Citation Nr: 1331295 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 07-10 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for arthritis. 2. Entitlement to service connection for muscle and joint pain, to include arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to June 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In February 2010, the Veteran testified at a personal hearing before a Veterans' Law Judge who is no longer with the Board. In July 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. In February 2012, the Board remanded this matter to the RO so VA could afford the Veteran an opportunity to testify before a Veterans Law Judge. The RO has properly returned the matter to the Board for appellate consideration. FINDINGS OF FACT 1. The RO denied service connection for arthritis in an unappealed June 1972 rating decision. 2. Evidence added to the record since the June 1972 rating decision, that is not cumulative or redundant of evidence then of record, relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for arthritis and raises a reasonable possibility of substantiating the claim. 3. Chronic muscle and joint pain, to include as due to arthritis, did not have onset during the Veteran's active service, was not caused by his active service, and arthritis did not manifest within one year of separation from active service. CONCLUSIONS OF LAW 1. The June 1972 rating decision, in which the RO denied service connection for arthritis, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2013) 2. New and material evidence has been added to the record since the June 1972 rating decision and the criteria for reopening the claim of entitlement to service connection for arthritis have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The criteria for service connection for muscle and joint pain, to include arthritis, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107, 38 C.F.R. §§ 3.102, 3.303(a), (b), (d), 3.307, 3.309(a), (e) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that service connection is warranted for muscle and joint pain. Over the course of his current claim and appeal he has contended that this entitlement to service connection includes entitlement to service connection for arthritis. I. Due Process As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of claims to reopen previously and finally denied claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Here, VA has not provided notice as to the evidence necessary to reopen a previously denied claim of entitlement to service connection for arthritis. However, the RO implicitly reopened the claim and adjudicated it on the merits and here the Board reopens the claim and adjudicates it on the merits. Corrective notice is not required because, as the purpose of the notice specified in Kent has been achieved, VA's failure to provide such notice cannot result in prejudice to the Veteran. All other required notice was provided in letters sent to the Veteran in June 2005 and June 2010. The June 2005 letter was sent prior to the initial unfavorable adjudication of the claim in October 2005 and provided notice as to all but the evidence necessary to substantiate the downstream elements of an effective date and a disability rating. Notice as to those downstream elements was provided in the June 2010 letter. As the Board here denies the appeal, the timing defect as to notice regarding the downstream elements cannot result in prejudice to the Veteran because no disability rating or effective date will be assigned. Therefore corrective notice is not required. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has obtained the Veteran's service treatment records and VA treatment records, and has provided all necessary assistance to the Veteran in obtaining private treatment records. In a July 2013 statement, the Veteran contended that his records of medical treatment during his service in Vietnam are incomplete or have been altered. The Board has reviewed those records and finds no indication that the records have been altered. Those records include reports of examinations conducted in March 1968 and June 1970 as well as entries for treatment sought in December 1968, January 1969, April 1969, apparently November 1969, April 1970, and May 1970. His DD Form 214 documents that his service in Vietnam was from April 1969 to June 1970. As there are entries during the time frame of his Vietnam service, the Board concludes that his service treatment records are complete. In his April 2005 claim, the Veteran reported that he was treated at the Augusta, Georgia VA Medical Center in the 1980s for muscle and joint pain. The earliest records of treatment from that facility that are associated with the claims file are dated in 1998 and were printed in February 2007. Given that the RO obtained those records from the Augusta, Georgia VA Medical Center, the Board concludes that there are no earlier records available because, if there were, such records would have been provided when these records were provided. The Board obtained an expert medical opinion from a Veterans Health Administration (VHA) physician in June 2013. That opinion was provided on Philadelphia VA Medical Center letterhead. In that opinion the physician referred to treatment records dated in February 1971 as from "Montclar medical center." It is clear from his opinion that the records he referred to were from Montefiori Medical Center. In a July 2013 statement, the Veteran contended that the Philadelphia physician changed his records from the Montefiori Medical Center from 1972. He also stated that the physician was reviewing another Veteran's records; the Veteran stated "I do not know anything about being admitted to Montclaire Medical Center. I have never heard of that Medical Center before." For the reasons that follow, the Board finds the Veteran's allegation that the VHA physician relied on incorrect records to be without merit First, associated with the claims file are records of treatment of the Veteran at Montefiori Medical Center with dates listed as in 1971 and 1972. The Veteran identified these records in his VA Form 21-526 submitted in March 1972. The records identify the Veteran by name and correct Social Security number. Second, he testified at a Board hearing in February 2010 that he was treated at that institution. February 2010 Board Hearing Transcript (2010 T.) at 4. He also testified that he was treated at that institution during the July 2012 Board Hearing. July 2012 Board Hearing Transcript (2012 T.) at 4. This is compelling evidence that he was treated there and is aware of that treatment. Given the references to the content of the Montefiori Medical Center records by the VHA physician, the misstatement of the name of the institution as "Montclair" is not significant. More importantly, the Veteran's assertion that he had not heard of the Montclair medical center in the past is without merit as it is clear from his assertion that the Philadelphia physician had changed the records that he is aware that the records referred to were those of the Montefiori Medical Center. To the extent that he contends that the VHA physician altered the records, the June 2013 VHA opinion is accurate as to the facts found in the Montefiori Medical Center records and is in the nature of a medical expert opinion as to the accuracy of the diagnosis listed in those records. The opinion does not reflect any alteration of the records. In May 2012, the Veteran submitted a letter documenting that he had been awarded disability benefits by the Social Security Administration (SSA) as of August 2011. The letter does not list the disability or disabilities that gave rise to the award. In an accompanying letter, the Veteran referred to a letter dated May 4, 2012. The Board does not find a letter with that date in the claims file. There is no evidence of record indicating that the SSA benefits award is related to the disability on appeal or has anything to do with when his arthritis manifested or if he has a muscle and joint pain related to service. In short, there is nothing of record to indicate that any records held by the SSA are relevant to the issue on appeal and therefore VA has no duty to obtain such records. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) explaining that in order to establish relevance of SSA records there must be a specific reason to believe that the records may give rise to pertinent information). VA provided a relevant examination in August 2010 and obtained expert opinions in July 2011 and May 2013. There is no dispute as to whether the Veteran currently has arthritis and muscle and joint pain. The July 2011 and May 2013 opinions are adequate as to the question of whether he had arthritis within a presumptive period and whether his current symptoms are related to service. In this regard, the examiners took into account the relevant history of his disability and provided sufficient rationale for the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In February 2010, the Veteran testified before a Veterans Law Judge. That Veterans Law Judge is not longer employed by the Board and VA offered the Veteran an opportunity for another hearing before a Veterans Law Judge who would participate in the adjudication of his appeal. He provided testimony before the undersigned Veterans Law Judge in July 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Veterans Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a Board hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Any defect in the duties required by 38 C.F.R. § 3.103(c)(2) as to the February 2010 hearing is not prejudicial to the Veteran because he had the opportunity to testify again at the July 2012 hearing and the undersigned Veterans Law Judge who chaired that hearing complied with those duties. During that hearing, the undersigned Veterans Law Judge identified the issue on appeal. 2012 T. at 2. Not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, at 497. Specifically, the undersigned explained that the evidence lacking in this case was medical evidence linking his current muscle and joint pain to service. 2012 T. at 5. The undersigned held the record open for 60 days following the hearing, specifically until September 18, 2012, to give the Veteran an opportunity to obtain such evidence and submit it to VA. Id. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. The Board remanded this issue in June 2010 and in February 2012. There has been compliance with all directives in those Remands. See Stegall v. West, 11 Vet. App. 268 (1998). VA remanded this case in June 2010 to provide the Veteran with additional VCAA notice and provide a VA examination. VA provided the required notice in the June 2010 letter. The examination provided in August 2010, the July 2011 addendum, and the June 2013 VHA opinion complied with the June 2010 remand directives. In February 2012, the Board again remanded the case to afford the Veteran an opportunity for a hearing before a Veterans Law Judge. The hearing conducted in July 2012 complied with the directive of that Remand. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection VA will pay compensation to veterans for disability due to disease contracted or injury incurred in the line of duty in active military service. 38 U.S.C.A. § 1110. The term "service connection" means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). II.A. Service Connection - New and Material Evidence Prior to receipt of his current claim in April 2005, the RO had denied service connection for arthritis in a June 1972 rating decision. Accompanying that decision was a letter dated that same month notifying the Veteran and his representative of that decision and of the Veteran's procedural and appellate rights. The bases for that denial were that there was no evidence of treatment for arthritis during service, it was not recorded at separation from service, and, given that the RO informed him that the best evidence to submit was statement from physicians who treated him during or after service, there were no statements of physicians who had treated him for arthritis after service. From this the Board finds that the unestablished facts necessary to substantiate his claim were, at minimum, in-service incurrence of arthritis and a nexus between his service and his current arthritis. Following notification of a decision by the RO, the claimant can initiate an appeal by filing a notice of disagreement with the RO. 38 U.S.C.A. § 7105(a) (West 2002). Except in the case of simultaneously contested claim, which this was not, the notice of disagreement shall be filed within one year of the mailing of notice of the initial review or determination. 38 U.S.C.A. § 7105(b)(1) (West 2002). If no notice of disagreement is filed within that year, the RO's determination becomes final and the claim will not thereafter be reopened or allowed, except as otherwise may be provided by regulations not inconsistent with Title 38 of the United States Code. 38 U.S.C.A. § 7105(c) (West 2002). Under 38 C.F.R. § 3.156(b), "new and material" evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. The U.S. Court of Appeals for Veterans Claims (Veterans Court) has interpreted 38 C.F.R. § 3.156(b), as preventing an unappealed RO decision from becoming final if new and material evidence is received within one year of notice of the decision and is not addressed. Young v. Shinseki, 22 Vet. App. 461, 469 (2009). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Here, VA did not receive any evidence from the Veteran until 2005 and therefore 38 C.F.R. § 3.156(b) does not operate to prevent the June 1972 decision from becoming final. VA received no communication from the Veteran regarding the 1972 decision within the year of the mailing of notice of the decision. The next communication received regarding disability compensation was the claim received in April 2005. As notice of disagreement with the June 1972 rating decision was not received within a year of the mailing of notice of that decision, the June 1972 rating decision became final. If new and material evidence is submitted with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a). When determining whether a claim is to be reopened based on receipt of new and material the Board does not weigh evidence, the. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Rather, the Board's analysis "is confined to the existence of new and material evidence alone and must not be an outcome-based decision. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In an August 2012 letter, the Veteran's VA primary care physician stated that the Veteran was initially diagnosed with gonococcal arthritis in 1971 and that the condition had slowly progressed to osteoarthritis. This physician offered an opinion that the Veteran's osteoarthritis of the knee is related to that gonococcal arthritis. This letter relates to an unestablished fact necessary to substantiate his claim of entitlement to service connection for arthritis because it is evidence that his currently diagnosed arthritis began shortly after service and within a period for which presumptive service connection can be established for arthritis. It is not cumulative or redundant of evidence of record at the time of the June 1972 decision because there was no evidence from this physician of record at that time. The Board therefore finds the evidence to be new and material evidence. As such, the claim must be reopened. II.B. Service Connection - Merits Having reopened the claim of entitlement to service connection for arthritis, the Board now turns to whether service connection is warranted for muscle and joint pain, to include as due to arthritis. Although the Board does not weigh evidence in determining whether to reopen a claim, the Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). In his initial claim received in March 1972, the Veteran indicated that his arthritis began in February 1972. In the April 2005 claim, the Veteran contended that service connection for muscle and joint pain was warranted based on exposure to the herbicide agent, Agent Orange, during his active service in Vietnam. In his December 2005 notice of disagreement he stated that he began having muscle and joint pain, as well as numerous other symptoms, in February 1972 and received medical treatment. During the July 2012 hearing, the Veteran testified that he first sought treatment for his muscle and joint pain in February 1971 but could not recall if he had muscle problems during active service. 2012 T. at 3. He testified that he has had muscle and joint pain since February 9, 1971. Id. at 4. He testified that he was admitted to Montclair Medical Center on February 9, 1971 and diagnosed with arthritis. Id. His representative stated that it was first believed that he had gonococcal arthritis even though the Veteran had stated that he had no previous exposures to venereal disease. Id. at 3. In addition to an evidentiary establishment of the three elements of service connection, described above, service connection may be presumed in specific circumstances. Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309(a) (2013). Additionally, if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, specific diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). In the instant case, the Veteran's DD Form 214 documents that he served in Vietnam during the applicable time period; it is therefore presumed that he was exposed to the herbicide agent, "Agent Orange," during that service. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). However, arthritis is not one of the specific diseases for which the presumption applies and therefore service connection cannot be presumed for arthritis based on exposure to Agent Orange. That presumptive service connection is not available based on exposure to Agent Orange does not preclude granting service connection for arthritis if the evidence shows that it was caused by exposure to Agent Orange, otherwise caused by service, had onset during service, or manifested to a compensable degree within one year of separation from service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board addresses all reasonably raised theories of entitlement in its analysis of the evidence. The Veteran's service treatment records do not include any mention of a gonococcal infection, gonococci, or gonorrhea; the records document that he was treated for a rash of the penis in April 1970. An impression of lichens planus was rendered and he was treated with a 0.025 percent solution and told to return in one month if there was no improvement. There is no later mention of that rash. A June 1970 separation report of medical examination documents normal clinical evaluations for all systems and anatomy, including his musculoskeletal system. In a notes section of that report, the Veteran stated that he felt that he was in excellent condition. A physician's summary of defects and diagnoses states only that he had intermittent temporo-mandibular pain. Montefiori Medical Center records document treatment of the Veteran in the early 1970s. These records list an admission date in February 1971 on the first page of a summary. On the final page it is listed that the summary was dictated in March 1972. In that summary, the Veteran is described as a 23 year old male. Given his birth date documented in his service treatment records this is consistent with hospitalization in February 1972 rather than 1971, and consistent with his initial claim received in March 1972. This determination is potentially important only with regard to whether presumptive service connection based a chronic diseases is warranted. As explained in more detail below, the 1972 date does not stand alone as outcome determinative in the respect given that the preponderance of evidence shows that the Veteran did not have arthritis at the time of that hospitalization. However, even if one were to find otherwise, the most preponderance of evidence shows that his report of joint pain first occurred in February 1972, more than one year after separation from active service in June 1970, thus precluding service connection based on the presumption for chronic diseases. When admitted to Montefiori Medical Center, the Veteran reported that he had suffered a foot injury followed by injections of human antitoxin, tetanus toxin and toxoids, and that over the course of the week prior to hospital admission he developed pain in his knees, ankles, wrists, shoulders, chest, and neck. He reported that one day after receiving the injections he had sexual contact but denied penile discharge. He reported a past history of gonococcus manifested by discharge and treated with penicillin, but did not report any dates in this regard. Physical examination found tenderness and limitation of motion of his knees and upper extremities. Impression was polyarthralgia arthritis, left wrist, secondary to history of gonococcus and to rule out several other causes. Laboratory data, electromyography, and muscle biopsy were negative and x-rays of what was described as the infected joints were essentially negative other than soft tissue swelling of the left forearm. He was treated for gonococcal arthritis. Demerol was initially provided but later was substituted with sterile water, and, as his pain responded to the water, it was felt that his pain was due to hysteria. He responded to penicillin and was discharged with ampicillin. Final diagnoses were gonococcal arthritis and hysteria. Records of treatment provided by "F.C.C.," M.D., document that in December 1989 the Veteran reported sciatica of two years duration and in December 1994 he reported that he had recently developed low back pain. He was diagnosed with low back strain in December 1994. Records of treatment by "J.M.," M.D, beginning in 1996 and continuing for several years thereafter, document reports of pain of numerous joints, including his cervical and lumbar spine and knees. There are several diagnoses of degenerative joint disease. In 1996 he reported low back pain, stating that it had been persistent since a lifting injury the previous summer. He reported neck pain in 1999 and cervical spine films showed significant osteoarthritic and degenerative changes. Notes of treatment by "R.B.," M.D. and "L.P.," M.D., document left epicondylitis in December 2006. There are x-ray reports and clinical statements from 1996 to the present documenting that he has arthritis of both knees, various parts of his spine, and his right shoulder. Notes from Dr. L.P., dated only as in 2001, document his report of ache in both knees, that he had a history of degenerative arthritis and that he worked in construction. An October 2001 VA Agent Orange Registry examination note documents the Veteran's report that he has had degenerative joint disease since 1970. It does not provide any indication that degenerative joint disease is related to Agent Orange exposure. In his VA Form 9, dated in March 2007, the Veteran mentioned the RO's reference to Montefiori Medical Center treatment and he stated that his was a false statement. He reported that he called Montefiori Medical Center for his records but was told that they did not keep records after twenty-five years. He reported that he was seen there for muscle pain. During the February 2010 Board hearing, the Veteran testified that he was admitted to Montefiori Hospital in February 1971 for joint and muscle pain. 2010 T. at 4. He testified that he was treated for sexually transmitted disease while serving in Vietnam. Id. at 15. During the August 2010 VA examination, the Veteran reported that symptoms involving his spine, upper extremities, and knees began, for all practical purposes, in 1971, and progressively worsened over the following forty years. A July 2011 VA medical opinion was provided following the August 2010 VA examination. In that opinion, the physician stated that the Veteran was misdiagnosed in February 1971. He explained that the general history and physical examination did not appear typical of gonococcal arthritis and that if the clinician in 1971 had wanted to attempt to diagnose gonococcal arthritis he should have aspirated the joint and found out if gonococcus was present. Also contained in the claims file is an August 2012 letter in which his VA primary care physician noted that the Veteran was initially diagnosed with gonococcal arthritis in 1971 and that the condition had slowly progressed to osteoarthritis. This physician offered an opinion that the Veteran's osteoarthritis of the knee was related to that gonococcal arthritis. Although this physician stated that the Veteran was in the military in 1971, that statement is not accurate; it is undisputed that he was separated from active service in June 1970. Given the nature of the Montefiori Medical Center treatment records and the July 2011 and August 2012 medical opinions, the Board obtained an expert medical opinion in June 2013 on the questions of whether the Veteran had gonococcal arthritis at the time of the Montefiori Medical Center hospitalization, and whether any current arthritis was related to whatever condition he had during the Montefiori Medical Center hospitalization. A VHA physician responded in a June 2013 medical opinion that followed review of the claims file by the physician. The VHA physician provided relevant historical information. He provided an opinion that there is no basis in fact to support a diagnosis of gonococcal arthritis at the time of the Montefiori Medical Center hospitalization. The physician explained that this was a presumptive diagnosis provided by caregivers at that time and was based exclusively on the Veteran's statement that he had an earlier penile discharge that had been treated with penicillin. The physician stated that there was no basis in fact to support a finding that the Veteran had a gonococcal infection contracted prior to June 1970 and no basis to support a relationship between his current symptoms, diagnosed as arthritis, and his symptoms in 1971. In his July 2013 statement, already discussed in the Due Process section of the instant decision, the Veteran stated that his service treatment records should have shown that he was treated for gonorrhea on two different occasions. He reported that he was given a bottle of white tablets each time. He also reported that when he was being processed from Vietnam he was given another bottle of tablets. The Veteran has submitted three pages of information from Medline Plus. Those pages explain that gonococcal arthritis is treated by treating the gonococcal infection and that symptoms usually improve within one to two days of starting treatment and full recovery can be expected. It also states that if untreated the condition may lead to persistent joint pain. After reviewing all evidence of record, the Board finds that the preponderance of evidence tends to show that the Veteran did not have arthritis at the time of his admission or discharge from Montefiori Medical Center, did not have arthritis until many years after separation from active service, did not have chronic muscle or joint pain until many years after service, and that his current claimed disability was not caused by exposure to Agent Orange during service. The July 2011 and June 2013 VA expert opinions, service treatment records, and the Montefiori Medical Center Records as a whole are more probative as to these determinations than the Veteran's statements, the August 2012 letter from his VA primary care physician, and the diagnosis of gonococcal arthritis listed in the Montefiori Medical Center records. The July 2011 and June 2013 opinions are consistent with the Montefiori Medical Center records. It is clear from those records that the diagnosis of gonnococcal arthritis was based exclusively on the Veteran's report of penile discharge and treatment with penicillin. His report found in the Montefiori Medical Center records does not include when he believed that he had suffered from penile discharge and been treated with penicillin; that is, at that time he did not report that he had gonorrhea during service as opposed to post-service. His more recent reports that he was treated for gonorrhea during service are inconsistent with his service treatment records. There are no reports of penile discharge during service. Rather his records show only that he was treated for a skin condition of his penis. The absence of any mention of gonorrhea in his service treatment records and in the comment provided by both the Veteran and the medical professional in the separation examination tend to show that his recent reports of treatment for venereal disease during service are not accurate. If he had gonorrhea during service and had been given treatment for gonorrhea when he returned from Vietnam, as he now alleges, it does not follow that he would have reported that he was in excellent health, as he did in the June 1970 report of medical examination, or that the medical professional would have noted only temporo-mandibular pain, as documented the summary of defects and diagnoses in that report. Although the Veteran has recently reported that he was given white pills in service and at separation from service to treat gonorrhea, the inconsistency of that report with the service records and his other historical inaccuracies lead the Board to assign little probative value to those reports. As to the other historical inaccuracies, the Veteran testified on two occasions that he was treated at Montefiori Medical Center, once responding to questions in which his representative referred to the institution as Montclair Medical Center, but in his in his July 2013 statement reported that he had never heard of the Medical Center. It is clear from his statements and the content of the VHA opinion to which he referred in the July 2013 statement, that he did not simply rely on the incorrect name of the medical center referred to by the VHA physician. His contention in his March 2007 Form 9 is similar; the Veteran disagreed with what the RO had stated in the February 2007 Statement of the Case with regard to the Montefiori Medical Center records and implicitly disputed whether the records existed, but RO's statements were accurate and the Veteran had informed VA of the records years earlier. These inaccuracies tend to show that the Veteran is not credible when it comes to events during service and in the years shortly after service. As to the Veteran's report that he has had joint and muscle pain present since shortly after service, the first reports of any musculoskeletal symptoms after the Montefiori records, found in records from Dr. F.C.C., includes only that in December 1989 he reported that he had sciatica for two years and in December 1994 he reported recent low back pain. There are no reports in these records of longstanding joint or muscle pain. Given the nature of those complaints and diagnosis of low back strain, if he had muscle or joint pain, to include due to arthritis, for many years, as he now alleges, it is reasonable to expect that there would be some mention of such history in those records, which appear to be complete records of relevant treatment by the physician. The note in the Montefiori Medical Center records that his pain was believed to be due to hysteria is also consistent with the July 2011 and June 2013 opinions as it tends to show that there was another other explanation for his symptoms at the time. The consistency with those earlier records, upon which the Veteran relies, and the compelling reasoning of these later opinions leads the Board to assign considerable probative weight to the July 2011 and June 2013 opinions as to whether the Veteran had arthritis at the time of his Montefiori Medical Center hospitalization. In contrast, the August 2012 opinion letter from the Veteran's primary care physician is based entirely on the Veteran's report of the gonococcal arthritis. The Board finds no explanation regarding the validity of the diagnosis. The VA primary care physician also stated that the diagnosis took place in 1971 "while in the military." This is incorrect as the Veteran was separated from active service in 1970. This inaccuracy tends to show that the primary care physician based the opinion only on the Veteran's report and is evidence that no review of any records from the 1970s took place. As such, the Board assigns minimal probative weight to that opinion because the physician did not have sufficient facts and data upon which to render the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (explaining that whether a medical expert is sufficiently informed of facts and data is a threshold consideration in determining the probative value of a medical opinion). The Veteran's reports of muscle and joint pain present continuously since just after service are afforded little probative weight for the reasons already provided; i.e., his reports are inconsistent with what he reported earlier in the context of seeking medical treatment in 1989 and 1994 and his demonstrated inaccuracies as to the events of the early 1970s and his active service The treatise evidence he submitted is afforded little weight because it tends to show only the course of gonococcal arthritis when treated or untreated, not whether the Veteran actually had gonococcal arthritis at any time. For these reasons, the Board concludes that the preponderance of evidence shows that the Veteran did not have arthritis during service or within one year of separation from service and did not have arthritis at the time of his Montefiori Medical Center hospitalization. The Board also concludes that any muscle or joint pain he had at the time of that hospitalization resolved and he had no chronic pain of his muscles or joints until many years after separation from service. Hence, the presumption of service connection for chronic diseases is not for application. There is no competent evidence showing a relationship between exposure to Agent Orange and his current muscle and joint pain and arthritis. The Veteran has not shown that he has any expertise in diagnosing medical conditions or in determining whether exposure to an environmental hazard results in any symptoms or diagnosed conditions. He is therefore a layperson, and not a medical expert, when it comes to such matters. Although it is error to categorically reject layperson nexus opinions, not all nexus questions are subject to non-expert opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In Jandreau, the Federal Circuit provided an instructive example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. It is widely known that the effect of exposure to chemicals and other environmental hazards on diseases is the subject of extensive research by medical professionals. Whether exposure to Agent Orange causes joint and muscle pain, to include due to arthritis, is therefore a complex question. It is not a question that can be resolved by mere observation. In this regard, the Veteran does not report that he suffered symptoms at the time of the presumed exposure; rather he contends that sometime after the presumed exposure he had symptoms that he now seeks to relate to the exposure. For these reasons, the Board concludes that his opinion regarding causation by exposure to Agent Orange is not competent evidence. Review of the claims file fails to reveal any competent evidence that exposure to Agent Orange caused his claimed disability. Therefore, service connection is not warranted based on a theory that his claimed disability was caused by such exposure. As the Board finds the June 2011 and July 2013 to be the most probative evidence of record on the issue of whether any current arthritis, muscle, or joint pain is related to service, the Board concludes that the preponderance of evidence is against a finding that the nexus element has been met in this case. In summary, the preponderance of evidence is against a finding that the Veteran's muscle and joint pain, to include arthritis, had onset during his active service, manifested within one year of separation from active service, or was caused by his active service. His appeal must therefore be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the claim of entitlement to service connection for arthritis is reopened, and to that extent only, the appeal is granted. Entitlement to service connection for muscle and joint pain, to include as due to herbicide exposure, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs