Citation Nr: 1311147 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 10-46 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a skin condition, to include acne vulgaris, upper thorax. 2. Entitlement to service connection for phimosis. 3. Entitlement to service connection for earaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from October 1951 to July 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in San Juan, Puerto Rico. The issue of entitlement to service connection for hearing loss has been raised by the record. The issue has not yet been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issue and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A May 1982 rating decision denied the Veteran's request for entitlement to service connection for a skin condition. The Veteran was notified of his appellate rights, but did not timely appeal the decision. 2. The evidence associated with the claims file subsequent to the May 1982 denial does not relate to an unestablished fact necessary to substantiate the claim for service connection for a skin condition, to include acne vulgaris, upper thorax, and does not raise a reasonable possibility of substantiating the claim. 3. The competent and credible evidence fails to demonstrate that the Veteran has phimosis that is related to his active duty service. 4. The competent and credible evidence fails to demonstrate that the Veteran has earaches that are related to his active duty service. CONCLUSIONS OF LAW 1. The May 1982 rating decision is final. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. The evidence received since the May 1982 rating decision is not new and material, and the requirements to reopen the Veteran's claim of entitlement to service connection for a skin condition, to include acne vulgaris, upper thorax, have not been met. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (2012). 3. Phimosis was not incurred during the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012). 4. Earaches were not incurred during the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2012); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letter dated in November 2009 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, this letter advised the Veteran what information and evidence was needed to substantiate the claim decided herein. This letter also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The November 2009 letter provided this notice to the Veteran. With respect to the Veteran's request to reopen previously disallowed claims, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation, however, does not modify the requirements discussed above. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In other words, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his or her entitlement to the underlying claim for the benefit sought. The Board notes that this information was provided in the November 2009 letter. The Board observes that the November 2009 letter was sent to the Veteran prior to the January 2010 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this regard, the notice provided in these letters complied with the requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b) (2012), Kent, supra., and Dingess, supra. Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2012). In this regard, the Veteran's service treatment records, VA treatment records, and private treatment records are associated with the claims folder. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, or persistent or recurrent symptoms of disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a review of the record, the Board finds that an examination is not necessary with regard to the claims for entitlement to service connection for acne vulgaris, upper thorax, phimosis, and earaches. With regard to the claim for a skin condition, to include acne vulgaris, upper thorax, there is no duty to provide an examination until after a claim has been reopened. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened). See also Woehlaert v. Nicholson, 21 Vet. App. 456 (holding that adequacy of VA medical examination mooted upon Board's determination that claimant not entitled to reopening of claim, and conduct of VA medical examination, when claimant had not presented new and material evidence.). With regard to the other two claims of phimosis and earaches, after a review of the record, the Board finds that examinations are not necessary. With regard to phimosis, while there is evidence of a diagnosis in service current diagnosis, there is no evidence of a current diagnosis and as will be further explained no evidence of aggravation during service. With regard to the claim for earaches, there is no current diagnosis or evidence of an in-service event, injury, or disease that can be associated with the claimed disability. As such, the Board finds that the Veteran has not satisfied all elements of McLendon. Therefore, VA is not required to provide the Veteran with VA examinations in conjunction with these claims. Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis I. New and Material-Acne Vulgaris, Upper Thorax The Board notes that the Veteran's current claim for entitlement to service connection for a skin condition, to include acne vulgaris, upper thorax is based upon the same factual basis as his original claim of entitlement to service connection for a skin disorder, which was denied, initially, in a May 1982 RO decision. As such, it is appropriate for the Board to consider this claim as a request to reopen the previously denied claim. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). The Board notes that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). As a general matter, service connection for a disability on the basis of the merits of such a claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Generally, an unappealed RO denial is final under 38 U.S.C.A. § 7105 (West 2002). However, the Veteran may request that VA reopen his claim upon the receipt of "new and material" evidence. 38 U.S.C.A. § 5108 (West 2002). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. Id. See also Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). According to 38 C.F.R. § 3.156(a) (2012), "new and material" evidence means existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. At the time of the prior final denial in this matter, as issued in a May 1982 RO rating decision, the relevant evidence under consideration consisted of the Veteran's service treatment records from November 1950 to July 1953 and a May 1982 VA examination that addressed an allergic reaction to medication noted on the skin. The Veteran did not appeal this decision, and the May 1982 rating decision became final. 38 U.S.C.A. § 7105(c) (West 2007); 38 C.F.R. § 20.1103 (2012). The May 1982 rating decision indicated that the basis for the RO's denial of the claim for service connection for a skin disorder was that while there was evidence that the Veteran had acne on his face and chest at entry and he was treated for acne vulgaris and allergic dermatitis in service, the VA examination showed no skin lesion. Essentially the claim was denied for lack of a current diagnosis at the time of the May 1982 rating decision. In October 2009, the Veteran filed to reopen his claim for entitlement to service connection for acne vulgaris, upper thorax. A January 2010 RO rating decision denied the Veteran's claim because there was no evidence of a permanent worsening of the Veteran's pre-existing condition due to aggravation from active duty service. The Veteran was again notified of his appellate rights, and perfected an appeal of this issue. Pertinent new evidence received prior to and since the January 2010 rating decision includes the evidence previously of record as well as statements by the Veteran and a July 2010 VA treatment record which notes an absence of any skin lesion. The Board has carefully reviewed the newly submitted evidence. And while such evidence is considered new, it is not material. More specifically, it does not relate to an unestablished fact necessary to substantiate the Veteran's claims of entitlement to service connection for any skin disorder. In this regard the Board notes that neither the Veteran's statements nor the July 2010 VA treatment record address any current diagnosis of a skin disorder. While the Board further acknowledges that the Veteran sent in copies of his service treatment records to reiterate that he suffered from a skin condition, specifically acne vulgaris, while in service, the issue was not initially denied because of a lack of in-service incurrence, but rather a lack of a current disability. The Board acknowledges that new medical evidence was obtained in regards to the Veteran's claim for a skin disorder. The Board finds that this evidence is new as it has not been previously considered. However, as noted above, the evidence, while new, is not material. In this regard the Board notes that in order to be material, any new evidence produced with regard to the claim for a skin disorder would have to demonstrate that the Veteran has a current diagnosis of a skin disorder. As the new evidence produced fails to demonstrate a current diagnosis with regard to the Veteran's claimed skin disorder, the Board finds that the new evidence provided by the Veteran does not meet the above requirement and therefore cannot be considered material. In light of the above, the Board finds that the evidence obtained in conjunction with the Veteran's request to reopen his previously disallowed claim, while new, is not material. In this regard, none of the evidence associated with the record since the May 1982 RO decision demonstrates that the Veteran's lung disorder is etiologically related to his active duty service. Since none of this newly submitted evidence pertains to the reasons for the prior denial nor raises the reasonable possibility of substantiating the Veteran's underlying claim, his request to reopen the previously disallowed claim of entitlement to service connection for a skin condition, to include acne vulgaris, upper thorax, is denied. 38 C.F.R. § 3.156(a). II. Service Connection for Phimosis The Veteran contends that he has phimosis that was aggravated by his active duty service. As previously noted, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). As a general matter, service connection for a disability on the basis of the merits of such a claim requires (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled in service, except for defects, diseases, or infirmities noted at the time of entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. § 1111 (West 2002). According to 38 C.F.R. § 3.304(b) (2012), the term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began. See 38 C.F.R. § 3.304(b)(1) (2012). Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to ... manifestations, clinical course, and character of the particular injury or disease or residuals thereof." Id. Furthermore, a preexisting disease will be presumed to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b) (2012); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The law further provides that the burden to show no aggravation of a preexisting disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, the VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a preexisting disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The Board must follow the precedent opinions of the General Counsel. 38 U.S.C.A. § 7104(c). Also pertinent is the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), issued on June 1, 2004, which summarized the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability. In this regard Wagner stated when no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition." 38 U.S.C.A. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. See Wagner, 370 F. 3d at 1096. On the other hand, if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. In this instance, the Veteran's November 1950 pre-induction examination and September 1951 induction examination noted that he had mild phimosis and obstruction and difficulty with urination. There is no evidence that the Veteran received any treatment with regard to his phimosis during his active duty service, although his July 1953 exit examination again noted phimosis with difficulty with urination. The Board notes that the July 1953 exit examination further noted that the Veteran's phimosis was congenital. As phimosis is noted on the Veteran's September 1951 induction examination, the Veteran is not presumed sound upon entry. Additionally, the Board notes that phimosis may be the result of a congenital or developmental defect, which are not considered diseases or injuries for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2009); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996) (stating that congenital or developmental defects are not diseases or injuries within the meaning of VA law and regulation). As such, a congenital or developmental defect generally may not be service-connected as a matter of law; however, service connection may be granted if such a defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996); Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004). The presumption of soundness does not apply when a condition is a congenital or developmental defect, as service connection cannot be granted for such disorder. See Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993) (noting the difference between defect and disease and further noting that service connection may be granted if the congenital or developmental condition is a disease). VA's General Counsel has also held that familial or inherited diseases are not excluded from service connection. VAOPGCPREC 67-90 (Sept. 27, 1988), VAOPGCPREC 82-90 (July 18, 1990). A disease, which is defined as a condition capable of improving or deteriorating, is service-connectable if pathology first manifests in service or the disease progresses at a greater than normal rate during active service. Id. According to VAOPGCPREC 82-90, "disease" has been broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, "defect" has been defined as structural or inherent abnormalities or conditions which are more or less stationary in nature. Generally, a "disease" is considered to be a condition capable of improving or deteriorating, while a "defect" is not considered to be a condition capable of improving or deteriorating. Id. In this instance, it is not clear whether phimosis is a congenital defect or disease, however, as will be further explained below, as there is no evidence of aggravation, the issue is moot. As the Veteran's phimosis is considered, in this instance, to have a preexisted his active duty service. The Board notes that the Veteran cannot bring a claim for direct service connection for that pre-existing disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. As the presumption of aggravation does not apply, the burden falls on the Veteran to establish aggravation. See 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir. 1994). The Board notes that aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b) (2012); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). In this regard, the Board notes that the Veteran made no complaints and received no treatment for his phimosis while in service. The Veteran's service treatment records are silent for any treatment for phimosis. As such, there is no medical evidence that the Veteran's phimosis was aggravated during active duty service. Moreover, as previously stated, the burden falls on the Veteran to establish aggravation, which the Veteran has failed to do. In this regard the Board notes that the Veteran has failed to provide any evidence with regard to an increase in severity of his phimosis during his active duty service. See 38 U.S.C.A. § 1153. As such, the Veteran failed to meet the burden under 38 U.S.C.A. § 1153, to show aggravation and the presumption of aggravation does not apply in this instance. See 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir. 1994). The Board notes that laypersons are generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). As a lay person, the Veteran is not competent to provide evidence as to complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board again notes that the Veteran failed to provide any evidence of an increase in severity of his phimosis during service, but notwithstanding, his opinion is not competent with regard to whether his phimosis increased in severity during active duty service. Therefore, given the lack of evidence of any in-service treatment or complaint regarding phimosis as well as the lack of evidence produced by the Veteran to show an increase in severity during active duty service, the Board finds that the Veteran failed to meet the burden under 38 U.S.C.A. § 1153 to demonstrate that his preexisting phimosis was aggravated by his active duty service. As such, there is no clear and unmistakable evidence that the Veteran's preexisting phimosis was aggravated during active duty service and the Veteran's claim of service connection for phimosis must be denied. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. Service Connection for Earaches As previously noted, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). As a general matter, service connection for a disability on the basis of the merits of such a claim requires (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Court has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. See Clyburn v. West, 12 Vet. App. 296 (1999). Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes 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. In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a Veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). The Veteran contends that he has earaches that are related to his active duty service. The evidence demonstrates that a complaint of earaches was made during service, however the Veteran does not have a current diagnosis of any ear condition, aside from hearing loss, which is not currently on appeal. With regard to in-service complaints of earaches, the Board notes that neither the November 1950 pre-induction examination nor the September 1951 induction examination note any complaints regarding the Veteran's ears; indeed both indicated a normal clinical evaluation. There are no complaints of ear problems or evidence of treatment sought noted in any of the service treatment records. The Board observes, however, that the Veteran noted having running ears on his July 1953 report of medical history and the accompanying July 1953 report of medical examination noted that the Veteran did have occasional earaches. Post-service treatment records indicated that the Veteran was afforded an ear, nose, and throat VA examination in conjunction with his claim for entitlement to bilateral hearing loss which was denied in the May 1982 rating decision. The February 1982 VA examination did not provide a diagnosis of any ear condition other than bilateral sensorineural hearing loss. Another audiology assessment was provided in August 2010 which indicated again that the while the Veteran had bilateral sensorineural hearing loss, the examination of the ears showed adequate middle ear pressure, adequate ear canal volume, and adequate tympanic mobility, bilaterally. As such the Board notes that the medical evidence of record fails to demonstrate that the Veteran has a current diagnosis of earaches or any other ear condition other then bilateral sensorineural hearing loss. The Board notes, as previously stated, 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. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); 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). In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this regard, there is no reason to doubt the competency or credibility of the Veteran's statements that he had earaches; the Veteran can attest to pain in his ear. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, determining a diagnosis of an ear condition, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board notes that the Veteran lacks the medical expertise necessary to determine the diagnosis of an ear disorder. Thus, although the statements of the Veteran offered in support of his claim have been given full consideration by the Board, the Veteran's statements are afforded no probative value with respect to the medical question of whether he has an ear condition that are related to any earaches he had in service. As such the Board finds that the Veteran does not have a current disability. To prevail on the issue of service connection, there must be medical evidence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability). Therefore, having reviewed the Veteran's VA treatment records, including the August 2010 audiology assessment, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for earaches. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER New and material evidence not having been received, the claim of entitlement to service connection for a skin disorder, to include acne vulgaris, upper thorax, is denied. Service connection for phimosis is denied. Service connection for earaches is denied. ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs