Citation Nr: 1300399 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 00-03 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a vision disability. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for an umbilical hernia, postoperative status. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from November 1977 to November 1997. These claims come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2007, the Veteran and his spouse testified in support of these claims at a hearing held before the undersigned Acting Veterans Law Judge in Washington, D.C. A transcript of their hearing testimony is of record. In March 2008 and March 2011 decisions, the Board remanded the remaining issues on appeal to the RO. All other matters addressed in those decisions have previously been resolved. The issues of entitlement to service connection for an inguinal hernia as well as entitlement to a total disability rating based on individual unemployability (TDIU) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A vision disability is not attributable to service. 2. A right shoulder disability, including arthritis, is reasonably attributable to service. 3. An umbilical hernia is not attributable to service. CONCLUSIONS OF LAW 1. A vision disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. A right shoulder disability, including arthritis, was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 3. An umbilical hernia was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These 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). So 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, this 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 notice and then readjudicating the claim - including 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). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VCAA letters were sent in April 2002, April 2003. August 2003, March 2006, May 2008, September 2008, August 2010, and April 2011. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess. The Veteran has been afforded a hearing before an Acting Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims ("the Court") held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying whether the Veteran's claimed disabilities were related to service to establish service connection. The VLJ sought to identify any pertinent evidence not currently associated with the claims and the Veteran volunteered his treatment history as well as his symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his/her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he/she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Finally, although the Board finds that the Veteran was not prejudiced by any of the above, effective August 23, 2011, VA amended its hearing regulations to clarify that the provisions regarding hearings before the agency of original jurisdiction do not apply to hearings before the Board. See 76 Fed. Reg. 52,572 (Aug. 23, 2011). Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning these claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records (STRs), VA medical treatment records, and identified private medical records were obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication that any additional evidence relevant to these claims is available and not part of the claims file. The Veteran also was provided VA compensation examinations, including for medical nexus opinions concerning the etiology of the claimed disorders and their potential relationship with military service, as the Board directed when remanding these claims on two occasions. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The medical nexus opinions obtained are responsive to the determinative issue of causation, so additional examinations and opinions are not needed. 38 C.F.R. § 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). And see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated). The examinations of record are adequate to address all pertinent concerns, as the claims file was reviewed for the relevant medical and other history, the Veteran examined, the findings reported in sufficient detail, and there was discussion of the underlying medical rationale, which is where most of the probative value of an opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA examination reports are thorough and supported by the record. To the extent that VA examination was inadequate as concerns the right shoulder disorder, that issue is being granted. In sum, the records taken as a whole satisfy 38 C.F.R. § 3.326. Furthermore, in obtaining the VA examinations as well as medical records, the Board is satisfied there was compliance with this remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 30306. Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability.. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In addition, arthritis will be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). If however chronicity (permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Under § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Savage v. Gober, 10 Vet. App. 494-97 (1997); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. At 495-96; see Hickson, 12 Vet. App. At 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, 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," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent." Savage, 10 Vet. App. At 497. However, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent." Id (citations omitted). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. Denied, 119 S. Ct. 404 (1998). However, 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, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97. When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records). The Veteran is competent to report what he or she observes and feels through the senses. See Layno. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. At 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. Denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. At 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he/she has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Visual Disability The STRs reflect that in February 1994, the Veteran was diagnosed as having myopia and refractive amblyopia. Prior to discharge from service, in June 1997, the Veteran was afforded a retirement examination as well as a VA examination. At that time, it was noted that he had defective visual acuity and wore glasses. The diagnosis was reduced visual acuity, corrected with glasses. The corrected vision was 20/20 on the retirement examination. In August 2007, the Veteran and his spouse testified at a Board hearing. He stated that he started having problems with his eyes during his military service. His spouse generally supported him. In May 2009, the Veteran was afforded a VA examination. The evaluation resulted in diagnoses of refractive error and diabetes with one microaneurysm in one eye which might represent extremely mild nonproliferative diabetic retinopathy. A June 2010 addendum indicated that the Veteran's reduced vision was not due to military service, corneal abrasion, or any head injury. The Veteran claims that his eye disability began during service. The Veteran is competent in this case to report his symptoms of visual problems, but nothing in the record demonstrated that he has received any special training or acquired any medical expertise in eye disorders or evaluating and determining causal connections for the claimed conditions. Therefore, a medical expert opinion would be more probative regarding the causation question in this case and has been obtained. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). Further, VA provides that congenital or developmental defects and refractive error of the eye are not considered to be a disease or injury with the meaning of the statutes governing service connection. See 38 C.F.R. §§ 3.03(c), 4.9. Inservice incurrence of a disease or injury is not possible with respect to manifestations of a congenital or developmental defect, and as a result. See Winn v. Brown, 8 Vet. App. 510 (1996) (upholding VA regulations that distinguish a congenital or developmental defect from a disease); Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003) (upholding VA regulation that refractive errors of the eye are a congenital defect and thus do not constitute an injury or disease incurred in service). Although a congenital or developmental defect may not be considered a disease or injury incurred during service, service connection may nevertheless be available for a disability shown to have resulted from a congenital defect which was subject to a superimposed disease or injury during service. See VAOPGCPREC 82-90 (July 18, 1990). In this case, the Veteran has post-service diagnoses of refractive error and diabetes with one microaneurysm in one eye which might represent extremely mild nonproliferative diabetic retinopathy. The refractive error diagnosis is consistent with the findings in the STRs. Although the Veteran suffered a head injury during service, the VA examiner opined that there is no etiological relationship between current diagnoses and service, including head injury. The VA examiner stated that the Veteran's eye condition was not caused by military service. The Board attaches significant probative value to the VA opinion as the VA examiner possesses the requisite medical expertise and had access to the Veteran's history. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In addition, although the Veteran appears to have diabetic retinopathy, he is not service-connected for diabetes mellitus; thus, service connection cannot be established on a secondary basis to that disease process. See 38 C.F.R. § 3.310(a). In sum, the Veteran has an eye disorder which is not subject to service connection in the absence of a superimposed disease or injury during service, of which there was none in this case. Otherwise, he has an eye disorder which is part of the diabetic process, but diabetes mellitus is not service connection. As such, the preponderance of the evidence is against the claim, and service connection for a vision disability is not warranted. Right Shoulder Prior to discharge from service, in June 1997, the Veteran was afforded a retirement examination as well as a VA examination. At that time, it was noted that he had bilateral shoulder pain. Muscle strain of the shoulders was diagnosed. Subsequent VA records documented complaints of shoulder pain and arthralgia was noted. The Veteran is service-connected for left shoulder disability. Post-service, in May 2003, the Veteran was afforded a VA examination. At that time, he reported that he had experienced difficulty with his shoulders since 1989. Physical examination revealed pain in both shoulders and limitation of motion. Thus, current disability was shown. In January 2004, the Veteran was afforded another VA examination, but only the left shoulder was examined. June 2003 VA records diagnosed adhesive capsulitis of the shoulders. An October 2007 private magnetic resonance imaging study revealed that the Veteran had full thickness and partial width tear of the anterior supraspinatus tendon as well as mild acromioclavicular osteoarthritis with inferior osteophyte formation at the undersurface of the acromion. In August 2007, the Veteran and his spouse testified at a Board hearing. He testified that he began having problems with his right shoulder during the 1980's while he was in service. In addition, the Veteran testified that his current right shoulder disability was further related to his service-connected cervical spine disability. He further testified that several doctor s at VA facilities he had visited told him that such a relationship exists. His wife indicated that the Veteran took pain medication for his right shoulder. In May 2010, the Veteran was afforded a VA examination which resulted in diagnoses of severe impingement syndrome of the right shoulder and degenerative joint disease of the acromioclavicular joint of the right shoulder. The examiner opined that the Veteran's right shoulder condition was related to an inservice injury when he hurt his right shoulder after being struck by a shell that came off of a rack. In September 2011, the Veteran was afforded a VA examination. The examiner concluded that the Veteran's right shoulder disability was less likely caused by his service since there were no records concerning the right shoulder in the STRs. As already explained, competent lay evidence may establish the presence of observable symptomatology and, in certain circumstances, it may provide a basis for establishing service connection. See Barr. Although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions beyond simple observations. Jandreau; see Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Indeed, even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive and, thus, not ultimately probative. Buchanan; see also Rucker and Layno. The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases. Buchanan at 1337. The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence. Id. Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran is certainly competent to report pain of the right shoulder. One VA examiner provided an opinion that the right shoulder disability was related to an inservice injury, but since there was no documentation of the Veteran being struck by a shell, the Board remanded this case for another opinion. However, the second examiner stated that there were no records concerning the right shoulder in the STRs. This is not the case. As noted, the Veteran was afforded a VA examination prior to his discharge examination which reflected not only complaints of right shoulder pain, but a diagnosis of muscle strain at that time. Thus, neither VA examination is adequate in this case. Nevertheless, the Board finds that there is sufficient lay evidence to establish the causal connection. In this case, the Veteran is fully competent to attest to his observations of his Bright shoulder symptoms, to include attesting as to symptoms in service, and as to a continuity of symptoms after discharge. Layno; 38 C.F.R. § 3.159(a)(2). The Board finds probative the competent evidence of pertinent right shoulder symptoms in service, including as shown in contemporaneous STRs, as well as the Veteran's competent report of a continuity of such symptoms since service, and ultimately associated with the right shoulder diagnoses including arthritis. Since the time of the inservice VA examination, the Veteran has continuously had diagnoses of right shoulder disability. The Board finds that the competent lay statements of the Veteran as to symptoms that supported the initial diagnosis of muscle strain, followed by the subsequent diagnoses including arthritis, all made by medical professionals, provide competent and sufficient evidence to establish an etiology linked to service. See Davidson; Jandreau. The Board finds that this totality of evidence is persuasive and probative of the issue on appeal. Thus, on weighing and assessing all of the evidence on file, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for a right shoulder disability including arthritis is warranted. Since service connection is being granted on a direct basis, there is no need to consider secondary service connection. Umbilical Hernia The STRs do not reflect that the Veteran had an umbilical hernia. The Veteran was in fact diagnosed with a hiatal hernia in September 1983. The issue of service connection for that disorder has been referred back to the AOJ for adjudication. Nevertheless, the only matter before the Board is the claimed umbilical hernia. Prior to discharge from service, in June 1997, the Veteran was afforded a retirement examination as well as a VA examination. On examination, the Veteran was extremely tender on palpation of the inguinal area, but no masses or herniation was found. There was no current diagnosis relative to a hernia. In June 1999, the Veteran underwent an umbilical hernia repair. Subsequent VA records made reference to this hernia repair, but there was no suggestion that the umbilical hernia manifested during service made by any examiner. In August 2007, the Veteran and his spouse testified at a Board hearing. He related that during service in Germany, he started having problems with a hernia, but did not have surgery until 1999. At this juncture, as noted, the Board points out that the Veteran did have multiple complaints in both the 1980's and 1990's, but they were relative to the inguinal hernia. In May 2009, the Veteran was afforded a VA examination. The examiner noted that the STRs did not show any indication of an umbilical hernia. Post-service, umbilical hernia surgery was performed in June 2009. The examiner opined that there was no evidence of an umbilical hernia while in the military so it was less likely than not that his past history of a surgical repair was related to service. In September 2011, the Veteran was afforded a VA examination. The examiner concluded that the Veteran's umbilical hernia was less likely caused by service since he did not have an umbilical hernia during service. The Board may use silence in the STRs as contradictory evidence if the alleged injury, disease, or related symptoms ordinarily would have been recorded in the STRs. Kahana; see also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (For non-combat Veterans providing non-medical related lay testimony regarding an event during service, Buchanan is distinguishable; the lack of documentation is service records must be weighed against the Veteran's statements.). In this circumstance, the Board must make two preliminary findings in order to rely on this inference (see Kahana): (a) First, the Board must find that the STRs appear to be complete, at least in relevant part. If the SMRs are not complete in relevant part, then silence in the STRs is merely the absence of evidence and not substantive negative evidence. See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). (b) If the STRs are complete in relevant part, then the Board must find that injury, disease, or related symptoms ordinarily would have been recorded had they occurred. In making this determination, the Board may be required to consider the limits of its own competence on medical issues. Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). In this case, the STRs, which are numerous, do in fact appear complete. Also, since the Veteran made repeated complaints relative to a hiatal hernia, as well as multiple other medical problems, the Board finds that if he had an umbilical hernia, it is reasonable to find that he would have made complaints which would have been recorded, particularly given the level of other medical complaints made in the STRs. There were no complaints regarding an umbilical hernia. Further, in this case, the Board finds that the determination of the particular kind of hernia is a complex question which requires an opinion of a medical professional. Jandreau; see Colantonio; see also Waters. The VA examiner indicated that there was no umbilical hernia during service. This opinion is probative and supported by the STRs, which only show complaints, treatment, and diagnosis of a hiatal hernia. As noted, the Board finds that it is reasonable to conclude that the Veteran would have ordinarily complained of such symptoms, had they been present. Further, there was no umbilical hernia on the retirement examination. The post-service surgery occurred in 1999, a couple of years after service. The Veteran is not as competent as the medical professional with regard to an opinion in this case and that opinion is supported by the record. See Nieves-Rodriguez. Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. ORDER Service connection for a right shoulder disability is granted. To this extent, the appeal is allowed. Service connection for a vision disability is denied Service connection for an umbilical hernia, postoperative status, is denied. ____________________________________________ ROBERT E. O'BRIEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs