Citation Nr: 1318935 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 11-30 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a back disability. 2. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for a back disability. 4. Entitlement to compensation under 38 U.S.C. § 1151 for allergic reaction with hives. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from February 1954 to January 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The claims for service connection for back and left ankle disabilities were previously denied by the RO in a rating decision dated in April 1956, and the claim for a left ankle disability was again denied by the RO in January 1964; the Veteran did not appeal either decision, and no new evidence pertinent to the claims were received by VA within one year from the date that the RO mailed notice of either determination to the Veteran. 2. New evidence received since the time of the final April 1956 rating decision relates to an unestablished fact necessary to grant, and raises a reasonable possibility of substantiating, the Veteran's claim of entitlement to service connection for a back disability. 3. No new evidence received since the time of the final January 1964 rating decision relates to an unestablished fact necessary to grant, and raises a reasonable possibility of substantiating, the Veteran's claim of entitlement to service connection for a left ankle disability. 4. The Veteran's current back disability did not begin during or within a year of service, and is not in any way related to service. 5. No disability involving allergies or hives was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under the law administered by VA. CONCLUSIONS OF LAW 1. The April 1956 rating decision is final. 38 U.S.C.A. § 7015(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.103 (2012). 2. The January 1964 rating decision is final. 38 U.S.C.A. § 7015(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.103 (2012). 3. Evidence submitted to reopen the claim of entitlement to service connection for a back disability is new and material. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 4. New and material evidence submitted to reopen the claim of entitlement to service connection for a left ankle disability has not been received. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 5. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 6. The criteria for compensation under 38 U.S.C. § 1151 for allergic reaction with hives have not been met. 38 U.S.C.A. §§ 1110, 1131, 1151, 5107 (West 2002); 38 C.F.R. §§ 3.361, 17.32 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including arthritis, may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. 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. See generally 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. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether compensation is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. New and Material Evidence Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108]." 38 U.S.C.A. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board notes that in a November 2011 statement of the case, the RO, in substance, adjudicated the claims of service connection for a back disability and for a left ankle disability on the merits. However, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7104 to address the question of whether new and material evidence has been received to reopen the claims for service connection. That matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The RO denied service connection for a left ankle sprain and a back condition in April 1956, nearly fifity years ago. That rating decision was not appealed, and no new evidence pertinent to either claim was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. The RO again denied service connection for a left ankle disability in January 1964. That decision was not appealed, and no new evidence pertinent to that claim was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. Furthermore, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of either the April 1956 decision or the January 1964 decision. Therefore, both decisions are final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), (c), 20.302, 20.1103. The bases of the prior final denials in April 1956 were the RO's findings that there were no current significant orthopedic findings referable to the back and left ankle, and thus such conditions were not shown as incurred or aggravated in service. The basis of the January 1964 decision was that the evidence still did not show that the Veteran had an ankle disability related to disability incurred in service. Thus, in order for the Veteran's claims to be reopened, evidence must have been added to the record since the April 1956 and January 1964 decisions that addresses these bases. Evidence submitted and obtained since the April 1956 decision relating to Veteran's claimed back disability includes private treatment records, including a July 2010 magnetic resonance imaging (MRI) report, reflecting a diagnosis of multilevel degenerative changes of the lumbar spine characterized by spondylosis, disc space narrowing, and disc desiccation. It also includes statements from the Veteran, including one submitted in October 2009, asserting that he had suffered from back pains from the time of his period of service. Without addressing the merits of this evidence, the Board finds that the private treatment records reflecting a current lumbar spine disorder and the Veteran's statements of having back problems since his period of service both address the issue of whether the Veteran has a current back disability that might be related to his period of service. Justus, 3 Vet. App. at 512-13. Thus, this evidence is both "new," as it has not previously been considered by VA, and "material," as it raises the reasonable possibility of substantiating the Veteran's claim. Evidence submitted and obtained since the January 1964 decision relating to Veteran's claimed left ankle disability includes private Pain Management Clinic records reflecting continuing treatment one or more times per month between March 2005 and December 2006 for right wrist pain and then low back pain. Such records reflect one instance of treatment in September 2006, when the Veteran reported that five days before his ankle had gave way and rolled. Importantly, the record does not indicate which ankle had gave way, does not contain any objective findings or diagnosis relating to the ankle, and it was noted that the Veteran had played tennis the day before. Such Pain Management Clinic records reflect no further references to the Veteran's ankle. Such evidence also includes a statement submitted by the Veteran in October 2009 contending that he had sustained a sprained ankle in service, and that he had suffered for years with back pains, but that he had been very careful with his ankle, taking precautionary measures, and therefore his ankle was "OK." Such evidence contains no further medical or lay evidence of a left ankle disability that might be related to service. This evidence, while "new," as it has not previously been considered by VA, but is not "material," as it does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate, and raise the reasonable possibility of substantiating, the Veteran's claim. In short, the new evidence does not help to establish the existence of any left ankle disability that might be related to the Veteran's service. Rather, as indicated by the Veteran's own October 2009 statement, the newly submitted evidence tends to establish that the Veteran does not have any current left ankle disability. The Board thus finds that new and material evidence has been submitted to reopen the claim of entitlement to service connection for a back disability, but has not been submitted to reopen the claim of entitlement to service connection for a left ankle disability. Accordingly, the issue of entitlement to service connection for a back disability is reopened, and the issue of entitlement to service connection for a left ankle disability remains denied. Service Connection In this case, as reflected in an October 2009 statement, his June 2011 notice of disagreement, and his November 2011 substantive appeal, the Veteran asserts that his back problems began during his period of service from February 1954 to January 1956 after he fell on an unpaved road, and was subsequently assigned to light duty for approximately six weeks on crutches. The Veteran asserts that, since his period of service, he has suffered with severe lower back pain, which now involves cramping in the buttocks and hamstrings, and limits his ability to walk. He further asserts that his back problems began after, and are the direct result of, his in-service injury from his fall. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the Veteran's service connection claim must be denied. Service treatment records reflect that in January 1955 the Veteran was treated for a left ankle sprain after twisting his ankle. January 1955 X-rays showed no fracture of the ankle. The Veteran was treated with an ace bandage and crutches for a few days, and was placed on limited light duty. Records from January 1955 to March 1955 reflect continuing treatment for the Veteran's left ankle. In February 1955, the Veteran was noted to have twisted his ankle again; again, X-rays showed no fracture, and he was placed on temporary profile for three weeks. During such treatment for the Veteran's left ankle, there were no complaints, reports, findings or diagnoses relating to the Veteran's back. After March 1955, service treatment records reflect no further treatment for a condition related to the Veteran's fall, and service treatment records contain no complaints or findings whatsoever relating to the back. The Veteran's January 1956 report of examination for separation from service reflects a normal clinical evaluation of the spine and musculoskeletal system, and no back problems were noted; it was noted that the only complaint of a medical nature at the time of the examination was of a pilonidal cyst. The service treatment records, which reflect no complaints or findings related to the back, even during the Veteran's treatment for his fall and ankle sprain, weigh heavily against his assertion that his back problems began in service, and specifically that his back problems were caused by or began after his January 1955 fall. Such records thus provide highly probative evidence against the Veteran's claim. In February 1956, the Veteran filed a claim for service connection for a back condition. He was afforded a VA examination in March 1956, and at the time of the examination, it was noted that the Veteran alleged having on and off back pain on the left side for about three years. On examination, the spine had no deformity, mass, tenderness, spasms, restricted motion, or sciatica. Lumbosacral spine X-rays at the time showed no evidence of fracture, subluxation, bone or soft tissue pathology, or scoliosis, and the lumbosacral joints were normal, providing highly probative evidence against this claim. The evidence does not indicate that arthritis or degenerative disease of the spine began within a year of service. Thus, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309(a) are not applicable in this case. In December 1963, the Veteran submitted a statement to VA asserting that he had had an ankle injury during service while returning from work when his ankle twisted and he was out for the following six weeks. The Veteran asserted that, after leaving service, he found it impossible to participate in sports and could not run due to his ankle, and that for the last six years his ankle had bothered him and prevented him from participating in sports. In the statement, the Veteran did not mention any current or past problems with his back whatsoever. The statement, therefore, weighs heavily against the Veteran's assertions that severe back problems, or any back problems at all, began during service and continued afterwards. This December 1963 statement of the Veteran thus provides probative evidence against his claim of service connection for a back disorder. Simply stated, the Board finds that the Veteran has provided highly probative evidence against his own claim. The earliest indication in the claims file of any back problem following the March 1956 VA examination is a private treatment record dated in May 2005. Such treatment records from the Pain Management Clinic reflect continuing treatment one or more times per month between March 2005 and December 2006. Records from March 2005 to May 2005 reflect treatment for right wrist pain; in March 2005, it was noted that the Veteran complained of wrist pain for 15 years, and that he was formerly an avid tennis player and worked as a tennis instructor. In this regard, the Board must note that the Veteran's work as a tennis instructor in the past would not suggest a history of back problems dating back to the 1950's. In any event, during May 2005 follow-up treatment for such wrist pain, the Veteran reported new onset of pain across the low back, radiating to the right buttock and down the right calf. It was noted that the Veteran continued to play tennis, and the diagnosis was lumbar radiculopathy. In August 2005, it was noted that the Veteran had new lower back pain, and that he reported a history of intermittent sciatica since 1998 which had been exacerbated a month and a half before while playing tennis. The report of a March 2006 MRI of the lumbar spine reflects multiple problems including multilevel degenerative changes. The Veteran continued to be treated at the Pain Management Clinic for low back pain and lumbar radiculopathy through December 2008; at no time, however, did the Veteran relate any of his back problems to service, or to any date earlier than 1998. The fact that the Veteran, during pain treatment for his right wrist, reported new onset of back pain in May 2005, and in August 2005 reported that such new back pain was an exacerbation of pain that began in 1998, with no prior history of back pain given, contradicts his assertions of continuity of back pain symptomatology from the time of his in-service ankle injury, which occurred more than 50 years prior to the May 2005 treatment note. This is particularly the case given his reported history of being an avid tennis player and current tennis instructor in March 2005. These reports of medical history, along with an absence of any mention of service or any indication of prior back pain treatment, provide further, significant, probative factual evidence against the Veteran's service connection claim. The Veteran is competent to report matters within his own personal knowledge, such as back pain beginning in service and continuing to the present. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, given the above, the Board finds that the Veteran's credibility in reporting such history is severely undermined by his service treatment records, post-service private treatment records, and his own previous statements, generally. The Board thus finds the Veteran's assertions of continuity of back pain from the time of service to be unreliable, not credible, and of minimal probative value. Furthermore, the competent medical evidence weighs against the Veteran's claim. On VA examination in November 2009, the VA examining physician reviewed the claims file and noted the Veteran's incident of twisting his ankle in January 1955 and receiving treatment for it thereafter. The examiner stated that no references to any back injuries were found in the service treatment records. The examiner also discussed the March 1956 VA examination noting normal X-rays and normal physical examination. At the time of the November 2009 VA examination, the Veteran reported the onset of back pain while twisting is ankle in service. The Veteran reported using crutches for six weeks following his injuries and complaining of back problems while using the crutches. The Veteran further reported first seeking treatment for his back 25 years prior with a chiropractor. After examining the Veteran, the VA physician diagnosed lumbar spine arthritis with listhesis and multiple level disc bulges/herniations. The VA examining physician stated that, based on history, physical examination, and review of the claims file, the examiner could not determine a service connection for the Veteran's low back condition without resort to mere speculation. The physician explained that the service treatment records did not specifically state that the Veteran was treated for a back condition while in service, shortly after leaving service he alleged back pain but in March 1956 was found to have normal X-rays and physical examination, and there was then a long gap between 1956 and the most current objective evidence submitted. The examiner further stated that the etiology of back pain found on MRI was multifactorial, that more than 50 years had passed since the Veteran's alleged in-service incident, and that it appeared that the any in-service back pain was either related to hurting the back while falling and twisting the ankle or having some mechanical back pain as a result of using crutches, but that neither of these traumas would seem to be sufficient enough to cause the current findings on MRI. The VA examining physician's opinion, which weighs against the Veteran's claim, is the only competent and probative opinion of record that addresses whether the Veteran's current back disability might be related to service. The Board, furthermore, finds the VA physician's opinion to be highly probative evidence against the Veteran's claim. The examiner was a physician with appropriate expertise to make such an opinion, and thoroughly reviewed the claims file, citing pertinent evidence. Also, the examiner's rationale that any back problems that might have been the result of the Veteran's in-service fall, whereby he twisted his ankle used crutches for a period thereafter, would not be sufficient to result in his current back problems, given their nature and severity, is persuasive. This is particularly the case given the total absence of any back injury or problems noted in service, the normal back findings on March 1956 examination and X-rays, and the absence of any post-service back problems until more than 40 years after the Veteran's separation from service. Moreover, significantly, there is no competent and probative evidence contradicting the opinion of the VA examining physician or otherwise supporting the Veteran's claim for service connection for a back disability, and the Veteran has not identified any such evidence. The Veteran might believe that his current back problems are in some way related to his period of service, more than 50 years ago. A lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau, 492 F.3d 1372. However, while the Veteran might believe that his current back disorder is medically related to service, where, as here, service ended more than 50 years prior, and, as discussed above, there is no credible evidence of continuity of symptomatology, such a question of causation extends beyond a cause-and-effect relationship immediately observable to a layperson. As such, the Veteran is not competent to address this question. Also, to the extent that the Veteran might be competent to address etiology in this case, as discussed above, the Board does not find his assertions to be credible, and whatever probative value such assertions have is significantly outweighed by the substantial evidence discussed above, including the objective medical opinion of the November 2009 VA examiner. In short, the Board finds that the evidence clearly weighs against a finding that any current back disability began during or is in any way related to service. Accordingly, the Board finds that the claim for service connection for a back 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); Gilbert, 1 Vet. App. at 53-56. Compensation Under 38 U.S.C. § 1151 Under 38 U.S.C.A. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Such disability or death need not be "directly" caused by the "actual" medical care provided by VA personnel; however, section 1151 does not extend to the "remote consequences" of VA medical treatment. See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013) (additional disability was caused by VA medical treatment where injury was due to improperly installed restroom grab bar, as equipment specifically designed to assist the disabled are a necessary component of the health care services VA provides). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e. given in orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). In this case, as reflected in October 2009 and November 2009 statements, the Veteran asserts that after his period of service, 53 years prior, he was examined at a VA facility in connection with his claim for a back disability, and at the time of the examination he was injected with a dye for a lower back X-ray and immediately had a allergic reaction consisting of hives and excessive sweating. The Veteran asserts that he was never tested to see if he was allergic to the dye. He further asserts that many times in the more than 50 years since the examination he has broken out with giant hives and excessive sweating, and that he had been tested for allergies, and doctors had told him that he was in an allergic state resulting from the dye which was used for his back X-rays during the VA examination. He asserts that he is now prevented from receiving flu vaccinations as he is allergic to the egg concentration in the vaccination, and that this is a direct result of the dye being inappropriately used at the time of his VA examination. He further stated that, as a result of the injected dye, he is allergic to aspirin and penicillin. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the Veteran's claim for compensation under 38 U.S.C. § 1151 must be denied. Initially, there is no evidence supporting the Veteran's bare assertion that he was injected with any dye, or that he had an allergic reaction to any procedure performed during VA examination. The report of the Veteran's March 1956 VA examination in connection with his claim for a back disability reflects that the Veteran did receive X-rays of his lumbosacral spine. However, there is no mention in the VA examination report, the X-ray report, or elsewhere in the record that the Veteran either had any dye injected or that he had an allergic reaction, involving hives or otherwise, to any VA procedure in March 1956. The report of a November 2009 VA examining physician furthermore reflects a notation that, regarding the Veteran's assertion of allergic reaction after being injected with dyes on March 1956 X-ray examination, the Veteran's file contains no mention of any allergic reaction or any mention of any dyes being used in the examination. This lack of any notation in the claims file of any such dye injection or allergic reaction is evidence that weighs against the Veteran's claim. Also, even assuming that the Veteran did have an allergic reaction to a dye injection at the time of his March 1956 VA examination, other than his bare assertions, the record contains no evidence of any current or former disability or chronic disorder involving allergies to such injectable dye or hives. In the more than 50 years following the alleged incident, there is not a single medical record or record of any other type supporting his assertion that he has ever had a recurrent hives condition or an allergic condition involving injectable dye. Private treatment records from March 2005 to July 2010 note the Veteran's allergies to be to aspirin and penicillin; there is no mention of any allergy to injectable dye, including at the time of April 2006, September 2006, and December 2006 treatments of left L4-5 intralaminar lumbar epidural steroid injections with fluoroscopic guidance. Also, no such records reflect any problems with recurrent hives. Furthermore, on April 2010 VA examination, while the Veteran reported that he very seldom and infrequently got hives, at the time of examination there were no hives or other findings relating to the skin. Moreover, the fact that the Veteran has allegedly suffered for 50 years with his hives and allergy problems due to VA treatment but not raised a claim until October 2009, despite having previously raised claims for service-connected compensation in February 1956, December 1963, and February 2009 for multiple claimed disabilities, tends to discredit the Veteran's assertions of such symptomatology, and further diminishes the probative value of his assertions. The probative value of the assertions are, at best, unclear. Furthermore, other than Veteran's assertions, there is no indication that any current hives or allergy problems might be linked to any dye injection he might have received in 1956. The only competent and probative medical opinion regarding whether any hives or allergies might be related to any alleged dye injection in 1956 is the opinion of a VA examining physician in April 2010, which was that the Veteran's uticaria to penicillin, aspirin and flu shot was less likely than not caused by an injected dye; the examiner noted at that time that the Veteran did not have hives and reported that he very seldom (infrequently) got hives. The Board finds the VA physician's opinion to be probative. The physician reviewed the entire claims file, examined the Veteran, and took the Veteran's entire reported history, including being injected with dye in 1956, having an allergic reaction to it involving hives, and being allergic to flu shots, aspirin and penicillin since that time. Although the VA physician did not provide any direct rationale following his conclusion, prior to providing the opinion, the examiner stated the following: "In summary, this is a gentlemen who states that in 1956 when he had this dye injected into him he broke out in hives, and because of this he was subsequently allergic to these various things that I mentioned above." The examiner's opinion was, in short, a rejection of the Veteran's own speculative medical opinion, unsupported by any medical evidence. Moreover, given the lack of any supporting evidence that the Veteran was injected with a dye, had an allergic reaction to a dye injection or any other VA procedure in 1956, or has any disability involving allergies or hives that might be linked to any VA procedure, the April 2010 VA physician's opinion, along with record as a whole, provides sufficiently probative evidence to weigh against the Veteran's claim. In light of the above, the Board finds that no disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under the law administered by VA, and that the evidence of record, as a whole, weighs against his claim. Accordingly, the Board finds that the claim for compensation under 38 U.S.C. § 1151 for allergic reaction with hives 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); Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Also, for a claim to reopen a previously denied claim for service connection, the VCAA requires that VA provide a notice letter that describes the basis of the previous denial, as well as the evidence necessary to substantiate the element or elements of service connection found to be unsubstantiated in the previous denial. The failure to provide this notice prior to the adjudication of a veteran's claim generally constitutes prejudicial error by VA. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006). In the present case, required notice was provided by letters dated in October 2009 and November 2009, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman, including the criteria for substantiating claims for service connection and compensation under 38 U.S.C. § 1151. These letters also informed the Veteran of the basis of his previous denials for service connection for back and left ankle disabilities, as well as the evidence necessary to substantiate the element of service connection found to be unsubstantiated in the previous denials. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical records, and identified private treatment records have been obtained. Also, the Veteran was provided VA examinations in November 2009 and April 2010. These examinations and associated reports were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claims. The examination reports were based on examination of the Veteran by physicians with appropriate expertise who reviewed the claims file. As explained above, although the April 2010 VA physician did not provide any direct rationale following his conclusion, the examiner's prior remarks provide explanation for the opinion as a rejection of the Veteran's own speculative medical opinion, unsupported by any medical evidence. Also, as discussed above, given the complete lack of any supporting evidence for the Veteran's assertions regarding his claim for compensation under 38 U.S.C. § 1151, the April 2010 VA physician's opinion, along with record as a whole, provides sufficiently probative evidence to weigh against the Veteran's claim. 38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007). Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for a back disability is reopened and, to that extent only, the appeal is granted. New and material evidence not having been submitted to reopen the Veteran's claim for entitlement to service connection for a left ankle disability, the appeal is denied. Service connection for a back disability is denied. Compensation under 38 U.S.C. § 1151 for allergic reaction with hives is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs