Citation Nr: 1317968 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 04-12 581 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for a gastrointestinal disability, claimed as due to exposure to ionizing radiation, has been received. 2. Entitlement to service connection for a skin disability, to include as due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1947 to August 1951. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions issued in October 2002 and February 2003 by the RO. In October 2002, the RO declined to reopen a claim for service connection for skin rash. In February 2003, the RO declined to reopen a claim for gastrointestinal disability. The Veteran subsequently perfected a timely appeal and, in August 2007, he testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the claims file. In February 2008, the Board remanded the matters on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After accomplishing further action, the AMC denied the matters on appeal (as reflected in an August 2009 supplemental SOC (SSOC)) and returned them to the Board. In May 2010, the Board recharacterized the Veteran's petition to reopen his claim for service connection for a skin disability as a de novo claim for service connection and again and remanded the matters to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After accomplishing further action, the AMC continued to deny these matters (as reflected in an April 2012 SSOC), and returned them to the Board for further appellate consideration. The Board notes that, although the Veteran had also perfected a timely appeal as to a claim for service connection for posttraumatic stress disorder (PTSD) (which the Board had remanded in 2008 and 2010), the RO awarded service connection for PTSD during the pendency of the appeal. Specifically, the RO issued a November 2011 rating decision granting service connection, and later issued a corrective February 2012 rating action (as to effective date). As the award of service connection represents a full grant of the benefit sought with respect to PTSD, this issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Hence, the matters remaining on appeal are those limited to the matters set forth on the title page. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). As a final preliminary matter, and as noted in the May 2010 Remand, multiple issues have been referred to the RO for appropriate action: a claim for nonservice-connected pension benefits; claims for compensation benefits, pursuant to 38 U.S.C.A. § 1151, for additional stomach disability due to medication side effects (Propulsid and Cisapride) and for additional right eye disability due to cataract surgery; and a claim for service connection for a left eye cataract. Subsequent to the Board's May 2010 remand, the Veteran again raised the issue of entitlement to service connection for cataracts (bilateral), filed a claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), and raised a claim for compensation benefits pursuant to 38 U.S.C.A. § 1151 for additional stomach disability due to an iodine pill prescribed by VA in 1984. As these issues have not been adjudicated by the RO, the Board does not have jurisdiction over them, and they are, again, referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each matter herein decided have been accomplished. 2. In a July 2000 rating decision, the RO denied service connection for gastrointestinal disability, to include as due to exposure to ionizing radiation; although notified of the denial and of his appellate rights in a September 2000 letter, the Veteran did not initiate an appeal. 3. Evidence associated with the claims file since the July 2000 rating action does not include new evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for gastrointestinal disability, to include as due to radiation exposure, and raises a reasonable possibility of substantiating the claim. 4. Although the Veteran served near Operation SANDSTONE and thus may have been exposed to some ionizing radiation, he has not been diagnosed with a skin disorder recognized by VA as a radiogenic disease. 5. Although the Veteran was treated for various skin complaints in service, there is no credible evidence of continuity of skin problems since service (as alleged), and the only competent, probative opinion evidence to directly address the Veteran's assertion and whether there exists a medical nexus between any diagnosed skin disability and any incident of his service (to include any radiation exposure therein)w weighs against the claim. CONCLUSIONS OF LAW 1. All notification and development action needed to fairly adjudicate each matter herein decided has been accomplished. 2. The July 2000 rating in which the RO denied service connection for gastrointestinal disability, as due to exposure to ionizing radiation, is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 3. As pertinent evidence received since the July 2000 denial is not new and material, the criteria for reopening the claim for service connection for a gastrointestinal disability, to include as due to exposure to ionizing radiation, are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. The criteria for service connection for a skin disability, to include as due to exposure to ionizing radiation, are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specific to requests to reopen, a veteran must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a February 2008 post-rating letter notified the Veteran that new and material evidence was needed to reopen the claim for service connection for a gastrointestinal disability and the reason why that claim had been previously denied. The letter also notified him that, in order to be considered new and material, the evidence must pertain to the reason the claim was previously denied, must raise a reasonable possibility of substantiating the claim, and could not simply be repetitive or cumulative of the evidence of record at the time of the previous denial. The February 2008 letter also provided notice regarding what information and evidence was needed to satisfy the elements of claims for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The letter also specifically informed him to submit any evidence in his possession pertinent to the claims (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). As the RO explained the type of evidence needed to establish each element of a claim for service connection and explained what constitutes new and material evidence, the above-described notice meets Pelegrini, Dingess/Hartman, and Kent notice requirements. After issuance of that letter, and provision of opportunities for the Veteran to respond, the claims were readjudicated in supplemental SOCs dated in August 2009 and April 2012. Hence, the Veteran is not shown to be prejudiced by the timing of the above-referenced notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters decided herein. Pertinent evidence associated with the claims file consists of service, VA and private treatment records, records from the Social Security Administration (SSA), and the report of a March 2012 VA examination and a November 2012 specialist medical opinion. As the Veteran reported being treated at Balboa Naval Hospital in the 1950's, VA also made attempts to obtain records from this facility, but received negative responses; a formal finding as to the unavailability of these records was issued in April 2012 and the Veteran was informed of the status of those records in an April 2012 letter. Also of record and considered in connection with the appeal are the transcript of the August 2007 Board hearing and various written lay statements provided on behalf of the Veteran. The Board finds that no additional RO action to further develop the record in connection with either claim herein decided, prior to appellate consideration, is required. Specifically as regards the Veteran's August 2007 Board hearing, it is noted that the United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearing in this case, the undersigned Veterans Law Judge discussed whether new and material evidence had been submitted to reopen the claim for service connection for a gastrointestinal disability as well as the evidence necessary to substantiate claims for service connection. The Veterans Law Judge specifically inquired as to basis of the Veteran's contentions as to why service connection was warranted and advised that medical evidence supportive of his contention (that he experienced disabilities due to in-service exposure to radiation) would assist him in substantiating his claims. Accordingly, as the Bryant duties were thereby met, the hearing is legally sufficient. Specifically as regards evidence, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the paperless claims processing system reveals additional medical evidence that has been reviewed by the RO. Although the claims file reflects that some private treatment records may be outstanding, the Board remanded this appeal in May 2010, in part, to afford the Veteran additional opportunity to submit private medical evidence (or to complete authorization forms so VA could do so on his behalf). Subsequently, VA mailed the Veteran letters in August 2011 and February 2012 requesting that he either submit or identify additional evidence. Evidence from North Kansas City Hospital was added to the claims file, but the Veteran did not identify or submit evidence from any other sources. Further, in response to the April 2012 supplemental SOC, the Veteran mailed an April 2012 form to VA attesting that he did not have any additional evidence to submit. Under the circumstances, the Board finds that the RO has undertaken sufficient and appropriate action to attempt to assist the Veteran in obtaining additional evidence and that no further action in this regard is warranted. The Board further notes that this appeal was remanded in February 2008 and May 2010 for the RO to assist the Veteran with development of his appeal by providing him with additional notice (specific to Kent), obtaining additional evidence (to include from Balboa Naval Hospital), and having him undergo a VA examination for skin disorders. As noted above, Kent notice was provided, additional evidence was added to the claims file and appropriate attempts were undertaken to obtain records from Balboa Naval Hospital, and he was afforded a VA examination in March 2012 with a specialist's opinion added to the file in November 2012. All requested development was accomplished on remand, so there was substantial compliance with the prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation under Stegall v. West, 11 Vet. App. 268, 271 (1998) when the examiner made the ultimate determination required by the Board's remand). As mentioned, on remand, the Veteran was afforded a VA skin disorders examination in March 2012. The Board found the examiner's opinion required clarification and, in September 2012, requested a medical expert opinion. The Board finds that the VA examination report, along with the medical expert opinion issued in November 2012, are adequate to decide the issue of service connection for a skin disability, as the examination was predicated on interview with the Veteran, review of the record, and physical examination with diagnostic testing and the expert opinion reflects in-depth review of the claims file and detailed analysis of the evidence therein. The opinions proffered considered the pertinent evidence of record and provided complete rationales, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination has been met. See 38 C.F.R. § 3.159(c) (4). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of any of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc ., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Under the legal authority in effect in 2000 and currently, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Hilkert v. West, 11 Vet. App. 284, 289 (1998). First, if a veteran exposed to radiation during active duty later develops one of the diseases listed in 38 C.F.R. § 3.309(d)(2), a rebuttable presumption of service connection arises. See 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Second, service connection may be established if a radiation-exposed veteran develops a "radiogenic disease." See 38 C.F.R. § 3.311. Third, service connection may be established by competent evidence establishing the existence of a medical nexus between the claimed condition and exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). See also Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). The Veteran continues to assert that he has both gastrointestinal and skin disabilities as the result of exposure to ionizing radiation during his military service. The claims file reflects that he served on the U.S.S. Curtiss during Operation SANDSTONE, in which a series of three nuclear weapon tests were conducted on Eniwetok Atoll in 1948. According to a June 2006 dose assessment from the Defense Threat Reduction Agency, the Veteran may have had some limited exposure to ionizing radiation as a result of his service aboard the U.S.S. Curtiss. At the outset, the Board points out that no service treatment records, other that the Veteran's sick call log from the U.S.S. Curtiss, are associated with the record. In cases where records once in the hands of the Government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). However, the absence of service treatment records does not lower the threshold for an allowance of a claim. Rather, there is only a heightened duty of the Board to consider the applicability of the benefit of the doubt doctrine. In other words, the legal standard for proving a claim is not lowered, but the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46, 51 (1996). A. Request to Reopen In this case, the Veteran's claim for service connection for gastrointestinal disability was previously denied in a July 2000 rating decision. The RO issued a September 2000 letter notifying the Veteran of the rating decision and of his appellate rights (which were explained in an attached VA Form 4107, "Your Rights to Appeal our Decision"), but he did not initiate an appeal of the decision. Under 38 C.F.R. § 3.156(b), "new and material evidence" received prior to the expiration of the appeal period, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See Bond v. Shinseki, 659 F.3d 1362 (2011); 38 C.F.R. §§ 3.156(b), 20.201 (2012). Further, 38 C.F.R. § 3.156(c) provides that if, after issuing a decision, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1)(i). Here, no new and material evidence was received within one year of the issuance of the July 2000 decision and no additional relevant service records have been added to the claims file since that decision. As such, the July 2000 decision is final as to the evidence then of record, and it is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the veteran after expiration of the appellate period. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Veteran filed a petition to reopen his claim for service connection in November 2002. Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim is the RO's July 2000 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). At the time of the July 2000 rating decision, pertinent evidence of record included the Veteran's sick call log from the U.S.S. Curtiss, which is unremarkable for any treatment or complaints related to the Veteran's digestive system. However, the Veteran indicated on a June 1976 VA claims form that he had been treated for gastrointestinal symptoms at Balboa Naval Hospital in the 1950s. Private treatments note associated with the record prior to the July 2000 rating action reflect that the Veteran was assessed with gastritis in June 1971, abdominal pain in May 1973, stomachache in July 1981, peptic ulcer disease (PUD) and reflux in January 1982, ulcer and hernia in April 1983, PUD in July 1983, hernia in April 1987, ulcers and hernia in December 1991, and esophageal dysmotility and abdominal pain in February 2000. The February 2000 physician noted the Veteran reported a long history of abdominal discomfort. VA treatment notes reflect that that the Veteran sought VA care in January 1982 for complaints of a 27-year history of nausea and vomiting as well as blood in his stool. He informed the VA physician that he had experienced gastrointestinal problems shortly after his discharge from the Navy and ever since. The VA physician diagnosed PUD and esophagitis and treated the Veteran for a gastrointestinal bleed that was attributed to PUD. The Veteran was noted to have a hernia in April 1983 and received follow-up treatment. An April 1985 note reflects a diagnosis of acid peptic disease. In June 1985, a VA physician advised that a gastrointestinal assessment of the Veteran reflected antral gastritis and duodenitis as well as ulcer disease. He was treated for another bleed, again attributed to his upper gastrointestinal tract, in July 1985. The Veteran was treated for a flare of acute PUD in March 1987. He was assessed with stable PUD in February and August 1988 as well as September 1990 and April 1992, a VA physical evaluation form dated in May 1992 reflects "GI" (presumably gastrointestinal) problems, and he was noted to have ulcers "by history" in November 1992. A May 1992 report of a VA ionizing radiation examination notes the Veteran's abdominal and esophageal complaints, but notes no evidence of a relationship between those symptoms and any radiation exposure. Records of VA esophageal evaluations conducted by VA from January to March 1993 reflect diagnoses of reflux esophagitis, hiatal hernia, and a deformed duodenal bulb assessed as "suggestive" of PUD. In June and October 1998, the Veteran reported gastritis pain; a test for heliobactor pylori was negative. April and February 1999 treatment notes reflect follow up treatment for erosive esophagitis. VA treatment notes reveal a diagnosis of (gastroesophageal reflux disease) GERD in October 1994. Statements submitted in August 1994 by the Veteran and by a former employer of the Veteran reflect lay observations of his abdominal discomfort. In June 2000, a VA physician noted the Veteran's reported long history of GERD with erosive reflux esophagitis and hiatal hernia. As noted above, the available service records do not indicate that the Veteran experienced any gastrointestinal symptoms during service. Post-service treatment records reflect that the Veteran has reported experiencing gastrointestinal symptoms ever since being discharged from service, but reflect no medical evidence of any such problems until the 1970s. In the July 2000 decision, the RO denied the claim for service connection for gastrointestinal disability because the Veteran did not have a radiogenic disease or a gastrointestinal disability secondary to radiation exposure, nor was any gastrointestinal disability shown to have been incurred in or aggravated by his military service. The evidence received since the July 2000 RO rating decision includes VA and private treatment records as well as SSA records and additional lay statements. VA treatment records show continued treatment for, and diagnoses of (as confirmed by multiple esophagogastroduodenoscopies) GERD, esophageal erosion, hernias, ulcers, and PUD. These records also reflect the Veteran's continued assertions that he had experienced gastrointestinal symptoms for years, beginning after his discharge from the military. A private medical record, dated in September 1973, which was added to the record after the July 2000 denial, reflects an early work-up for gastrointestinal symptoms experienced after treatment for a fall from a ladder. The consultation report indicates that the Veteran reported that his prior medical history consisted solely of having been seen by a physician, whose name he could not remember, approximately six years prior for treatment of a back injury who assessed him as having a duodenal ulcer. Thereafter, Veteran denied experiencing any gastrointestinal symptoms, with the exception of hemorrhoids, until 1973. A December 2001 abdominal ultrasound performed by VA revealed a normal result other than a cyst on the inferior pole of the right kidney. A January 2002 private medical record shows that the Veteran was evaluated for possible radiation-associated damage, but none was found. The physician assessed GERD and provided follow-up treatment. In July 2002, the Veteran informed his VA care providers that his abdominal pain was worse following big meals. A March 2003 VA treatment note reflects an inquiry as to whether or not the Veteran's abdominal pain was psychogenic in nature. In November 2004, the Veteran's then girlfriend wrote that she had known him for approximately nine years and, over that time, had observed him in extreme distress due to gastrointestinal symptoms and abdominal pain. A contemporaneous letter from the Veteran's sister attests that he had complained about his stomach ever since being discharged from the military. A July 2005 VA treatment note reflects a new assessment of "probable Barrett's esophagus" after an esophagogastroduodenoscopy. Later treatment notes reveal that this diagnosis was not confirmed. In June 2006, the Defense Threat Reduction Agency (DTRA) provided a dose assessment indicating that the Veteran was likely exposed to a mean external gamma dose of 0.09 rem. A July 2006 medical opinion from the Undersecretary for Health states that there is a less than one percent chance that the Veteran would have experienced malignancy from the estimated dose of radiation. In a letter submitted to VA in 2008, the Veteran's then girlfriend again attested that she had observed him experiencing gastrointestinal symptoms throughout the time that she had known him. SSA records were also obtained by VA in 2008, but did not reflect any new evidence; these records consist of duplicates of private treatment records and VA treatment records already associated with the claims file. An October 2009 VA treatment note again reflects a VA physician's observation that the Veteran reported experiencing gastrointestinal disability ever since his military service. The Veteran wrote to VA in March 2010 and reported that he first experienced a gastrointestinal bleed, requiring hospital treatment, in 1974. In a March 2010 Informal Hearing Presentation, the Veteran's representative again references the Veteran's contention that he was first treated for gastrointestinal symptoms at Balboa Naval Hospital in the 1950s. In September 2010, the Veteran informed VA care providers that he belched a lot and had vomited strange things such as leeches and women's diaphragms. A June 2011 VA treatment note observes that an abdominal ultrasound was normal. The Veteran complained of bowel leakage and weight loss in August 2011, but VA care providers observed his weight had been steady over the last year despite a diagnosis of irritable bowel syndrome. Although some of the above described evidence is new, the Board finds that none of it satisfies the definition of new and material evidence under 38 C.F.R. § 3.156. The VA outpatient treatment records as well as the private treatment records are new in the sense that some of them were not of record at the time of the prior final denial, but the evidence is not material to the claims. The records document continued treatment for gastrointestinal symptoms and disabilities that had already been noted, but do not reflect any evidence of diagnosis of radiogenic gastrointestinal disability. Although the Veteran did receive a private work-up to evaluate the possibility of radiation-related disability, the work-up was negative. He also received new diagnoses - "probable," diagnosis of Barrett's esophagus and a diagnosis of irritable bowel syndrome - but the diagnosis of Barrett's esophagus was not confirmed and, more pertinently, neither diagnosis was ever linked to his in-service experiences. Significantly, none of these new medical records indicate, in any way, that the Veteran has any gastrointestinal disability that is etiologically related to his active duty service. In fact, the January 2002 private treatment note includes comment indicating that such is not the case, and a March 2003 VA treatment note indicates that his abdominal pain might be psychogenic in origin. Such evidence, which does not indicate in any way that the Veteran has a gastrointestinal condition that is service-connected, is not new and material. See Cox v. Brown, 5 Vet. App. 95, 99 (1993). Some of the records from Social Security are new as they were not of record at the time of the prior final denial. However, the evidence is not material as the records do not indicate, in any way, that the Veteran has a gastrointestinal condition that is etiologically linked to his service. See Cox, 5 Vet. App. at 99. As for the oral and written lay assertions of the Veteran, his family members, associates, and his representative that have been advanced in connection with the attempt to reopen the claim, the Board notes that they reiterate assertions previously made in connection with his claim for service connection. The Veteran's authorized representative specifically contended in the March 2010 Informal Hearing Presentation that additional lay evidence as to continuity of symptomatology warranted a reopening of the Veteran's claim, but the Board finds all such lay evidence repetitive and cumulative of the evidence already of record prior to the July 2000 rating decision. The Veteran has contended since 1976 that he experienced gastrointestinal problems during and after his active duty service; lay statements submitted both before and after the July 2000 rating action attest to his complaints of stomach and digestive issues since service. Thus, although some of the lay statements are new, they are cumulative of the evidence already of record. In any event, the Board points out that, as laypersons lack appropriate medical training and expertise, lay individuals are generally not competent to render a probative (i.e., persuasive) opinion on medical matters such as medical diagnosis and etiology of a complex medical disability (such as the one here at issue). See Bostain v. West, 11 Vet. App. 124, 127 (1998). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). Therefore, where, as here, resolution of the appeal turns on a medical matter that cannot be established by lay evidence, unsupported lay statements, alone, even if new, cannot serve as a predicate to reopen a previously disallowed claim. See Hickson v. West, 11 Vet. App. 374 (1998). Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for gastrointestinal disability are not met and the July 2000 RO denial of the claim remains final. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). B. Service Connection for Skin Disability The Veteran has claimed that he experiences skin disability as the result of in-service exposure to radiation. He also has contended that he has experienced skin disability, particularly "rash," ever since his active duty service. The Board again notes that the Veteran served on the U.S.S. Curtiss during Operation SANDSTONE, in which a series of three nuclear weapon tests were conducted on Eniwetok Atoll in 1948 and, according to a June 2006 dose assessment from the Defense Threat Reduction Agency, he may have had some limited exposure to ionizing radiation as a result of this service. Although veterans who were exposed to radiation during active duty are entitled to a rebuttable presumption of service connection if they develop a disease listed in 38 C.F.R. § 3.309(d)(2), none of the Veteran's diagnosed skin disabilities are reflected in that list. 38 C.F.R. §§ 3.307, 3.309, 3.311. However, analysis of the above presumptive provisions does not end the Board's inquiry. In this regard, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on any other basis. Cf. Combee, 34 F.3d at 1043-44. However, as discussed below, the Board finds that, in this case, the record presents no other basis for an award of service connection for any skin disability. In addition to the basic legal authority governing claims for service connection and that specific to radiation exposure, cited above, the Board points out that, if a chronic disease becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In some cases, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease; or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to establishing service connection on the basis of continuity of symptomatology in lieu of a medical nexus opinion is limited to disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As indicated below, no diagnosed skin disorder at issue is among the chronic diseases listed under 38 C.F.R. § 3.309(a). However, given the evidence, the Board must nonetheless assess the credibility of the Veteran's assertions of continuous skin symptoms. As noted above, not all of the Veteran's service treatment records are associated with the claims file; however, the Veteran's sick call log for the U.S.S. Curtiss reflects that he was treated for several skin complaints: a rash on his legs in January 1949; jock itch in September 1949; and a sore on his head in December 1949. The Veteran has asserted that he first developed a skin problem in service and has continued to have skin problems since service. However, there is no clinical evidence of any skin complaints after service until the 1980s. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Furthermore, there is no competent evidence or opinion even suggesting that there exists a medical nexus between the Veteran's current skin disabilities and any incident of his service. None of the VA or private medical records treatment records reflect any such reasoned opinion and the results of a March 2012 VA opinion, read together with a November 2012 VA expert medical opinion, indicate a lack of continuity of symptomatology of a skin disability since service and that there is no etiological connection between any current skin disability and the Veteran's presumed in-service exposure to radiation. Specifically, post-service medical records reflect that the Veteran was seen in July 1984 for contact dermatitis manifesting as a rash on his abdomen. The VA treatment note indicates that the Veteran reported experiencing the rash since June 1984 and that he indicated he had experienced a similar rash on prior occasion. A subsequent July 1984 treatment note reflects that the rash had spread. The Veteran's treating physician again diagnosed contact dermatitis. In February 1988, the Veteran reported for treatment of a rash on his lower back and abdomen. He informed the treating provider that his children had body lice; after examining the Veteran, the provider also diagnosed him with body lice. A May 1992 report from a VA ionizing radiation examination notes the Veteran's complaint of recurring rash, but does not indicate either a diagnosis of any skin disability or any evidence of a relationship between the reported rash symptoms and radiation exposure. The Veteran was seen by VA in May 1993 for treatment of a rash on his trunk that he stated had been present for four days. He was diagnosed with contact dermatitis. He was seen again in April 1994 for a rash that had been present for approximately three weeks and extended from his groin to his waist; the Veteran reported that the rash occurred "once in a while." He was diagnosed with, and treated for, contact dermatitis. In August 1994, the Veteran wrote to VA and reported that he had, on two occasions, experienced a rash from his groin to his neck. He attributed the rashes to in-service radiation exposure. A January 2000 VA treatment note reflects that the Veteran reported for treatment of a cyst on his back as well as a rash at his waistband that he asserted had been present for two weeks. The VA treatment provider observed erythematous patches on his skin and urticarial lesions at the waistband. The Veteran was diagnosed with folliculitis and contact dermatitis - he was advised to use only mild laundry detergents and to avoid scratching. He returned to VA in March 2000 for treatment of a rash on his stomach and was again diagnosed with folliculitis. In May 2000, the Veteran reported for treatment of a lesion on his right leg that he reported had been present for 10 years and what he described as a "long" history of pruritis of the legs and abdomen. He was diagnosed with a dermatifibroma of the right lower leg and pruritis; the dermatologist prescribed medication and also referred the Veteran for surgical removal of the cyst on his back. In December 2001, the Veteran reported for treatment of a rash on his lower back and around both ankles. The Veteran informed the VA dermatologist that he "frequently" gets such a rash when under stress and stated that he was experiencing relationship stress. The dermatologist observed that the Veteran had decided to hold off on having the small inclusion cyst on his back removed and diagnosed the rash as dermatitis. In January 2002, the Veteran was prescribed a new medication for the dermatitis. A February 2002 note observes that the Veteran's inclusion cyst occasionally changed in size, but he denied any significant symptoms; he was again advised that he could have the cyst removed. The Veteran reported for treatment of a rash that developed in September 2002, after he ate strawberries. The VA physician observed a minor maculopapular rash over his entire trunk and stated that it was possibly due to food allergy. The Veteran was instructed to return if the rash did not disappear. In March 2003, the Veteran wrote to VA and complained of "skin irritation" resulting from in-service exposure to radiation. He was treated for "groin itch," diagnosed as dermatitis, in April 2003. A February 2004 VA treatment note reflects that the Veteran sought treatment for a "chronic rash" and reported radiation exposure. The VA provider observed no rash, but dry skin and ordered a special moisturizer for the Veteran. In February 2006, he again reported for treatment of "groin itch" and informed the VA care provider that he had experienced the itch ever since being discharged from the Navy; the provider diagnosed chronic pruritis cruri. In March 2007, he reported for treatment of itchy testicles and was diagnosed with acute right epididymitis. In 2008, the Veteran's then girlfriend wrote to VA attesting that she had witnessed him experiencing itching all over his body over the last decade, approximately. The Veteran sought treatment for a rash in January 2008 and informed VA care providers that he had experienced a rash on his torso for more than 50 years; he was prescribed medication for the rash. An April 2009 treatment note reflects that the Veteran reported for treatment of a rash on the back of his bilateral hands. A VA nurse observed excoriated areas and diagnosed the Veteran as having a fungal infection. The Veteran's representative wrote to VA in May 2009 on behalf of the Veteran. The letter reflects that the Veteran contended that he had experienced a chronic rash ever since his military service that "has never gone away for even one day." The Veteran called the RO in June 2009 to report that his rash had gotten worse and, in addition to the rash on his legs and groin that he contended had been present since service, it had now spread to the back of his hands. He stated that the rash itched, bled, and oozed pus. He submitted a September 2009 written statement in which he again contended that he had experienced rash ever since service. In December 2009, the Veteran reported for treatment of rash. He informed the VA care practitioner that the rash had been there since his active duty service. However, when the physician asked to see the rash, the Veteran was "unable to demonstrate any rash and state[d] 'that is because it is invisible.'" The Veteran also informed the physician that he had once been told by a pharmacist that he had jungle rot of the hands; the Veteran contended that his hands had been black in the past, but the physician observed they were normal in appearance at that time. In October 2010, he again called the RO to report that his hands had turned black; he described his hands as looking as though they had radiation burns. He called a VA medical center in December 2010 to report a rash from his knees to his ankles and requested a next day medical appointment. He was seen the following day and complained of a "black as coal rash" on his calves and his hands. The treatment provider noted "evident neurodermatitis" on the legs, but otherwise observed that the skin was dry and without rash or ulcer. For definition purposes, only. neurodermatitis is a "name given to various types of eczema presumed to be cutaneous responses to prolonged scratching, rubbing, or punching to relieve pruritis." Dorland's Illustrated Medical Dictionary (Dorland's), 1283 (31st ed. 2007). The Veteran was afforded a VA examination in March 2012. The examiner noted review of the claims file and observed that the Veteran had experienced eczema and toenail infections in the past. The examiner also noted the Veteran's contentions as to the origin of his skin complaints. However, the examiner opined that any current skin conditions were less likely than incurred in, or as a result of, service. The examiner noted that the claims file reflected no clinical evidence of radiation burn, but also noted that, given the passage of time between the in-service skin complaints and the current complaints, that no opinion could be rendered without resort to speculation. As the examiner provided a speculative opinion, the Board requested a specialist's opinion as to whether or not the Veteran had any skin disabilities that were related, in any way, to his active duty service. In November 2012, the Chief of Dermatology of VA's Maryland Health Care Service, provided the Board with a six page medical opinion detailing the Veteran's contentions and assessing the evidence of record. The dermatology expert noted that the Veteran had been validly diagnosed with dermatitis, rash, pruritis, eczema, onychomycosis, and seborrheic keratosis (noting that the last three diagnoses were rendered by the March 2012 VA examiner). The expert opined that none of these diagnoses were as least as likely as not related to the Veteran's active duty service. The expert provided independent analyses for each diagnosis, essentially determining that each condition was not specifically attributable to radiation exposure, was transient in nature, and that there was competent medical evidence in the claims file contradicting the Veteran's contentions as to continuous symptomatology. In specific reference to the skin problems noted on the Veteran's in-service treatment summary, the expert observed that summary as well as post-service records reflect that the Veteran had been treated for "common place dermatological conditions that do not suggest a chronic dermatologic[al] condition acquired during military service." The expert noted that a condition such as a cutaneous malignancy could be attributed to radiation exposure, but the Veteran had never experienced any such condition. Although conceding that the Veteran may have, as contended, experienced periodic cutaneous eruptions, the medical evidence did not support the presence of any continuous or chronic dermatological condition stemming from his military service or related to conditions associated with his military service. The Veteran has submitted multiple statements attesting to having experienced skin disability on a new continuous basis ever since his discharge from service. However, here, the Veteran's assertions-advanced in connection with a claim for monetary benefits-as to what skin conditions he experienced in the past and when he experienced them, are not consistent with contemporaneous evidence. Although laypersons are competent to report on matters observed or within their personal knowledge (see Layno v. Brown, 6 Vet. App. 465, 470 (1994)), as well as to report a continuity of symptomatology (see Charles, 16 Vet. App. at 370), such report must be weighed against the medical and other evidence. Cf. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). As noted by the November 2012 dermatology expert, the Veteran has reported near continuous symptoms, but post-service treatment notes do not reflect any documented skin problems until the 1980s and, after that time, his skin has been observed to be clear on multiple occasions. Further, the Veteran's own statements are not consistent with having had near continuous symptoms-in August 1994 he wrote to VA and reported experiencing rash on two prior occasions; in April 1994 he reported that the rash occurred only "once in a while." Treatment notes also reflect that the Veteran has incorrectly self-diagnosed himself as having a rash when clinicians have determined that he had only dry skin. He has also diagnosed himself with an "invisible" rash when clinicians could not locate any rash. In addition, he has reported radiation burns or black rashes of the hands that have not been verified by any treatment providers although he has contended that he was treated by VA providers for such a condition. It is the responsibility of the Board to assess the credibility and weight to be given the evidence (see Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992))) and, due to the inconsistencies between the Veteran's statements and the other evidence of record, the Board finds his lay assertions are not credible. Here, there is no contrary, competent medical evidence or opinion supporting a finding of service connection on any basis. The fact that the Veteran's own reported history-even if it was deemed credible-is documented in his medical records does not constitute competent medical evidence of the required nexus. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). For example, the Veteran is service-connected for PTSD and, in December 2001, reported experiencing rash when stressed. However, as the physician recording that assertion did not provide any comment as to etiology, the recorded comment is not considered competent medical evidence. The vast majority of the treatment notes of record do not reflect any comment with respect to the Veteran's contentions as to the duration of his symptoms. Although some of the treatment notes do reflect analysis of the Veteran's contentions as to the appearance of his symptoms, those notes, particularly the February 2004 note (observing that the Veteran believed he had a rash, but actually had dry skin), the December 2009 note (observing that the Veteran had no rash and thought he had an invisible rash), and an October 2010 note (observing that the Veteran did not have any rash except a neurodermatitis on the pretibial area of his legs despite his contentions of rash on other parts of his legs and on his hands), reflect that clinicians had determined that the Veteran was incorrect in his description of his symptoms. In this case, the Board finds the VA dermatology expert's opinion-to the effect that there is less likely than not a relationship between any of the Veteran's diagnosed skin conditions and his in-service experiences, to include radiation exposure-the most persuasive evidence on, and dispositive of, the medical nexus question. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion)). In so finding, the Board notes that the expert reviewed the Veteran's claims file thoroughly, summarized his contentions, analyzed his medical history, and provided thorough discussions as to the etiologies of his diagnosed skin conditions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.") Finally, to whatever extent the Veteran is attempting to establish that there exists a medical nexus between any post-service skin problems and service on the basis of his lay assertions, alone, such attempt must fail. Although claimants are competent to describe their symptoms, a layperson is generally not capable of opining on matters requiring medical knowledge. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Routen v. Brown, 10 Vet. App. 183, 186 (1997). The skin conditions here at issue, claimed to be residual to radiation exposure, are complex in nature. Further, the Veteran's own documented confusion as to when his skin reflects a clinically diagnosable rash supports a finding that the skin conditions involved here are too complex for diagnosis without special knowledge, training, and experience. See Kahana v. Shinseki, 24 Vet. App. 428, 433, 438 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Hence, the Veteran's assertions as to matter of medical etiology have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for a skin disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER As new and material evidence has not been received, the request to reopen the claim for service connection for a gastrointestinal disability, claimed as due to exposure to ionizing radiation, is denied. Service connection for a skin disability, to include as due to exposure to ionizing radiation, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs