles and feet during his service, just did not believe that any current disability is a result or consequence. And although the holdings in Neives-Rodriguez, Miller, and Dennis, etc., make clear that review of the claims file is not determinative or dispositive of an opinion's probative value, review of the claims file does have significance if evidence in the claims file, if considered, may have changed the outcome of the opinion, such as by revealing facts that otherwise would not have been known. The VA examiner, especially in comparison to the private doctors who also commented on this case, explained why the type and severity of injury the Veteran claims to have sustained in service, especially repeatedly, would have resulted in more objective findings than have been shown. So the VA examiner did not premise the opinion merely on the absence of more documented treatment during the many years since those injuries in service (even, again, accepting they occurred as alleged), instead, on the absence of more objective findings that he considered a reasonable expectation once the Veteran was evaluated or treated for his injuries. The Board must weigh the credibility and probative value of these medical opinions for and against the claim and, in so doing, may favor one over another. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). Because there was occasion rather immediately after service, in 1981, when, despite opportunity, the Veteran did not mention still having problems with his ankles or feet, another 7 or so years before he did in 1988, and another 14 or so years after that when he again did in 2002, the Board finds that continuity of symptomatology since service has not been established. Moreover, the most probative medical nexus opinion otherwise addressing this determinative issue of causation is against the claim, not supportive of it. Hence, the preponderance of the evidence is against the claim, so the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim of entitlement to service connection for bilateral ankle and foot disorders is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs