Citation Nr: 1306905 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 07-18 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hip disorder. 2. Entitlement to service connection for a skin disorder of the feet, claimed as tinea pedis (athlete's feet). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1967. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in part, denied service connection for a bilateral hip disorder and for bilateral athlete's foot, so tinea pedis. In August 2010 the Veteran had a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing) concerning these claims and others that he also had appeal to the Board. The Board subsequently, in February 2011, issued a decision denying the other claims he also had appealed - for service connection for a low back disorder, left knee disorder, and left ankle disorder. However, the Board instead remanded these two remaining claims, for his bilateral hip and skin disorders, to the RO via the Appeals Management Center (AMC) for further development and consideration. His electronic ("Virtual VA") file has been reviewed as part of this appeal, that is, in addition to the evidence in his physical claims file. Instead of paper, now more than ever the Virtual VA paperless claims processing system is being utilized. It is a highly secured electronic repository used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. In this Virtual VA e-file, the Board sees that it contains recent VA treatment records that have not been reviewed or considered by the RO. But the Veteran has waived his right to have the RO initially consider this additional evidence, preferring instead to have the Board consider it in the first instance. See 38 C.F.R. § 20.1304(c) (2012) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the appellant). Nevertheless, any future consideration of his claim or claims should take into consideration the existence of this electronic record. Unfortunately, the claim of entitlement to service connection for a bilateral hip disorder requires even more development before being decided on appeal, so the Board regrettably is again remaining this claim to the RO via the AMC in Washington, DC. Whereas the Board is going ahead and deciding the claim for service connection for tinea pedis. FINDING OF FACT The Veteran's tinea pedis is unrelated to his military service, and it is not shown that he has experienced this or any other skin disorder affecting his feet on a continual or repeated basis since his service. CONCLUSION OF LAW A chronic skin disorder involving his feet, including especially tines pedis, was not incurred in or aggravated by his military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to the initial adjudication of the Veteran's claims, a letter dated in August 2005 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claims; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided prior to the initial adjudication of the Veteran's claim did not address either the rating criteria or effective date provisions that are pertinent to the claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. B. Duty to Assist The Veteran's service treatment records, VA treatment records, private treatment records, hearing transcript, and lay statements have been associated with the claims file. In addition, the Veteran was afforded VA examinations with respect to his claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Notably, the Board remanded this claim in February 2011 to allow the Veteran to undergo a VA examination for his skin condition when it was in an active phase. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). An additional examination was conducted in March 2011, and the Veteran's condition was active and documented. Therefore, the VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide an opinion as to the etiology of the Veteran's tinea pedis. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection A. Applicable Law In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 3.303(a), 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease 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) (2012). So, put another way, 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 his 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 in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). 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. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Savage v. Gober, 10 Vet. App. 494-97 (1997); 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. But in another decision since issued, Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011), the Federal Circuit Court held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). The claim involved was one for hearing loss and the appellant was arguing that the lower U. S. Court of Appeals for Veterans Claims (Court/CAVC) had failed to apply § 3.303(b) to the lay testimony that the Veteran had had hearing loss since his service in 1945. However, the Federal Circuit Court held that continuity of symptomatology simply was not applicable because § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). The Federal Circuit Court explicitly rejected the appellant's argument that a dictionary definition of "chronic" should be used instead. The key holding is: We thus reject Walker's broader argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases. Suggestions or holdings to the contrary in any decisions of the Veterans Court, and dictum to the contrary in our precedent, are incorrect and of no effect. (emphasis added). By way of background, VA's Office of General Counsel, Professional Staff Group II (PSG II), initially had argued that continuity of symptomatology had been properly considered by the RO and the Board. However, the Federal Circuit Court, sua sponte, ordered supplemental briefing on whether § 3.303(b) applied to any conditions that were not recognized as "chronic" under § 3.309(a). In its supplemental briefing, PSG II reviewed the regulatory history of the provision back to Roosevelt's Executive Orders under the Economy Act of 1933 and argued that Savage v. Gober, 10 Vet. App. 488, 498 (1997) was wrongly decided. The Federal Circuit Court apparently agreed. In any event, the evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard 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). Conversely, laypersons equally have been found not competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (concerning a form of cancer); 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 the Secretary's duty to seek a medical opinion on the issue). 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). So 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 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 v. Brown, 6 Vet. App. 465, 469 (1994). 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 [for them], are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, however, the Board must additionally determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). Indeed, even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive and, thus, not ultimately probative. Buchanan, Rucker, and Layno. The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases. Buchanan at 1337. The lack of contemporaneous medical evidence is also relevant; however, as mentioned the mere lack of such evidence generally may not constitute the sole basis for discrediting the lay evidence. Id. So after determining the competency and credibility of evidence, the Board must then weigh its probative value in relation to the other relevant evidence. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In rendering a decision on appeal, the Board must analyze the credibility and 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) (West 2002). Moreover, the 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, 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Evidence The Veteran underwent an enlistment examination in August 1963. No relevant abnormalities were noted. In September 1963, the Veteran was treated for bilateral athlete's foot. However, there were no further complaints or diagnoses of a skin condition of the feet in service. The Veteran underwent a separation examination in August 1967. Again, no relevant abnormalities were noted. An additional examination in September 1971 was also normal. VA treatment records from February 2005 specifically noted that no skin abnormalities were present. The Veteran underwent a VA examination in October 2005. He reported having athlete's foot since 1963, and that symptoms occurred up to twice per month, with each episode lasting about a day. He reported 9 such episodes within the past year. He treated his condition with topical medication. On examination, there were no signs of skin disease present, and the examiner ultimately did not diagnose a skin condition. The Veteran testified at a Travel Board hearing in August 2010. He stated that he first experienced athlete's foot in service. He was treated with a topical cream which he continued to use throughout service. He nonetheless continued to experienced problems with athlete's foot ever since his separation. An additional VA examination was conducted in March 2011. The Veteran reported intermittent episodes of athlete's foot that he treated with over-the-counter topical medication. On examination, there was superficial scaling in a moccasin-type distribution on the bilateral feet. The examiner diagnosed tinea pedis. He also noted the Veteran's treatment for athlete's foot in September 1963. However, he concluded that this was an acute episode and not a chronic condition. Aside from the September 1963 complaint, there are no further entries in the service treatment records referencing athlete's foot. A September 1964 examination noted some depigmentation on the Veteran's upper body, and the examiner concluded that a skin examination was conducted. However, there was no reference to athlete's foot. The Veteran's discharge examination was also negative for comments indicating a chronic athlete's foot condition. Similarly, the Veteran's private and VA treatment records contain no references to his condition, and the October 2005 examination found that no athlete's foot condition was present. Therefore, the current condition was less likely than not attributable to military service. C. Analysis Based on the evidence of record, the Board finds that service connection for a skin disorder of the feet is not warranted. Although the Veteran is currently diagnosed with tinea pedis, the overall weight of the evidence is against a finding that this condition is related to his military service or that it incepted during his service. The March 2011 VA examiner concluded this condition was less likely than not related to the Veteran's military service. This opinion was based on a review of the claims file, a history provided by the Veteran, and a physical examination. There is no other competent medical opinion to refute this conclusion or to otherwise suggest that current tinea pedis is related to service. The Veteran's own statements in support of his claim have also been considered. However, to the extent that he has attributed his current condition to his service, he has not demonstrated the necessary knowledge or expertise to opine on the etiology of tinea pedis. While he is competent to describe experiencing itching, such as between his toes, he is not also competent to ascribe this and other symptoms like this to a particular diagnosis such as tinea pedis, especially in relation to his military service as the purported source or cause of these symptoms and particularly when, as here, there is a medical opinion expressly concluding otherwise and discrediting this notion. Further, to the extent that the Veteran's lay statements are offered as evidence of continuity of symptomatology to establish the required nexus or linkage between his current disability and service by way of this other means, the Board realizes that lay evidence concerning continuity of symptoms after service is competent, regardless of the lack of contemporaneous medical evidence such as actual treatment records. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). But, as noted, in adjudicating claims, the Board must additionally assess the Veteran's credibility to in turn determine the ultimate probative value of his lay testimony concerning this. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Here, while the Board acknowledges that the Veteran is competent to provide evidence of his own experiences and symptoms related to tinea pedis, there are no documented complaints of such symptoms following the September 1963 episode in service. He underwent additional examinations subsequent to that episode, and no relevant abnormalities were noted during those examinations. In addition, his post-service VA and private treatment records reflect complaints of a variety of conditions. Therefore, he has a demonstrated a history of reporting symptoms and seeking treatment for them. However, these records are devoid of any references to complaints of athlete's foot, certainly not on a continual, persistent or recurring basis dating back to his service. These facts weigh heavily against the claim he now makes that he has had problems attributable to tinea pedis ever since his service. The Board is not holding that corroboration is required. Rather, the Board finds his assertions to be less credible than the negative contemporaneous records. The lack of evidence of treatment may bear on the credibility of the evidence of continuity, just cannot instead serve as the sole, exclusive or only basis or ground for concluding a Veteran has not experienced continuity of symptomatology since his service. The Board therefore, in the appropriate circumstance, 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). As such, the Board finds that the probative evidence is against the claim based on continuity of symptomatology. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for the pertinent chronic disability for many years after service, is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following the conclusion of his service for which there was no clinical documentation of the claimed disorder). For these reasons and bases, the preponderance of the evidence is against finding that he has a skin disorder of the feet, including especially tinea pedis, which is etiologically related to his active military service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102 regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant this claim. ORDER The claim of entitlement to service connection for a skin disorder of the feet, including especially tinea pedis, is denied. REMAND With respect to the Veteran's remaining claim of entitlement to service connection for a bilateral hip disorder, further evidentiary development is necessary in order to fully and fairly adjudicate this remaining claim. The Board previously remanded this claim in February 2011 to afford the Veteran a VA compensation examination for a medical opinion concerning the nature and etiology of his claimed bilateral hip disorder. An examination resultantly was provided later in February 2011. The examiner reviewed the claims file, obtained a history from the Veteran, and performed a physical examination. Based on his findings, he diagnosed degenerative joint disease of the hips, but concluded this condition was not related to the Veteran's military service. This conclusion was based, in part, on the fact that the Veteran was not treated for this condition until 2004, so not until long after is service had ended, and that a significant hip injury in service, so such as of the type alleged, would have required treatment many years prior to 2004. But as already explained, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the February 2011 opinion is inadequate. While the examiner's opinion is based on the fact that the Veteran was not treated until 2004, private treatment records show the Veteran was diagnosed with bilateral hip osteoarthritis as early as June 1999. A medical opinion based on an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Because these earlier findings were not discussed by the examiner, a supplemental opinion is necessary. Moreover, the examiner cannot rely exclusively on the absence of earlier treatment, rather than the experiencing of recurring symptoms, as reason alone for concluding the Veteran did not have actual hip disability until first treated. Rather, not receiving treatment only is just one factor, among others, in making this determination because, again, it is continuous symptoms, not treatment for them, that is the essence of continuity of symptomatology contemplated by 38 C.F.R. § 3.303(b). Accordingly, this remaining claim is REMANDED for the following additional development and consideration: 1. The claims file, including a copy of this remand, should be forwarded to the VA examiner that evaluated the Veteran in February 2011 for submission of a supplemental opinion addressing the likelihood (very likely, as likely as not, or unlikely) the Veteran's current bilateral hip disability is related or attributable to his military service or dates back to his service. In making this determination, the VA examiner must specifically address the findings from June 1999 showing a diagnosis of bilateral hip osteoarthritis, so well before in the prior opinion he says the Veteran was first treated in 2004. Also, while it is true the examiner can have expectation that the Veteran would have been treated earlier than shown, if he in fact sustained the type and extent of injury claimed during his military service, the mere fact that he was not cannot be the only or sole basis for concluding he therefore necessarily did not have any relevant disability during the many intervening years before being first treated. In other words, whether he was treated and just how often is a consideration or factor in determining whether there is a relationship or correlation between his current disability and service, just cannot be the only or sole basis, since not earlier treated, for concluding this is not the case. The term "as likely as not" means at least 50-percent probability. It does not however mean merely within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion such as causation or aggravation is so evenly divided that it is as medically sound to find in favor of that conclusion as to find against it. If, for whatever reason, the February 2011 VA examiner is unavailable to provide this further comment, then the claims file should be forwarded to someone else qualified to make this necessary determination. This new examiner should reference the February 2011 findings and opinion and address the preceding June 1999 findings. This additional examiner also may want to examine the Veteran personally, rather than just review this evidence in the file, so it is left to his/her discretion as to whether another examination is needed. 2. Then readjudicate this remaining claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs