Citation Nr: 1124990 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 05-25 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE 1. Entitlement to service connection for type 2, diabetes mellitus, to include as due to exposure to Agent Orange. 2. Entitlement to service connection for amputation of the toes of the right foot, secondary to type 2, diabetes mellitus. 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity secondary to type 2, diabetes mellitus. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity secondary to type 2, diabetes mellitus. 5. Entitlement to service connection for femoral bypass of the right lower extremity secondary to type 2, diabetes mellitus. 6. Entitlement to service connection for a disability of the lumbar spine, a herniated disc. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Russell P. Veldenz, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1967 to November 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision, dated in August 2003, of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In November 2009, the Board remanded the case for additional development. The Board directed the RO to issue notice pursuant to Veterans Claims Assistance Act of 2000; to attempt to obtain service treatment records that had previously been associated with the file and the records of the Social Security Administration; to ask the Veteran for additional information on his statement of an in- service vehicle accident, including the dates, location, and where he was treated; and to ask the Veteran to either submit private medical records or authorize VA to obtain the records on his behalf. The RO sent the VCAA notice in April 2010. In the notice, the RO requested the Veteran to submit or authorize VA to obtain private medical records which the Board finds sufficient to include requesting information about the in-service vehicle accident that the Veteran contends is the onset of his lumbar spine disability. To date, the Veteran has not responded to the request. The RO obtained the Social Security Administration Records in April 2010. In April 2010, the RO learned that no additional service treatment records were available and the original copies relied upon in the Rating Decision remained lost. The Veteran was advised of this fact in the supplemental statement of the case in April 2011. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran did not serve within the land borders, including the inland waters, of Vietnam during the Vietnam era and actually exposure to Agent Orange is not shown. 2. Type 2, diabetes mellitus was not affirmatively shown to have been present during service; type 2, diabetes mellitus was not manifested to a compensable degree within one year from the date of separation from service in November 1971; and type 2, diabetes mellitus, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is unrelated to an injury, disease, or event in service. 3. Amputation of the toes of the right foot, secondary to type 2, diabetes mellitus, was not affirmatively shown to have been present during service; and amputation of the toes of the right foot secondary to type 2, diabetes mellitus, first diagnosed after service, is unrelated to an injury, disease, or event in service. 4. Peripheral neuropathy of the right lower extremity, secondary to diabetes type 2, mellitus was not affirmatively shown to have been present during service; and peripheral neuropathy of the right lower extremity secondary to type 2, diabetes mellitus, first diagnosed after service, is unrelated to an injury, disease, or event in service. 5. Peripheral neuropathy of the left lower extremity, secondary to type 2, diabetes mellitus was not affirmatively shown to have been present during service; and peripheral neuropathy of the left lower extremity secondary to type 2, diabetes mellitus, first diagnosed after service, is unrelated to an injury, disease, or event in service. 6. Residuals of a femoral bypass of the right lower extremity secondary to type 2, diabetes mellitus was not affirmatively shown to have been present during service; and residuals of a femoral bypass of the right lower extremity secondary to type 2, diabetes mellitus, first diagnosed after service, is unrelated to an injury, disease, or event in service. 7. A lumbar spine disability, a herniated disc, was not affirmatively shown to have had onset during service; a lumbar spine disability, herniated disc, first diagnosed after service, is otherwise unrelated to an injury, disease, or event in service. CONCLUSION OF LAW 1. Type 2, diabetes mellitus is not due to disease or injury that was incurred in or aggravated by service; type 2, diabetes mellitus as a chronic disease may not be presumed to have been incurred in service; and the presumption of exposure to Agent Orange and the presumption of service connection due to exposure to Agent Orange do not apply. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107(b) (West 2002 & 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). 2. Amputation of the toes of the right foot was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). 3. Peripheral neuropathy of the right lower extremity was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). 4. Peripheral neuropathy of the left lower extremity was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). 5. Residuals of a femoral bypass of the right lower extremity was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). 6. A lumbar spine disability, herniated disc, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2010). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided post-adjudication VCAA notice by letter, dated in April 2010. The notice included the type of evidence needed to substantiate the claims of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for content of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content-complying VCAA notice after which the claims were readjudicated as evidenced by the supplemental statement of the case, dated in April 2011. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, service personnel records, VA records, and private medical records. The RO also made an inquiry to the Department of Defense regarding the use of Agent Orange outside of Vietnam. As the record does not indicate that the current type 2, diabetes mellitus or the other claims secondary to type 2, diabetes mellitus, may be associated with the Veteran's service, because there is no credible evidence of recurrent symptoms or continuity of symptomatology since service or other possible association with service, or exposure to herbicides. Also the Veteran as a lay person is not competent to offer an opinion on whether diabetes mellitus resulted from service as such an opinion is not capable of lay observation. Furthermore, in the absence of evidence that establishes that the Veteran suffered an event, injury, or disease, suggestive of type 2, diabetes mellitus, later diagnosed, a VA medical examination or medical opinion on the questions of direct service connection is not necessary to decide the claims. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The Board has reached a similar conclusion regarding the claim of service connection for a disability of the lumbar spine. The Veteran has asserted an in-service incident as the onset of his problem. For the reasons discussed below, the Board has found such evidence not to be credible and in the absence of any other evidence that establishes that the Veteran suffered an in- service event, injury, or disease, suggestive of a lumbar spine disability, a VA medical examination or medical opinion is not required to decide the claim under 38 C.F.R. § 3.159(c)(4). 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Where a veteran, who served for ninety days on active duty, develops diabetes mellitus to a degree of 10 percent or more within one year from separation from service, service connection may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for a disability that is caused by or aggravated by a service-connected disability, commonly referred to as secondary service connection. 38 C.F.R. § 3.310(a). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The record does not show and the Veteran does not assert that he was in combat, and the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). 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 Veteran. 38 U.S.C.A. § 5107(b). Service Connection for Type 2, Diabetes Mellitus, and for Disabilities Secondary to Type 2, Diabetes Mellitus Facts The Veteran asserts that he was exposed to Agent Orange while serving at airfields in Japan, resulting in type 2, diabetes mellitus. Specifically, the Veteran asserts he was trained at the Marine Corps NBC (nuclear, biological, and chemical) course at Cherry Point. He asserts he was assigned to be the "chemical leader" for his unit and responsible for maintaining herbicides in storage in bunkers at the airfields in Kadena, Okinawa, and at the air bases in Iwakuni and Atsugi, Japan, and the Sasebo Naval base in the Philippines. According to the Veteran, Agent Orange and Agent Blue were used freely and broadly at the bases. He contends there were over 100 barrels of Agent Orange and Agent Blue were stored at Kadena. He asserts that he assisted in loading barrels on trucks and on the aircraft of his unit, VMFA 334, as part of his duties as a hydraulics mechanic. The Veteran's VA file was lost during the pendency of the appeal. Before the file was lost, the RO did review the service treatment records. The RO found that the service treatment records do not contain any complaint, finding, history, treatment, or diagnosis of type 2, diabetes mellitus. In the statement of the case, there is also reference to private medical records obtained by VA, but no private records, as obtained by VA, are in the file. The earliest evidence of records obtained by the RO after service is VA records, beginning in December 2002. The RO has also obtained records from the Social Security Administration, including private records, dating to February 1988. The file does contain the Veteran's service personnel records. The records establish that the Veteran received his training as an airplane mechanic, receiving 4 weeks of training in mechanic fundamentals, 8 weeks in aviation structural mechanics (hydraulics), and a one week course in corrosion control. The Veteran also finished a one week course in NBC monitoring, survey, and decontamination. The personnel records show that although the Veteran was an aircraft hydraulic mechanic, the Veteran spent considerable time on work details, including in the mess hall and in the barracks and on guard duty. There is no evidence that the Veteran was assigned to any chemical detail. The Veteran was assigned to VMFA 334, which was comprised of F-4J Phantom fighters. The unit participated in Operation Rolling Thunder from March 1965 to October 1968, but strictly as a fighter unit. There is no indication the unit handled or disbursed herbicides in Vietnam. The Veteran was assigned to the Marine Corps Air Station in Iwakuni, Japan, and at the Kadena Air Force Base in Okinawa for one day. In April 2005, the Department of Defense reported that there was no record that the Veteran was exposed to Agent Orange. In March 2008, the Department of Defense reported that besides Vietnam, there were 71 established sites in the United States and elsewhere, where Agent Orange was used or tested, but Agent Orange was not used, tested, stored, or transported in Okinawa or Japan, including at Iwakuni and Atsugi, or at Sasebo, and that all Agent Orange was used and stored in Vietnam. The Veteran states he was diagnosed with type 2, diabetes mellitus in 1975 at the age of 26. The documentary evidence on the record does not contain the first diagnosis and treatment, but the Veteran has had a diagnosis of diabetes at least since 2001. A note by Dr. J. S. G. in January 1993 the Veteran had elevated blood sugar and had discussed the finding with the Veteran who did not mention that he had already been diagnosed with diabetes. Another physician's note, in February 2001, reports the Veteran was first diagnosed with diabetes seven years earlier, which was around 1994. In addition, the Veteran has been diagnosed and treated for several residuals and complications of diabetes. He has been diagnosed with peripheral neuropathy. Starting in 2000, circulation and infection problems have resulted in a series of debridement surgeries, amputation, and revision operations that have resulted in the removal of all the toes of the right foot. The latest of the surgeries occurred in March 2007, which was a revision of the transmetatarsal amputation and a lengthening of the percutaneous Achilles tendon. In August 2002, circulation problems resulted in a femoral bypass in the right leg. In August 2007, the Veteran was noted to have diabetes that was under suboptimal control and the etiology was quite unclear. In April 2010, records from the Social Security Administration (SSA) show that in in October 1988 the Veteran stated that he served in Vietnam. In February 1992, he was evaluated by a psychiatrist, Dr. W. K., who noted the Veteran had been exposed to significant violence in a special forces unit of the U. S. Marines. As part of his treatment for a second back injury, the Veteran told a chiropractor, J. H. Z., about accidents in February 1988 and in February 1992, but the Veteran did not provide a history of a back injury in service. The Veteran did state that he had plastic surgery after being shot in the jaw in Vietnam and that he was also shot in the right thigh and right chest, but he had no ongoing problems after being shot. Analysis Preliminary Matter Whether there were ever service treatment records is not clear, but the service treatment records are currently missing, and the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt standard of proof. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (where service records are missing and presumed destroyed in a fire in 1973 at the Federal Records Center, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt standard of proof). The analysis below has been undertaken with this heightened duty, but the legal standard for proving a claim of service connection does not change. See Russo v. Brown, 9 Vet. App. 46, 51 (1996) (citing O'Hare, the case law does not lower the standard for proving a claim of service connection). As the Veteran did not serve in combat, the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Theories of Service Connection, excluding Exposure to Agent Orange Based on the service treatment records alone, type 2, diabetes mellitus, peripheral neuropathy of the lower extremities, amputation of the toes of the right foot, or a femoral artery bypass in the right leg were not affirmatively shown to have been present in service, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not established. Also, as there is no competent evidence either contemporaneous with or after service that type 2, diabetes mellitus, peripheral neuropathy of the lower extremities, amputation of the toes of the right foot, or a femoral artery bypass in the right leg, the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. After service, diabetes was first noted in November 2001 with a finding of an elevated blood glucose level, dating to January 1993, in either event, diabetes was first manifested more than 20 years after service, well beyond the one-year presumptive period following separation from service in 1971 for diabetes, as a chronic disease under 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.307, 3.309. Although the precise date is not clear, peripheral neuropathy was diagnosed in service after the diagnosis of diabetes and more than 20 years after service. On the question of whether service connection may be granted on the basis that the claimed disabilities were first diagnosed after service, considering all the evidence, including that during and after service, under 38 C.F.R. § 3.303(d), the Veteran does not argue and the record does not contain competent evidence, lay or medical, that links diabetes, peripheral neuropathy of the lower extremities, amputation of the toes of the right foot, or a femoral artery bypass in the right leg to an injury, disease, or event in service, excluding exposure to Agent Orange, which will be addressed separately, and in the absence of competent evidence suggesting such an association, but is too equivocal or lacking in specificity to support a decision on the merits, and in the absence of credible evidence of continuity of symptomatology, there is no possible association with service, and VA is not required to further develop the claim on the theory of direct service connection under 38 C.F.R. § 3.303(d), excluding exposure to Agent Orange, by affording the Veteran a VA examination or by obtaining a VA medical opinion under the duty to assist. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). It is the Veteran's general evidentiary burden to establish all elements of his claim, including the nexus requirement under 38 C.F.R. § 3.303(d). 38 U.S.C.A. § 5107(a). Fagan v. Shinseki, 573 F.3d. 182, 1287 (2009). In the absence of any such competent evidence, the preponderance of the evidence is against the claims that type 2, diabetes mellitus, amputation of the toes of the right foot, peripheral neuropathy of the lower extremities, or a femoral bypass of the right lower extremity was due to an injury, disease, or event in service, excluding exposure to Agent Orange, under 38 C.F.R. § 3.303(d), or under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) and (b) as previously discussed. As service connection for type 2, diabetes mellitus is not established, the Board does not reach the question of secondary service connection under 38 C.F.R. § 3.310 for amputation of the toes of the right foot, peripheral neuropathy of the lower extremities, or a femoral bypass of the right lower extremity. Alleged Exposure to Agent Orange A Veteran who, during active naval service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including a herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(f). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam, that is, within the land borders, including the inland waters, of Vietnam. 38 C.F.R. § 307(a)(6)(iii); Haas v. Peake, 525 F. 3d 1168, 1193-95 (Fed. Cir. 2008). If a Veteran was exposed to certain herbicides, including Agent Orange, during active service, type 2, diabetes mellitus will be presumed to have been incurred in service if manifest to a compensable degree, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(1), (2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). There is also a presumption of service connection for acute or subacute peripheral neuropathy if manifest to a compensable degree within one year after the date of exposure, even if there is no record of such disease during service. The term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. The Secretary of VA has determined that a presumption of service connection based on exposure to certain herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. Notice, 59 Fed. Reg. 341-346 (1994); 61 Fed. Reg. 41442-41449 and 57586-57589 (1996); 67 Fed. Reg. 42600- 42608 (2002); 68 Fed. Reg. 27630-27641 (2003); 72 Fed. Reg. 32395-32407 (2007). Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) Diabetes due to Exposure to Agent Orange The Veteran does not assert that he exposed to Agent Orange by setting foot in Vietnam. He does assert that while serving in a Marine fighter unit in Japan he was a chemical leader and he was responsible for maintaining herbicides in storage in bunkers at the airfields. According to the Veteran, both Agent Orange and Agent Blue were used freely at the bases, where he was stationed. As the Veteran was not present in Vietnam, there is no presumption of exposure to Agent Orange. Except for the bare allegation, the Veteran has not presented any evidence of actually exposure to Agent Orange while serving in Japan. As his presence in Japan can not trigger the presumption of exposure to Agent Orange and the legal presumption of exposure is a lesser standard of proof than factually proofing actual exposure, then it follows that a bare allegation of actual exposure without a factual foundation to support the allegation is insufficient to establish that the Veteran was actually exposed to Agent Orange. Furthermore, the Board finds the Veteran is not credible in his statements that he handled herbicides in Japan. On more than one occasion the Veteran lied about the nature of his duties, telling health-care providers that he was shot in Vietnam and served with in commando or special forces unit. Even if the Veteran did handled stored chemicals of some sort that does not necessarily prove the chemicals were Agent Orange and does not prove that the Veteran was actually exposed to a chemical. But even more persuasive, the Department of Defense reported Agent Orange was not used, tested, stored, or transported in Okinawa or Japan or Sasebo. Based on the Veteran's lack of credibility and the evidence from the Department of Defense that Agent Orange was not used or stored in Japan, the Board finds that the Veteran was not exposed to Agent Orange. As the Board finds that the Veteran was not actually exposure to Agent Orange, the Board need not reach the question of exposure actually causing the claimed disabilities. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However for the completeness of the analysis, the Board finds that the Veteran has not submitted any evidence on the question of causation, that is, a link or nexus, between the current type 2, diabetes mellitus, amputation of the toes of the right foot, peripheral neuropathy of the lower extremities, or a femoral bypass of the right lower extremity and exposure to Agent Orange. Apart from actual exposure to Agent Orange, which has not been established, the Veteran has expressed the opinion that type 2, diabetes mellitus is caused by exposure to Agent Orange. He does not argue that amputation of the toes of the right foot, peripheral neuropathy of the lower extremities, or a femoral bypass of the right lower extremity were caused by exposure to Agent Orange, rather that the additional disabiities are complications of diabetes mellitus. Under certain circumstances, a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting, in a footnote, that sometimes a lay person 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).) Competency is a question of fact, which is to be addressed by the Board. Jandreau, 492 F.3d at 1377. In this case, the actual cause of type 2, diabetes mellitus cannot be determined by Veteran based on personal observation without having specialized education, training, or experience. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a witness must have personal knowledge in order to be competent to testify to a matter; personal knowledge is that which comes to the witness through the use of the senses.). And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the cause of type 2, diabetes mellitus. As the Veteran's lay opinion on causation is not competent evidence, the Veteran's opinion is not admissible as evidence. For the above reasons, the Board finds that the preponderance of the evidence of record is against the claims of service connection for type 2, diabetes mellitus, amputation of the toes of the right foot, peripheral neuropathy of the lower extremities, or a femoral bypass of the right lower extremity based on alleged exposure to Agent Orange, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Service Connection for a Lumbar Spine Disability Facts The Veteran asserts that he first injured his back in service. He stated that it occurred at the Marine Corp Air Station in Memphis. Exactly how he injured it is not clear. At a VA examination in March 2003, the Veteran stated he fell off a truck and when he sought medical aid on numerous occasions, he was refused treatment and told to return to duty. He has also referred to injuring his back after he was in a truck accident in Kadena, when a 700 pound box pinned him to the steering wheel. He states that as a result he was assigned to administrative work, because he could not work on aircraft due to pain and diminished dexterity. The Veteran also stated he first sought treatment for his back in 1988. The RO, in denying service connection, reported the Veteran's service treatment records had been reviewed. The RO found that in service in May 1968 the Veteran complained of sharp back pain, which started in the thoracic area and extended down to the lumbosacral area, the pertinent finding was tension in the right paravertebral muscles, and the Veteran was treated with aspirin. In July 1970, the Veteran complained of back pain, but he gave a history of having been thrown from a horse in 1968. The RO also referred to an examination in December 1969 and the separation examination in October 1971, neither examination included a complaint, finding, history, treatment, or diagnosis of a back abnormality. Records of the Social Security Administration show that in February 1988 the Veteran seriously injured his back at work. The initial diagnosis was acute mechanical low back strain. Later, the diagnosis was a herniated disc. In February1988, a private orthopedic surgeon obtained a history from the Veteran that denied any previous episodes of back pain or back injury. In April 1992, the Veteran suffered another injury to his back at work. He fell from a ladder injuring his left calf, left shoulder, lower back, and neck. At this time, in the history given to Dr. K. and others, the only permanent and significant history regarding his back was the accident in 1988. At no point did the Veteran mention any back injury or problem in service, including a motor vehicle accident where he was pinned to the steering wheel or that he fell off a truck. As part from his treatment of a second back injury in 1992, the Veteran did not refer to a back injury in service when he was seen by a private chiropractor. VA records starting in December 2002 include an initial treatment note indicating that the Veteran had chronic back pain and a disc problem secondary to an industrial accident. As a result, the Veteran received pain medication through his workman's compensation claim. Analysis Theories of Service Connection 38 C.F.R. § 3.303(a) Affirmatively Showing Inception in Service On the basis of the service treatment records alone, a disability of the lumbar spine was not affirmatively shown to have been present in service, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not established. 38 C.F.R. § 3.303(b) Chronicity and Continuity of Symptomatology 38 C.F.R. § 3.303(d) First Diagnosed after Service The service treatment records, although once available, are currently missing. Nevertheless, when reviewed by the RO, the Veteran was seen in service for complaints about his back although there was no reference to a fall off a truck or the motor vehicle accident averred by the Veteran. Since the Veteran complained of low back pain in service, the Board has determined that the principles of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply. As the evidence of record lacks the documentation of the combination of manifestations sufficient to identify a disability of the lumbar spine and as chronicity in service is not adequately supported in the absence of recurrent or persistent low back pain or other symptoms related to the lumbar spine, then continuity of symptomatology after service under 38 C.F.R. § 3.303(b) is required to support the claim. Also as to the current lumbar spine disability, first diagnosed after service, 38 C.F.R. § 3.303(d) applies. The Veteran is competent to describe symptoms of lumbar pain in service or since separation, which symptoms are within the realm of the Veteran's personal knowledge. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). Although the service treatment records were not found, if there were ever any such records, the separation examination showed no abnormality of the lower back, low back pain, or neurological abnormality. Assuming for the sake of analysis that the Veteran did sustain one or more back injuries during service, the report of separation examination is persuasive evidence that the Veteran did have any chronic residuals of an injury during service. Furthermore, the evidence of record demonstrates that the Veteran's current back symptoms and pain are the result of two work-related accidents occurring in 1988 and 1992. There is no evidence of medical treatment for his lower back before the first accident. At the time of the first accident, the Veteran denied any prior injuries to his back. When he injured his back the second time, he only related the injury from 1988. All treatment occurred after the two civilian work-related accidents. To the extent the Veteran is now stating otherwise, although the Veteran is competent to describe an injury and symptoms, competency differs from credibility and weight of the evidence. Competency is a legal concept determining whether evidence may be considered, that is, admissible, while credibility is a factual determination going to the probative value or weight of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. See Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). In determining whether the Veteran's statements are credible, the Board may consider internal inconsistency and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). As for the Veteran's statements that he has had disability of the lumbar spine since service, the Board finds that the statements not credible first and foremost because the evidence points to his back disability and its resulting symptoms resulted solely from the two workplace accidents and service played no role in the current disability. When the first symptoms of lumbar spine were documented there was no attribution to an in-service injury. Rucker, 10 Vet. App. at 73 (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Furthermore, as with his Agent Orange claims, the Board finds the Veteran is not credible. On more than one occasion the Veteran lied about the nature of his duties in service and as the Veteran is obviously prepared to lie about one matter the Board has no reason to place any weight on his statements about continuity of symptomatology. Stated differently, the record does support a finding that there has been no continuity of symptomatology since service due to the lack of symptoms between 1971 and 1988 which interrupts continuity, evidence of back injuries in 1988 and 1992; and the inconsistencies and lack of credibility in the Veteran's current recollections in statements, 40 years after service. And the Board finds that lack of credibility extends to his assertions of continuity of symptomatology as to the residuals of any such injury. For the above reasons, the Veteran's statements are not credible on the material issue of fact, continuity of symptomatology, and the statements have no probative value and are assigned no weight in determining continuity. As there is no favorable evidence of continuity, the preponderance of the evidence, which clearly demonstrates a lack of continuity, is against the claim on this theory of service connection, and the benefit-of-the-doubt standard of proof does not apply. 38 C.F.R. § 3.303(b); 38 U.S.C.A. § 5107(b). Further, for the sake of a complete analysis, a disability of the lumbar spine, a herniated disc, is not a condition under case law that has been found to be capable of lay observation, and the determination as to the presence or diagnosis of the conditions are medical in nature, that is, not capable of lay observation, and competent medical evidence is required to substantiate the claim. See Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Also, under certain circumstances, lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377(Fed. Cir. 2007). Also, the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). Competency is a question of fact, which is to be addressed by the Board. Jandreau, 492 F.3d at 1377. As the presence or diagnosis of disability of the lumbar spine, herniated disc, cannot be made by the Veteran as a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses, the condition is not a simple medical condition that the Veteran is competent to identify. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a diagnosis of a disability of the lumbar spine, herniated disc. Where, as here, there is a question of the presence or a diagnosis of a disability of the lumbar spine, herniated disc, not capable of lay observation by case law, and the condition is not a simple medication condition under Jandreau for the reason expressed, to the extent the Veteran's statements are offered as proof of the presence or diagnosis of a disability of the lumbar spine, herniated disc in service or since service, the Veteran's lay statements are not competent evidence, and the statements are excluded, that is, not admissible as evidence and cannot be considered as competent evidence favorable to claim based either on continuity of symptomatology or on a disability first diagnosed after service. As for the Veteran describing a contemporaneous medical diagnosis or symptoms described by the Veteran that later supports a diagnosis by a medical professional, there is no evidence that a health-care professional has associated a disability of the lumbar spine, herniated disc, to service. To the extent the Veteran has expressed an association between a disability of the lumbar spine, herniated disc, and service, the Veteran's opinion as a lay person is limited to inferences that are rationally based on the Veteran's perception and does not require specialized education, training, or experience. As the Veteran as a lay person is not competent to declare either the presence or diagnosis of a disability of the lumbar spine, herniated disc, based on personal observation, any inference based on what is not personally observable cannot be competent lay evidence. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between a disability of the lumbar spine, herniated disc, and service. As there is no credible lay evidence or medical evidence favorable to claim, the preponderance of the evidence is against the claim based either on continuity of symptomatology under 38 C.F.R. § 3.303(b) or on a disability first diagnosed after service under 38 C.F.R. § 3.303(d), and the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for type 2, diabetes mellitus, amputation of the toes of the right foot, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, and a femoral bypass of the right lower extremity are denied. Service connection for a disability of the lumbar spine, herniated disc, is denied. ____________________________________________ George E. Guido, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs