Citation Nr: 1301064 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 11-25 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for Kennedy's disease, claimed as amyotrophic lateral sclerosis (ALS). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1969. Service in the Republic of Vietnam is indicated by the record. The Veteran is the recipient of the Combat Action Ribbon. This matter arises before the Board of Veterans' Appeals (Board or BVA) from a January 2011 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in May 2012 and remanded for additional development and readjudication. In this case, recent VA medical records, available through the Compensation and Pension Records Interchange (CAPRI), were uploaded to the Veteran's electronic Virtual VA folder in May 2012 and July 2012 and considered by the RO in the most recent Supplemental Statement of the Case. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In August 2012, VA obtained an advisory opinion from an independent medical expert (IME). See 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901 (2012). The resulting IME opinion was received by the Board the following month. In November 2012, the Veteran, through his representative, submitted additional argument with a waiver of RO initial consideration of such argument. Accordingly, the Board will address the merits of the claim. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam era, and is presumed to have been exposed to herbicides (to include Agent Orange) while in military service. 2. Kennedy's disease is not presumptively related to Agent Orange. 3. The Veteran was not noted to have Kennedy's disease during the clinical evaluation portion of his service enlistment medical examination, and there is no clear and unmistakable evidence showing that such a disease existed prior to service. He is, therefore, presumed to have been sound on enlistment. 4. The preponderance of the competent medical and other evidence of record shows that the Veteran's Kennedy's disease did not have it clinical onset during service (or, indeed, until many years thereafter), and there is no such evidence linking it to service, to include his presumed exposure to Agent Orange. CONCLUSION OF LAW The Veteran's Kennedy's disease was not incurred in or aggravated by military service and may not be presumed to have been incurred in service due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1116, 1153, 1154(b), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the service connection issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in November 2010 of VA's duty to assist him in substantiating his claim, and the effect of this duty upon his claim. This letter also informed him of how disability ratings and effective dates are assigned. See Dingess, 19 Vet. App. at 484. As this letter addressed all notice elements, nothing more was required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board also finds that VA has satisfied its duty to assist the Veteran in the development of the claim adjudicated herein. His in-service and pertinent post-service treatment reports, including those from the Social Security Administration (SSA), are of record. Relevant VA examinations were obtained in December 2010 July 2011, and June 2012 to assist in determining whether the Veteran's claimed condition is attributable to his military service, including to his presumed exposure to herbicides (Agent Orange) in Vietnam. Additionally, the Board obtained an IME opinion in August 2012, which reflects that a medical expert reviewed the claims folder and rendered an appropriate opinion based on the questions presented to him by the Board. This opinion is adequate for decision-making purposes, as it included a full review of the Veteran's claims file, is supported by sufficient detail, and refers to specific documents and medical history, as well as the Veteran's statements regarding what he believes was the onset of his Kennedy's disease, and provides a complete rationale for the opinion stated which is supported by the evidence of record. Copies of this opinion were sent to the Veteran and his representative. They were both given an opportunity to respond. The Veteran's representative submitted additional argument in November 2012. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion concerning the issue being decided herein has been met. 38 C.F.R. § 3.159(c)(4) (2012). Moreover, the Veteran has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. Law and Analysis The Veteran maintains that his currently-diagnosed Kennedy's disease is the result of his presumed exposure to Agent Orange or other herbicides while serving in Vietnam during the Vietnam era and/or manifested during his active duty service. See VA Form 21-526 received in October 2010, VA Form 9 received in September 2011, and VA Form 21-526 received in May 2012. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a), 3.304. Service connection for certain specified chronic diseases, such as atrophy, progressive muscular, may be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 "noted" in service with post-service continuity of the same symptomatology and medical or lay evidence of a nexus between the present disability and the symptomatology. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). In other words, a Veteran can establish continuity of symptomatology in cases where he/she cannot fully establish the in-service and/or nexus elements of service connection discussed above. Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However pertinent case law also provides that 38 U.S.C.A. § 1154(b) does not create a presumption of service connection for a combat veteran's alleged disability, and that the veteran is required to meet his evidentiary burden as to service connection such as whether there is a current disability or whether there is a nexus to service which both require competent medical evidence. See Collette v. Brown, 82 F.3d 389, 392 (1996). For purposes of establishing service connection for a disability claimed to be a result of exposure to Agent Orange, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). The applicable criteria also provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Moreover, the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne shall have become manifest to a degree of 10 percent or more within one year, after the last date on which the veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307(a)(6)(ii). As an initial matter, the Board notes that the evidence of record raises a question of whether the Veteran's Kennedy's disease preexisted his military service. See June 1980 private medical record (indicating the Veteran's hand tremors predated his military enlistment) and the September 2012 IME opinion (noting the Veteran manifested potential neurological symptoms prior to active duty in 1966). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles, which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Mere history provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that the presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Subsequently, a higher court explained the Miller decision by noting that "[n]othing in the court's opinion suggests that without such evidence the presumption can never be rebutted," emphasizing that any such determination must consider "how strong the other rebutting evidence might be." Harris v. West, 203 F.3d 1347, 1351 (Fed. Cir. 2000). As noted, under 38 U.S.C.A. § 1111, the presumption of soundness does not attach on conditions recorded on entrance examination reports or may be rebutted by clear and unmistakable evidence that a disease or injury existed prior to service and was not aggravated therein. If the presumption of soundness does not attach or has been rebutted, aggravation may not be conceded unless the pre-existing condition increased in severity during service, pursuant to 38 C.F.R. § 3.306. See VAOPGCPREC 3-2003 (July 16, 2003). The burden of proof is upon VA to rebut the presumption by producing that clear and unmistakable evidence. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is permanently worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Turning to the evidence of record, a review of the Veteran's DD Form 214 shows that he served in the Republic of Vietnam during the Vietnam era and is therefore presumed to have been exposed to Agent Orange or other herbicide agents. However, the Board also notes that Kennedy's disease is not among the disabilities which have been associated with exposure to herbicides such as Agent Orange. 38 C.F.R. § 3.309(e). Thus, the presumption afforded under 3.309(e) cannot provide the basis for a grant of service connection. 38 C.F.R. §§ 3.307, 3.309. The Board finds that the Veteran's claim must be denied on this basis. Nevertheless, even if a veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). With regard to whether the evidence establishes a direct connection between the Veteran's service and his development of Kennedy's disease, as will be explained more fully below, the claims file shows that the Veteran reported having had hand tremors, presumably as a symptom of Kennedy's disease, since age 12. Also, in August 2012 the Board referred the case to an IME for an opinion regarding whether the Veteran's Kennedy's disease had its clinical onset in service or was otherwise related to service, to include his presumed exposure to herbicides. In concluding that the Kennedy's disease was unrelated to the Veteran's military service including his presumed herbicide exposure, the IME also determined that the Veteran's Kennedy's disease was congenital/hereditary in nature. Despite this evidence of record, however, the Board finds that the presumption of soundness has not been rebutted by clear and unmistakable evidence in this case. The mere fact that a condition is the result of a congenital cause does not necessarily mean that the condition, itself, manifested before service or that it was not aggravated by service. In Quirin v. Shinseki, 22 Vet. App. 390, 394, 396 (2009), the Court held that the presumption of soundness applies if a Veteran's congenital condition is not noted at entry into service. In reaching this conclusion, the Court cited to Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), wherein the Federal Circuit Court had made clear that the only prerequisite for the application of the presumption of soundness is that the Veteran's entry examination have been free and clear of any noted disease or disabilities. Quirin, 22 Vet. App. at 396. Here, service treatment records show that the Veteran's neurological condition was evaluated as normal on the pre-induction medical examination, and medical records prior to service are not available for review. So, the exact nature of any preexisting hand tremors is uncertain. Thus, there is no clear and unmistakable evidence showing that a neuromuscular disorder, such as Kennedy's disease existed prior to service. Moreover, the Veteran did not seek treatment immediately following his separation from service. Rather the post-service evidence is devoid of any clinical records showing treatment for symptoms suggestive of Kennedy's disease until 1978 almost a decade after the Veteran was discharged from the military. Accordingly, the Board concludes that he was presumed sound on enlistment. And, it cannot be said that there is clear and unmistakable evidence to rebut the presumption of soundness. The Board's analysis is, therefore, limited to the issue of whether a current neuromuscular disorder, diagnosed as Kennedy's disease was incurred during the Veteran's military service. See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed. Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). VAOPGCPREC 3-03 (July 16, 2003). The remaining service treatment records make no reference to any neuromuscular problems, either in the way of relevant subjective complaints or objective clinical findings that provide a basis for a diagnosis of Kennedy's disease. Given the opportunity to identify any pertinent history, symptoms or complaints, at his separation physical in September 1969, the Veteran denied any history of specific neuromuscular symptoms (hand tremors, muscle weakness) and no chronic neuromuscular problems were noted. The lack of evidence of in-service incurrence is not, however, the only shortcoming in this claim, as there are no medical records immediately subsequent to service that contain a diagnosis of any pertinent neuromuscular disorder. Private treatment records dated in November 1978 show the Veteran reported an 8-year history of a tremor affecting his hands and legs, which was noticed by friends at work and his girlfriend while he is sleeping." He was diagnosed with an essential tremor at that time. Subsequent private treatment records dated in June 1980 note that the Veteran reported a history of twitching muscles for as long as he could remember. He indicated that they had been present for at least fifteen years as well as a tremor of the hands since age 12. An electromyography conducted in June 1980 was interpreted as abnormal, but not as in a familial neuropathy. The changes on needle examination were wide spread. Because the Veteran indicated that his brother had Lou Gehrig's Disease, the examiner speculated as to whether the Veteran was in an early stage of the same process and suggested a neurological evaluation. Additional private treatment records dated in April 2006 indicate that the Veteran had a 25 to 30 year history of progressive familial neuropathy. At that time he reported that this was diagnosed in 1978, and since then, he has had progressive neurologic numbness, tingling, and weakness in his body, worse in his lower extremities, but somewhat progressive to his upper extremities as well. A VA treatment record dated in November 2010 explained that the Veteran's condition was felt to be part of the neurodegenerative process that encompassed Kennedy's disease. Although this was a motor neuron disease, it was not felt that the Veteran had ALS. The treating physician discussed the distinction with the Veteran stating that if it was ALS the Veteran's clinical course would not be so prolonged as over the course of 32 years, but instead would be shorter such as 2 to 5 years once the diagnosis was made. In was noted that the Veteran had been tested for genetic (SOD-1) ALS, which was negative. The Veteran was afforded a VA examination in December 2010 at which time the examining nurse practitioner determined that the Veteran was currently diagnosed with Kennedy's disease. She further indicated that ALS was a problem associated with this diagnosis. In a subsequent VA medical opinion dated July 2011, a VA physician reviewed the medical evidence of record and opined that, although there was some medical evidence of record indicating that while the Veteran's Kennedy's disease was associated with ALS, Kennedy's disease is not ALS. He referred to an October 2006 note which correctly stated that the Veteran had an "ALS-like illness." The VA physician went on to explain that Kennedy's disease is an x-linked recessive bulbospinal neuronopathy, which is transferred genetically on the X chromosome. He further opined that ALS was a much more widely recognized diagnosis, having been made familiar to the public by its association with the baseball player, Lou Gehrig, who was reported to have ALS. Thus, people who are unfamiliar with the disease may use a shorthand way of (incorrectly) identifying the disease that the Veteran suffers from because it may cause similar symptoms to ALS. Critically, however, the reviewing VA physician did not provide an opinion as to medical nexus between the currently diagnosed Kennedy's disease and the Veteran's military service to include herbicide exposure. Also of record is a letter dated in August 2011, from a private physician explaining that the Veteran had a known history of Kennedy's disease that was confirmed in 2006 by electrophysiologic studies as well as genetic testing. In a subsequent March 2012 letter, the same physician explained that the Veteran's condition began in 1978 and had been slowly progressive over time. Similarly, in an August 2011 letter, another private physician reported that the Veteran had a longstanding, progressive neuromuscular condition due to documented Kennedy's disease which began in 1978 and had been slowly progressive. Also of record is a letter dated in March 2012 from a VA nurse practitioner who indicated that, according to the Veteran's medical records, he had been diagnosed with Kennedy's disease, a variant of ALS, in 2006 with the onset of symptoms in 1978. In this case, the earliest recorded medical history places the diagnosis of Kennedy's disease in 2006, 37 years after the Veteran's separation from active service. Other evidence of record contains a clinical reference to hand tremors in 1978, but even this date is almost a decade following service discharge. Thus, the gap between separation from service and the first post-service indication of symptoms in this case fails to satisfy the continuity of symptomatology required to support the claim for entitlement to service connection. In other words, there is no corroborative evidence on file, establishing that the Veteran sought or required treatment or evaluation for symptoms suggestive of Kennedy's disease in the immediate years after his service had ended in 1969, consistent with 38 C.F.R. § 3.303(b). Savage v. Gober, supra. This unfortunately also makes it impossible to grant presumptive service connection for manifestation of a chronic disability (i.e., atrophy, progressive muscular) within one year after separation from service. 38 C.F.R. §§ 3.307 and 3.309. Although not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, while the above post-service records note a history of Kennedy's disease and/or its symptoms since at least 1978, they do not contain the required medical nexus opinion concerning the etiology of this disorder, to in turn relate or attribute it to the Veteran's military service, including his claimed exposure to herbicides. See Hickson, supra. In May 2012, the Board remanded the claim in order for the Veteran to be afforded a VA examination to determine the nature, extent, and etiology of the diagnosed Kennedy's disease. Accordingly, the Veteran was afforded another VA examination in June 2012 at which time the examiner concluded that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He explained that Kennedy's Disease was an inherited genetic disorder and that there was no evidence that it had its clinical onset in the military service. He also concluded that there had been no relationship medical documentation with exposure to herbicides and Kennedy's Disease." As additional rationale, the examiner cited information from a National Institutes of Health report on Kennedy's disease. Unfortunately the examiner's opinion and rationale were vague and nonspecific as to the Veteran's medical history. Moreover he did not have the opportunity to review private treatment records from November 1978 and June 1980 as those records had only been recently added to the claims file. Because the medical opinion was rendered without the benefit of a review of all post-service treatment records, the VA examiner was not informed of all the relevant facts when he rendered his opinion. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). For further medical comment on this issue, the Board requested an IME opinion in August 2012 from a specialist in neurology who reviewed the detailed medical record, including facts pertinent to the Veteran's case. The Board received the expert medical opinion the following month. The IME concluded that the Veteran has a proven diagnosis of Kennedy's disease. In discussing the rationale of the opinion, the IME noted that the earliest records related to the Veteran's neuromuscular disorder were from the Mayo Clinic dated in November 1978 and June 1980. In 1978, the Veteran described an 8 year history of tremors affecting the arms and legs. The symptoms did not interfere with his work and were said not to be progressive. In the 1980 note, muscle twitching was described in the history for at least 15 years and also cramps with vigorous effort. The Veteran reported a tremor since age 12. It was noted that the Veteran looked remarkably similar to his brother and that his mother had cramps. The IME also referred to EMG findings in 1980 and 1984, which were interpreted as early stage Lou Gehrig's disease, i.e. ALS. However genetic testing performed in 2006 clearly confirmed the diagnosis of Kennedy's disease as well as the Veteran's confirmatory family history with a deceased brother who had a similar clinical phenotype and his mother who had symptoms suggestive of a carrier. The IME explained that Kennedy's disease was an x-linked spinal muscular atrophy disorder associated with a mutation of the androgen receptor. As the mutation was on the X chromosome it was only fully clinically manifest in males, as in the Veteran and his brother (female carriers may have mild symptoms.) The signs and symptoms may begin in adolescence or during adult life. The disorder causes muscle cramps, progressive muscle weakness, fasciculation in muscles, hand tremor, difficulty swallowing, and slurred speech. The IME noted that the Veteran had manifested almost all of these potential neurological symptoms and that the early notes from 1978 and 1980 suggests he began to have symptoms as early as age 12 and certainly in adolescence, before he went on active duty in 1966. The IME determined that the Veteran's x-linked hereditary disorder manifested itself prior to the Veteran's active duty and progressed over the course of his adult life. The progression of this illness is also unrelated to his military service because the natural history of the disorder is one of continued worsening and the development of more signs/symptoms throughout li[f]e. The IME also concluded that the Veteran's Kennedy's disease was clearly unrelated to his military service or possible exposure to herbicides. He noted that there were no known environmental or other factors that affect the progressive nature of the disorder. The IME found that the Veteran has been documented to have the known genetic abnormality associated with Kennedy's disease and was born with this condition that appears to have been inherited from his mother. The genetic abnormality associated with Kennedy's disease was not described until 1991 and treatment is symptomatic. There is no cure for the genetic abnormality that causes it. He then concluded that with a reasonable degree of medical certainty the Veteran has an inherited condition, Kennedy's disease, that is not service connected. The Board finds that the 2012 IME opinion is probative as it is based upon a complete review of the Veteran's claims file and supported by detailed rationale. The IME considered the Veteran's self-reported history, the relevant history as contained in medical records from service onward, the results of his personal clinical evaluation, and discussed the Veteran's symptoms in the context of that history. He also referred to specific documents, and medical history to support his conclusions. As a result, the IME was able to fully address the salient question as to the origin of the Veteran's Kennedy's disease and its relationship to military service, including the Veteran's presumed exposure to herbicides. As a result of the foregoing evidence, the Board is unable to attribute the Veteran's Kennedy's disease to service, including his presumed exposure to Agent Orange. See Hickson, supra. The Board acknowledges the Veteran's apparent contention that he has experienced symptoms soon after service discharge as a result of exposure to Agent Orange in service. However as has been discussed herein, service treatment records (including the 1969 separation examination) were negative for complaints of, treatment for, or findings of neuromuscular problems. Moreover, the preponderance of the evidence is against a finding of a continuity of symptomatology which might show a connection between the Veteran's current Kennedy's disease and his period of service. In addition, the only competent medical evidence addressing the nexus requirement is the 2012 IME medical report in which the examiner disputed the notion that the Kennedy's disease is attributable to Agent Orange exposure during or coincident with the Veteran's military service. Therefore, after weighing all the evidence, the Board finds greater probative value in the 2012 IME's conclusions, and, in light of the other evidence of record, that negative nexus opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). In reaching this conclusion, the Board has not overlooked the Veteran's contentions; his statements to healthcare providers; or his written statements. Here, as already alluded to, the claim is primarily predicated on the notion the Veteran was exposed to herbicides (Agent Orange) during his military service and, therefore, the reason he eventually developed Kennedy's disease. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). When 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. Davidson v. Shinseki, 581 F.3d 1313, 1316. 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, (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 (Fed. Cir. 2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) also held in Buchanan (and Davidson and Jandreau), however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. So to ultimately have probative value, the Veteran's assertions also have to be credible and judged in relation to the other evidence in the file - including any medical evidence addressing the determinative issue of causation. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 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")). That said, the Board notes that the Veteran is not a medical professional, and therefore, his beliefs and statements about medical matters do not constitute competent evidence on matters of medical etiology or diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). A veteran generally can report his or her observations concerning symptoms, but in this particular case, the Veteran is not competent to establish a current diagnosis by his lay statements as such would require medical expertise and diagnostic testing in order for a correct diagnosis to be rendered. Although the Board recognizes the sincerity of the arguments advanced by the Veteran in this case, his contentions regarding the etiology of his claimed Kennedy's disease are not statements merely about symptomatology, an observable medical condition, or a contemporaneous medical diagnosis, but rather clearly fall within the realm of requiring medical expertise, which he simply does not have. That is to say, Kennedy's disease is not the type of condition that is readily amenable to mere lay diagnosis or probative comment on its etiology. So while the Veteran is competent to say he has experienced certain symptoms, even symptoms that often may be associated with an eventual diagnosis of Kennedy's disease, he is not in turn competent to ascribe these symptoms to disability related to his military service. Therefore, the Veteran's opinion, to the extent it is to be accorded some probative value, is far outweighed by the findings of the examining and treating medical professionals. See Jandreau supra & Buchanan supra. Accordingly, the preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Service connection for Kennedy's disease is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs