Citation Nr: 1031287 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 08-18 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for residuals of exposure to the cold, to include arthritis of the right foot. 2. Entitlement to service connection for residuals of exposure to the cold, to include arthritis of the left foot. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. A. Klein, Associate Counsel INTRODUCTION The Veteran had active service from February 1951 to February 1954. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In June 2009, the Veteran testified before the undersigned Veterans Law Judge at the RO (Travel Board hearing); a copy of the transcript has been associated with the record. The Board notes that a new statement was submitted by the Veteran in July 2010. However, in the Informal Brief of the Appellant in the Appealed Case subsequently submitted by the Veteran's representative later in July 2010, the representative waived agency of original jurisdiction (AOJ) review of this new evidence. See 38 C.F.R. § 20.1304 (2009). Therefore, a remand is not necessary for AOJ review of this new statement. The issues of service connection for the residuals of cold injuries to the knees and hands have been raised by the record. See the November 2007 notice of disagreement (NOD) and the hearing transcript pg. 8, respectively. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2009). FINDINGS OF FACT 1. The Veteran has been diagnosed with arthritis and peripheral neuropathy of the right foot. 2. There is no credible evidence of a chronic right foot disorder during service, or continuous symptoms of such a disorder since service, or of arthritis of the right foot within one year after service, and there is probative medical evidence against a link between the Veteran's current right foot disorders and his period of active military service - including the Veteran's in-service exposure to cold. 3. The Veteran has been diagnosed with peripheral neuropathy of the left foot. 4. There is no credible evidence of a chronic left foot disorder during service or of continuous symptoms of such a disorder since service, and there is probative medical evidence against a link between the Veteran's current left foot disorder and his period of active military service - including the Veteran's in-service exposure to cold. CONCLUSIONS OF LAW 1. A right foot disorder was not incurred or aggravated during service and arthritis of the right foot may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101(3), 1110, 1112(a), 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307(a)(3), 3.309(a) (2009). 2. A left foot disorder was not incurred or aggravated during service and arthritis of the left foot may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101(3), 1110, 1112(a), 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307(a)(3), 3.309(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of the VCAA letter from the agency of original jurisdiction (AOJ) to the Veteran dated in May 2007. That letter effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his service connection claims; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence that he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Furthermore, the May 2007 letter from the AOJ advised the Veteran of the elements of a disability rating and an effective date, which are assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Thus, the Veteran has received all required notice in this case, such that there is no error in the content of his VCAA notice. With regards to the timing of his VCAA notice, the Board observes that the AOJ issued all required VCAA notice prior to the September 2007 rating decision on appeal. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In addition to notification, the VA is required to assist the Veteran in finding evidence to support his claim. See 38 U.S.C.A. § 5103A. The AOJ has secured certain service treatment records (STRs), VA treatment records, and a VA medical examination which reviewed his complaints of experiencing current residuals of injuries due to exposure to cold during service. The Veteran has submitted personal statements, hearing testimony, and private medical evidence. The Veteran has not provided authorization for the VA to obtain any additional private medical records, nor has he indicated that such records exist, such that no further pursuit of medical records is warranted. The Board is also satisfied as to substantial compliance with its August 2009 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97 (2008). In that decision, the Board remanded the decision for the AOJ to undertake three actions. First, the AOJ was to provide the Veteran an opportunity to indicate if he had received further treatment for his feet, and obtain any records if necessary. The Veteran was notified of this opportunity in November 2009, and he responded by indicating that all his relevant treatment and medication was provided by his local VA treatment center in December 2009. Once notified of these records, the AOJ subsequently obtained VA medical treatment records dating from April 2008 to February 2010. Second, the AOJ was to schedule the Veteran for a VA medical examination to determine the nature and etiology of any residuals of injuries to his feet due to cold, in particular regarding any arthritis of his feet, including a medical opinion as to whether any such disorder was related to any exposure to the cold during the Veteran's service in Korea. This was accomplished by a VA medical examination conducted in January 2010. Finally, the AOJ was to readjudicate the Veteran's service connection claim, considering any new evidence which had been obtained, which was accomplished through the June 2010 SSOC. As such, the Board's remand directives have been complied with. The Board notes that when the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). In this instance, the examination report was provided by an ARNP (Advanced Practice Registered Nurse) and cosigned by a staff physician. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (holding that a nurse practitioner, having completed medical education and training, thus fits squarely into the requirement of § 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions). Furthermore, the VA medical examiner reviewed the history of the Veteran's history of presumed in-service exposure to cold, history of treatment and relevant complaints, and any current relevant disorders and their potential connection to any cold exposure which the Veteran may have experienced. As such, the VA medical examination provided both the opinion required by the Board's remand, and also satisfied the obligation of the VA to provide a medical opinion that is adequate for rating purposes, such that no further development in terms of obtaining medical records, examinations, or opinions, is necessary. 38 U.S.C.A. § 5103A. Governing Laws for Service Connection Service connection may be granted if it is shown the Veteran developed a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service), 1153 (aggravation). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). A disorder may also be service connected if the evidence of record reveals that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). That is, a Veteran can establish continuity of symptomatology in cases where the Veteran cannot fully establish the in-service and/or nexus elements of service connection discussed above. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the Court held a Veteran must show "(1) that a condition was 'noted' during service, (2) with evidence of post- service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology." Barr, 21 Vet. App. at 307. Whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question, that is, whether the relationship and disability are capable of lay observation. Savage, 10 Vet. App. at 497; accord Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For continuity of symptomatology, although the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including arthritis). This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection, but eases the combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). That is, the statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition. Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). Service connection by way of the combat presumption may also be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). Competent medical evidence may mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. §§ 1154(a). With regard to lay evidence, the Federal Circuit Court recently held that lay evidence, when competent, can establish a nexus between the Veteran's disability and an in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Citing its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Id. at 1316. Instead, under 38 U.S.C.A. §§ 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377 (footnote omitted). For example, a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer. Id. at 1377 n.4. In short, lay evidence that is both competent and credible may establish the presence of a condition during service, post- service continuity of symptomatology, and evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307-09. But "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Id. at 308. In determining whether service connection is warranted for a disability, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis - Service Connection for the Residuals of Cold Injuries to the Feet The Veteran claims that he current experiences arthritis and pain of his feet, bilaterally, due to exposure to prolonged cold temperatures during service as a gunner in Korea. See the Veteran's January 2007 claim, July 2010 statement, and the June 2009 Board hearing transcript pges. 3-6. The issues of the residuals of cold injuries to the left and right feet will be analyzed together in the following analysis, as these issues present similar issues of law and fact. The first and perhaps most fundamental requirement for any service-connection claim is proof that the Veteran currently has the claimed disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. In the present case, a private treatment record dated in December 1994 from L. Fiske, M.D., indicates that the Veteran was diagnosed with and treated for arthritis of the right foot at that time. This record also indicates that this diagnosis also utilized an x-ray to confirm the diagnosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (stating that arthritis must be objectively confirmed by X-ray evidence). Furthermore, the Veteran's various VA medical treatment records dating from February 2000 to March 2008, and from April 2008 to February 2010 document ongoing treatment for arthritis, as well as pain and swelling in the Veteran's feet. Finally, a VA medical examination conducted in January 2010 diagnosed the Veteran with "[a]rthrodesis mid foot" of the right foot as well as multi- joint arthritis, a left heel spur, and a tentative diagnosis of "new onset peripheral neuropathy (PN) with mild symptoms" affecting both feet. With a history of treatment for and in particular the January 2010 diagnosis, the Board concludes that the Veteran currently experiences arthritis affecting his right foot, a left heel spur and, granting the Veteran the benefit of the doubt required by 38 U.S.C.A. § 5107(b), peripheral neuropathy of both feet. Regarding his left foot, however, while the Veteran has complained of a pain in his left foot, the Board concludes that the Veteran is not competent to diagnose himself with arthritis of the left foot. Specifically a history of pain is not sufficient to show arthritis of his left foot, although pain may be utilized as evidence of a subsequently confirmed diagnosis. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001); Jandreau, 492 F.3d at 1377 (footnote omitted). In this case, there is no evidence that the Veteran has been diagnosed with arthritis, and there is also no x-ray evidence of arthritis of the left foot. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Furthermore, the January 2010 VA medical examination specifically indicated that x-ray evidence revealed that the Veteran left foot had a heel spur, but was otherwise normal. As such, the Board concludes that the competent medical evidence of record shows that the Veteran does not currently experience arthritis of his left foot, with no competent or credible evidence to show otherwise. Therefore, regarding the Veteran's competently diagnosed conditions of arthritis of the right foot, left heel spur, and bilateral peripheral neuropathy, the determinative issue is whether these conditions are somehow attributable to the Veteran's military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."); see also, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). This is also the case if the Board were to concede, arguendo, current left foot arthritis. The Veteran has alleged that his current disorders of the feet are due to exposure to cold, specifically, the Veteran has argued that he served "on the line" for "almost 14 months," including spending duty during the winter manning a machine gun turret mounted on a half-track, where he was exposed to extreme cold, "with no heat," for "6-7 hours per night." See the Veteran's November 2007 NOD, and June 2008 VA Form 9. The Veteran's contentions are consistent with his DD Form 214, which indicates service in Korea. Furthermore, the Veteran has already been service-connected for bilateral hearing loss due to his service as a gunner in Korea. See the Board decision of August 1999. The Board also notes that the Veteran's complete service treatment records (STRs) are not available. See the National Personnel Records Center records request response dated February 1992. When STRs are lost or missing, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). Finally, the Board notes that the Veteran is competent to indicate that he was exposed to prolonged cold. See Layno, at 469; see also 38 C.F.R. § 3.159(a)(2). Absent any evidence to the contrary, the Board concedes that the Veteran has provided competent and credible evidence that he was exposed to prolonged cold during his military service, and specifically during his service in Korea. The Veteran indicated that his feet got cold and that his feet hurt a "few times," but he "didn't think too much about it" during his service in Korea. See the June 2009 hearing transcript pg. 3. He also indicated that complaining about the cold was referred to as "gold-bricking," so he did not complain about his injuries due to the cold, nor did he receive treatment at that time. Id., see also the June 2008 VA Form 9, and the hearing transcript pg. 6. As noted previously, the AOJ has not been able to obtain the Veteran's complete STRs (see the NPRC response of February 1992); however, the AOJ has obtained the Veteran's separation examination of February 1954. This examination specifically indicates that the Veteran's feet were "normal" at that time. As such, without evidence of any such problems at the time of discharge, and no lay or medical evidence provided by the Veteran to indicate that such a disorder was chronic during service, there is no evidence of a chronic disorder such that service connection can be granted on the basis of a history of a chronic disorder in service. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. 494-97. However, the Veteran has provided several statements that he has had continuous symptoms related to his current feet disorders since his service. The Veteran has indicated that his feet hurt at the time of discharge and since then. See the hearing transcript pg. 6. The Veteran has also indicated that his feet have been affecting him "since the war." See the Veteran's November 2007 NOD. The Veteran is competent to indicate experiencing the residuals of injuries due to cold, as well as pain in his feet from his service. See Goss v. Brown, 9 Vet. App. 109, 113 (1996); 38 C.F.R. § 3.159(a)(2). Furthermore, the Veteran has also indicated that he was treated by the VA for cold-related problems after service. See the June 2008 VA Form 9. He has also stated that one of his treating physicians indicated that the Veteran's service was "the start of my problems." See the Veteran's June 2007 statement. The Board acknowledges the Veteran is indeed competent to report pain after service and also to indicate that his physician's have indicated that his current disorders are related to exposure to cold during service. Layno, 6 Vet. App. at 469. See also 38 C.F.R.§ 3.159(a)(2). However, the Veteran's credibility affects the weight to be given to his testimony, and it is the Board's responsibility to determine the appropriate weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The Board concludes that the Veteran's statements regarding a history of continuity of symptomatology dating from service are, in and of themselves, not credible. Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony." Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board emphasizes that personal interest may affect the credibility of the evidence, although it may not render the evidence not competent. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). As such, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza, 7 Vet. App. at 506 (citing State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992). In this case, the Veteran's statements regarding a history of continuity of symptomatology have not been internally inconsistent. The Veteran has indicated a history of problems with his feet since service. But he also indicated at his hearing that he "didn't really have much trouble," until the "last few years when the arthritis set in." See the June 2009 hearing transcript pg. 3. Furthermore, the Veteran's memory does not appear to be entirely reliable, in that he also reported at the Board hearing that he did not have a separation examination from the military (see id. at pg. 3), a statement which is directly contradicted by the record of a separation examination conducted in February 1954. Furthermore, the Board notes that the Veteran claimed service connection for a skin condition and hearing loss in November 1996, and for a hernia condition in August 1998, prior to submitting the current claim on appeal. In fact, the Veteran pursued the claim for service connection for hearing loss via appeal up to the point of an August 1999 grant from the Board. The Veteran also provided evidence regarding his service at a DRO hearing in August 1997 and at a Board hearing in June 1999. At no time during this process did the Veteran mention that he was experiencing pain in his feet due to exposure to cold during service, and which had been ongoing since his service, as might be expected if he was experiencing ongoing pain with a history from service at that time. In pursuing these prior claims the Veteran clearly had the knowledge that at the time he could be service-connected for disabilities incurred as a result of his military service, yet he never indicated that he had a history of a disorder affecting his feet dating from his service. While the Board does not doubt the sincerity of the Veteran's current belief that his symptoms of various foot disorders have been present since his years in service, the evidence contains certain inconsistencies and contradictions that diminish the reliability of the Veteran's current recollections. As such, the Board concludes that the Veteran's statements in this regard are not credible to the extent that he reports a history of continuity of symptomatology regarding his current disorders of the feet dating from his military service. Finally, the Veteran's statements of a history of continuous symptoms from service to the present are contradicted by the medical evidence of record. The Veteran's lay assertions regarding a post-service history of continuous pain in his feet due to disorders are inconsistent with the objective findings of his separation examination, which specifically indicated that the Veteran's feet were normal at the time of separation. Furthermore, the Veteran was provided with a VA medical examination in March 1997, which thoroughly reviewed the Veteran's musculoskeletal and nervous system, but did not note any history of disorders for his feet dating from service, or any residuals of injuries to his feet due to cold exposure. The Board notes again that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value. These records were generated with a view towards ascertaining the appellant's then-state of physical fitness, they are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Finally, the VA medical examiner in January 2010 reviewed the Veteran's history, and concluded that he had not experienced any history of the symptoms of the residuals of cold weather injuries. This is given particular weight in that the VA medical examiner is qualified to indicate whether symptoms described by the Veteran, such as occasional pain in the feet, match the symptoms of residuals of exposure to the cold. 38 C.F.R. § 3.159(a)(1). The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1336- 37. The Board may, however, in the present case consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Id. at 1337. In this case however, it is not the absence of evidence over the years since the Veteran's discharge, but the evidence against a history of continuous symptoms since service that the Board finds persuasive. Therefore, overall, in-service and post-service medical and lay evidence of record does not demonstrate continuity of any in-service symptomatology. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 496-97. Moreover, a competent medical opinion of record provides evidence against a finding of a nexus between the Veteran's current disorders of the feet and his period of active service. Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). The medical examiner in January 2010, who is an uninterested observer in the Veteran's case, concluded that the Veteran's current foot disorders are "less likely as not" caused by or a result of his military service, or to any "exposure to cold that he may have sustained." The examiner reached this conclusion because the Veteran denied any specific "symptoms or treatments for cold exposure injury while in the service or decades thereafter." The examiner indicated that the Veteran's arthritis is most likely "age-related... and/or familial component." Furthermore, the examiner indicated that a "[c]old exposure injury would not wait 60 years to incur [peripheral neuropathy]." The examiner also noted that the Veteran's feet had been "nonsymptomatic for almost 50 years." The Veteran's peripheral neuropathy was indicated as being most likely due to "[r]adiation therapy treatment for prostate cancer and advanced age." This opinion was provided by a qualified examiner, involved a thorough review of the Veteran's current symptomatology and the history thereof, as well as possible intercurrent causes, and thoroughly addressed the Veteran's contentions, with a rationale provided to support the examiner's conclusions. As such, the Veteran's disorders of the feet do not show a history of continuity of symptomatology from service and the weight of the medical evidence indicates that any current disorder was not caused by any in-service exposure to cold. Finally, post-service, since there is no objective indication of arthritis affecting the Veteran's feet within one year after service (the first such evidence as noted previously coming from a December 1994 private treatment record), the Veteran is not entitled to application of the presumptive provisions. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for the residuals of cold exposure to his feet, bilaterally. It follows that there is not such a balance of the positive evidence with the negative evidence to otherwise permit a favorable determination on this issue. 38 U.S.C.A. § 5107(b). The claims for service connection for the residuals of exposure to cold of the left and right feet are denied. ORDER Service connection for residuals of exposure to the cold, to include arthritis of the right foot, is denied. Service connection for the residuals of exposure to the cold, to include arthritis of the left foot, is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs