Citation Nr: 1322325 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 09-41 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for traumatic brain injury (TBI), currently rated noncompensably disabling. 2. Entitlement to an increased rating for chronic sinus congestion / residuals of nasal fracture and laceration, currently rated 30 percent disabling. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active duty service from October 1968 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 decision of a Regional Office (RO). A notice of disagreement was received in April 2009, a statement of the case was issued in August 2009, and a substantive appeal was received in October 2009. The Board notes that the knee issue on appeal has been characterized in RO adjudication as involving a "knee" disability without specifying which knee. However, the Veteran's contentions exclusively and repeatedly specify a right knee injury and current chronic right knee disability as part of this claim. The evidence of record does not otherwise raise any question of a left knee injury during service nor a current chronic left knee injury pertinent to this appeal. Neither do the contentions and evidence raise any question of a bilateral knee disability. Accordingly, the Board has more specifically characterized the issue on the title page of this decision to clarify that it is a right knee disability for which the Veteran seeks to establish service connection. The Veteran's October 2009 substantive appeal included a request for the Veteran to testify at a Board hearing. A Travel Board hearing was scheduled for May 2013, but the Veteran cancelled this hearing in an April 2013 communication with the RO; the Veteran expressed that she wished to withdraw her hearing request and requested that the Board review the case on the basis of the evidence currently of record. The Board finds that the procedural history in this appeal has presented some confusion with regard to the characterization and identification of the correct issues on appeal; specifically, there is confusion regarding the appellate status of the TBI issue and the nasal/sinus congestion issue; the service connection issues involving the knee and the back are straightforwardly on appeal. In September 2008, the Veteran filed a claim of entitlement to a higher rating for the residuals of the nasal fractures and laceration. The claim was denied in January 2009. After the Veteran's notice of disagreement was filed, an August 2009 statement of the case addressed the issue essentially the same way. The adjudication of the issue to that point featured the rating criteria for deviation of septum, with attention paid to obstruction of nasal passages, congestion, mucous membranes; there was also some discussion of a scar across the bridge of the nose. The Veteran's October 2009 substantive appeal contends that she experiences ongoing nose bleeds, sinus problems, headaches, and visual problems. From this the RO inferred claims of entitlement to service connection for (1) "any sinus condition to include nose bleeds," (2) "migraine headaches," and (3) "eye condition." The RO denied service connection for these three issues in a December 2009 rating decision. The Veteran did not appeal the December 2009 decision. The appeal proceeded with regard to the rating for "residuals, nasal fractures and laceration." After additional development of the evidence, the RO eventually concluded that the Veteran's in-service car accident not only broke her nose but also caused a TBI. The RO also concluded that the Veteran's current sinus congestion is secondary to the residuals of the nasal fracture. However, instead of granting service connection for TBI and instead of rating the sinus congestion as part of the nasal fractures residuals, the RO significantly recharacterized the issues. The RO issued a rating decision in November 2012 that, by its own language, recharacterizes the service-connected "residuals, nasal fractures and laceration" as, instead, "traumatic brain injury." The RO changed the Diagnostic Code for this disability from 6512 (for "sinusitis, frontal, chronic") to 8045 (for "residuals of traumatic brain injury"), and found that the 0 percent rating "is continued." The November 2012 RO rating decision also separately granted service connection for "chronic sinus congestion" effective from September 2008 and assigned a 30 percent initial rating for this disability. The codesheet confirms that the RO has replaced the old service-connected "residuals, nasal fractures and laceration" effective from 1977, with "traumatic brain injury" effective from 1977, and the RO has treated the sinus congestion as a new service connected disability effective from 2008. The RO also issued a supplemental statement of the case in November 2012 which, in pertinent part, includes the issue: "Evaluation of traumatic brain injury, mild with history of fracture of the nose (previously rated as residuals, nasal fracture and laceration)." The supplemental statement of the case does not address any matter of rating the Veteran's nasal/sinus symptoms, but rather has entirely replaced the "nasal fractures" issue on appeal with a "traumatic brain injury" rating issue. The analysis featuring the brain injury rating criteria is not at all similar to the analysis in the prior adjudications concerning the nasal disability criteria; the RO effectively transferred the nasal disability rating considerations (under Diagnostic Code 6512) to the separate recent grant of service connection for sinus congestion which the RO did not consider part of this appeal. In the Board's view, the TBI is a newly service-connected disability and is not the disability for which an increased rating claim has been perfected for appeal. The disability for which an increased rating claim was perfected for appeal was "residuals, nasal fractures and laceration" rated under Diagnostic Code 6512. The November 2012 RO rating decision's grant of service connection for chronic congestion has been treated by the RO as a new issue separate from the appeal, and the assignment of the new 30 percent rating Diagnostic Code 6512 has been treated as separate from this appeal. However, in the Board's view, the chronic congestion rating arises from the Veteran's appeal of the rating assigned for residuals of nasal fracture and her appeal in this regard remains properly in appellate status. The establishment of service connection for TBI did not, in the Board's view, present any reason for the appealed issue of entitlement to a higher rating under Diagnostic Code 6512 to become separated or excluded from this appeal. The Board has given careful consideration to how to best address this confusion arising from the procedural history of these issues. In the interest of affording the Veteran with every consideration of her contentions on appeal, and minimizing the confusion caused by the processing of this case, the Board finds that it is most appropriate for the Board to take jurisdiction of both the residuals of nasal fracture / sinus congestion disability and the TBI issue. The Board views the nasal fracture / sinus congestion disability issue as properly on appeal because the Veteran clearly perfected an appeal seeking a higher rating for her nasal/sinus disability rated under Diagnostic Code 6512; her statement with her October 2009 substantive appeal reiterates her clear contentions involving "sinus issues, nasal difficulties, nose bleeds...." The nasal/sinus disability rating issue should not disappear from the appeal simply because a TBI has been established as service-connected, and the Board does not view the RO's separate grant of service connection for sinus congestion as resolving the rating issue on appeal. With regard to the TBI rating issue, the Board believes that the most appropriate action is to take jurisdiction of this issue also as the RO's actions appear to have reasonably led the Veteran to believe that it is in appellate status and had been certified for Board review. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (VA waives objection to timeliness of substantive appeal by taking actions that lead the Veteran to believe that an appeal was perfected). The Board has recharacterized the issues on appeal on the title page of this decision in accordance with these determinations; the Board's objective is to preserve full consideration of the Veteran's contentions on appeal and to most appropriately minimize confusion to the Veteran in this case. The issues of entitlement to increased ratings for residuals of a TBI and for chronic sinus congestion / residuals of a nasal fracture and laceration 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. Any injuries involving the Veteran's knees during service were acute in nature and resolved without residual chronic disability. 2. Chronic knee disability was not manifested during service, nor within one year of discharge from service, nor is any chronic knee disability otherwise caused or aggravated by such service. 3. Any injuries involving the Veteran's back during service were acute in nature and resolved without residual chronic disability. 4. Chronic back disability was not manifested during service, nor within one year of discharge from service, nor is any chronic back disability otherwise caused or aggravated by such service. CONCLUSIONS OF LAW 1. Chronic knee disability was not incurred in or aggravated by the Veteran's active service, nor may in-service incurrence be presumed. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Chronic back disability was not incurred in or aggravated by the Veteran's active service, nor may in-service incurrence be presumed. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice pertinent to establishing service connection by a letter dated in September 2008; additional notice was provided in December 2010, prior to the most recent readjudication of these issues as evidenced by the November 2012 supplemental statement of the case. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The September 2008 letter provided notice concerning the evaluation and the effective date that could be assigned should service connection be granted, in accordance with Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice was timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The December 2010 notice letter was also effectively timely. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service treatment records and afforded assistance in obtaining private and VA post-service treatment records. VA has assisted the Veteran in successfully obtaining records in the custody of the Social Security Administration (SSA) which are available for review in the claims-file. VA has also afforded the Veteran VA examinations with pertinent reports and addenda of record dated in January 2009, November 2009, September 2011, December 2011, and July 2012. The Board finds that, following the most recent VA examination report addendum dated in July 2012, the VA examiner has probatively addressed the critical medical questions at issue; the VA examination reports, with the most recent July 2012 addendum, present sufficient discussion of the pertinent history, current findings, and expert determinations informed by review of the claims file such that they present adequate and probative evidence in this case. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Board notes that the Veteran has repeatedly described that she was hospitalized for treatment of pertinent injuries suffered in her in-service motor vehicle accident, and that the hospital treatment was at a military hospital known as Valley Forge General Hospital. The Veteran has noted that this hospital no longer exists (including in her October 2009 written statement) and has not suggested that additional records of her hospitalization are obtainable from any existing source. VA has obtained all of the Veteran's service treatment records available from the service department, and the Board takes judicial notice of the fact that the military facility named Valley Forge General Hospital closed in 1975 and no longer exists as an option for additional development efforts. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision at this time. Analysis The Veteran claims entitlement to service connection for back and knee disabilities. Essentially, the Veteran contends that she currently suffers from a back disability and a right knee disability as a result of military service. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to describe symptoms that she experienced in service or at any time after service when the symptoms she perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining 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, 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). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board further notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing; the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board may not make its own independent medical determinations; the Board must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. The Veteran contends that her April 1969 motor vehicle accident during active service, already established as having involved injury to the Veteran's face and head, also involved injury to her right knee and to her back. The Veteran's service treatment records include documentation that the Veteran was injured in a motor vehicle accident in April 1969. The contemporaneous documentation of treatment at that time shows nose and head injury concerns, but there is no suggestion of any symptoms or medical attention involving the knees or the back. In any event, the subsequent evidence of record strongly suggests that any alleged undocumented knee or back injury that may have occurred during the April 1969 accident was acute in nature and resolved without any chronic residual disability. A May 1969 service treatment record shows that the Veteran was evaluated for limited duty due to defects specifically identified to be a nasal fracture and a laceration over the nose; the report contains no suggestion of complaints or diagnosis of knee or back disabilities. The Veteran's May 1969 service separation examination report shows that the Veteran was examined and found to be clinically normal in all pertinent respects, including expressly "normal" findings for the lower extremities and the spine. Additionally, the Veteran completed a medical history questionnaire at that time during which she expressly denied having any history of "recurrent back pain" or "'trick' or locked knee." The May 1969 service treatment records, including the service separation examination report, strongly suggest that neither trained medical professionals nor the Veteran herself believed that she suffered from a chronic disability of a knee or of the back at that time. Postservice private medical records include handwritten notes that appear to include a November 1971 reference to the Veteran having "hurt back awoke in the AM." The handwritten note does not contain any apparent indication of a pre-existing back disability, any prior back injury, nor any manner of history of in-service back problems. The private medical records from this period also contain no indication of follow-up treatment nor any diagnosis of chronic disability or recurrent symptom complaints proximate to the November 1971 treatment. A November 1977 private medical record shows that the Veteran "hurt back while working at post office" while bending over and injuring her back while at an angle "and got pain low back right worse than left. The handwritten note does not contain any apparent indication of a pre-existing back disability or any prior back injury. The claims-file contains documentation of the Veteran's first claim for service-connected VA disability benefits, dated in May 1977. The Veteran specifically identified that she believed that she had "bad eyes" and "broken nose" as disabilities related to her military service, with onset in "1969." The Veteran identified those disabilities and made no suggestion of any belief that she had knee or back disabilities due to service. The Board finds it reasonable to presume that a claim for VA service-connected benefits is precisely the place that the Veteran would identify any disabilities she believed at that time that she had incurred during service. The Veteran identified her eye and nose problems as claimed residuals of her in-service accident, but made no mention of any knee or back disabilities. The Board finds that the Veteran's May 1977 claim for service-connected disability benefits strongly suggests that she did not believe at that time that she had any knee or back disabilities due to her military service; the record suggests that the Veteran had not experienced a continuity of chronic symptomatology of knee or back symptoms from the time of service (including the in-service motor vehicle accident). Private medical records show that the Veteran suffered a twisting injury to her knee and underwent arthroscopy in March 1987. One medical report from the physician who performed the March 1987 arthroscopy makes clear that the procedure came after a twisting injury ("I had performed an arthroscopy on [the Veteran] in March of 1987 after a twisting injury to her knee.") The March 1987 arthroscopy revealed "a partial tear of the anterior cruciate ligament and a small tear in the lateral meniscus...." The records show that after the arthroscopy she again "twisted her knee and fell," and another "arthroscopy of the right knee" was discussed. Another March 1987 private medical report shows that the Veteran had been doing "perfect" following the first arthroscopy until late March 1987 when "she tripped on her dog's rubber ball and fell directly onto the anterior aspect of her right knee." A November 1987 private medical record also describes that the Veteran's knee problems returned after the second fall and led to discussion of another arthroscopy (in part to rule out "internal derangement R knee"); subsequent reports indicate that the Veteran did not follow through with the next arthroscopy until 1989. May 1989 private medical reports show that the Veteran had degenerative joint disease, apparently referring to the right knee. Subsequent private medical records repeatedly refer to degenerative joint disease of the right knee over the years. A May 1992 private medical record describes that the Veteran sought treatment for "a new problem" and discusses the Veteran's back/spinal health history featuring "about 8 or so years ago had a fusion in Philadelphia done, she thinks at either 4-5 or 5-1." The Veteran's September 2008 claim for VA disability benefits includes a statement specifically citing the April 1969 motor vehicle accident as the cause of her current back and knee disabilities. A December 2008 written statement from the Veteran describes that the in-service accident (described as in January or February 1969, but apparently intending to refer to the documented April 1969 accidents) involved her right knee hitting the dashboard and her back being injured. The Veteran describes that her right kneecap appeared to have been shifted in the accident and that this was addressed with surgery. She describes having been treated at the military facility Valley Forge Medical Hospital where she received stitches in her right knee and was hospitalized for several days. Furthermore, the Veteran recalled undergoing back fusion surgery at some time during the "1970's" in Huntington, PA. Private medical reports from October 2008 and November 2008 show further consideration of surgical treatment for right knee degenerative joint disease, with a history of 3 prior right knee surgeries. The reports also describe a history of spinal fusion. Private medical reports show that the Veteran subsequently underwent right knee replacement surgery. The Veteran's April 2009 notice of disagreement also describes the Veteran's recollection of her right knee hitting the dashboard during the in-service accident and that she had a spinal fusion "in the 1970s" and reiterates that the hospital that performed the spinal fusion does not maintain any records of the surgery. The January 2009 VA examination report, which notes that the author did not have the benefit of review of the claims-file at that time, shows that the Veteran described to the examiner that a January or February 1969 motor vehicle accident injured her right knee and her back. The Veteran described that her right knee hit the dashboard and was swollen and bruised, but nothing was broken; the Veteran also recalled that her "lower back was jarred at time of the accident." The Veteran recalled a hospitalization of two to three days following the accident. A November 2009 addendum to the January 2009 VA examination report addresses medical questions pertinent to other issues and does not present information pertinent to the back and knee issues. A September 2011 VA examination report re-confirms current diagnosed disabilities of the right knee (degenerative joint disease) and of the back (degenerative disc disease), and presents current findings. A section of this report shows that the Veteran described that the in-service accident took place in 1968, that she had surgical fusion of the spine in 1980, and had relatively recently undergone right knee replacement surgery. Although a section of the September 2011 VA examination report further discusses the Veteran's in-service accident and medical history, the author of this report would later revise such discussion in a subsequent addendum following review of pertinent contents in the claims-file. Both the September 2011 VA examination report and a December 2011 addendum to the report contain comments from the examiner indicating that the Veteran's current right knee and back disabilities were at least as likely as not related to the Veteran's in-service motor vehicle accident. However, the examiner has more recently issued a new addendum essentially rescinding this medical opinion. The same VA examiner's July 2012 addendum presents significant revisions to the examiner's comments in the prior VA examination reports and addenda. Although the September 2011 VA examination report contained a note indicating that the claims-file had been reviewed at that time, the July 2012 addendum from the same author clearly states that "C-file had not been available at the time of the prior 2009 and 2011 C&P evaluations. Nor had such review been requested at these times." The July 2012 addendum explains that the claims-file had now been reviewed by the author, and the author discusses the contents of the available documentation of the in-service accident as well as the documentation of the Veteran's pertinent medical history broadly. The examiner notes that the claims-file documented "a possible lifting injury while working for the post office approximately 10 years following military service ... and spinal fusion surgery is noted proximate to such history." The examiner noted that "[a]rthroscopic surgery of the knee had been noted in 1987 and 1989. A twisting injury is noted, but it appears to have followed the first arthroscopy procedure per review." In this July 2012 addendum, the examiner explains that "[s]ervice treatment records had not been available" and "[p]rior assessments had been based upon history as obtained from the Veteran, who appeared to be a reliable historian." The examiner goes on to explain that "[c]urrent review does note a history of possible lower back injury post time of military service, which would be considered a more likely cause, at least as likely as not, cause of the lower back condition and spinal fusion. Timeline regarding surgical intervention appears supportive." The examiner notes that "[o]bjectively, service treatment records are silent regarding a lower back condition or a RT knee condition." Regarding the right knee, the examiner comments that "[a]necdotal report of RT knee injury is noted per the Veteran," and observes that the Veteran's original claim for service connected disability benefits "of 1977 is silent regarding other medical complaints." The examiner concludes: "Based upon review of the records, RT knee condition would be considered less likely as not related to the motor vehicle accident." The Board finds that the July 2012 addendum to the prior VA examination reports revokes the earlier comments on medical history and etiology of the right knee and back disabilities from the same author. The examiner clearly explains that the prior comments on history and etiology had relied upon the Veteran's own account of her pertinent history and had not been informed by review of all the pertinent documentation in the claims-file; the revised comments and opinions of the examiner in the July 2012 addendum, citing and discussing review of the contents of the claims-file, is the final medical opinion of this VA examiner and replaces the earlier comments on the issue. The Board finds that the VA examiner's opinion, as presented in the July 2012 addendum, is highly probative. It is the opinion of a medical professional based on recognition of the documented details of the Veteran's medical history. The examiner, now informed by the claims-file's documentation of the medical history, sets forth a discussion of the information leading to the examiner's conclusion that the current right knee and back disabilities are unlikely etiologically linked to the Veteran's service. The Board finds the opinion to be fully adequate and persuasive. It simply weighs against the appellant's claim. As set forth above, the Veteran seeks service connection for a right knee disability and for a back disability. Although VA and private medical treatment records reflect current right knee and back disabilities, there is no adequate medical evidence to support finding that the any current knee or back disability is due to the Veteran's active service. In addition, although arthritis is among the chronic diseases subject to presumptive service connection under the provisions of § 3.307(a), there is no competent evidence of record to show that the Veteran's knee or back disabilities involve arthritis manifested to a compensable degree within the one-year presumptive post-service period. Physical examinations performed during active service do not evidence chronic knee or back disability. Post-service medical records and other evidence indicate no diagnosis of any chronic knee or back disability within a year of service. Furthermore, post-service medical records and other evidence present no documentation of any medical treatment, consultations, or diagnosis of any chronic knee or back disability for several years following service; the indication of a single consultation for a back injury in 1971 does not indicate a diagnosis of a chronic disability nor does it indicate back pain related to military service insomuch as it indicates onset of pain with a post-service injury. The significant gap between service and documentation of pertinent chronic disability is one factor that weighs heavily against the Veteran's claims for service connection on a direct basis featuring in-service incurrence. See Maxson v. West, 12 Vet.App. 453, 459 (1999). The Board notes that the evidence contemporaneous to service features a service separation medical examination showing that medical professionals found no disability of the back or knee at the conclusion of service, and the Veteran's responses to the medical history questionnaire at separation reflect that she did not believe she had any back or knee disabilities at that time. Post-service medical evidence shows no chronic back or knee disabilities proximate to service and no such disabilities until after post-service injuries to the back and to the knee. The Veteran's original claim for service-connected disability benefits in 1977, several years after the conclusion of her service, also strongly suggests (by omitting back and knee disabilities from the claim) that she did not at that time believe that she had any back or knee disability that had originated during service or proximately following service. There is no adequate competent evidence to support finding an etiological relationship between any current chronic back or knee disability and the Veteran's period of active service. The Board finds that even if, in fact, the Veteran did suffer knee and back injuries during the April 1969 motor vehicle accident, such injuries were acute in nature and resolved without residual chronic disability. Conclusion The Board finds that the preponderance of the evidence is against the claims of entitlement to service connection for a knee disability and for a back disability on any basis. In reaching this decision, the Board has reviewed the entirety of the evidence of record but finds that there is no other evidence of record which probatively contradicts the findings presented in the most probative evidence discussed above with regard to the issues decided at this time. The Board acknowledges that the claims-file contains a quantity of other documents, but none of the information in these records substantially supports the Veteran's claims or otherwise contradicts the evidence deemed to be most probative in the discussion above. Here, the evidence does not support finding that the Veteran's current back or knee disabilities are related to her military service. The Veteran has now been afforded a VA examination with adequate medical report and opinion in connection with this claim (the January 2009, November 2009, September 2011, December 2011, and July 2012 VA examination reports and addenda concluding with the final version of the opinion in the July 2012 addendum); the examiner has provided clear findings and opinions with persuasive discussion of the pertinent evidence supporting her rationale and conclusions weighing against the claims. The VA examiner's pertinent findings and opinions are uncontradicted by the rest of the competent probative evidence of record; the VA examiner revoked her prior comments on history and etiology which had not been informed by review of the information in the claims-file. No medical professional has provided any opinion probatively indicating that the Veteran's back or knee disabilities are related to her military service. The Veteran's testimony regarding a continuity of painful back and right knee symptoms since an in-service event is competent inasmuch as lay testimony may establish the recollection of experiencing pain and functional deficits. However, to the extent that such testimony is intended to establish the presence of a chronic disability beginning in service, the testimony is not credible because it is contradicted by probative contemporaneous evidence and not corroborated by any such evidence, and is also self-serving. The statements serve the Veteran's interest in seeking monetary benefits, and are not corroborated by the Veteran's own contemporaneous statements, including to treating medical professionals, prior to the filing of this claim in September 2008. The Board acknowledges that service connection may indeed be granted when a chronic disease or disability is not present in service, but there is evidence of continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). To the extent that the Veteran's contentions and testimony in this case suggest the occurrence of a continuity of symptomatology of back or knee symptoms associated with arthritis or other chronic disability, such contentions and testimony are not credible in this regard. As discussed above, the Veteran's service separation examination shows no symptoms, diagnoses, or abnormalities indicative of back or knee disability. The Veteran's claim for service connected disability benefits several years following service (in 1977) identified the medical problems she perceived to have had onset during service and her claim included no suggestion of any back or knee problems. The Veteran's post-service medical records do not show any complaints of back or knee symptoms until more than a year following service (with the only symptoms shown within the first several years following service consisting of a one-time treatment for pain after she "hurt" her back in 1971). The Veteran's post-service medical records show no diagnosis of chronic disability of the back or the knees until after the occurrence of post-service injuries to the respective joints several years following service; none of the evidence prior to the filing of the claim for service connection in September 2008, including medical evidence and the Veteran's own prior statements concerning these disabilities and concerning her military service, suggests that any back or knee disability had a history dating back to her military service. In this case, the Board finds that any recent lay testimony or contention suggesting continuity of back or knee symptoms from the time of service is not credible because such suggestions are contradicted by probative contemporaneous evidence strongly suggesting that neither the Veteran nor trained medical professionals perceived any abnormalities or problems with the back or the knees at the conclusion of service and for years following service. The Board finds that there is no credible evidence in this case establishing continuity of pertinent symptomatology for arthritis or other chronic disability of the back or the knees from service (or proximate to service) to the time of this claim for benefits. The Board acknowledges the Veteran's belief that her back and knee disabilities are related to her military service. However, there is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render a competent medical opinion as to the diagnosis and etiology of a disability. 38 C.F.R. § 3.159(a)(1). Consequently, the Veteran's own assertions as to diagnosis and etiology of a disability have no probative value. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Robinson v. Shinseki, 312 Fed. Appx. 336 (Fed. Cir. 2009) (non-precedential) (confirming that, in some cases, lay evidence will be competent and credible evidence of etiology). However, matters such as a diagnosis of a chronic disability or a determination of a causal relationship between military service and a disability not shown to have manifested until many years after service require specialized training; such determinations may therefore not be established by lay opinions on etiology. As the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for back and for right knee disabilities, the benefit-of-the-doubt rule does not apply and these claims are denied. See 38 U.S.C.A § 5107. ORDER Service connection for a right knee disability is not warranted. Service connection for a back disability is not warranted. To these extents, the appeal is denied. REMAND Increased Rating for Chronic Sinus Congestion / Residuals of Nasal Fracture and Laceration The appellate scheme set forth in 38 U.S.C.A. § 7104(a) (West 2002) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his or her claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the agency of original jurisdiction receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board a supplemental statement of the case must be furnished to the appellant, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). There is no legal authority for a claimant to waive, or the RO to suspend, this requirement. 38 C.F.R. § 20.1304(c). As discussed in the introduction section, above, the November 2012 supplemental statement of the case did not include the issue of entitlement to an increased rating for chronic sinus congestion / residuals of nasal fracture and laceration; the Board has nevertheless determined that this issue is properly still in appellate status in light of the fact that the Veteran perfected an appeal of substantially this issue prior to the RO recharacterizing the nasal/sinus issue as a TBI issue. The statement of the case in August 2009 addressed the nasal/sinus issue and the Veteran timely perfected the appeal of this issue. Significant additional pertinent evidence on this issue has been developed and added to the record since August 2009, including VA examination reports and addenda with relevant findings. However, because the only supplemental statement of the case (in November 2012) does not address the nasal/sinus issue, there has been no supplemental statement of the case to address evidence of record developed at the RO with regard to this issue. This issue must be remanded for issuance of a supplemental statement of the case to address the matter as required by law. Increased Rating for TBI The Board believes it important to note that the schedular criteria by which traumatic brain injuries (TBI) are rated were changed during the pendency of the Veteran's appeal. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). These changes were made effective from October 23, 2008, and for claims filed on and after that date. However, although the Veteran's claim was filed prior to that date (the claim was filed in September 2008), claimants such as the appellant in the instant case whose residuals of a TBI were rated by VA under a prior provision of 38 C.F.R. § 4.124a, Diagnostic Code 8045 are permitted to request review under the new criteria, irrespective of whether his or her disability has worsened since the last review or whether VA receives any additional evidence. While a specific request to consider the amended criteria was not made by the Veteran, the RO, after affording the Veteran an examination tailored to obtain the clinical findings necessary for application of the new criteria, considered the new criteria in its adjudication of the Veteran's claim in its November 2012 supplemental statement of the case. Where a law or regulation (particularly pertaining to the Rating Schedule) changes after a claim has been filed, but before the administrative and/or appeal process has been concluded, both the old and new versions must be considered. See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The effective date rule established by 38 U.S.C.A. § 5110(g) (West 2002), however, prohibits the application of any liberalizing rule to a claim prior to the effective date of such law or regulation. The Veteran does get the benefit of having both the old regulation and the new regulation considered for the period before and after the change was made. See Rhodan v. West, 12 Vet. App. 55 (1998), appeal dismissed, No. 99-7041 (Fed. Cir. Oct. 28, 1999) (unpublished opinion) (VA may not apply revised schedular criteria to a claim prior to the effective date of the pertinent amended regulations). Therefore, the adjudication of the Veteran's claim of entitlement to an increased rating for a TBI must reflect consideration of both the old and the new criteria. In this case, as discussed in the introduction section above, the RO somewhat unconventionally transformed the original appellate issue of entitlement to an increased rating for residuals of nasal fracture and laceration into an issue of entitlement to an increased rating for TBI. The RO first effectively established service connection for a TBI in November 2012 and rated the disability with application of only the revised criteria. However, the RO established service connection for TBI by way of transforming the service-connected disability rating for residuals of a nasal fracture and laceration into a rating for TBI. The November 2012 RO rating decision clearly shows that the RO established TBI as service connected effective from 1977, as the successor to the former rating for nasal fracture and laceration. Under these circumstances, the issue of entitlement to an increased rating for the TBI arising from the September 2008 claim requires consideration of both the old and the new revised rating criteria. There has been no RO adjudication of this issue referencing or considering the former rating criteria applicable for disabilities of the nature of a TBI. The Veteran has not otherwise been provided any notice of applicable former rating criteria, which appears to be particularly significant in this case where the RO has recently abruptly and significantly changed the characterization of the disability and the applied diagnostic code. To ensure that the Veteran is afforded the proper adjudication of the issue at the agency of original jurisdiction to which she is entitled, with consideration of all the applicable rating criteria under the former and current versions of pertinent regulations, the Board must remand the issue for issuance of an appropriate supplemental statement of the case. The RO shall also have the opportunity to provide the Veteran with notice of the additional applicable former rating criteria which have thusfar not been otherwise brought the Veteran's attention in connection with the change in the characterization of the Veteran's disability. Accordingly, the case is REMANDED for the following action: The RO/AMC should readjudicate the issues remaining on appeal, including the issue of entitlement to an increased rating for chronic sinus congestion / residuals of nasal fracture and laceration. The RO/AMC should also ensure that it evaluates the appellant's disability associated with TBI under the old and new rating criteria associated with Diagnostic Code 8045 as well as any other applicable Diagnostic Codes. If the benefits sought on appeal remain denied, the appellant should be provided a supplemental statement of the case (SSOC) along with the old and new rating criteria for disability associated with TBI under Diagnostic Code 8045. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. 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 MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs