Citation Nr: 1306449 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 05-29 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right ankle disability, and if so, whether entitlement to service connection for a right ankle disability can be granted. 2. Entitlement to service connection for a right leg disability. 3. Entitlement to service connection for a right thigh disability. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a right hip disability. 6. Entitlement to service connection for a lower back disability. 7. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left ear hearing loss disability. REPRESENTATION Appellant (Veteran) represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from July 1960 to June 1963. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas that denied the issues on appeal. In April 2007 the Veteran testified during a Decision Review Officer (DRO) hearing at the RO and in February 2011, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. Transcripts of both hearings are of record. In July 2011, the Board remanded this matter for additional development. The Board has reviewed the Veteran's entire claims file, to include documents of record in his virtual VA folder. The Board notes that, since the most recent supplemental statement of the case (SSOC) dated in August 2012, the Veteran has submitted into the record additional evidence that is relevant to his appeal. In this decision, the Board has considered this evidence pursuant to the September 2012 waiver of RO consideration of this evidence. 38 C.F.R. §§ 19.31, 20.1304(c) (2012). The issue regarding whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left ear hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a February 1995 decision, the RO denied entitlement to service connection for residuals of a right ankle injury. 2. New evidence received since the February 1995 rating decision tends to prove previously unestablished facts necessary to substantiate the underlying claim of service connection for a right ankle disorder and raises a reasonable possibility of substantiating the claim. 3. A chronic right ankle disorder was not shown in service; neurological symptoms in the lower right leg were not shown until many years after service; and the Veteran's current right ankle disorder is not related to a disease or injury of service origin. 4. A chronic right leg disorder was not shown in service; degenerative and neurological disorders in the right leg were not shown until many years after service; and the Veteran's current right leg disorders are not related to a disease or injury of service origin. 5. A chronic right thigh disorder was not shown in service; neurological changes in the right thigh were not shown until many years after service; and the Veteran's current right thigh disorder is not related to a disease or injury of service origin. 6. A chronic right knee disorder was not shown in service; degenerative changes in the right knee were not shown until many years after service; and the Veteran's current right knee disorder is not related to a disease or injury of service origin. 7. A chronic right hip disorder was not shown in service; degenerative or neurological changes in the right hip area were not shown until many years after service; and the Veteran's current right hip disorder is not related to a disease or injury of service origin. 8. A chronic lower back disorder was not shown in service; degenerative joint and disc disease of the lower back was not shown until many years after service; and the Veteran's current lower back disorder is not related to a disease or injury of service origin. CONCLUSIONS OF LAW 1. Evidence received since the February 1995 rating decision is new and material and the claim of entitlement to service connection for a right ankle disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. A right ankle disorder was not incurred in or aggravated by active service, and may not be presumed related to service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). 3. A right leg disorder was not incurred in or aggravated by active service, and may not be presumed related to service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). 4. A right thigh disorder was not incurred in or aggravated by active service, and may not be presumed related to service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). 5. A right knee disorder was not incurred in or aggravated by active service, and may not be presumed related to service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). 6. A right hip disorder was not incurred in or aggravated by active service, and may not be presumed related to service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). 7. A lower back disorder was not incurred in or aggravated by active service, and may not be presumed related to service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the claim to reopen, and the claims for service connection decided here. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). If a claimant seeks to reopen a claim that was previously denied, VA must notify the claimant of the evidence and information that is necessary to reopen the claim as well as the evidence and information necessary to establish the underlying claim for the benefit sought. The notification letter must describe what evidence would be sufficient to substantiate the element or elements required to establish service connection that were found insufficient in the prior denial. Kent v. Nicholson, 20 Vet. App. 1, 10 (2006). However, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59,989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Given the favorable disposition of the claim to reopen service connection for a right ankle disorder, the Board finds that all notification and development actions needed to fairly adjudicate that claim to reopen have been accomplished. With regard to the service connection claims decided below, the Board notes that the RO has submitted to the Veteran several notification letters dated from August 2003 to August 2011. Collectively, these letters have provided full notification to the Veteran regarding what information and evidence is needed to substantiate his claims of service connection. The letters addressed the information and evidence that must be submitted by the Veteran and the evidence that VA would obtain. Certain of these letters included provisions regarding disability ratings and effective dates, moreover. The Board notes that the Veteran was not provided with full notification prior to the rating decisions on appeal. See Mayfield, supra. Nevertheless, following full notification, the Veteran's claims were readjudicated in SSOCs, to include the August 2012 SSOC. See Overton v. Nicholson, 20 Vet.App. 427 (2006) (a timing error may be cured by a new VCAA notification letter followed by a readjudication of the claim). In sum, VA has met its duty to provide VCAA notification to the Veteran regarding the claims addressed in this decision. With regard to the duty to assist, the RO obtained relevant private and VA treatment records and reports, and accepted into the record many lay statements from the Veteran, and from several of the Veteran's friends, colleagues, and family members. The Veteran appeared before two separate hearings at the RO, one before the DRO and one before the Board. The Veteran was provided with VA compensation examinations into his service connection claims in August 2006, June 2009, and March 2012. Collectively, the examinations, and their reports and opinions, are adequate for rating purposes. The Board has considered the Veteran's several complaints of record that these examinations were inadequate. For example, the August 2006 and June 2009 VA examiners did not expressly indicate a review of the claims file prior to completing their reports. But, in the March 2012 report, a review of the claims file, to include the August 2006 and June 2009 VA reports, is indicated. Moreover, the reports generally indicate that each examiner reviewed the Veteran's medical history and complaints, made clinical observations, and rendered assessments regarding whether the Veteran has orthopedic disorders related to service. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The record also indicates that the RO made extensive efforts to assist the Veteran in developing his claims by attempting to include in the claims file the Veteran's service treatment records (STRs). Despite the RO's repeated attempts, however, the STRs are not of record. As indicated by several statements of record from the RO, the most recent of which is dated in June 2010, the Veteran's STRs are not available, and were most likely lost while in possession of the government. Under such situations the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Ultimately, however, the loss of STRs is harmless error in this case. As will be detailed below, the Board will accept as true the Veteran's assertions regarding his in-service injury (specifically to the right side of his body). In sum, the RO was unable to include in the record the Veteran's STRs. Nevertheless, the record is sufficiently developed for determinations at this time. The Board will rely on the record to determine the claims to service connection. Appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right ankle disability. The Veteran's claim for service connection for a right ankle disability had previously been considered and was denied in a February 1995 rating decision on the basis that the evidence did not indicate that the Veteran incurred a chronic right ankle disorder subject to service connection. In citing the missing STRs, and the evidence offered in lay statements of record of an in-service injury to the right lower extremity, the RO conceded an in-service injury to the right lower extremity. Nevertheless, the RO found that, based on the evidence dated since service, the record indicated that the Veteran did not have a chronic disorder for many years following service. The Veteran did not appeal the February 1995 rating decision. As such, that decision is now final based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In July 2004, the Veteran sought to reopen service connection for a right ankle disability. In a December 2004 rating decision, the RO determined that new and material evidence had not been submitted to reopen the claim. This denial was based on the absence of evidence of record of a current right ankle disability. The Veteran appealed the December 2004 decision to the Board. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Where a service connection claim has been finally decided, VA, before addressing that claim anew, must first determine whether new and material evidence has been submitted to reopen that claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). If new and material evidence is presented or secured with respect to a final decision, the Secretary shall reopen and review the former disposition of that claim. 38 U.S.C.A. § 5108. The requirement of submitting new and material evidence to reopen a claim is a material legal issue that the Board is required to address on appeal regardless of the RO's determination. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). VA regulations define "new" evidence as existing evidence not previously submitted to agency decision makers. "Material" evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence cannot be cumulative or redundant and must raise a reasonable possibility of substantiating the claim. Id. If new and material evidence is received prior to the expiration of the appeal period following a particular rating decision, it 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). The relevant evidence of record considered by the RO in its final February 1995 rating decision consisted of the Veteran's lay statements attesting to an in-service injury to the right lower extremity, and of VA and private medical evidence which noted complaints of generalized joint pain, but which was negative for a specific disorder in the right ankle. Moreover, the earliest medical evidence pertaining to orthopedic disability in the right lower extremity was dated in the mid 1980s, over 20 years following discharge from service. Again, the RO denied the Veteran's claim in February 1995, and the decision became final. It is therefore not subject to revision upon the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. The evidence that must be considered in determining whether there is a basis for reopening the Veteran's claim is relevant evidence that has been added to the record in conjunction with the Veteran's July 2004 claim to reopen service connection. The relevant evidence that has been added to the record consists of: additional lay statements from the Veteran, and from his friends, colleagues, and relatives, which attest to the in-service injury and post-service disability; VA and private treatment records which indicate complaints of limitation and pain in the right ankle, and indicate neurological disability in the right lower extremity; a March 2000 letter from the Veteran's private physician who stated that the "right leg pain is a continuation of his service related injury[;]"a February 2003 sworn affidavit from a private physician who indicated treatment for the Veteran "during the years 1963-1964 for an injury to his right leg[;]" and the VA examination reports dated in August 2006, June 2009, and March 2012, which indicate radicular and neuropathic disability in the lower right extremity, but which do not indicate an orthopedic disorder in the right ankle. This evidence is certainly new evidence in the claims file. It has been included in the claims file since the February 1995 final rating decision. The Board also finds certain of this new evidence to be material evidence. In particular, the Board finds the private and VA medical evidence indicating current neurological disability in the lower right leg material, and finds the two opinions from private physicians, which generally indicate right leg disorders related to service, to be material. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of the evidence in question must be presumed). Thus, assuming its credibility for the purpose of this analysis, the Board finds that the new evidence tends to prove previously unestablished facts necessary to substantiate the underlying claim of service connection for a right ankle disorder. The new evidence indicates a possible disorder in the right ankle region that is due to an in-service injury. Consequently, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim of entitlement to service connection for a right ankle disorder is reopened. III. The Merits of the Claims to Service Connection As previously discussed, the Veteran claims service connection for a right ankle disorder. He also claims service connection for right hip, leg, thigh, and knee disorders, and for a lower back disorder which involves radicular symptoms into the Veteran's right leg. He maintains that he incurred these disorders during service, as the result of a fall that injured the lower right side of his body. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disorders such as arthritis will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. In Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) found that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant 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). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). Generally, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). With regard to the question of current disability, the evidence of record demonstrates that the Veteran has several disorders in the right lower extremity, and in his lower back. A February 1993 private treatment record indicated degenerative joint disease "of hip" (without specifying which hip). A January 1994 VA compensation examination report noted degenerative joint disease in the Veteran's right knee and lumbar spine, and noted peripheral neuropathy in the "feet and legs." In the March 2000 letter from the Veteran's private physician, degenerative joint disease of the lumbar spine is noted. A June 2000 VA compensation examination report noted normal x-rays of the right hip, right knee, and right ankle, but noted degenerative changes in the lumbar spine. A June 2000 EMG of the Veteran's right leg indicates "electrical evidence of a mild peripheral neuropathy[.]" An August 2004 letter from the Veteran's private physician noted the Veteran's right hip pain, but indicated MRI evidence indicating a normal right hip. The report did indicate degenerative changes in the lumbar spine. The August 2006 VA examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine, and noted neurological pain that migrated from the lower spine through the right hip and into the right leg. Moreover, in a June 2006 report, the Veteran's chiropractor notes degenerative disease in the lumbar spine with "radiculitis to the hip." Private treatment records dated in 2007 note the Veteran's "sciatica" into his right hip and lower right leg. An April 2007 letter from the Veteran's treating VA physician notes neuropathy in the right leg traveling from the lower spine through the right hip. The June 2009 VA examiner noted no right hip, right lower leg, or right ankle pathologies, but did note degenerative disc disease in the lumbar spine, radicular pain from that disorder, and degenerative joint disease in the right knee. This examiner also noted evidence of peripheral neuropathy and "distal edema" in the right lower extremity. Finally, the March 2012 VA examiner again noted the Veteran's back and knee disorders, and referred to the findings of such that were detailed in the June 2009 report. In sum, the Board finds the medical evidence of record sufficiently developed to conclude that the Veteran has a current lower back disorder, and current right hip, leg, thigh, knee, and ankle disorders. The Board recognizes that the evidence could be construed as showing the absence of current orthopedic disorders in his right hip, right thigh, and right ankle. This was the express conclusion of the June 2009 VA examiner, and the evidence of record dated prior to June 2009 tends to support his conclusion. The private and VA medical findings addressing the right hip, thigh, and ankle generally find the Veteran with a normal right hip, thigh, and ankle. Nevertheless, certain evidence does indicate neurological disability originating in the Veteran's lower spine that causes disability in the hip, thigh, and ankle. As such, for purposes of this analysis, the Board will apply the Veteran the benefit of the doubt, and find that the evidence demonstrates current hip, thigh, and ankle disorders as well as leg, knee, and back disorders. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. With regard to the question of whether the Veteran experienced an in-service injury, the Board initially notes some inconsistency regarding the way in which the Veteran claims to have been injured during service. In his earlier statements during the appeal period, the Veteran indicates an injury to his right leg. During the April 2007 DRO hearing, the Veteran described falling on a walkway during snowfall, and injuring his right ankle. During his hearing before the Board in February 2011, however, the Veteran indicated that he fell from a platform on to his right hip-lower back area. The Board also notes that the record contains no STRs supporting the Veteran's claim to having experienced an in-service injury. Nevertheless, the Board finds the record in equipoise on the question of whether an injury occurred during service. Despite the Veteran's inconsistency, and the lack of STRs for review, the Veteran's many lay statements, and those from relatives, colleagues, and friends, support the conclusion that he as likely as not experienced an injury during service. See O'Hare, supra. 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see 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). As the Veteran is competent to attest to symptoms such as pain and limitation he may have experienced as a result of the injury, his lay assertions are of probative value. Further, the supportive lay assertions from friends, family members, and colleagues, who describe the Veteran's demonstrated limitations due to injury, are of probative value for the same reason. The Veteran's symptoms, which he felt and others observed, are observable in nature. Moreover, a statement of record from a private physician supports the Veteran's assertion to an in-service injury. In the statement, which was sworn to in February 2003, the physician asserts that he treated the Veteran "during the years 1963-1964 for an injury to his right leg he sustained while serving in the U.S. Army." Furthermore, despite the Veteran's inconsistency regarding the way in which he was injured, the Board finds the Veteran credible on the ultimate question of whether he was injured during service. In his many statements of record dated from the early 1990s, he has been consistent in asserting that he was injured during service, and was treated for injury to the right side of his lower body. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). The Board finds the record sufficiently developed to conclude that an injury did in fact occur to the lower right side of his body, as he has asserted many times in the record. See Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility is determined by the fact finder). With reference to Hickson element (3), the ultimate question before the Board is whether the Veteran has a current disability that relates to service in general, and the injury noted above in particular. For the veteran to be successful in his claim, the evidence must show either that it is at least as likely as not that his claimed disabilities are related to a disease or injury that occurred in service, or that a neurological or degenerative disorder was shown in the first post-service year. If the preponderance of the evidence shows otherwise, the Veteran's claim must be denied. Though the Board finds the Veteran with the current disabilities he claims, and accepts as fact that he injured his lower right side in service, the preponderance of the evidence is against the assertion that the current problems relate to service, including the in-service injury in the early 1960s. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Indeed, the record demonstrates that the Veteran did not incur chronic orthopedic disorders during service, did not develop a degenerative or neurological disorder in his back, right hip, or right leg within one year of his June 1963 discharge from service, and did not experience a continuity of symptomatology of back, hip, or leg disorders in the years following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. The earliest medical evidence of record dated after the Veteran's service is a private treatment record dated in December 1979. The record notes the Veteran's complaints of "myalgia's." An October 1982 private record notes "tendinitis" without specifying where, while a September 1984 private record notes "intermittent joint pain, mainly shoulders, knees, hips." The record states, "[a]dvised this is not unusual but because of great weight gain over the last year this may be a part of that." The earliest medical evidence reflecting the diagnosis of a disorder addressed in this decision is found in a private record dated in February 1993, which indicated degenerative joint disease of a hip, and arthritis. The Board also notes the January 1994 VA report which indicated that the Veteran had degenerative joint disease in the right knee and the lumbar spine. Thus, the earliest post-service medical evidence of record, dated in December 1979, is over 16 years following the Veteran's June 1963 separation from service. And the earliest post-service medical evidence of record reflecting diagnosis of a disorder at issue in this decision is dated in February 1993, over 29 years following service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). Although the Veteran's private physician indicated in February 2003 that he treated the Veteran soon after service in 1963 and 1964 for the right leg injury, this evidence provides no indication as to the exact nature of the disability treated other than its location, no indication that it was neurological or degenerative in nature, and no indication that the injury treated is related to the Veteran's current disability of the back and right leg. Moreover, when compared with the other evidence of record, including the paucity of evidence of treatment for the back or right leg between 1964 and 1993, the Board is left with no other conclusion but that the Veteran's injury did not cause a chronic disorder that continued in the years following service to the present day. The record indicates treatment during service and soon afterward, but indicates that any injury to the lower right side of the body had resolved. 38 C.F.R. §§ 3.303, 3.307, 3.309. In assessing the issue of medical nexus between current disorders and service, the Board has reviewed six separate opinions of record. Three of the opinions tend to favor the Veteran's claims, while three of the opinions tend to counter his claims. For the reasons discussed below, the Board finds the three opinions countering the Veteran's claim to medical nexus to be of more probative value than the three supportive opinions. The first of the negative opinions is found in the August 2006 VA report. That examiner found the Veteran's disorders unrelated to active service. The examiner noted the lack of documentary evidence showing an in-service injury. But the examiner also explained that the opinion was not based on the absence of evidence of an in-service injury. Rather, the examiner based the negative opinion on the nature of the Veteran's diagnosed disorders - "generalized osteoarthritis and degenerative disc disease of his spine." The examiner stated that such changes are "commonly associated with aging and not with trauma." Further, the examiner stated that the Veteran was "morbidly obese with a morbid, rotund, protruding abdomen." The examiner found the obesity "a dramatic influencer" of the back disability. The examiner found "absolutely no indication that he has any increased degeneration of his spine, hip, or knee that would indicate that he had sustained an injury in the military that would have produced the current degenerative changes that he has today." In closing the opinion, the examiner attributed the current medical problems to age-induced osteoarthritis and obesity, and not "to any injury that he might have sustained while he was in the military service." The second negative opinion is found in the June 2009 VA report. That examiner reviewed the evidence of record addressing the Veteran's back and lower right extremity problems, and stated that "there is no evidence of a chronic lower leg condition, which started in service." The examiner acknowledged some type of lower leg minor injury in service, but stated that the injury "resolved over a short period of time and never had any further problems." The examiner attributed the Veteran's problems to his general medical and psychological problems and to his "morbid obesity." The third negative opinion is found in the March 2012 VA report, in which the VA examiner who conducted the June 2009 examination reiterated his opinion that the Veteran's back and knee disorders were not related to service. In this particular report, a review of the claims file is indicated, moreover. With regard to the favorable opinions, the first is found in the March 2000 letter from the Veteran's private treating physician who noted the Veteran's lumbar degenerative joint disease, and stated that the Veteran's "right leg pain is a continuation of his service related injury." The second supportive opinion is found in an April 2007 letter from the Veteran's treating chiropractor, who stated that "disc degeneration disease with foraminal encroachment on the lumbar spine, right hip and knee pain are as likely as not ... related to a reported fall" in the military. The third opinion that tends be supportive of the Veteran's claims is found in an April 2007 letter from the Veteran's treating VA physician who stated that "it is possible" that the in-service injury "may have caused or contributed to ... neuropathy in the right leg[.]" The Board has closely considered these supportive opinions. But the Board finds each of them to be of limited probative value. None of the examiners indicates a review of the claims file, or supports their opinion with a rationale. Moreover, none of these opinions reflects the objective evidence of record, which simply does not support the private opinions. As indicated, the record shows no treatment for chronic back, hip, or leg disorders for many years following service. The Board finds it a significant weakness that none of the supportive opinions addresses the many years after service during which time the Veteran apparently received no treatment for diagnosed back, hip, or leg disorders. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Finally, the comments of the April 2007 VA physician are particularly of limited probative value. The physician merely indicated that it was possible that service related to current problems. The examiner did not address the question of probability. As such, the statements cannot be construed as evidence favoring the Veteran's claim to medical nexus. On the issue of medical nexus, the Board has closely considered the lay statements in the record, from the Veteran and from his colleagues, family, and friends. As indicated, the Board has found the Veteran both competent and credible in the way in which he describes his in-service injury and the symptoms he experienced following the injury. Moreover, the other lay statements have probative value on the question of whether the Veteran injured his lower right side during service. However, on the question of whether the in-service injury resulted in a chronic degenerative or neurological disability, the Board finds the lay evidence to be of limited probative value. The orthopedic and neurological disabilities at issue involve internal pathologies that are beyond the capacity for lay observation. Their etiologies and their development cannot be determined through observation or by sensation such as feeling. The lay witnesses in this matter are simply not competent to render a medical opinion regarding the way in which these disorders developed. They do not have the training and expertise to provide medical evidence connecting service to the symptoms, or connecting the symptoms to the disorders at issue. Neither the Veteran, nor the other lay witnesses, can provide evidence that states that what the Veteran felt in the lower right side of his body during service, or has felt since service, resulted in degenerative or neurological changes. On these essentially medical questions, the medical evidence is of more probative value. And the more probative of the medical evidence clearly indicates no relationship between the Veteran's service and the neurological and degenerative changes in his back, hip, and lower right extremity, including his right thigh, right knee and right ankle. In sum, the record indicates that the Veteran injured the lower right side of his body at some time during his service in the early 1960s, and further indicates that he currently has disorders in his lower back, through his right hip, into his right lower extremity. However, the preponderance of the evidence of record demonstrates that the current problems in the lower back, right hip, right ankle, right thigh, right knee, and right leg are unrelated to service, including the injury to the right side of his body incurred therein. As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER New and material evidence having been received, the claim for service connection for a right ankle disorder is reopened; to this extent, the appeal is allowed. Entitlement to service connection for a right ankle disorder is denied. Entitlement to service connection for a right leg disorder is denied. Entitlement to service connection for a right thigh disorder is denied. Entitlement to service connection for a right knee disorder is denied. ' Entitlement to service connection for a right hip disorder is denied. Entitlement to service connection for a lower back disorder is denied. REMAND In a January 2008 rating decision, the RO denied service connection for left ear hearing loss disability. The Veteran did not appeal the decision. The Veteran later filed a claim to reopen service connection for left ear hearing loss disability, which the RO denied in November 2011. In July 2012, the Veteran filed a notice of disagreement against that decision. The Veteran should be provided a Statement of the Case in response. 38 C.F.R. § 19.26; Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should issue a SOC on the issue of reopening service connection for left ear hearing loss. The Veteran should be given an opportunity to respond. 2. Should the Veteran respond by submitting a timely substantive appeal, the RO/AMC should return the issue regarding a reopening of service connection for left ear hearing loss to the Board for further review. The Veteran 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs