Citation Nr: 1319798 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-40 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a throat disability. 2. Entitlement to service connection for an ear disability. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for hepatitis C. 5. Entitlement to service connection for a lumbar spine disability. 6. Entitlement to service connection for a nasal disorder. 7. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to March 1975 and from October 1980 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 Regional Office (RO) in St. Petersburg, Florida rating decision. The Veteran had a hearing before the undersigned Veterans Law Judge in September 2011. A transcript of the hearing is contained in the claims file. This appeal was previously before the Board in February 2012. The Board remanded the claim so that treatment records could be requested and the Veteran could be scheduled for VA examinations. The case has been returned to the Board for further appellate consideration. The issues of entitlement to service connection for depression and a liver disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for a nasal disorder, hepatitis C and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have a current throat disability. 2. The Veteran does not have a current ear disability. 3. The probative and credible evidence of record is against a finding that the Veteran has a right knee disability that is related to a disease or injury during active service. 4. The probative and credible evidence of record is against finding that the Veteran has a lumbar spine disability that is related to a disease or injury during active service. CONCLUSIONS OF LAW 1. A throat disability was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. An ear disability was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. A right knee disability was not manifest in service and is unrelated to service. 38 U.S.C.A. §§ 1110 , 1131, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. 4. A lumbar spine disability was not manifest in service and is unrelated to service. 38 U.S.C.A. §§ 1110 , 1131, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). A decision by the United States Court of Appeals for the Federal Circuit has addressed the amount of notice required for increased rating claims, essentially stating that general notice is adequate and notice need not be tailored to each specific Veteran's case. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Through September 2007 and March 2008 letters, the RO notified the Veteran of the elements of service connection, the evidence needed to establish each element, and evidence of increased disability. These documents served to provide notice of the information and evidence needed to substantiate the claims. VA's letters notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In each letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each the Veteran's claims decided on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or AMC has obtained copies of available service treatment records, VA treatment records, his Social Security Administration (SSA) disability records, and arranged for VA examinations in connection with the claims decided on appeal, reports of which are of record and are adequate for rating purposes. The opinions expressed therein are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. The Veteran's service treatment records for his first period of service appear to be incomplete, as a separation evaluation from his first period of service is not of record. The United States Court of Appeals for Veteran's Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In September 2011, the Veteran testified at a personal hearing regarding his claims on appeal and has provided a private opinion regarding his lumbar spine disability. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). Laws and Regulations Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to the showing of chronic disease, there must be a combination of sufficient manifestations to identify the disease entity and sufficient observation at the time, as distinguished from isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303. Service incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101 , 1112; 38 C.F.R. §§ 3.307, 3.309. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a Veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. VA may favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. Ears and Throat In July 2007, the Veteran filed a claim for "ear, nose and throat" disabilities. During his September 2011 hearing, the Veteran testified that he began having "problems with his throat" in 1972. He stated that he was diagnosed with tonsillitis, and that he subsequently developed an ear infection. He stated his tonsillitis and ear infection continued "until [he] got out of the military. And it still bothered [him]. And up until last month, [he] still had it again." He described symptoms of a sore and swollen throat. He also stated that when he was in Germany, the physicians wanted to remove his tonsils, but that he refused the surgery. He still has his tonsils. He then testified that he continues to be treated for sinus symptoms, which include drainage to his throat. He stated that he had never developed an ear infection separate from a sinus infection, and his symptoms "happen every year...mostly during the summer months. It's nothing that goes away." He reported that he was treated for his symptoms every year in service and was diagnosed with tonsillitis and hay fever on separate occasions. He felt that his throat disability and sinus disability are different/separate disorders, although his hay fever can aggravate his tonsillitis. Service treatment records include the Veteran's March 1972 induction evaluation, which noted that he entered service with a normal clinical evaluation of his mouth, throat and ears. As noted above, the Veteran's service treatment records appear to be incomplete as the record does not contain a 1975 discharge evaluation. The Veteran has testified that during his time in Germany in 1972 or 1973 he was treated for tonsillitis. The Veteran's February 1979 retention evaluation, however is of record. The Veteran indicated he had a history of treatment for ear, nose or throat trouble and treatment for mumps. In explanation, he indicated he was treated for hepatitis in 1974. Upon clinical evaluation, his mouth, throat and ears were normal. In August 1980, the Veteran filled out a screening physical examination worksheet, where he denied loss of hearing, "any illness requiring repeated treatment by a doctor," any period of hospitalization, and that a physician had ever recommended surgery. In February 1981, the Veteran complained of a sore throat, neck and ear pain. He was prescribed Tylenol. In August 1982, the Veteran filled out a disposition form regarding his medical history. On the form he denied ever experiencing hay fever, denied taking medication for a sinus condition, and he denied ever being hospitalized. On his separation physical in March 1983, the Veteran denied a history of ear, nose or throat trouble. He also had a normal clinical evaluation of his mouth, throat, and ears. Post-service private and VA treatment records contain few complaints of a sore throat or ear symptoms. A private treatment record from April 1993 noted the Veteran complained of a sore throat for a week, with a headache and "popping" of the ears. His bilateral tympanic membranes showed amber fluid behind the ear drums, and he had a negative strep test screening. He was diagnosed with sinusitis, and treated with Amoxil (antibiotic). An undated private treatment record, situated between December 1999 and February 2000 prescription orders, noted the Veteran complained of a non-productive cough, slight temperature, sore throat and chest congestion. The December 1999 prescriptions were for Amoxil and Flonase (nasal spray). In April and July 2006, VA treatment records revealed normal evaluations of the mouth and throat. In June 2011, the Veteran complained of sinus pressure, a sore throat, and productive cough after being exposed to his friend's sick children. He was diagnosed with an upper respiratory infection with acute bronchitis and a history of asbestos exposure from prior occupation. A May 2012 VA treatment record noted the Veteran's tympanic membranes were normal, and his mucus membranes were normal. In August 2012, the Veteran was afforded a VA nose and throat examination. The Veteran reported being treated in service (roughly 1973) with antibiotics for sinusitis. He stated he improved on antibiotics, but was treated again for sinusitis six months later. He was unsure of the exact dates. Since then he was treated in the mid-2000s for allergies. The examiner did not find a current throat disability. In August 2012, the Veteran was also afforded a VA ear conditions examination. He stated that at the time of the examination he did not have "current ear problems." He reported he suffered from a left ear infection ten years prior, which resolved with antibiotics. This ear infection (in roughly 2002) was his only ear infection and that his right ear is "fine." The Veteran had a normal bilateral ear examination, and the examiner did provide a current diagnosis. The Board finds a clear preponderance of the evidence is against a finding that the Veteran currently has a throat or ear disability. Therefore, there is no basis for a grant of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that "[a] service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability"). Here, the evidence weighs in favor of the findings made in the August 2012 examination reports. In 2011, the Veteran testified he was treated in service in 1973 for tonsillitis, and in 2012 he reported to the VA examiner that he was treated for sinusitis in 1973. While his service treatment records are seemingly incomplete, the Board believes the Veteran was treated in Germany in 1973. However, it does not appear that the Veteran can recall what he was diagnosed with during that treatment. Regardless, after his treatment in 1973, he was treated again for a sore throat and ear pain in 1981. These symptoms resolved, and in 1982 and again in 1983, the Veteran had no complaints of a sore throat or ear problems. Available post-service records reveal that he was next treated for a sore throat in 1993, which was diagnosed as sinusitis. He complained of a sore throat in roughly 1999, and appears to have been treated with the same medications used to treat his sinusitis in 1993. He reports treatment for an ear infection in 2002, and he did not complain of throat or ear symptoms again until 2011, when he was diagnosed with an upper respiratory infection and bronchitis after being exposed to sick children. As there are roughly ten-year gaps of time between the Veteran's treatment for sore throat and ear pain in service and out of service, these appear to be acute illnesses. Additionally, all of his complaints appeared to resolve after treatment. While the Veteran has testified that his throat and ear pain and infections have continued from 1973 to the present, he has also indicated that his symptoms are associated with sinus pressure and that they are seasonal. He has only been treated for an ear infection once since service that he reported, and there is no indication he was treated for tonsillitis after service. There is no objective indication the Veteran has suffered from ongoing ear or throat symptoms since he filed his claim in 2007. When he testified in September 2011 that he had been recently treated for tonsillitis and an ear infection, available medical evidence revealed he was treated for an upper respiratory infection with bronchitis after interacting with sick children. The claims file shows that the Veteran has been diagnosed with sinusitis and allergic rhinitis. His complaints of a sore throat and popping or full ears in the 1990s was diagnosed as sinusitis. His diagnoses of sinusitis and allergic rhinitis are addressed in the REMAND section of this decision, as a part of his claim for a nasal disorder. In sum, the record does not show that the Veteran has been diagnosed with a chronic throat or ear disability, medical treatment for ear or throat symptoms occur after large gaps of time and have been associated with sinusitis, allergic rhinitis, and an upper respiratory infection, and the Veteran's lay statements of continuous symptoms were described as seasonal hay fever. Thus, although he argues that his throat and ear disabilities are separate disorders from his nasal disorder, the VA examiner and treating physicians have not diagnosed chronic throat or ear disorders, and his symptoms have not been associated with a current ear or throat disability. As such, the Board finds that the Veteran does not meet the first requirement for service connection, and service connection must be denied. Right Knee In September 2011, the Veteran testified that he injured his right knee playing basketball in service. He stated that in the first 5 to 10 years post service his right knee constantly hurt. He was employed as an electrician, and he had to crawl, bend, climb ladders, and perform other physical tasks. He stated his knee bothered him while he was completed these employment tasks.. Service treatment records include a March 1981 treatment record which the Veteran contends showed he injured his right knee. The treatment record noted that he sustained low back pain after playing basketball. He developed shooting pain from his right quadrant low back down his right leg. He had muscle spasms and slight edema to the right side of his low back. He was assessed with muscle strain. The note is written "pain from R quad L.B. down R leg." which may appear at first to be referring to the right quadriceps muscle; however, low back (L.B.) is followed by "down R leg" which indicates the "R Quad" is not the right quadriceps, but the right quadrant of the low back. Thus, while the note indicated that the Veteran's low back pain radiated down his right leg, it did not include a finding of right knee pain or injury. In March 1983, the Veteran denied a history of a trick or locked knee and the clinical evaluation of his lower extremities was normal. Post-service records include a private May 1992 record of right knee pain. He reported a history of right knee pain for the past month due to crawling around on ceiling beams. He indicated his pain was worse immediately after he was crawling on the beams, but that he was concerned because the pain had not completely cleared. He was assessed with medial collateral ligament pain at insertion. In 1996, the Veteran was involved in a motor vehicle accident where his truck was rear ended by a van several times. He developed neck and back pain after the accident. An October 1996 treatment record noted the Veteran's lumbosacral pain radiated to his right buttock and down the posterolateral distribution of the right leg and is associated with paresthesias. There are numerous subsequent complaints of right leg pain and numbness. In April 1997, the Veteran complained of left knee pain, as well as a feeling as though his right knee will "give out." He described pain radiating from his low back down his right buttocks and leg, with associated numbness and tingling. In December 2005, the Veteran reported bilateral medial and posterior knee discomfort after a summer of playing basketball. He stated that his bilateral knee pain had lessened since he stopped playing and since taking over-the-counter medication. He denied swelling or locking of the knees. The physician assessed probable early osteoarthritis, exacerbated by the basketball playing. A private treatment record from April 2006 included complaints of joint stiffness and pain in the bilateral knees. No diagnosis was provided. In March 2008, the Veteran was afforded a VA joints examination. He reported that he twisted and injured his right knee after a rebound while playing basketball in roughly 1980. The VA examiner reviewed the March 1981 service treatment record regarding his "pain from R quad L.B. down R leg." The examiner noted that the complaint at that time was of low back pain, and that the right knee was not mentioned. The examiner opined that there was "no objective evidence of a chronic right lower leg/knee condition with onset in service." In November 2008, in association with his claim for SSA disability benefits, the Veteran described the physical requirements of his employment. He noted he had to lift a ladder all day, lift an electrical motor that weighed 150 pounds once or twice a day, lift major components of electrical motors which weighed 25 pounds multiple times a day, wear a tool belt and carry a tool box all day, each weighed roughly 25 pounds. He indicated he worked as an electrician for 22 years, with his last employment in 2007. A February 2009 private treatment record associated with the Veteran's SSA records included a complaint of persistent right knee pain since 1981 or 1982. His knee pain would worsen with walking. He denied recent x-rays of his knees. In November 2012, the Veteran was again afforded a VA joints examination. The examiner diagnosed right knee strain with degenerative joint disease per imaging. The Veteran stated that the wear and tear of active duty resulted in a right knee condition. He reported he treated his knee pain with over-the-counter medication and heat pads. X-ray of the right knee, taken in conjunction with the examination, revealed mild to moderate degenerative joint disease and mild chondrocalcinosis. The examiner opined that the Veteran's current right knee disability is less likely than not caused by or a result of his service because the Veteran did not injure his knee in service and that there was a 25-year gap before he complained of knee pain after service. The examiner noted that the Veteran's history of a possible intercurrent injury post-service was unknown. Initially, the Board notes that the November 2012 VA examiner was incorrect in noting a 25-year gap between the Veteran's discharge from service and his next complaint of knee pain; the gap was of 10 years. However, the Board does note that the Veteran was not treated for, nor did he complain of right knee pain during his second period of service. Nor did he report a history of a knee injury during his first period of service. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Veteran reported in 1993 that his right knee began to hurt after kneeling on ceiling beams, and had only hurt for roughly a months The 1993 record further indicated that this was the first time his right knee was painful because the fact that the pain had decreased with time and medication, but was not completely gone, was worrisome to the Veteran. If his right knee was constantly hurting him from 1980 onward, than his 1993 "not completely resolved" right knee pain would have been normal for him. Additionally, in 2005, the Veteran complained of bilateral knee pain following a "summer of playing basketball." Again, he noted that the pain lessened once he stopped playing and took medication, but he was worried because the pain had not completely resolved. He did not complain of persistent/on-going knee pain since service until after he filed a claim for VA benefits. As such, the Board finds the Veteran's statements regarding continuity of symptomatology to not be credible. Service treatment records do not contain treatment for or complaints of right knee pain or injury; however, during the 2012 VA examination, the Veteran argued that wear and tear from six years of service lead him to develop right knee pain and degenerative joint disease. Here, the Board notes that the Veteran did not complain of right knee pain until 10 years after service, and that two years after service he began working as an electrician. The Veteran indicated on his SSA disability paperwork that his employment as an electrician was very physically demanding. After his 1993 complaint of right knee pain he did not seek treatment for his knees again until 2005. Thus, the Veteran initially indicated he injured his knee in service when the record showed that he only injured his back, in 2011 he testified that his knee pain was continuous from service but in 1993 he reported new onset right knee pain from the month prior, and in 2012 he claimed his knee pain was a result of wear and tear in service, but he did not complain of knee pain for 10 years after service, during which time he worked a physically demanding job for 8 years. See Maxon v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [it was proper to consider a veteran's entire medical history, including a lengthy period of absence of complaints]; see also Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) ["negative evidence" could be considered in weighing the evidence]. As the Veteran was not diagnosed with compensably disabling right knee arthritis within one year of discharge, the Board finds that presumptive service connection is not warranted. As the service treatment records are silent for complaints of or treatment for a right knee disorder and the Veteran's statements regarding continuity of symptomatology are not credible, the Board finds that entitlement to service connection for a right knee disorder is not warranted. Lumbar Spine The Veteran contends that he developed a lumbar spine disability in service as a result of several injuries. He argues that a 1996 motor vehicle accident further aggravated his spine. In September 2011, the Veteran testified that beginning in service and continuing until the 1996 accident, he had back pain every day. He stated he took over-the-counter medication (Tylenol), which relieved his back pain some, but not completely. He worked as an electrician after service, and his back pain impacted his ability to work due to the physical nature of his job. He carried heavy ladders, heavy tools, pulled wire, and he "couldn't do that anymore. It was too much strain on [his] back." After the 1996 accident the Veteran saw a chiropractor, although he did not continue long-term care with the chiropractor due to financial constraints. Service treatment records show that in November 1980 the Veteran complained of low back pain after jumping into a foxhole. He felt his right low back "pull" and since the injury he noticed an increased "pulling." Leg raises caused increased pain in the area of L5-S1 and flank pain. He was assessed with low back strain. As noted above, in March 1981, he complained of right side low back pain after playing basketball. He had slight edema to his right low back and palpation revealed muscle spasm. He was assessed with muscle strain. He was taken to a medical clinic which noted "no lordosis or scoliosis, no heat or redness or bruising; slight spasms to right low back at approximately L3, straight leg lifts positive at 65 degrees." He had a full range of motion and negative palpation to sciatic nerve and procession of L5. He was assessed with low back pain of a muscular origin. In September 1982, the Veteran injured his back playing basketball again. He had tenderness to his right low back when he walked or stooped. He was assessed with a sprained low back. On his March 1983 discharge evaluation, the Veteran denied a history of recurrent back pain and he had a normal clinical evaluation of his spine. The earliest post-service treatment records in the claims file are from 1988. While the Veteran was treated for hypertension, headaches, sore throats and other ailments, he did not complain of low back pain prior to his March 1996 motor vehicle accident. X-rays at the time of the accident revealed sclerosis of the articular facets at the L5-S1 level compatible with degenerative change in this area. No other abnormalities were seen. A June 1996 MRI revealed dehydration of the L4-5 disc with a mild diffuse annular bulge resulting in only minimal mass effect on the ventral thecal sac and minimal neural canal stenosis bilaterally. It also showed less than first grade anterior degenerative spondylolisthesis L5 relative to degenerative changes in the facet joints with dehydration of this disc, and hyperlordosis of the lumbar spine as a unit. In July 1996, the Veteran sought treatment with the North Florida Chiropractic Clinic. During his initial treatment he noted he had sustained an accident in March 1996 which caused upper and low back pain. He also noted that he had no complaints in the involved areas prior to the accident. In September 1996, the Veteran's treating chiropractor, D.G.F., provided a letter to the Veteran's employers that he had continuous problems with his neck, mid and low back as a result of his March 1996 motor vehicle accident. In October 1996, the Veteran was referred to a neurologist who reviewed his history and evaluated multiple neurological symptoms secondary to the motor vehicle accident. The neurologist noted the Veteran had sustained a back injury in service in 1980 when he jumped into a foxhole, but noted that this injury had completely resolved prior to the 1996 injury. In November 1996, a lumbar myelogram revealed grade 1 spondylolisthesis of L5 anterior on S1 with disc narrowing. A CT scan revealed very prominent hypertrophic degenerative changes in the apophyseal joints at L5/S1 bilaterally. In June 1997, the Veteran was undergoing physical therapy, and he provided a history of low back pain and mid-thoracic pain beginning with his March 1996 accident. His back pain was momentarily helped by seeing a chiropractor after the 1996 accident, but when his treatment stopped his pain returned. The Veteran filed his initial claim of entitlement to service connection for a low back disability in September 2001. He was denied in a March 2002 rating decision. In July 2007, the Veteran applied to reopen his lumbar spine claim. The Board reopened the claim in the February 2012 decision, and remanded for additional development. In September 2007, the Veteran's brother provided a statement that the Veteran injured his back in 1980 in basic training, and that his back problems continued. A statement from the Veteran's ex-wife is also contained in the claims file. She noted that she was his fiancé in 1977, and wrote that she "knew he had back problems." In August 2008, the Veteran had an episode of acute back pain while "laying flooring." He continued to work after the pain began and developed left lumbar pain. In February 2009, during a consultative examination for SSA benefits, the Veteran reported he had "constant non-radiating low back pain since an injury in 1980." He "developed constant, non-radiating upper right sided back pain" after a motor vehicle accident in 1996. In March 2009, during a psychiatric consultation for SSA benefits, he reported he was unable to work due to his back injury in during service. During VA treatment in September 2009, and January and February 2010, the Veteran reported persistent back pain for the past "20 years." In September 2011, chiropractor D.G.F. provided a statement in support of the Veteran's claim. He noted he treated the Veteran from March until December 1996 as a result of a motor vehicle accident with injury to his neck and low back. "It was determined that the neck injury was new (acute) at the time of the crash. His lumbar spine had been injured earlier and it was aggravated by the motor vehicle crash. There was evidence of degenerative joint disease in the lumbar spines which lead [D.G.F.] to this conclusion. Most likely this degeneration was due to an injury which was reported when he was in the military." In August 2012, the Veteran was afforded a VA spine examination. He reported he was treated in service for low back pain, "five times in Kansas and twice in Germany." He reported he had service treatment records at home for this treatment and he stated that he would provide copies of the treatment records to the RO. The Veteran did not provide copies of these records. He stated his belief that the motor vehicle accident in 1996 aggravated his low back disability which started in service. After examination and a review of the claims file, the examiner opined that the Veteran's current low back disability is not caused by or a result of any incident of military service. The examiner noted the Veteran was treated in service three times for "transient" low back pain diagnosed as muscle strain, low back strain, and sprained low back with lumbosacral spasm. The examiner noted that for more than 13 years after discharge from service the Veteran did not seek treatment for his low back. The examiner also quoted the October 1996 treatment record regarding the resolution of the Veteran's in-service back symptoms. The examiner also noted that the Veteran may have experienced multiple unknown incidental injuries during his work with heavy electrical equipment as an electrician. His anterior spondylolisthesis was diagnosed subsequent to his 1996 accident and has progressed to a point where he underwent surgery in 2009. The examiner noted that there was no medical literature which supported a cause-and-effect relationship or aggravation, if any, between the Veteran's in-service muscle strains and his current spondylolisthesis. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) As noted above, the Board does not find the Veteran's statements of continuity credible. Here, the Veteran did have complaints of low back pain on several occasions in service. He has testified that his back pain in service continued from onset in 1980 until the pain increased due to the 1996 accident. On his discharge examination in 1983, however, the Veteran denied recurrent back pain. He also informed his treating physicians in 1996 that his back symptoms in service resolved prior to his 1996 accident. On several occasions in 1996, when he was asked about his back pain history he indicated it began with the motor vehicle accident. This included informing D.G.F. that he did not have back problems prior to the 1996 accident. In subsequent VA treatment records from 2009 and 2010, the Veteran indicated his back pain began 20 years prior, in roughly 1990. The Veteran has provided conflicting statements regarding the onset of his back pain, and thus his statements regarding continuity of symptomatology are not credible. The statements of his brother and ex-wife verify that he injured his spine in service. His brother's statements seem to indicate that the Veteran's back pain continued from 1980 to at least 1982 ("In 1982, I was deployed to Germany and my brother and I spoke often of his continued problems with his back.") The claims file contains conflicting medical nexus opinions. In assessing the service connection claim based on the available evidence of record, the Board finds that the opinion of the November 2012 VA examiner is more probative than the statement of the Veteran's chiropractor. Factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In contrasting these opinions, the Board is cognizant that the Court has stressed that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the VA examiner has reviewed the Veteran's claims file and his VA treatment records, examined the Veteran, and provided a negative nexus opinion. The Court in Nieves noted that when evaluating the probative value of a medical opinion, the examiner's review of records from claims file, while important, is not dispositive absent review and consideration of most relevant case facts. Here, however, a review of service treatment records reveals that the Veteran was treated for muscle strain on three occasions in service, and that he had a normal clinical evaluation of his spine upon discharge in 1983. The VA examiner also reviewed the October 1996 treatment record where the Veteran reported that his in-service spine symptoms had resolved, which is supported by his indication on his 1983 discharge evaluation that he did not have recurrent back pain. The private chiropractor was also aware of the October 1996 neurologist report because it was addressed to him. The Board assumes D.G.F was able to re-review the Veteran's first treatment with him, where he denied back problems prior to the accident. As regards "sound reasoning," the private chiropractor noted that "it was determined" that the Veteran's neck injury was new and his lumbar spine was aggravated by the 1996 accident. He does not indicate who made this determination or when, as treatment records from 1996 do not include findings of aggravation of a prior back injury. D.G.F. found that the evidence of degenerative joint disease in the lumbar spine in 1996 lead him to conclude that the degeneration was due to "an injury" in service. It does not appear from the opinion that D.G.F. was able to review the service records regarding the Veteran's in-service treatment for low back pain. The VA examiner found that there was no cause and effect relationship or aggravation between the in-service muscle strains and the 1996 diagnosis of spondylolisthesis. The examiner noted that the Veteran's in-service muscle strains were acute and transitory, and that this is evidenced by the fact that he had a normal clinical evaluation at discharge, and he had no complaints of back pain for 13 years after service. The examiner noted that there is no medical evidence to support that the Veteran's subsequent development of spondylolisthesis after a car accident was an aggravation of in-service muscle strains which the Veteran reported had resolved. The VA examiner also commented on the Veteran's 22-year employment history as an electrician with significant physician demands. The chiropractor did not comment on the Veteran's roughly 10-year history of lifting heavy machinery, tools, and ladders, as well as bending, stooping and kneeling prior to his 1996 accident. The chiropractor did not comment on the Veteran's indication that his in-service back symptoms had resolved prior to his 1996 accident, or that he denied recurrent back pain in 1983. As such, the Board affords the VA examiner's opinion greater probative weight than the opinion of the chiropractor. For the foregoing reasons, the claims for service connection for a throat disability, ear disability, right knee disability and low back disability must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Entitlement to service connection for a throat disability is denied. Entitlement to service connection for an ear disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a low back disability is denied. REMAND Unfortunately, a remand is required in regards to the Veteran's claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. Nasal Disorder The Veteran contends that he developed sinusitis/allergic rhinitis in service and his symptoms have continued seasonally since service. In August 1979 he indicated a history of ear, nose and throat trouble. In August 1982, he denied a history of hay fever or asthma. Post service treatment records include diagnoses for sinusitis and allergic rhinitis. The Veteran also had numerous complaints of headaches. In August 2012, the Veteran was afforded a VA sinusitis, rhinitis and other conditions examination. The examiner noted the Veteran had been diagnosed with acute maxillary sinusitis in 2003, but did not record any of his other diagnoses. The Veteran reported he was treated for a sinus infection in 1973, and was placed on antibiotics for 10 days with improvement. He developed a second sinus infection six months later. He also reported being treated for allergies beginning in the 2000s and continuing thereafter. He felt that he developed sinusitis and allergies as a result of his in-service sinus infections. Notably, the Veteran's service treatment records from his first period of service are incomplete. As such, the Board will assume that the Veteran was treated for sinus infections during this period of service as reported. The examiner noted that the Veteran was not suffering from a sinus or nasal condition at the time of the examination, and that his 2003 sinusitis resolved without residuals. As the Veteran did not have current symptoms, the examiner did not provide a nexus opinion. The requirement that a current disability be present is satisfied when a claimant has a disability at the time of a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2009). Virtual VA treatment records include a diagnosis of allergic rhinitis in May 2010, as well as ongoing prescriptions of nasal spray. The August 2012 VA examiner did not address this diagnosis or the Veteran's continued treatment with prescription medication. On remand, the examiner should review the claims file and virtual VA treatment records regarding treatment for sinusitis and allergic rhinitis and provide an opinion regarding all conditions the Veteran has been diagnosed with since he filed his claim in 2007. The examiner should then provide an opinion as to the relationship between all diagnosed conditions and the Veteran's reported in-service treatment for sinus infections. Hepatitis C As noted above, the Veteran's treatment records from his first period of service are incomplete. He has reported treatment for hepatitis while stationed in Germany; he developed jaundice during his illness. Available service treatment records include a 1979 notation of "I had hepatitis in 1974, fully recovered." A March 1983 report of medical history noted "hepatitis hospitalized for 30 days, 97th General Hospital Frankfurt, W. Germany, 1973." A June 2005 private treatment record noted the Veteran had a history of intravenous drug use with shared needles and nasal cocaine. He denied a history of blood transfusions and he denied tattoos. Treatment records include a diagnosis of hepatitis C in December 2005. In September 2011, Dr. B.W. from Patients First, noted that the medical chart contained lab data and treatment for hepatitis C dating back to 1994. He did not begin treatment until 2005, "when it became available." Treatment records from Dr. B.W. include a February 1994 laboratory testing which revealed repeatedly reactive hepatitis C virus. In March 2008, the Veteran was afforded a VA hepatitis examination. The Veteran reported hepatitis onset in 1974, and hepatitis C diagnosed in the 1980s. The examiner noted the record revealed hepatitis C was diagnosed in 2006. The examiner opined that it was less likely than not that the Veteran's hepatitis C was caused by or a result of in-service injury or event. The examiner noted that there was no objective evidence of the type of hepatitis the Veteran was treated for in service, but that medical literature noted that hepatitis C generally has no symptoms with initial infection, and thus it was unlikely to have been the cause of the symptoms in 1973. The examiner noted his diagnosis of hepatitis C was 30 years after service, and was most likely due to his drug use. In November 2012, the Veteran was afforded a second VA hepatitis examination. Here, the Veteran reported he had a tattoo started, but not completed, while he was stationed in Germany. The examiner did not note whether the Veteran actually had a tattoo or not, as he has previously denied a tattoo. The examiner also noted the Veteran had intravenous drug use and high risk sexual activity. The examiner provided the same opinion and nexus as the 2008 examiner-the Veteran's in-service hepatitis was unlikely to be hepatitis C because of the onset of acute symptoms, and his subsequent diagnosis by laboratory testing was not until 2005 (30 years later). The examiner noted the Veteran's hepatitis C was likely due to his intravenous drug use. The claims file should be returned to the 2012 VA examiner for an addendum opinion which would address the likely cause of the 1973 diagnosis of hepatitis and any possible relationship between the in-service hepatitis and his development of hepatitis C in 1994. As the record shows that the Veteran was first diagnosed with hepatitis C in 1994 (11 years after service), the examiner should readdress her nexus opinion with consideration of this earlier date of first diagnosis. Hypertension The Veteran contends that he developed hypertension secondary to his other disabilities incurred in service. As such, his claim for service connection for hypertension is inextricably intertwined with his claims for sinusitis and hepatitis C. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). On remand, if the Veteran is granted service connection for a nasal disorder or hepatitis C, then the RO should develop and address the theory of secondary entitlement for service connection for hypertension. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the November 2012 VA examiner, if available, for addendum opinions. After a review of the claims file, a copy of this REMAND, and any records available on Virtual VA, the examiner should answer the following questions: a) What nasal/sinus disorders has the Veteran been diagnosed with since he filed his claim for service connection in 2007? b) Is it at least as likely as not that any diagnosed nasal/sinus disorders are related to or began during his periods of active service? As the service records are incomplete for his first period of service, assume that he was treated for two sinus infections in 1973/4. c) What type of hepatitis did the Veteran likely receive treatment for in 1973? d) Is there a causal relationship between the hepatitis the Veteran was treated for in 1973 and hepatitis C? e) With the updated information that the Veteran was first diagnosed with hepatitis C in 1994, is it at least as likely as not that his hepatitis C is due to or his infection began during service? Provide a complete rationale for all opinions provided. 2. After completion of the above and any additional development deemed necessary, the issues remaining on appeal should be reviewed with consideration of all applicable laws and regulations. The RO should additionally address the Veteran's secondary service connection claim for hypertension, as it is remanded as intertwined with the remanded claims of entitlement to service connection for hepatitis C and a nasal disorder. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs