Citation Nr: 1124400 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 08-25 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether there is new and material evidence to reopen a claim for service connection for asbestosis. 2. Whether there is new and material evidence to reopen a claim for service connection for residuals of a back injury. 3. Whether there is new and material evidence to reopen a claim for service connection for a bilateral shoulder disorder. 4. Whether there is new and material evidence to reopen a claim for service connection for hearing loss. 5. Whether there is new and material evidence to reopen a claim for service connection for bad feet, including flat feet (pes planus). 6. Entitlement to service connection for memory loss. REPRESENTATION Appellant represented by: Army and Navy Union, USA ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from February 1985 to December 1989. This appeal to the Board of Veterans' Appeals (Board) is from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2011, a hearing at the RO before a Veterans Law Judge of the Board (Travel Board hearing) was scheduled so the Veteran would have the opportunity to provide testimony in support of his claims. However, he failed to appear for the proceeding, has not explained his absence, or requested to reschedule his hearing. Therefore, his Travel Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2010). FINDINGS OF FACT 1. An unappealed January 1993 rating decision denied service connection for hearing loss and bad feet, including flat feet, because there was no evidence of in-service incurrence of either condition. 2. The additional evidence received since that January 1993 decision concerning these claims is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate these claims, or does not raise a reasonable possibility of substantiating these claims. 3. An unappealed July 1996 Board decision denied service connection for asbestosis, a back disability, and a bilateral shoulder disability - primarily because there was no evidence of in-service incurrence of these conditions, not to mention evidence of then-current disabilities and as a consequence of any disease or injury incurred in or aggravated by the Veteran's active military service. 4. The additional evidence received since that July 1996 decision is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate these claims, or does not raise a reasonable possibility of substantiating these claims. 5. Even assuming the Veteran's dementia is the reason for his memory loss, there has not been attribution of his dementia and associated memory loss to his military service. CONCLUSIONS OF LAW 1. The January 1993 rating decision denying service connection for hearing loss and bad feet, including flat feet, is final and binding on the Veteran based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2010). 2. New and material evidence has not been received since that January 1993 decision to reopen these claims for hearing loss and bad feet, including flat feet. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156(a) (2010). 3. The July 1996 Board decision denying service connection for asbestosis, a back disability, and a bilateral shoulder disability is final and binding on the Veteran based on the evidence then of record. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.1100, 20.1104 (2010). 4. New and material evidence has not been received since that July 1996 decision to reopen these claims for asbestosis, a back disability, and a bilateral shoulder disability. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156(a) (2010). 5. Memory loss was not incurred in or aggravated by the Veteran's military service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, a letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in June 2007, prior to initially adjudicating his claims in September 2007, so in the preferred sequence. The letter informed him of the evidence required to substantiate his claims and of his and VA's respective responsibilities in obtaining this supporting evidence. The letter also complied with Dingess by as well discussing the downstream disability rating and effective date elements of his claims. So he received all required VCAA notice before initially adjudicating his claims. There resultantly was not a timing defect in the provision of the notice. In addition, with regards to new and material evidence - the threshold preliminary requirement for reopening the claims that have been previously considered, denied, and not appealed, the June 2007 VCAA notice letter is compliant with the U.S. Court of Appeals for Veterans Claims' (Court's) decision in Kent v. Nicholson, 20 Vet. App. 1 (2006), since this letter sufficiently explained the basis of the prior denials (i.e., the deficiencies in the evidence when the claims were previously considered). See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein\ VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial). In addition, all notice provided by VA was clear and pertinent to the Veteran's contentions, such that a reasonable person could understand what was required to prove the claims. All of this is to say he was afforded a meaningful opportunity to participate effectively in the adjudication of his claims. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). As the pleading party, he, not VA, has this evidentiary burden of proof of showing there is a VCAA notice error in timing or content and, moreover, that it is unduly prejudicial, meaning outcome determinative of his claims. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claims that is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). He has submitted personal statements in support of his claims. A hearing before the Board, as mentioned, also was scheduled for April 2011 to allow him opportunity to present oral testimony in support of his claims (and any other additional evidence he saw fit), but he was a no show. The RO obtained his VA treatment records and service treatment records (STRs). The duty to provide a VA examination for a medical nexus opinion only arises once there is new and material evidence to reopen a previous and finally decided claim. 38 C.F.R. § 3.159(c)(4)(iii). And, here, the Board is determining there is no new and material evidence to reopen his several claims for asbestosis, residuals of a back injury, a bilateral shoulder disability, hearing loss, and bad feet - including flat feet. Hence, there is no requirement to have him examined for a medical nexus opinion concerning these claims. The Board also finds that a VA compensation examination is not needed to determine whether the Veteran's claimed memory loss is related to his military service because the standards of the Court's decision in McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met. See also Colantonio v. Shinseki, No. 2009-7067 (Fed. Cir. Jun. 1, 2010), citing Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with his service). There are no medical diagnoses establishing a current disability to account for his complaints of memory loss. There is no competent and credible evidence of in-service incurrence of his memory loss to directly associate this claimed condition with his military service. For instance, his STRs reveal no complaints or relevant symptoms, treatment, or diagnoses of this claimed disability during service. There similarly is no suggestion that his dementia, even if the cause for his memory loss, is associated with his military service. The Board therefore is satisfied VA has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A. II. Analysis-Petitions to Reopen the Claims for Service Connection for Asbestosis, Residuals of a Back Injury, a Bilateral Shoulder Disability, Hearing Loss, and Bad Feet including Flat Feet Because these claims have been previously considered and denied, and those prior decisions were not timely appealed, the Board has the jurisdictional responsibility to determine whether there is new and material evidence since those earlier decisions to reopen these claims, irrespective of what the RO may have determined concerning this, because this threshold preliminary determinative affects the Board's jurisdiction to adjudicate these claims on their underlying merits. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); VAOPGCPREC 05-92 (March 4, 1992). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims). See, too, Butler v. Brown, 9 Vet. App. 167, 171 (1996). When determining whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108. According to VA regulation, "new" 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. 38 C.F.R. § 3.156(a). New and material evidence cannot be cumulative or 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. Id. Second, if VA determines the evidence is new and material, it may then proceed to evaluate the merits of the claim on the basis of the all evidence of record, but only after ensuring the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). This presumption only applies when making a determination as to whether the evidence is new and material. It does not apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim. Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits. See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). Service connection is granted if it is shown the Veteran has disability resulting from an injury sustained or a 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. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Stated somewhat differently, to establish entitlement to service connection, there must be: (1) proof of the claimed disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Certain chronic diseases such as degenerative joint disease (DJD) (i.e., arthritis) will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The RO's January 1993 rating decision, which initially considered and denied the Veteran's claims for service connection for hearing loss and bad feet, including flat feet, is the last final and binding decision concerning these claims. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. The RO determined there was no evidence of in-service incurrence of these disorders, noting the STRs were unremarkable for relevant findings regarding these claimed disorders. And although not a specified basis for the denial of these claims in that earlier decision, there also was no medical nexus evidence otherwise etiologically linking these disorders to the Veteran's military service. That January 1993 rating decision also was the initial denial of the claims for service connection for asbestosis, residuals of a back injury, and a bilateral shoulder disability. The Veteran however proceeded to appeal those claims to the Board, though the Board also denied those claims in a July 1996 decision, concluding they were not well grounded (a requirement since eliminated by the VCAA). But similar to the RO's decision, the Board also found there was no evidence of in-service incurrence of these disorders, noting the STRs that were unremarkable for findings regarding these claimed disorders. The Board also noted the lack of then current clinical diagnoses to confirm then-current disabilities of asbestosis, a back disability and a bilateral shoulder disability. The Board further found a lack of requisite medical nexus evidence etiologically linking the Veteran's bilateral shoulder disability to his military service. And although not a specified basis for the denial, there was as well a lack of requisite medical nexus evidence etiologically linking his claimed asbestosis and back disorder to his military service. The Board's decision subsumed the RO's prior decision denying these service-connection claims for asbestosis, a back disability, and a bilateral shoulder disability. 38 C.F.R. § 20.1104. The Veteran was given notice of his right to appeal that decision (VA Form 4597), which indicated he had 120 days to appeal that decision to the Veteran's Court, but he did not. So that prior decision concerning these claims for asbestosis, a back disability, and a bilateral shoulder disability is final and binding on him based on the evidence then of record and not subject to revision on the same factual basis, absent some exception such as the Chairman orders reconsideration of that decision or it is shown the decision involved clear and unmistakable error (CUE), so is subject to this collateral attack. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2010); 38 C.F.R. § 20.1100 (2010). The pertinent evidence of record at the time of the RO's January 1993 decision denying these claims consisted of the Veteran's STRs, personal statements, and VA treatment records. The evidence of record at the time of the Board's July 1996 decision denying these claims consisted of this evidence and additional personal statements and the transcript of the Veteran's hearing testimony before the Board in October 1995. The evidence that must be considered in determining whether there is a basis for reopening these claims is the evidence that has been added to the record since those final and binding denials of these claims, regardless of the specific bases of those prior denials. See Evans v. Brown, 9 Vet. App. 273 (1996) (The evidence to be considered in making this new and material determination is that added to the record since the last final denial on any basis). Since the January 1993 decision (denying the claims for hearing loss and a foot disorder) and July 1996 Board decision (denying the other claims, on appeal, for asbestosis, a back disability and a bilateral shoulder disability), several records have been added to the file. Importantly, the Veteran recently submitted written statements and the RO obtained his VA treatment records dated from 2008 to 2010. Most importantly, though, none of this additional evidence, even if new (since not previously considered), is also material to these claims because none of this additional evidence suggests the Veteran has established the critically deficient elements of in-service incurrence of these conditions and a linkage or nexus between these conditions and his active military service. There still is no competent and credible evidence showing he had these conditions during his military service, such as in the way of a relevant subjective complaint (notable symptom, etc.) or objective clinical finding such as a pertinent diagnosis. The prior denials of these claims already considered the records concerning his service, including his STRs. And he has not identified or suggested the existence of or submitted any additional service records, whether STRs or service personnel records (SPRs), which might otherwise tend to substantiate in-service incurrence of these claimed conditions and obviate the need for there to be new and material evidence. 38 C.F.R. § 3.156(c). There equally is no other competent and credible evidence that might alternatively substantiate incurrence of these disabilities during service. So, without such crucial evidence, his petitions to reopen these claims cannot succeed. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. See, too, Evans, 9 Vet. App. at 284, indicating the newly presented evidence need not be probative of all the elements required to award the claim, just probative as to each element that was a specified basis for the last disallowance. Here, though, these claims are failing in several respects - not just because of the absence of any relevant subjective complaints or objective findings in service, but also because there is no suggestion that any of these claimed conditions are attributable to or associated with the Veteran's military service or date back to his service. His unsubstantiated lay testimony is presumed credible for the limited purpose of determining whether there is new and material evidence to reopen these claims. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Competency of lay evidence, however, also is a factor in its probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). And although according to the holding in Justus the Board is precluded from weighing or determining the probative value of evidence - so including lay evidence, when determining whether evidence is new and material, the Court has held that lay assertions of medical causation generally cannot suffice to reopen a claim under 38 U.S.C.A. § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). Indeed, in Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court again pointed this out. Moreover, the Veteran's lay statements are essentially a mere reiteration of arguments he made prior to the RO denying his claims in January 1993, so in this respect this is not new evidence. See Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Indeed, arguments based on what amounts to the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence. Untalan v. Nicholson, 20 Vet. App. 467 (2006). Also, there is still no evidence that might show any current disabilities of asbestosis, a back disability or a bilateral shoulder disability, previously found lacking in the Board's July 1996 decision. Unfortunately for these claims, the Veteran's VA treatment records since submitted fail to show evaluation, treatment or diagnoses of these claimed disabilities, much less suggest the required association between these claimed disabilities and his military service. See Cox v. Brown, 5 Vet. App. 95 (1993) and Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records describing Veteran's current condition are not material to issue of service connection and are not sufficient to reopen claim for service connection based on new and material evidence). As there is no new and material evidence, the petitions to reopen these claims must be denied. See 38 C.F.R. § 3.156. Furthermore, in the absence of any new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). III. Analysis-Entitlement to Service Connection for Memory Loss Most fundamental to this claim is that the Veteran first establish he has an underlying disability to account for his claimed memory loss, which instead is merely a symptom not ratable disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists]. A "current disability" means a disability shown by competent medical evidence to exist, unless the condition claimed is readily amenable to lay diagnosis. Chelte v. Brown, 10 Vet. App. 268 (1997). VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997). But see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). The Veteran's VA treatment records show he has received a diagnosis of dementia, so possible cause for his claimed memory loss. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a claim includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). But even assuming for the sake of argument his dementia is the reason for his memory loss, there has not been attribution of his dementia and associated memory loss to his military service. In this regard, a review of his STRs shows no documented complaints, treatment or diagnosis of memory loss or dementia during his active duty military service. And there equally is no competent and credible evidence tending to suggest an association between his dementia and any associated memory loss and any disease contracted or injury that he may have sustained during his 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 a disease incurred in service.") (italics added for emphasis). See, too, 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). The Board also has considered the Veteran's lay statements concerning this claim, which are quite vague. He is certainly competent to state that he observes certain symptoms, such as inability to remember. On the other hand, he is not competent or qualified, as a layman, to ascribe these symptoms to a specific diagnosis. Indeed, he has not asserted that he is diagnosed with any particular disability, especially dementia, which would account for such symptoms. See also Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 310; and 38 C.F.R. § 3.159(a)(2). That is to say, certain disabilities are medically complex in nature, especially those psychiatric and neurologic disabilities that might cause memory loss, and simply not readily amenable to lay diagnosis or probative opinion regarding their etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (clarifying that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and service or a service-connected disability). But see, too, Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (countering that certain disabilities are not conditions capable of lay diagnosis, such as rheumatic heart disease). Since the Board does not find the Veteran's lay statements to be competent to establish the missing elements of this claim, there is no need to also consider the credibility of his lay statements, even though this, too, as mentioned, affects the ultimate probative value. See Buchanan, 451 F.3d at 1331. See also Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for memory loss. So there is no reasonable doubt to resolve in the Veteran's favor, and this claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. At 49. ORDER The petitions to reopen the claims for service connection for asbestosis, a back disability, a bilateral shoulder disability, hearing loss, and bad feet including flat feet, are denied. The claim for service connection for memory loss also is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs