Citation Nr: 1318811 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 08-24 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for a bilateral eye disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for hypertension, claimed as secondary to service-connected disabilities, or as the residual of exposure to Agent Orange. 4. Whether new and material evidence has been received to reopen service connection for bilateral hearing loss, and, if so, whether service connection is warranted. ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran had active service from November 1966 to November 1968 and from September 1970 to September 1974. The Veteran served in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which determined that new and material evidence had not been received to reopen the Veteran's claims of entitlement to both service connection for hypertension and bilateral hearing loss and denied service connection for both a back disability and a bilateral eye disability. In March 2010, the Board determined that new and material evidence had been received to reopen the Veteran's claim of entitlement to service connection for hypertension and remanded that issue and the remaining issues on appeal to the Honolulu RO for additional action. Although the RO declined to reopen service connection for bilateral hearing loss in the April 2007 rating decision, the question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). The Board has characterized the claim accordingly. The issues of service connection for hypertension, claimed as secondary to service-connected disabilities, or as the residual of exposure to Agent Orange, back disability, bilateral eye disability, and whether new and material evidence had been submitted to reopen the Veteran's claim for service connection for bilateral hearing loss, were previously remanded by the Board in October 2012 to obtain a VA medical opinion for hypertension on a secondary basis and to clarify the Veteran's representation before VA. This was accomplished, and the claim was readjudicated in a January 2013 supplemental statement of the case (SSOC). For these reasons, the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during active duty service. 2. The Veteran did not sustain an eye injury in service. 3. Symptoms of a bilateral eye disability were not chronic in service. 4. The Veteran does not have a current disability of the eyes. 5. The Veteran did not sustain a back injury in service. 6. Symptoms of a back disability were not chronic in service. 7. The Veteran does not have a current disability of the back. 8. Hypertension is not an ischemic heart disease. 9. The Veteran did not sustain cardiovascular injury or disease in service. 10. The Veteran did not experience chronic symptoms of hypertension in service. 11. Hypertension did not manifest to a compensable degree within one year of service separation. 12. Symptoms of hypertension have not been continuous since service separation. 13. The Veteran's hypertension is not related to his active service and is not causally related to or permanently worsened by any service-connected disability.. 14. An August 2004 RO decision denied service connection for bilateral hearing loss. The Veteran did not file a notice of disagreement, and no evidence was received within the year following this decision. 15. Since the August 2004 RO decision denying service connection for bilateral hearing loss, the additional evidence that was not previously considered is cumulative, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral eye disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 3. Hypertension was not incurred in active service and was not proximately due to or aggravated by a service-connected disability, and service connection for hypertension may not be presumed based on the one-year presumption for a chronic disease. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310, 4.104, Diagnostic Code (DC) 7101 (2012). 4. The August 2004 RO decision which denied service connection for bilateral hearing loss is final. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 5. New and material evidence not having been received, the claim of service connection for bilateral hearing loss is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. With regard to the service connection claims for hypertension and bilateral eye and back disabilities, in a timely January 2007 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of the claims. With regard to the issues of whether new and material had been received to reopen service connection for bilateral hearing loss, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. The Veteran was advised of VA's duties to notify and assist in the development of the issue of whether new and material had been received to reopen service connection for bilateral hearing loss. A May 2010 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria and provided notice in accordance with Kent. The Veteran has had ample opportunity to respond and supplement the record. As to VA's duty to assist with regard to the issues of service connection for eye and back disabilities, VA and private treatment records and service treatment records have been obtained. The Board notes that the Veteran was not afforded a VA examination for his eye or back disabilities, but none is required. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-79. Here, the only evidence that the Veteran's claimed back disability is related to his military service is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for a VA medical examination for a back disability is not warranted. The Board also finds that because the Veteran does not have a current bilateral eye disability, referral for a VA medical examination for a bilateral eye disability is not warranted. With respect to the claim for hypertension, the VA afforded the Veteran examinations in October 2011 and November 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions and findings obtained in this case are adequate. The VA nexus opinions provided consider all of the pertinent evidence of record, to include the statements of the Veteran, and provide a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of service connection for hypertension has been met. 38 C.F.R. § 3.159(c)(4). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims for service connection for hypertension and bilateral eye and back disabilities that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of those claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Laws and Regulations Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Lumbago (low back pain) and a bilateral eye disability are not "chronic diseases" listed under 38 C.F.R. § 3.309(a), therefore, 38 C.F.R. § 3.309(b) does not apply to these issues. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension is a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore, 38 C.F.R. § 3.309(b) applies to the claim for hypertension. See Id. In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as hypertension, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Bilateral Eye Disability The Veteran contends that he has a bilateral eye disability that began during active service. For the reasons that follow, the Board finds that the Veteran does not have a current bilateral eye disability. Service treatment records are negative for any complaints or treatment for eye symptoms or a bilateral eye disability. In the June 1974 service separation examination report, which includes a summary of the Veteran's significant in-service medical history, the service examiner's review of the history is negative for any reports by the Veteran of symptoms of a bilateral eye disability and the Veteran's eyes were clinically evaluated as normal. Also, in the June 1974 service reenlistment examination "Report of Medical History," the Veteran specifically reported his health as "excellent" and denied a history or complaints of "eye trouble." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other earlier lay statements that he had not received any wounds in service); see also Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran); see also Caluza, 7 Vet. App. at 512, aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (credibility can be affected by consistency with other evidence of record). In a September 1974 "Statement of Medical Condition," the Veteran reported that there had been no change in his medical condition since his June 1974 examination. As noted above, because the Veteran's bilateral eye disability is not defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities do not apply, and evidence of a continuity of symptomatology after service is not sufficient by itself to support the claim. See Walker. Service connection may still be established if all the evidence of record shows that the Veteran has a current bilateral eye disability that is related to active service. See 38 C.F.R. §§ 3.303(d). The post-discharge evidence of record does not contain any notation indicating a diagnosis of a bilateral eye disability. In private treatment records dated from June 1999 to October 2002, the Veteran did not report or receive any treatment for symptoms of a bilateral eye disability. For treatment, the Veteran would be expected to give a full and accurate history to get good treatment. In none of these examinations for treatment does the Veteran mention chronic bilateral eye disability symptoms in service, or continuous bilateral eye disability symptoms since service. See Cartright, 2 Vet. App. at 25; Pond v. West, 12 Vet. App. 341 (1991); Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). In a February 2007 VA treatment record, the VA examiner reported the extraocular movements were intact (EOMI) and pupils were equal, round, reactive to light and accommodation (PERRL). In a June 2007 VA treatment record, the VA examiner reported the Veteran's eyes were EOMI and PERRL. In an April 2008 VA treatment record, the VA examiner reported the Veteran's eyes were EOMI and PERRL. In an August 2008 VA treatment record, the VA examiner reported the Veteran's eyes were EOMI and PERRL. In a November 2009 VA treatment record, the VA examiner reported no visual abnormalities. In an August 2010 VA treatment record, the VA examiner reported no diabetic retinopathy. In the July 2011 VA Agent Orange examination, the Veteran reported no vision change and the VA examiner reported eyes were normal upon examination. In the February 2012 VA diabetes examination, the VA examiner did not diagnose any bilateral eye disability or report any bilateral eye disability symptoms. The VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer, 3 Vet. App. at 225. In this case, the record of evidence indicates that the Veteran's eyes were examined on several occasions by VA medical providers in different contexts, including for treatment purposes. The treatment reports and examination reports on these occasions show no continuous bilateral eye disability symptoms since service, or show currently diagnosed bilateral eye disability. The Board has considered the Veteran's statements. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (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. The Veteran is competent to report that he experienced eye symptoms; however, his statements are not sufficient and competent to establish a diagnosis of a bilateral eye disability, because a layperson is not competent to identify the condition. See Jandreau. To the extent that he is competent, his contentions are outweighed by the VA examination evidence noted above that reflects no current bilateral eye disability. In summary, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a bilateral eye disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Back Disability The Veteran contends that he has a back disability that began during active service. For the reasons that follow, the Board finds that the Veteran does not have a current back disability. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a back injury in service and back disability symptoms were not chronic in service. Service treatment records are negative for any complaints or treatment for a back injury or back disability. In the June 1974 service separation examination report, which includes a summary of the Veteran's significant in-service medical history, the service examiner's review of the history is negative for any reports by the Veteran of symptoms of a back disability and the Veteran's spine was clinically evaluated as normal. Also, in the June 1974 service reenlistment examination "Report of Medical History," the Veteran specifically reported his health as "excellent" and denied a history or complaints of "recurrent back pain." Madden, 125 F.3d at 1481 (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other earlier lay statements that he had not received any wounds in service); see also Curry (noting that contemporaneous evidence has greater probative value than history as reported by the veteran); see also Caluza, 7 Vet. App. at 512, aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (credibility can be affected by consistency with other evidence of record). In a September 1974 "Statement of Medical Condition," the Veteran reported that there had been no change in his medical condition since his June 1974 examination. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). As noted above, because the Veteran's back disability is not defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities do not apply, and evidence of a continuity of symptomatology after service is not sufficient by itself to support the claim. See Walker. Service connection may still be established if all the evidence of record shows that the Veteran has current back disability that is related to active service. See 38 C.F.R. §§ 3.303(d). The post-discharge evidence of record does not contain any notation indicating a diagnosis of a back disability. Following service separation in September 1974, the evidence of record shows no complaints, diagnosis, or treatment for any back pain symptoms until 2007. The evidence shows that back pain symptoms first manifested years after service in 2007, notably over 33 years after service discharge, when the Veteran was treated for symptoms of back pain. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor that tends to weigh against a claim for service connection). In private treatment records dated from June 1999 to October 2002, the Veteran did not report or receive any treatment for symptoms of a back disability. For treatment, the Veteran would be expected to give a full and accurate history to get good treatment. Yet, in none of these examinations for treatment does the Veteran mention chronic back disability symptoms in service, or continuous back disability symptoms since service, or problems related to his service. See Cartright, 2 Vet. App. at 25; Pond; Gardin, 613 F.3d at 1380 (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). In a February 2007 VA treatment record, the Veteran reported a long history of back pain; however, the VA examiner reported that the Veteran did not have any costovertebral angle (CVA) tenderness or lumbar paraspinal tenderness, and straight leg raises (SLRs) were negative bilaterally. The Veteran was diagnosed with chronic back pain, likely lumbago. In a June 2007 VA treatment record, the VA examiner reported that the Veteran did not have any CVA tenderness. In an April 2008 VA treatment record, the VA examiner reported that the Veteran did not have any CVA tenderness. In an August 2008 VA treatment record, the Veteran reported back pain for over 20 years; however, the VA examiner reported that the Veteran did not have any CVA tenderness. The Board also finds that based upon the Veteran's report, the first time he experienced symptoms of back pain would have been in the late 1980's, which was years after separation from service. See Madden, 125 F.3d at 1481 (upholding a BVA decision that gave higher probative value to a contemporaneous letter a veteran wrote during VA hospitalization than to the veteran's subsequent assertion years later). In a November 2009 VA treatment record, the Veteran reported occasional back pain. The VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer, 3 Vet. App. at 225. In this case, the record of evidence indicates that the Veteran's back was examined on several occasions by VA medical providers in different contexts, including for treatment purposes. The treatment reports and examination reports on these occasions show no continuous back disability symptoms since service, or show currently diagnosed back disability. The Board has considered the Veteran's statements. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis. In Jandreau, the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (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. The Veteran is competent to report that he experienced back symptoms; however, his statements are not sufficient and competent to establish a diagnosis of a back disability, because a layperson is not competent to identify the condition. See Jandreau. To the extent that he is competent, his contentions are outweighed by the VA examination evidence noted above that reflects no current back disability. In summary, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a back disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Hypertension The Veteran contends that his current hypertension is related to his active service and, in the alternative, related to his service-connected diabetes. The Board finds that the Veteran served in the Republic of Vietnam. Based upon information obtained from the Veteran's service personnel and treatment records, exposure to herbicides during active service is presumed. See 38 C.F.R. § 3.307(a)(6)(iii) (2011) (a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent). However, because the Veteran's hypertension is not listed among the Agent Orange-related diseases enumerated in 38 C.F.R. § 3.309(e), medical nexus may not be presumed as a matter of law. Specifically, the Agent Orange Act of 1991 requires that when the Secretary determines that a presumption of service connection based on herbicide exposure is not warranted for health outcomes, he must publish a notice of that determination, including an explanation of the scientific basis for the decision. The Secretary's determination must be based on consideration of reports of the National Academy of Sciences (NAS) and all other sound medical and scientific information and analysis available to the Secretary. 38 U.S.C.A. § 1116 (b) and (c). In July 2009, the NAS issued "Veterans and Agent Orange: Update 2008" (Update 2008). The attached notice explains a determination made by the Secretary, based upon Update 2008 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for hypertension. Similarly, while several new diseases that are presumptive linked herbicide exposure were added recently, including ischemic heart disease, hypertension is specifically excluded from the meaning of "ischemic heart disease" as it is not a disease of the heart. VA Training Letter 10-04, Training Guide, p. 14. Hence the herbicide presumption is not applicable for hypertension. Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, the Board is obligated to fully consider the Veteran's service connection claim on a direct basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). After a review of all the evidence, the Board finds that the Veteran did not sustain a cardiovascular injury or disease in service, and did not experience chronic symptoms of hypertension in service. The Board finds that the weight of the evidence demonstrates that the Veteran did not experience hypertension symptoms in service. Service treatment records identify no elevated diastolic blood pressure readings during service, and show only blood pressure (BP) readings that were within normal limits (i.e., the systolic reading was less than 140 millimeters of mercury and the diastolic reading was less than 90 millimeters of mercury); no diagnosis of hypertension is reflected in any examination or treatment record compiled in service. At the June 1974 service reenlistment examination, the Veteran's BP was recorded as 138/86. Also, in the June 1974 service reenlistment examination "Report of Medical History," the Veteran specifically denied a history or complaints of high blood pressure. Madden, 125 F.3d at 1481 (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other earlier lay statements that he had not received any wounds in service). In the September 1974 service separation "Statement of Medical Condition" the Veteran reported that there had been no change in his medical condition since the June 1974 examination. The Veteran has not contended that he suffered from a cardiovascular injury or disease in service or that hypertension symptoms were chronic in service. Neither the separation examiner's summary of history nor clinical examination at service separation reflect any reported complaints, findings, or diagnosis of hypertension at service separation in September 1974. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board finds that the weight of the evidence demonstrates that the Veteran's hypertension did not manifest to a compensable degree within one year of service separation. A compensable rating is assigned for hypertension with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. There are no post-service treatment records documenting hypertension within one year of service separation. The Board next finds that the weight of the evidence demonstrates that hypertension symptoms have not been continuous since service separation in September 1974. As indicated, the June 1974 service reenlistment clinical examination did not reflect hypertension. Following service separation in September 1974, the evidence of record shows no complaints, diagnosis, or treatment for hypertension until 2002. The absence of post-service findings, diagnosis, or treatment for 28 years after service is one factor that tends to weigh against a finding of continuous hypertension symptoms after service separation. See Buchanan (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson, 230 F.3d at 1333 (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). While the Veteran is competent to state that he had hypertension symptoms at any time, including in service, the Board finds that the Veteran has not contended or submitted any lay or medical evidence showing that hypertension symptoms have been continuous since service separation. See Charles v. Principi, 16 Vet. App. 370 (2002). In private treatment records dated from June 1999 to October 2002, the Veteran did not report or receive any treatment for symptoms of hypertension. For treatment, the Veteran would be expected to give a full and accurate history to get good treatment. Yet, in none of these examinations for treatment does the Veteran mention chronic hypertension symptoms in service, or continuous hypertension symptoms since service, or problems related to his service. See Cartright, 2 Vet. App. at 25; Pond; Gardin, 613 F.3d at 1380 (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). In the July 2011 VA Agent Orange examination, the Veteran reported shortness of breath since 2005 and chest pain since 2008. While the Board has weighed and considered the absence of post-service complaints, findings, diagnosis, or treatment for hypertension after service prior to October 2002 as one factor that tends to weigh against a finding of either hypertension in service or continuous symptoms of hypertension after service separation, the Board has done so in the context of all the evidence of record, including multiple other factors, namely, contemporaneous in-service reports (history and complaints) by the Veteran, contemporaneous in-service clinical findings, and the Veteran's post-service statements indicating a lack of continuity of hypertension symptomatology made to health care professionals for treatment purposes. See Buchanan, 451 F.3d at 1337. The Board further finds that the weight of the competent evidence demonstrates that the Veteran's currently diagnosed hypertension is not related to active service. In the October 2011 VA hypertension opinion, which weighs against the Veteran's claim, the VA examiner opined that the Veteran's hypertension was less likely than not (less than a 50/50 probability) caused by or the result of active military service. The VA examiner reasoned that the Veteran's blood pressure was normal throughout service and that the Veteran's hypertension did not manifest for many years after service until 2002. The VA examiner also reasoned that the Veteran's elevated blood pressure in 2002 could have been due to his illness, and not attributable to hypertension. There has similarly been no medical opinion of record advanced to even suggest that the Veteran's hypertension either began during or was otherwise caused by his military service. The Board finds that there is no competent or credible evidence of a relationship between the Veteran's current hypertension and his military service. The Veteran is also claiming that his hypertension is the direct result of his service-connected disabilities. To prevail on the issue of secondary service causation, generally, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran is service connected for diabetes. The Board finds that the weight of the evidence demonstrates that the claimed hypertension is not caused or aggravated by any service-connected disability. In the August 2008 VA hypertension opinion, the VA examiner opined that, based upon review of the current medical literature, there was no causal relationship between hypertension and diabetes. The VA examiner opined that the Veteran's hypertension was diagnosed years prior to the diagnosis of diabetes. The VA examiner also opined that there were no abnormalities in the Veteran's renal function tests and no evidence of any diabetic nephropathy that could aggravate the Veteran's hypertension. The Board finds that the October 2011 and November 2012 VA hypertension opinions are of high probative value because that are based on a factually accurate history, as it appears the VA examiners were informed of the relevant evidence in this case that included the absence of complaints of hypertension in service as indicated by the service treatment records, and the absence of complaints of hypertension for many years after service as indicated by the post-service treatment records. The VA examiners relied on accurate facts, and gave fully articulated opinions that are consistent with the accurate facts found in this case and are supported by a sound reasoning. The only evidence of record supporting the Veteran's claim is his own lay opinion that his currently diagnosed hypertension is related to his active duty service and his service-connected diabetes. Regarding the Veteran's statements as to the cause of his hypertension, the Board also notes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, the cause of the Veteran's hypertension involves a complex medical etiological question because it deals with the origin and progression of the Veteran's hypertension, and because an internal and complex disease process such as hypertension is diagnosed primarily on clinical findings or comprehensive testing, and not on symptoms alone. The Veteran is competent to relate symptoms of hypertension that he experienced at any time, but is not competent to opine on whether there is a link between the current hypertension and active service or between the current hypertension and service-connected disabilities. Such diagnosis and opinion as to physiological nexus require specific medical knowledge and training. See Rucker, 10 Vet. App. at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for hypertension, including as secondary to service-connected diabetes. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. New and Material Evidence - Legal Criteria In an August 2004 rating decision, the RO denied the Veteran's claim for service connection for bilateral hearing loss, because the evidence did not show that the Veteran had current bilateral hearing loss. He was properly notified of the August 2004 rating decision and did not appeal. No evidence was received by the RO within the year following that decision. 38 C.F.R. § 3.156(b). Therefore, the 2004 rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 C.F.R. § 20.1103. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decision makers. "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. 38 C.F.R. § 3.156(a). 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and Material Evidence - Bilateral Hearing Loss The evidence of record at the time of the August 2004 RO decision included statements from the Veteran, the Veteran's service treatment records, and post-service private treatment medical records which cover a period through October 2002. In the August 2004 RO decision, the RO denied service connection for bilateral hearing loss, finding no current bilateral hearing loss disability. As such, for evidence to be new and material, it would have to tend to show that the Veteran has a current bilateral hearing loss disability. Briefly reviewing the evidence received since the August 2004 RO decision, in the July 2011 VA Agent Orange examination report, the Veteran reported hearing loss since 1970. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Layno, 6 Vet. App. at 469-70 (finding lay testimony competent when it concerns features or symptoms of injury or illness). In determining the issue of whether newly received evidence is new and material, the credibility of the evidence is to be presumed. Justus, 3 Vet. App. at 513. When presumed to be credible, as is required when determining solely whether to reopen a previously denied claim, the lay statement from the Veteran reporting hearing loss since 1970 showed that the Veteran suffered hearing loss symptoms since service separation. The Board finds that in this case the evidence that is new is not material evidence upon which the claim may be reopened. Cox v. Brown, 5 Vet. App. 95 (1993). The statements made by the Veteran that he has current hearing loss that is related to service are duplicative of statements made earlier by the Veteran. Also, lay assertions of medical causation cannot serve as a predicate to reopen a claim. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993). In the July 2011 VA Agent Orange examination, the Veteran's hearing was reported as normal. See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992) (evidence that is unfavorable to the appellant's case and which supports the previous denial cannot trigger a reopening of the claim). Until the evidence meets the threshold new and material evidence sufficient to reopen the claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a bilateral eye disability is denied. Service connection for a back disability is denied. Service connection for hypertension is denied. New and material evidence not having been received, the appeal to reopen service connection for bilateral hearing loss is denied. ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs