Citation Nr: 1322448 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 09-45 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tingling of the legs. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 4. Entitlement to service connection for hearing loss. 5. Entitlement to service connection for a back disorder. 6. Entitlement to service connection for a bilateral foot disorder. 7. Entitlement to service connection for a skin disorder, to include as due to herbicide exposure. 8. Entitlement to a total rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board notes that the Veteran's psychiatric disorder claim was previously adjudicated solely on the basis of it being PTSD. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has re-characterized the psychiatric issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. The Board also notes that the RO initially determined that new and material evidence had not been received to reopen the claims of service connection for an acquired psychiatric disorder, tingling of the legs, and tinnitus. See April 2009 rating decision. However, the RO subsequently reopened the psychiatric disorder and tinnitus claims, and addressed the merits of the underlying service connection claims, by a July 2011 Supplemental Statement of the Case (SSOC). In short, the RO reopened these claims. No such specific determination appears to have been made regarding the tingling of the legs, although the RO adjudication of the claim in the November 2009 SOC included a discussion of the merits of the underlying service connection claim. Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. The Board further notes that the Veteran also initiated an appeal to the April 2009 rating decision's denial of service connection for a left eye disorder and hypertension, and that these issues were listed as part of the November 2009 SOC. However, as part of his Substantive Appeal the Veteran reported that he wished to withdraw these issues from appellate consideration. Therefore, the Board does not have jurisdiction to address these issues. See 38 C.F.R. §§ 20.200, 20.202, 20.204 (2012). For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required with respect to the Veteran's skin disorder and TDIU claims. Accordingly, these claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development necessary for the equitable disposition of the issues adjudicated by this decision have been completed. 2. Service connection was previously denied for PTSD, tingling of the legs, and tinnitus by rating decisions promulgated in August 2000 and July 2001. The Veteran was informed of these decisions, including his right to appeal, and did not appeal. New and material evidence was not received within the appeal period of these decisions. 3. The evidence received since the last prior denial of service connection for PTSD, tingling of the legs, and tinnitus was not previously submitted to agency decisionmakers, relates to unestablished facts necessary to substantiate these claims, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claims. 4. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran developed a hearing loss disability as defined by VA regulations due to his active service. 5. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran developed tinnitus as a result of his active service 6. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran developed a chronic back disorder as a result of his active service. 7. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran developed an acquired psychiatric disorder as a result of his active service, to include PTSD. 8. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran developed tingling of the legs as a result of his active service 9. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran developed a chronic bilateral foot disorder as a result of his active service CONCLUSIONS OF LAW 1. New and material evidence having been received to reopen the claims of entitlement to service connection for PTSD, tingling of the legs, and tinnitus, the claims are reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. The criteria for a grant of service connection for hearing loss are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.385 (2012). 3. The criteria for a grant of service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 4. The criteria for a grant of service connection for a back disorder are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 5. The criteria for a grant of service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). 6. The criteria for a grant of service connection for tingling of the legs are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 7. The criteria for a grant of service connection for a bilateral foot disorder are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Initially, the Board notes that, for the reasons detailed below, it finds that new and material evidence has been received to reopen the claims of service connection for an acquired psychiatric disorder, tingling of the legs, and tinnitus. Therefore, no further discussion of the VCAA is warranted with respect to this aspect of the Veteran's appeal as any deficiency has been rendered moot by the reopening of the claims, which is considered a full grant of the benefit sought with respect to these issues. As the Veteran's skin disorder and TDIU claims are addressed in the REMAND portion of the decision below, the Board observes that the VCAA analysis that follows does not pertain to these claims. In this case, the Veteran was sent pre-adjudication notice via a letter dated in October 2008, which is clearly prior to the April 2009 rating decision that is the subject of this appeal. He was also sent additional notification via an August 2009 letter, as well as letters in March and April 2010 regarding his PTSD claim. His appellate claims were last adjudicated below via a September 2011 SSOC which "cures" the timing problem associated with inadequate notice or the lack of complete notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. In pertinent part, these letters informed the Veteran of what was necessary to substantiate his current appellate claims, what information and evidence he must submit, what information and evidence will be obtained by VA, as well as the information used by VA to determine disability ratings and effective dates. The Board also notes that the Veteran has actively participated in the processing of his case, and the statements submitted in support of his claims, to include from his accredited representative, have indicated familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any 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). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records to include from the Social Security Administration (SSA). Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, and nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not indentified outstanding records which demonstrate he has any of the claimed disabilities as a result of active service. As part of his Substantive Appeal, he indicated that no hearing was desired in conjunction with this case. The Board further notes that the Veteran was accorded a VA medical examination regarding his hearing loss and tinnitus claims via a November 2010 VA examination, with a May 2011 supplemental opinion from the examiner. He was also accorded a VA examination in December 2010 for his psychiatric disorder claim. In pertinent part, these examinations included opinions that addressed the etiology of the claimed disabilities. As these opinions were based upon a physical examination of the Veteran, as well as an accurate understanding of the Veteran's medical history based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation. No competent medical evidence is of record which specifically refutes the findings of these VA examiners, and the Veteran has not otherwise identified any prejudice therein. Accordingly, the Board finds that these examinations/opinions are adequate for resolution of this case. The Board acknowledges that no examination was specifically accorded to the Veteran regarding his tingling of the legs, back and bilateral foot claims. However, for the reasons detailed below, the Board finds that the evidence of record is adequate to resolve these claims, and that no medical examination or opinion is necessary based on the facts of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 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). Indeed, 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). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). General Legal Criteria Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Analysis - New and Material Evidence Service connection was previously denied for PTSD, tingling of the legs, and tinnitus by an August 2000 rating decision. In pertinent part, that rating decision found all of the claims were not well-grounded. However, the VCAA, which was enacted in November 2000, eliminated the concept of a well-grounded claim. Further, section 7(b) of the VCAA provided that cases denied as not well grounded after July 14, 1999, may be readjudicated upon the request of the claimant or the Secretary's own motion. Therefore, the claims were subsequently readjudicated by a July 2001 rating decision, and were denied on the merits. The Veteran was informed of these decisions, including his right to appeal, and did not appeal. The Board is cognizant of the fact that Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In this case, however, it does not appear the Veteran submitted any evidence following either the August 2000 or July 2001 rating decision until he submitted his application to reopen in September 2008. Thus, new and material evidence was clearly not received in the one-year appeal period. In view of the foregoing, the Board finds that the July 2001 rating decision is final. See 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The evidence of record at the time of the last prior denial of July 2001 included the Veteran's service treatment records, and a VA Form 21-526 (Application for Compensation or Pension) submitted in February 2000 in which he indicated he was seeking service connection for PTSD, tingling in the legs, and tinnitus. However, his service treatment records contained no findings of the claimed disabilities, nor was there any other such medical evidence of record. Further, both the August 2000 and July 2001 rating decisions reflect that all of these claims were denied on the basis of no current disability. The evidence added to the record since the last prior denial in July 2001 includes statements from the Veteran and post-service medical records which cover a period through 2011. In pertinent part, these records show diagnoses of a depressive disorder, as well as an adjustment disorder with depressed mood. He has also been diagnosed with tinnitus. Finally, there are records indicating he experiences radiating pain and numbness into his legs due to his lumbar spine disorder, to include a diagnosis of lumbar radicular pain with paresthesias. In short, there is now competent medical evidence showing diagnoses for the claimed psychiatric disorder, tingling of the legs, and tinnitus. As such, this evidence goes to the specific basis for the last prior denial. Further, the evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been submitted, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Therefore, the Board finds that the evidence received since the last prior denial of service connection for PTSD, tingling of the legs, and tinnitus was not previously submitted to agency decisionmakers, relates to unestablished facts necessary to substantiate these claims, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claims. Consequently, new and material evidence has been received pursuant to 38 C.F.R. § 3.156(a), and the claims are reopened. Adjudication of these claims does not end with the determination that new and material evidence has been received. The Board must now address the merits of the underlying service connection claims. In the adjudication that follows, the presumption that the evidence submitted to reopen a claim is true without regard to the other evidence of record no longer applies. The Board also wishes to reiterate the fact that the RO previously reopened the psychiatric disorder and tinnitus claim. Although no such specific determination was made regarding the tingling of the legs, the record reflects that the RO did address the merits of the underlying service connection claim. Nevertheless, pursuant to the holdings of Barnett, supra, and Jackson, supra, the Board must still find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. Inasmuch as the RO has already addressed the merits of the service connection claims, the Veteran is not prejudiced by the Board also addressing the merits of this case. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Analysis - Hearing Loss and Tinnitus For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160. Inasmuch as specific medical testing is required to diagnose a hearing loss disability for VA purposes, or evidence of chronic hearing loss pursuant to Hensley, supra, the Board finds that it is not subject to lay diagnosis. As such, competent medical evidence is required to diagnose this disability. Moreover, as the record reflects that there was no evidence of hearing loss or tinnitus until years after service, the Board finds that competent medical evidence is also required to address the etiology of these claimed disabilities. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). As already noted, there is no indication of tinnitus in the service treatment records. There is also no indication of a hearing loss disability as defined by 38 C.F.R. § 3.385, nor hearing loss pursuant to Hensley, supra. For example, audiological evaluation conducted as part of the Veteran's June 1966 pre-induction examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 0 0 0 5 5 LEFT 0 0 0 0 0 0 Audiological evaluation conducted as part of the Veteran's June 1968 separation examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 0 0 -- 0 -- LEFT 0 0 0 -- 0 -- The Board also finds it significant that on Reports of Medical History completed in conjunction with this examination, the Veteran did not indicate any problems associated with his ear to include hearing loss. As this contradicts/conflicts with his current contentions indicating recurrent problems since service the Board finds that it calls into question the Veteran's reliability as a historian of these disabilities. The Board further notes that the November 2010 VA examination, as well as the May 2011 supplemental opinion, is against either the Veteran's hearing loss or tinnitus being etiologically linked to service. Specifically, the VA examiner opined that the hearing loss and tinnitus were less likely as not caused by or the result of military noise exposure. In support of this opinion, the examiner noted in the May 2011 opinion that both the enlistment and separation examinations indicated hearing was within normal limits at all test frequencies bilaterally on both tests. The examiner stated that if hearing was normal at discharge, and there was no other evidence of significant changes in hearing thresholds suggestive of noise injury, we must conclude that it was less likely as not that the current hearing loss was due to a service-e related noise injury. Further, the examiner stated that noise exposure did not always cause hearing loss. The examiner stated that the Hensley ruling did not give clinicians the authority to disregard normal hearing exams at discharge (in the absence of evidence to impeach the normal results), simply because there was verified evidence of military noise exposure. The examiner noted that the Institute of Medicine has clearly stated that there was no way to predict if noise exposure occurs, how much, if any, hearing loss would be sustained. The examiner reiterated that noise exposure did not always produce hearing loss, and that there were multiple causes of sensorineural type hearing loss and in most case an exact etiology could not be determined. For example, the examiner stated that sensorineural hearing loss could be caused by aging, vascular disease, viral disease, autoimmune disease, noise exposure, medications, genetics or any combination of these or other factors. However, the examiner stated that auditory damage from acoustic trauma occurs instantly, which is why normal hearing results on discharge exam so strongly suggests that any current hearing loss was not caused by military noise exposure. Moreover, the examiner noted that there was no evidence in the record that the Veteran's acknowledged difficulty with hearing or had complaints of tinnitus when he separated from the military or in the years following military service. The examiner noted the prior denials of service connection for tinnitus in 2000 and 2001, and the denial for hearing loss and tinnitus in 2009, stating that no new evidence indicating hearing loss occurred while in the service or even in the years following separation. Based on the available evidence, the lack of evidence indicating that the Veteran's hearing loss and tinnitus had a much earlier onset, and the long history of occupational noise exposure from factory work, it was the examiner's opinion that the current hearing loss and tinnitus were less likely as not caused by or the result of military noise exposure. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the Board has already noted that the May 2011 VA examiner has an accurate understanding of the Veteran's medical history from review of the VA claims folder. The examiner's opinion is not expressed in speculative or equivocal language. Further, the examiner supported the opinion with stated rationale that referenced pertinent findings documented in the record, as well as medical principles regarding the etiology of hearing loss. Consequently, the Board finds that this opinion is persuasive and entitled to great probative value in this case. For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran developed hearing loss disability as defined by VA regulations and/or tinnitus due to his active service. Analysis - Back Disorder In this case, the Board observes that there is no indication of any back problems in the Veteran's service treatment records, that his spine was clinically evaluated as normal on the June 1966 pre-induction examination and the June 1968 separation examination, and he indicated on the June 1968 Report of Medical History that he had not experienced recurrent back pain. Further, the first indication of any back problems in the post-service medical records appears to be in 2000, more than 30 years after his separation from service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (Affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. The Board further notes that the treatment for back problems in 2000 reflect that it originated with a post-service, work-related injury. A June 2000 treatment record notes that the injury occurred 2 weeks earlier, and that his past medical history was insignificant for previous back injuries although it did reveal arthritis. Other medical records trace the etiology of the Veteran's current back disorder to this post-service injury. In view of the foregoing, the Board finds that this evidence calls into question the reliability of the Veteran as a historian of his back disorder, particularly to the extent he indicates his problems originated while on active duty. Based upon this unreliability, the lack of any in-service back problems, and the first indication of back problems years after service and for a post-service injury, the Board finds that competent medical evidence would be required to resolve this case. The Board has already determined that the Veteran's contentions regarding the complex medical issue of etiology do not constitute competent medical evidence. Moreover, the competent medical evidence of record already traces the etiology of the Veteran's current low back disorder to the post-service, work-related back injury in 2000. For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran developed a chronic back disorder as a result of his active service Analysis - PTSD In addition to the general rules of service connection noted above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Further, 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and that if a diagnosis is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. The Board notes that the December 2010 VA examiner found that the Veteran did not satisfy the criteria for a diagnosis of PTSD, and diagnosed his current acquired psychiatric disorder as adjustment disorder with depressed mood. A review of the other competent medical evidence of record does not show he has otherwise been diagnosed with PTSD. Rather, he has generally been diagnosed with some type of depressive disorder. Although the Veteran maintains he has PTSD, the specific diagnosis for a psychiatric disability is a complex matter that requires competent medical evidence which he is not competent to provide. Therefore, the Board finds that the preponderance of the evidence is against a finding the Veteran's current psychiatric problems are due to PTSD. Pursuant to Clemons, supra, the Board has also determined that the Veteran did not develop an acquired psychiatric disorder other than PTSD due to service to include his account of his experiences in Vietnam. As with the other claims on file, there is no indication of psychiatric problems during service. In fact, his psychiatric condtion was clinically evaluated as normal on his June 1966 pre-induction and June 1968 separation examinations. He also indicated on the concurrent Reports of Medical History that he had not experienced frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. Further, the post-service medical records reflect his psychiatric problems developed years after service and as secondary to his back disorder. The Board also notes that the December 2010 VA examiner opined that the Veteran's adjustment disorder with depressed mood was not caused by or a result of his military service. In support of this opinion, the examiner stated that the Veteran's symptoms of depression appeared to have developed after his back injury as a result of the back injury. As noted in the preceding paragraph, this is consistent with the other medical evidence of record. Further, the examiner was aware of the Veteran's documented medical history from review of the claims folder, and did not express this opinion in speculative or equivocal language. No competent medical evidence is of record which refutes the findings of the December 2010 VA examiner. The Board also reiterates that it has determined service connection is not warranted for a back disorder. For these reasons, preponderance of the competent medical and other evidence of record is against a finding that the Veteran developed an acquired psychiatric disorder as a result of his active service, to include PTSD. Analysis - Tingling of the Legs In this case, as noted in the new and material evidence analysis, the record reflects the Veteran experiences radiating pain and numbness into his legs due to his lumbar spine disorder, to include a diagnosis of lumbar radicular pain with paresthesias. The Board also notes that service connection may be established for a disability that is secondary to an already service-connected disability pursuant to 38 C.F.R. § 3.310, and that a separate rating may be assigned for associated neurologic impairment of a spine disability pursuant to Note (1) of the General Rating Formula for Diseases and Injuries of the Spine under 38 C.F.R. § 4.71a. However, for the reasons detailed above, the Board has determined that service connection is not warranted for a back disorder. The law does not provide for a grant of service connection for a disability that is secondary to another nonservice-connected disability. Moreover, there was no indication of any such disability in the service treatment records or for years after service. Therefore, the preponderance of the competent medical and other evidence of record is against a finding the Veteran developed this disability as a result of his active service. Analysis - Foot Disorder The Board notes that the Veteran has claimed service connection for a bilateral foot disorder. However, a thorough review of the competent medical evidence does not reflect the Veteran has been diagnosed with a chronic disability of either foot. Although the Veteran is competent to describe visible symptomatology such as pain, competent medical evidence is required to determine whether such complaints are due to a chronic disability and, if so, whether such disability is due to service. This is consistent with the fact that the Court has previously held that pain, alone, without a diagnosed or identifiable underlying condition, is not a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, appeal dismissed in part sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (Dismissing challenge to the issue whether pain, alone, can be considered a disability). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. The Board acknowledges that the Court held in McLain v. Nicholson, 21 Vet. App. 319 (2007) that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. In this case, however, the record does not reflect the Veteran has had a chronic disability of either foot at any time during the pendency of this case. Conclusion As detailed above, the Board has determined the preponderance of the evidence is against finding that the Veteran developed hearing loss, tinnitus, back disorder, acquired psychiatric disorder, tingling of the legs, and/or a bilateral foot disorder as a result of his military service. No other basis for establishing service connection for the claimed disabilities is otherwise demonstrated by the evidence of record, to include the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 or as secondary to a service-connected disability pursuant to 38 C.F.R. § 3.310. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to these claims must be denied. ORDER New and material evidence having been received to reopen the claims of entitlement to service connection for PTSD, tingling of the legs, and tinnitus, the claims are reopened. To this extent only, the benefit sought on appeal is allowed. Service connection for hearing loss is denied. Service connection for tinnitus is denied. Service connection for a back disorder is denied. Service connection for an acquired psychiatric disorder, to include PTSD, is denied. Service connection for tingling of the legs is denied. Service connection for a bilateral foot disorder is denied. REMAND The Veteran essentially contends that he has current skin problems due to herbicide exposure while on active duty in the Republic of Vietnam. The record confirms the Veteran had active service in Vietnam during the Vietnam War era. Therefore, he is presumed to have been exposed to herbicides therein. See 38 U.S.C.A. § 1116. If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to a herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. For the purposes of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered a herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); 61 Fed. Reg. 57586-57589 (1996); Notice 68 Fed. Reg. 27,630-27,641 (2003); 72 Fed. Reg. 32395 (2007); 75 Fed. Reg. 32540 (2010). Notwithstanding the foregoing, 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. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the record reflects that the Veteran has been treated for various skin disorders over the years. His claim was denied below on the basis that he has not been diagnosed with a skin condition that is presumptively associated with herbicide exposure under 38 C.F.R. § 3.309(e). However, given the various skin problems documented in the evidence of record, the Board finds that clarification is necessary in order to determine whether the Veteran does or does not have such a presumptive skin condition. Therefore, a remand is required for a VA medical examination and opinion that addresses this matter. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). The Board further finds that any outstanding treatment records regarding the skin disorder claim should be obtained while this case is on remand. As resolution of the Veteran's skin disorder claim may affect the TDIU claim, the Board finds that these claims are inextricably intertwined. Therefore, the Board will defer adjudication of the TDIU claim until the development directed for the skin disorder claim has been accomplished. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for skin problems since August 2008. After securing any necessary release, the AMC/RO should obtain those records not on file. 2. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to address the nature and etiology of his skin disorder. The claims folder should be made available to the examiner for review before the examination. Following evaluation of the Veteran, the examiner must indicate whether the Veteran has any chronic skin condition that has been presumptively associated with herbicide exposure 38 C.F.R. § 3.309(e). If the examiner finds the Veteran has chloracne or other acneform disease consistent with chloracne, the examiner should indicate whether it is at least as likely as not (50 percent or greater likelihood) that such disability was present within one year after the Veteran's last date of exposure to herbicides in January 1968. If a skin disorder is diagnosed on examination, but such skin disorder is not found to be a presumptive condition associated with exposure to herbicides, the examiner must address whether it is at least as likely as not (a degree of probability of 50 percent or higher) that such disorder commenced during or is otherwise related to the Veteran's period of active duty service. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be expressed without resort to speculation. 3. Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the AMC/RO should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a SSOC which addresses all of the evidence obtained after the issuance of the last SSOC in September 2011, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). ______________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs