Citation Nr: 1825149 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 13-11 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for plantar warts. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral foot disability, to include degenerative joint disease (DJD). 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a cervical spine disability. 5. Entitlement to a compensable initial rating for service-connected residuals of a head injury. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and his son, T.D. ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated March 2011 and March 2013 of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In January 2018, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. The Veteran recently submitted additional evidence directly to the Board. He also submitted a written waiver of local consideration of this evidence; this waiver is contained in the VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c) (2017). At the January 2018 hearing, the Veteran asserted the issue of entitlement to service connection for a low back disability. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it. The Veteran is advised that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. Should the Veteran wish to file a claim of entitlement to service connection for a low back disability, he must file the claim on the proper form. The issue of entitlement to service connection for a bilateral foot disability is being reopened herein. The underlying merits of service connection for a bilateral foot disability as well as the matter of entitlement to a compensable initial rating for residuals of a head injury are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. The Veteran will be notified if further action on his part is required. FINDINGS OF FACT 1. In a March 2005 rating decision, the RO denied the Veteran's claims of entitlement to service connection for a bilateral foot disability, to include DJD, a cervical strain, plantar warts, and DJD of the right shoulder. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. Additional evidence received since the March 2005 rating decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim of service connection for plantar warts. 3. The evidence received since the March 2005 decision includes statements of the Veteran, VA examinations, and private evaluations, as well as treatment records, which relate to unestablished facts necessary to substantiate the matter of entitlement to service connection for DJD of the bilateral feet and, if presumed credible, raise a reasonable possibility of substantiating the claim. 4. The evidence received since the March 2005 decision includes statements of the Veteran, VA examinations, and private evaluations, as well as treatment records, which relate to unestablished facts necessary to substantiate the matter of entitlement to service connection for a right shoulder disability and, if presumed credible, raise a reasonable possibility of substantiating the claim. 5. The evidence received since the March 2005 decision includes statements of the Veteran, VA examinations, and private evaluations, as well as treatment records, which relate to unestablished facts necessary to substantiate the matter of entitlement to service connection for a cervical spine disability and, if presumed credible, raise a reasonable possibility of substantiating the claim. 6. The Veteran does not have a right shoulder disability, to include DJD, that had its clinical onset in service or is otherwise related to active duty. 7. The Veteran does not have a cervical spine disability that had its clinical onset in service or is otherwise related to active duty. CONCLUSIONS OF LAW 1. The March 2005 rating decision denying service connection for a bilateral foot disability, to include DJD, a cervical strain, plantar warts, and DJD of the right shoulder is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). 2. Since the March 2005 rating decision, new and material evidence has not been received with respect to the claim of entitlement to service connection for plantar warts; this claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has been received to warrant reopening of the claim of service connection for DJD of the bilateral feet. 38 U.S.C. §§ 5107, 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 4. New and material evidence has been received to warrant reopening of the claim of service connection for a right shoulder disability. 38 U.S.C. §§ 5107, 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 5. New and material evidence has been received to warrant reopening of the claim of service connection for a cervical spine disability. 38 U.S.C. §§ 5107, 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 6. A right shoulder disability was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C. §§ 1110, 1116(f), 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 7. A cervical spine disability was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C. §§ 1110, 1116(f), 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board finds that VA does not have a duty to assist that was unmet. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). II. Claims to reopen In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. 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 (2017). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In a March 2005 decision, the RO denied the Veteran's original claims of entitlement to service connection for a bilateral foot disability, to include DJD, a cervical strain, plantar warts, and DJD of the right shoulder. The Veteran did not appeal the decision. As new and material evidence was not received within one year of the decision, it became final as to the identified claims. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Under these circumstances, the RO's March 2005 rating decision is final as to the Veteran's claims of entitlement to service connection for a bilateral foot disability, to include DJD, a cervical strain, plantar warts, and DJD of the right shoulder, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. The Veteran now seeks to reopen his claims. As noted above, despite the finality of a prior adverse 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. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in March 2005. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156 warranting reopening of the claims of service connection for a bilateral foot disability, a right shoulder disability, and a cervical spine disability. The Board further finds that new and material within the meaning of 38 C.F.R. § 3.156 has not been received to warrant reopening of the claim of service connection for plantar warts. The evidence associated with the Veteran's claims file at the time of the last final denial in March 2005 included service treatment records (STRs), VA and private treatment records, a VA examination report, a VA addendum opinion, and the statements of the Veteran. At the time of the last final denial, the Veteran contended that he developed plantar warts during his military service. See the VA examination report dated September 2004. He further stated that he had bilateral foot surgery during his military service, which resulted in residuals including DJD. Id. As to the right shoulder, the Veteran stated that he dislocated his shoulder while on active duty and was required to spend several weeks in a cast. Id. He additionally asserted that he injured his cervical spine in a motor vehicle accident sustained on active duty. Id. The Veteran served on active duty from May 1970 to February 1979. His July 1969 enlistment examination indicated that that he had a tender callous on his left foot. A June 1970 service treatment record (STR) indicated that the Veteran continued to have a callous on his left foot. In February 1971, the Veteran complained of warts on both feet. Complaints of foot pain were noted in September 1975. STRs dated in August 1978 indicated that the Veteran had plantar warts on the balls of both feet. He underwent surgery in November 1978 to correct a bony abnormality of both feet, and was placed on a physical profile in December 1978. In January 1979, it was noted that the Veteran had no pain in his right foot, but continued to have lesions on his left foot; a diagnosis of parakeratosis plantar of the left foot was indicated. The Veteran's December 1978 separation examination did not document any on-going complaints of foot symptomatology. The Board additionally notes that the Veteran's STRs show he was in a motorcycle accident in February 1976 at which time he suffered from right shoulder pain, as well as pain to the left side of his head. X-rays of the skull, right shoulder, and cervical spine were negative for abnormalities. The Veteran was diagnosed with a muscle strain of his right shoulder. A VA examination dated in September 2004 noted the Veteran's report that he experienced great difficulty walking because of the recurrence of plantar warts on both feet. He additionally reported continuing bilateral foot and right shoulder pain. He also reported intermittent neck pain. The examiner diagnosed the Veteran with DJD of the bilateral feet with plantar warts excised surgically in 1978 in Fort Hood, Texas, without recurrence. X-rays revealed mild degenerative changes of the 1st metatarsal joint worse on left than right; there was no evidence of fracture or dislocation. Mild degenerative changes of the mid-foot were also noted, bilaterally. The examiner also diagnosed the Veteran with right shoulder sprain with DJD; subtle osteoarthritic changes of the acromioclavicular joint were indicated. In addition, the examiner diagnosed the Veteran with a cervical spine sprain with spondylosis, confirmed by x-ray. In a separate VA opinion dated in November 2004, the examiner reported that there was no evidence of osteoarthritis of the feet during the Veteran's active duty service. The examiner further stated that review of pertinent medical literature, as well as consultation with Dr. R.J. did not show a relationship between plantar warts and the development of osteoarthritis. The examiner concluded, "I therefore find no relationship between the bilateral foot condition he had during military service and the subsequent development of osteoarthritis." As described above, the Veteran's claims of entitlement to service connection for plantar warts, a bilateral foot disability, a right shoulder disability, and a cervical spine disability were denied in a March 2005 rating decision. The Veteran filed claims to reopen, which were denied in a March 2011 rating decision. This appeal follows. a. Plantar warts After a review of the entire record, and for the reasons expressed immediately below, the Board concludes that new and material evidence to reopen the claim of entitlement to service connection for plantar warts has not been received. The evidence associated with the claims file subsequent to the prior final decision in March 2005 includes, but is not limited to, the Veteran's VA and private treatment records; VA examination reports and medical opinions; letters from Dr. T.V., and lay statements of the Veteran. Medical evidence has been added to the record indicating that the Veteran continues to suffer from lesions of the feet. See, e.g., the private treatment records dated October 2015. Moreover, the Veteran's repeated assertions concerning the incurrence and etiology of his claimed plantar warts, although new, are essentially cumulative of evidence already of record. The Veteran was afforded a VA examination in October 2012 at which time the examiner reported that the Veteran had plantar keratosis that was originally diagnosed in 1978. He further noted that the Veteran was reported to have painful plantar lesions since age 16. The examiner explained that the Veteran had lesions removed several times and surgery on the bilateral feet revealed parakeratosis of the left foot in 1979. The examiner indicated that, in light of the biopsy, it is clear that the lesions were parakeratosis. As to the question of nexus, the examiner determined that the diagnosed plantar keratosis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided a detailed rationale to support his conclusion. Accordingly, the October 2012 VA examiner's opinion against a nexus between the Veteran's military service and his diagnosed plantar keratosis is unfavorable to the claim and thus does not provide a basis for reopening. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). The Board has considered the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010). In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a veteran's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a veteran's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it. Id; see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) and Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). However, as indicated above, in the current appeal the Veteran has not provided evidence in support of nexus between the diagnosed plantar keratosis and his military service, which was not previously considered in prior decision. Accordingly, his contentions made during the current appeal are cumulative and may not be deemed to be both new and material. Shade, supra. The Veteran has been afforded ample opportunity to submit new and material evidence. 38 U.S.C. § 5107(a). As the additionally received evidence does not tend to establish any point not previously demonstrated, it is cumulative. See 38 C.F.R. § 3.156 (2017). The Board must therefore conclude that new and material evidence has not been received and that the Veteran's claim for service connection for plantar warts is not reopened. b. A bilateral foot disability including DJD, a right shoulder disability, and a cervical spine disability As described above, the Veteran's claim of service connection for a bilateral foot disability, a right shoulder disability, and a cervical spine disability was previously considered and denied in a March 2005 rating decision. Relevant evidence received since the March 2005 decision includes, but is not limited to, the Veteran's VA and private treatment records; VA examination reports and medical opinions; letters from Dr. T.V.; and lay statements of the Veteran. Without the need to discuss every piece of newly received evidence in detail, the Board finds that new and material evidence has been received regarding the request to reopen the Veteran's claims of entitlement to service connection for a bilateral foot disability, a right shoulder disability, and a cervical spine disability. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Namely, letters dated November 2011 and September 2012, the Veteran's treating physician, Dr. T.V., noted the Veteran's current diagnoses of DJD, right shoulder sprain, plantar fasciitis post-surgery, and cervical spinal stenosis. He then opined, "that more likely than not his current disabilities are a direct result of injuries sustained in the Army." Critically, this statement by Dr. T.V. relates to the previously unestablished element of nexus as to the DJD of the bilateral feet, right shoulder disability, and cervical spine disability claims. Accordingly, the standards under 3.156(a) have been met and the claims are reopened. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Shade, supra. III. Merits of service connection - right shoulder and cervical spine disabilities Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection on a direct basis, the record must contain competent evidence of (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 in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 active service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of observable symptoms that are in his or her personal knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 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. Id. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Here, the Veteran contends that he developed disabilities of the right shoulder and cervical spine as a result of two motor vehicle accidents during his active duty service. See, e.g., the January 2018 Board hearing transcript. For the reasons set forth below, the Board finds that service connection is not warranted for either disability. The Veteran's STRs indicate that he served on active duty from May 1970 to February 1979. As described above, STRs show that he was in a motorcycle accident in February 1976 at which time he suffered from right shoulder pain, as well as pain to the left side of his head. X-rays of the skull, right shoulder, and cervical spine were negative for abnormalities. The Veteran was diagnosed with a muscle strain of his right shoulder. Although the Veteran has reported involvement a prior in-service jeep accident, which necessitated 30 days of bedrest and light duty, there is no corroboration of this accident his service records, nor is there any indication of a chronic right shoulder or cervical spine disability sustained as a result of that reported accident. Post-service treatment records dated in July 1995 indicate that the Veteran suffered from pain of the neck, shoulder, and back following a motor vehicle accident in March 1995. He was diagnosed with "multiple trigger points throughout the right trapezius area secondary to right upper quadrant and cervical spine strain." The Veteran reported continuing complaints of right shoulder pain in October 1995 and November 1995. Cervical spondylosis was confirmed by x-ray in February 2004. See the VA treatment records dated February 2004. The Veteran was afforded a VA general examination in September 2004 at which time he was diagnosed with DJD and right shoulder sprain, as well as spondylosis and cervical spine strain. In a November 2011 letter, Dr. T.V. reported that the Veteran was treated for 20 years by Dr. B.H. who since closed his practice. Dr. T.V. indicated that the Veteran had diagnoses of DJD, right shoulder sprain, and spinal stenosis. Dr. T.V. explained that he had not been able to review the Veteran's treatment records because they had been destroyed. He then stated, "[i]t appears that his initial injuries have worsened to the degree that he now requires multiple medications and is unable to maintain a full-time position." He then opined, "I believe that more likely than not his current disabilities are a direct result of injuries sustained in the Army." In a September 2012, Dr. T.V. reiterated the conclusions expressed in his November 2011 letter. In an October 2012 VA examination, the examiner confirmed diagnoses of cervical spondylosis and degenerative disc disease (DDD), as well as myofascial syndrome. In an October 2012 VA opinion, the examiner stated that the Veteran's cervical spine disability "was at least as likely as not (50% or greater probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner explained that the Veteran had two in-service motor vehicle accidents, although the prior accident in 1970/1971 was not documented in the claims file. The examiner continued, "[r]egardless, the motorcycle accident in 1976 is adequate enough of an event to cause delayed cervical spondylosis and DDD. Of note, the documentation of the motor vehicle accident out of service in 1995 implies that the cervical and thoracic (but not the lumbosacral) complaints had resolved." In a separate October 2012 VA opinion, the examiner addressed the etiology of the Veteran's diagnosed right shoulder disability. The examiner concluded that it is less likely than not that the Veteran's right shoulder disability was incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained, "[i]n the absence of interval development or a continuous progression of right shoulder problems from 1976, the right shoulder degenerative changes noted subsequently in 2004 are consistent with the normal progression of such changes noted in the age group." He continued, "[t]here does not seem to have been an aggravation or progression due to the one time injury in 1976." In an October 2013 VA medical opinion, the examiner re-reviewed the Veteran's medical history. He then noted that the Veteran served in the military for three years following his 1976 motorcycle accident. The examiner stated, "[t]here were no known intervening treatments for neck symptoms. Then, in 1995, 16 years after discharge from the military, he was involved in another MVC with whiplash. At that time, he had a series of doctors' visits for his spine." The examiner continued, "[h]e was deemed at maximum medical improvement [on] January 29, 1996. A further x-ray in 2004 of his neck did not show DJD, but now x-rays reveal spondylosis." The examiner explained, "[g]iven the timing of these events, the delayed cervical spondylosis and DDD is more temporally related to the 1995 MVC. It is less likely than not his cervical condition is due to his military service given the years of symptomatology between his MCA in 1976 and his MCA in 1996." When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board recognizes that Dr. T.V. suggested the Veteran's right shoulder and cervical spine disabilities were due to his military service. However, the Dr. T.V.'s November 2011 and September 2012 letters were admittedly speculative and little rationale was provided to support the conclusions rendered; the opinions are therefore of little probative value. See Nieves-Rodriguez, supra; see also Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). Moreover, although the October 2012 VA examiner opined that the Veteran's cervical spine disability was at least as likely as not due to his military service, the examiner admittedly did not consider the fact that there were no cervical spine complaints dated from several months after the February 1976 motorcycle accident until his 1995 motor vehicle accident. Thus, the conclusions rendered in his October 2013 VA addendum opinion are more consistent with the evidence of record, which showed that the Veteran served on active duty for three years following his 1976 accident with no documented continuing complaints of cervical spine symptomatology. No such complaints were noted until 1995, 19 years after the in-service accident. As such, the findings of the October 2013 VA examiner were thoroughly explained and fully supported by the evidence of record. In addition, as to the claimed right shoulder disability, the Board notes that the October 2012 VA examiner rendered a negative nexus opinion based on a complete review of the record, including the lay statements and medical evidence submitted by the Veteran, and the examiner explained the reasons for his conclusion based on an accurate characterization of the evidence of record. The Board therefore places significant weight on the findings of the October 2012 VA examiner as to the right shoulder disability. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Accordingly, the Board finds that the competent medical evidence demonstrating the absence of nexus between the claimed right shoulder and cervical spine disabilities and the Veteran's active duty service outweighs any medical evidence suggestive of nexus. The Board has carefully considered the contentions of the Veteran that he suffers from disabilities of the right shoulder and cervical spine, which were incurred during his military service. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4. In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the Veteran's lay theory regarding the etiology of his disabilities are contradicted by the conclusion of the October 2012 VA examiner as to the right shoulder and the October 2013 VA examiner as to the cervical spine. The Board finds the specific, reasoned opinion of the trained health care provider who conducted provided the October 2012 and October 2013 medical opinions to be of greater probative weight than the more general lay assertions of the Veteran. The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Crucially, however, the Veteran's contentions in support of service connection, including continuing post-service symptomatology of the currently diagnosed right shoulder and cervical spine disabilities are contradicted by the findings of the October 2012 and October 2013 VA examiners who specifically considered the lay assertions and any such inferences contained in the record in rendering the negative nexus opinions. Moreover, as set forth above, the contemporaneous clinical evidence does not support his contentions of continuous symptoms since service. Considering the overall evidence, including the post-service medical evidence, the VA medical opinion, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the Veteran's claims that he suffers from disabilities of the right shoulder and cervical spine, which are related to his military service. Thus, the benefit-of-the-doubt rule is not applicable to the claims. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56. ORDER New and material evidence having not been received, the claim of entitlement to service connection for plantar warts of the bilateral feet is denied. New and material evidence having been received, the application to reopen the claim of service connection for DJD of the bilateral feet is granted. New and material evidence having been received, the application to reopen the claim of service connection for a right shoulder disability is granted. New and material evidence having been received, the application to reopen the claim of service connection for a cervical spine disability is granted. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a cervical spine disability is denied. REMAND For the reasons set forth below, the Board finds that the claims remaining on appeal - entitlement to service connection for a bilateral foot disability and entitlement to a compensable initial rating for service-connected residuals of a head injury - must be remanded for additional evidentiary development. With respect to the claim of entitlement to service connection for a bilateral foot disability, the Veteran's treatment records document diagnoses of plantar fasciitis, DJD, and metatarsalgia. See the private treatment records dated June 2002, the VA examination report dated September 2004, and the VA treatment records dated July 2004. In a November 2004 VA opinion, the examiner concluded that there is no evidence to support an etiological relationship between the Veteran's plantar warts and his osteoarthritis. Critically, the examiner did not address whether the Veteran's diagnosed bilateral foot disabilities to include DJD, plantar fasciitis, and metatarsalgia were incurred in or aggravated by his active duty service, to include his documented foot surgery in December 1978 or the documented motorcycle accident in February 1976. As such, this matter must be remanded in order to address the outstanding questions of nexus. As to the claim of entitlement to a compensable initial rating for service-connected residuals of a head injury, the Veteran was last afforded a VA examination in August 2017 at which time the examiner determined that the Veteran had no symptoms that could be ascribed to traumatic brain injury (TBI) other than insomnia. Although the examiner recognized that the Veteran suffers from chronic headaches, the examiner stated that the Veteran's headaches are not related to his TBI. The examiner provided no rationale to support this conclusion. Moreover, the examiner failed to address the Veteran's complaints of tinnitus, which have been documented in the record. See, e.g., the private treatment records dated November 2016. In addition, although the August 2017 VA examiner concluded that the Veteran suffers from depression and anxiety, which are not due to his TBI, an August 2017 VA psychological examiner concluded that it is at least as likely as not that the Veteran's diagnosed depressive disorder is due to his TBI. Similarly, in a January 2018 letter, the Veteran's home health nurse described the Veteran's depression and anxiety consistent with a brain injury. She also detailed cognitive impairments exhibited by the Veteran including difficulty sequencing multiple medications, and difficulty following directions due to short term memory loss and short attention span. As such, the current scope and severity of the Veteran's TBI was not accurately described by the August 2017 VA examiner. In this regard, the Board notes that a veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of his disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The Board thus finds that the matter of entitlement to a compensable initial rating for residuals of a head injury should be remanded in order to afford the Veteran a VA examination to adequately address his claimed symptomatology including insomnia, headaches, depression, anxiety, and tinnitus. Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. The AOJ shall refer the VA claims file to an examiner with appropriate expertise for medical opinion concerning the etiology of the diagnosed bilateral foot disability, to include DJD, plantar fasciitis, and metatarsalgia. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. Then, the examiner should render an opinion as to the following: Is it at least as likely as not that the diagnosed bilateral foot disability, to include DJD, plantar fasciitis, and metatarsalgia had its onset in service, or is otherwise the result of a disease or injury in service, to include the 1978 foot surgery and/or 1976 motorcycle accident detailed above? Should the examiner decide that a physical examination of the Veteran is required to address these questions, one should be scheduled. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 3. The Veteran should be afforded a VA examination to determine all manifestations and residuals associated with his service-connected residuals of a head injury, and the severity of any such manifestations and residuals, as well as the etiology of his headaches and tinnitus. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. a. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's TBI and any residuals consistent with the schedular criteria for evaluating residuals of TBI under 38 C.F.R. § 4.124a, Diagnostic Code 8045. b. In making his or her assessment, the examiner should identify all comorbid physical, neurological, or mental disorder(s), and state whether each is shown to be caused by the Veteran's TBI. The examiner should note that a VA psychological examiner has determined that the Veteran's depressive disorder is due to his service-connected head injury. The examiner should also note the Veteran's report of chronic tinnitus, which is documented in his treatment records, as detailed above. If any condition is not found to be caused by TBI, then the examiner should attempt to distinguish any symptoms and impairment attributable to such disability from identified residuals of TBI. If the manifestations cannot clearly be distinguished, the examiner should clearly so state. c. The examiner should also specifically provide an opinion as to: i. whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's headaches had their clinical onset during his active duty or are otherwise related to such service, to include his documented head injury therein; and ii. whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's headaches were either (1) caused or (2) aggravated (permanently worsened beyond natural progression) by his service-connected head injury. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. Thereafter, readjudicate the claims on appeal. If the benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board for final appellate consideration. The Veteran 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs