Citation Nr: 1302009 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 08-29 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as "psychological stress." REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from September 1956 to September 1958. This appeal to the Board of Veterans' Appeals (Board) is from a September 2007 rating decision of a special processing unit ("Tiger Team") at the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). Since, however, the Veteran resides in California, the local RO in Oakland has jurisdiction and is the RO that certified his appeal to the Board. In support of his claim, he testified at a hearing at the RO in February 2012 before the undersigned Veterans Law Judge of the Board (Travel Board hearing). The Board subsequently, in April 2012, remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC, partly to obtain all outstanding records, including those concerning his evaluation and treatment for mental illness since service, irrespective of the particular diagnosis. The remand also was to obtain records from the Social Security Administration (SSA), assuming he is receiving disability benefits from this other Federal agency, and to have him undergo a VA compensation examination to first clarify all current diagnoses and then for a medical nexus opinion regarding their etiologies, including especially in terms of whether any is related or attributable to the racial hostility, tension, and harassment he claims to have been directed at him in service, which he also alleges to have eventually escalated to the point that he had a physical altercation, scuffle, or such with another soldier and resultantly had to be treated and hospitalized. Additional records were obtained on remand, including some that are in his electronic ("Virtual VA") paperless claims processing file. These records include VA medical records dated from May 2002 to May 2012. Unfortunately, however, the AMC was unable to obtain any SSA records and made the required formal finding on the unavailability of these records in a May 2012 memorandum. But the Veteran did have the requested VA compensation examination in April 2012 for the necessary medical nexus opinion. After considering this additional evidence, the AMC issued a supplemental statement of the case (SSOC) in October 2012 continuing to deny this claim. In response to that SSOC, the Veteran submitted a statement in support of claim (VA Form 21-4138) later in October 2012 through his representative, partly taking issue with the VA examination findings, but also requesting an additional 60 days to again review his records and documents and properly respond to that SSOC. He was given this requested additional 60 days to do this. His representative, however, submitted a statement in December 2012 reaffirming they had received the SSOC and indicating they did not have any additional evidence to submit regarding this appeal. So, in order to expedite processing of this claim, they asked the AMC to please forward the Veteran's case on to the Board (BVA) immediately. They additionally indicated that, if they located and wanted to submit evidence at a later time, they would waive the right to have the case remanded (sent back) to the RO/AMC again for initial consideration of this evidence as the Agency of Original Jurisdiction (AOJ), preferring instead for the Board to consider any newly submitted evidence in the first instance and proceed with the adjudication of the Veteran's appeal. The Board, therefore, is going ahead with this decision on the claim. The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The most competent and credible, so ultimately probative, evidence indicates the Veteran's acquired psychiatric disorder, claimed as "psychological stress," did not originate during his active military service or for many years after and is unrelated to his service, including especially to the racial hostility, tension, and harassment he claims to have been directed at him in service. CONCLUSION OF LAW The Veteran's acquired psychiatric disorder, claimed as "psychological stress," is not due to disease or injury incurred or aggravated during his active military service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified in part at 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant of the information and evidence that VA will obtain; and (3) inform the claimant of the information and evidence he is expected to provide. See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court/CAVC) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004), that, to the extent possible, the VCAA notice should be provided to the claimant before an initial unfavorable decision on the claim. Pelegrini at 119-20. If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then 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); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, in December 2006, prior to initially adjudicating his claim in the September 2007 rating decision at issue, so in the preferred sequence, the Veteran was provided notice of the VCAA. The letter indicated the types of information and evidence necessary to substantiate the claim and the division of responsibility between him and VA in obtaining this supporting evidence, including lay evidence and both private and VA medical treatment records. He also received notice in December 2006 and August 2008 concerning the "downstream" disability rating and effective date elements of his claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). As well, he since has been provided an SOC in August 2008 and SSOC in October 2012 readjudicating the claim, so since even the provision of this additional notice regarding these "downstream" elements of the claim. See again Mayfield and Prickett, supra. And as concerning the duty to assist him with this claim, all relevant evidence necessary for an equitable resolution has been identified and obtained, to the extent possible. The evidence of record includes his Report of Separation from Service (DD form 214), private medical records, VA outpatient treatment records, the report of his VA compensation examination, including the medical nexus opinion obtained on remand, and statements and testimony from him and his representative. The Veteran's service treatment records (STRs) are unavailable. After a search for these records at the National Personnel Records Center (NPRC), which is a military records repository, the NPRC indicated in February 2007 these records presumably had been destroyed in a 1973 fire there. So, unfortunately, there are no STRs or even, as an alternative, Surgeon General's Office (SGO) extracts, including by way of completion and submission of National Archives (NA) Form 13055, Request for Information Needed to Reconstruct Medical Data. The Court has held that when "VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources." Washington v. Nicholson, 19 Vet. App. 362-369-71 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). To this end, in a June 2007 letter the RO informed the Veteran of the likely destruction of his STRs in the 1973 fire at the NPRC and, therefore, requested that he provide any possible alternative records related to his service that might possibly compensate for this. Later in June 2007, in response, he submitted the Request for Information Needed to Reconstruct Medical Data Form (NA Form 13055). Following receipt of his January 2008 notice of disagreement (NOD), the RO requested STRs reflecting mental health treatment from January to February 1958 from the NPRC. An April 2008 response reflects the NPRC needed additional information before a meaningful search could be made, in particular, the name and location of the hospital where the Veteran supposedly had been treated and hospitalized while in service. Instead, he provided a lay statement from his uncle in April 2008. In August 2008, the RO provided the Veteran additional notice again informing him that his STRs were unavailable and resultantly again requesting that he provide any alternative forms of evidence supporting his claim. Thereafter, the RO made a formal finding of unavailability of the STRs in August 2008. In a December 2009 response to a request for STRs, specifically with respect to mental health treatment from November 1957 to May 1958, the NPRC indicated there were no such records. In April 2010, the RO provided the Veteran additional notice requesting that he provide any copies of STRs in his personal possession and informing him of the alternative forms of evidence to support his claim. In an April 2010 response, he stated he did not have a copy of his STRs. The RO thus made another formal finding of unavailability of the STRs in April 2010. In a June 2010 response to a request for STRs, specifically with respect to mental health treatment from January to February 1958 and from March to September 1958, the NPRC indicated there were no such records located. In October 2010, the RO provided the Veteran notice informing him that his STRs were either lost, misplaced or were otherwise unavailable for review and informing him of the alternative forms of evidence to support his claim. He provided an additional lay statement from his sister in November 2010 with an accompany statement regarding his contentions. Therefore, the duty to assist him in obtaining his STRs and alternative forms of evidence has been satisfied. When, as here, there are lost or missing records concerning a Veteran's service, the Court has held that VA has a heightened duty to consider the applicability of the benefit of the doubt rule [under 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102], to assist the claimant in developing the claim, and to explain the reasons and bases for its decision. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records had been lost or destroyed while in Government control that would have required VA to disprove the claimant's allegation of injury or disease in service because bad faith or negligent destruction of the documents had not been shown). Moreover, the case law does not lower the legal standard for proving a claim for service connection in this circumstance; that is, there is no reverse presumption requiring the granting of the claim; instead, this merely increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the claim. Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). So missing records concerning a Veteran's military service, while indeed unfortunate, do not, alone, obviate the need to still have medical nexus evidence supporting the claim by suggesting a correlation between the condition claimed and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare at 367). While the Veteran's representative furnished a statement in June 2007 in which he indicated the Veteran had received mental health counseling at the Oakland Army base since 2001, the Board notices the Veteran has not reiterated this report of treatment in any later statement or in his February 2012 hearing testimony when he specified where he had received treatment in years past for his mental health related disabilities. Moreover, he had been sent a letter in April 2012 asking that he provide information regarding medical treatment from any private physicians or hospitals that he would like VA to obtain, to which no response has been received. As such, the duty to assist has been satisfied to the extent possible. Consider as well, as already alluded to, that the Board remanded this claim in April 2012 partly to obtain all outstanding records, including those concerning his evaluation and treatment for mental illness since service, irrespective of the particular diagnosis. The remand also was to obtain records from the SSA, assuming he is receiving disability benefits from this other Federal agency, and to have him undergo a VA compensation examination to first clarify all current diagnoses and then for a medical nexus opinion regarding their etiologies, including especially in terms of whether any is related or attributable to the racial hostility, tension, and harassment he claims to have been directed at him in service, which he also alleges to have eventually escalated to the point that he had a physical altercation, scuffle, or such with another soldier and resultantly had to be treated and hospitalized. Notably, the examiner was instructed to consider, so acknowledge, the Veteran's statements regarding these events that are said to have occurred during his service and told not to conclude they did not occur or that he did not experience any relevant symptoms while in service merely because this is not documented in his STRs - especially owing to the fact that his STRs are not available for consideration, presumably having been destroyed in the 1973 fire at the NPRC. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). That, then, in effect was a means of alleviating the absence of the STRs from the file inasmuch as the examiner was directed to, for all intents and purposes, assume the claimed in events in service had occurred as alleged. Notice also was provided in April 2012 and the Veteran did not respond with any additional information regarding any outstanding records of treatment. The VA compensation examiner on remand performed all the diagnostic testing and evaluation he deemed necessary to evaluate the Veteran's mental illness, both in terms of identifying all current diagnoses and their etiologies and claimed relationship with the Veteran's military service. Hence, the Board is satisfied there was compliance with these remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error as a matter of law in failing to ensure compliance). But see, too, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where Board's remand instructions were substantially complied with; in other words, there does not have to be "exact" compliance). The Board also sees that the April 2012 VA examination report reflects that the examiner reviewed the Veteran's pertinent medical history, documented his current medical condition, and rendered appropriate diagnoses and opinions consistent with the other evidence of record and provided supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Consequently, the Board concludes this examination and opinion are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate). While the April 2012 VA examiner used the phrase "without resorting to mere speculation, it was impossible to draw a link to the experience of racism while in service and any related physical altercation to the Veteran's current diagnosis of major depression or any other mental disorder," the examiner ultimately concluded that, based on the accumulated evidence it was his opinion that the Veteran's current diagnosis of major depression was less likely than not incurred in or caused by his claimed in-service event. So although the Veteran took issue with this opinion in the statement in support of claim (VA Form 21-4138) he most recently submitted in October 2012, an etiological opinion has to be viewed in its entire context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). In addition, this examiner explained that medical knowledge was not such that one could definitively state the exact etiology or cause of a mental disorder such as depression. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data.). Moreover, the examiner found it would be mere speculation to link the Veteran's current psychiatric disorder to his active service, not that it would be mere speculation to provide an opinion. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"). Finally, in point of fact, this examiner did actually furnish an opinion on the etiology of the Veteran's psychiatric disorder based upon the evidence of record, ultimately indicating it is less likely than not there is this claimed cause and effect. It thus would be inappropriate for the Board to again remand this claim and demand a conclusive opinion from this examiner or anyone else whose evaluation of the "procurable and assembled" information prevents the rendering of such an opinion. And it is otherwise apparent, based on the Board's review of the evidence, that there is nothing further to be obtained from this particular examiner. While the duty to assist the Veteran with his claim includes providing a medical examination and medical nexus opinion in certain situations, this duty does not extend to requiring a VA physician to render an opinion beyond what reasonably may be concluded from the procurable medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication there exists any additional evidence that has a bearing on this case that has not been obtained and that is obtainable. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of this appeal, and, as already explained, they were given 60 additional days following receipt of the most recent SSOC in October 2012 within which to submit this additional evidence and/or argument. In December 2012, however, the Veteran's representative gave the okay to go ahead and proceed immediately with the adjudication of this claim. All pertinent due process requirements thus have been met. See 38 C.F.R. § 3.103. Governing Statutes, Regulations and Precedent Cases Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, 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. To establish entitlement to direct service connection, there must be: (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). Certain conditions are considered chronic, per se, including psychoses, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year after service. This presumption, however, 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(a). According to 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. If however chronicity (i.e., 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). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity of disease or injury in service and, in turn, link the currently claimed disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service, (2) symptoms of that condition continued after service, and (3) the current condition is related to those continuing symptoms. See Savage, 10 Vet. App. at 495-97. 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). So 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). But see, too, Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that for non-combat Veterans providing non-medical related testimony regarding an event during service (or where the incident in question is not claimed to have occurred in combat), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements). The Veteran is competent to report on what he can observe and feel through his 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)). But 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 United States Court of Appeals for Veterans Claims (Court/CAVC) 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 the 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 C.F.R. § 3.102. Analysis In statements and testimony presented during the pendency of this appeal, the Veteran has maintained that his current psychiatric disorder, claimed as "psychological stress", began during his military service. He therefore dates this disorder back to his service. Specifically, he alleges he was the subject of racism, hostility and harassment during his service and resultantly treated and even hospitalized for psychological stress that has persisted during the many years since. As already acknowledged, there are no STRs to consider. His DD form 214 indicates he served in the U.S. Army from September 1956 to September 1958 and that his military occupational specialty (MOS) was vehicle mechanic. This record also reflects that he had one year, four months, and four days of foreign and/or sea service. The post-service evidence includes private medical records from September 1986 and from April 1997 to November 2001, VA medical records from May 2002 to May 2012, articles from the internet regarding blast injuries, traumatic brain injuries and concussions, lay statements from the Veteran's uncle and sister, and the transcript of the Veteran's sworn testimony during his Travel Board hearing. The private medical records from September 1986 and from April 1997 to November 2001 reflect that the Veteran was treated for and diagnosed with recurrent Major Depressive Disorder (MDD)/major depression that were initially noted in September 1999. A post-service private clinical record dated in June 1997 shows that, in reporting his relevant medical history, he denied any prior hospitalization, presumably either during his military service or at any time during the many years since it had ended. Subsequent private treatment records, however, show that he sought and obtained private psychiatric treatment in September 1999. In reporting his psychiatric medical history at that time, he indicated that he initially had been treated in 1977, then later in 1988 and 1989 by Dr. P at the Berkley Therapy Institute and a Kaiser psychiatrist many years ago. He did not refer to any treatment while in service. The diagnosis was MDD. In an October 1999 private treatment report, he was treated for depression, but that was noted as job related (so presumably the result of his civilian occupation). The VA outpatient treatment reports from May 2002 to May 2012 reflect that was initially treated in a VA mental health clinic in May 2002, at which time he was diagnosed with recurrent major depression and probable MDD. He also complained of the loss of his job, indicating as well that he had a past psychiatric history of an earlier period of stress in 1985 and that his military history included prejudice and racism in basic training, but that his time in Germany was "OK." In June 2002, he was treated for and diagnosed with probable MDD and recurrent major depression and a long history of depression exacerbated by work-related stress was noted. He also reported having no previous psychiatric hospitalization, again presumably either during his military service or at any time during the many years since it had ended. A July 2002 statement from his VA treating psychiatrist, Dr. R.S., indicated the Veteran was recently treated initially at the VA mental health clinic and started on medication. Subsequent VA medical records reflect he continued to be treated for and diagnosed with recurrent major depression and probable MDD and, in 2010, he also began to be diagnosed with MDD and rule out psychotic disorder, which was ultimately changed in 2010 to psychosis, NOS, and rule out MDD with psychotic features. In a September 2009 VA outpatient treatment report he reported having a past hospitalization approximately in 1957 during which he was treated for stress in the military, which is the first mention in the post-service medical evidence of mental health treatment in the military. In March 2007, he submitted documents concerning a 1992-93 Workers' Compensation claim that apparently involved a psychiatric injury. In June 2007, he submitted documents concerning an April 2002 occupational termination dispute, in which his mental capacity was at issue. In April 2008, he also submitted a supporting lay statement from his uncle. This relative stated that, after the Veteran was discharged from service, he came to live with him and his family. The Veteran's uncle reported that, after living with him for "a couple of months" a representative of the Las Vegas Army Reserve came to his home and indicated the Veteran's Army obligation was incomplete. He also stated the Veteran had reported to him that he had had an "unpleasant experience in Germany and was hospitalized while on duty for 'stress'" and did not want to experience another episode. Finally, his uncle also reported that the Veteran had stated that the military had caused his hospitalization. The Veteran submitted articles in March 2009 related to blast injuries, traumatic brain injuries (TBIs) and concussion symptoms tied to stress. There is no suggestion in the record on appeal, however, that he ever has been treated for or diagnosed with a blast-related injury, TBI, or concussion, much less that may have resulted in mental illness. Therefore, these articles provide no support for his claim as it relates to mental illness, so have no probative value. Where medical article or treatise evidence, standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay opinion, a claimant may use such evidence to meet the requirement for a medical nexus. Wallin v. West, 11 Vet. App. 509 (1998). However, an attempt to establish a medical nexus between service and a disease or injury solely by generic information in a medical journal or treatise "is too general and inclusive." Sacks v. West, 11 Vet. App. 314, 317 (1998) (holding that a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element). Still, medical treatise evidence can provide important support when combined with an opinion of a medical professional. Mattern v. West, 12 Vet. App. 222, 228 (1999). See also Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor's statements was "adequate to meet the threshold test of plausibility"). Here, though, there is no such supporting medical nexus opinion. In November 2010, the Veteran's sister also provided a lay statement in support of his claim, alleging that she was approximately nine or ten years old when he served in the military and that she remembered during Christmas in 1957 or 1958 her mother had told her that he had been admitted to a hospital in Germany. She acknowledged never being told the reason why he was hospitalized and said she did not ask her mother about it. During his February 2012 hearing before the Board, the Veteran testified under oath that, while stationed in Freiburg and Frankfurt, Germany, there was a lot of racial hostility, tension and harassment directed at him, and that it eventually escalated to the point that he had a physical altercation, scuffle or such, with another soldier. He said that it resulted in him receiving treatment and counseling, including in the local dispensary, but that he also later was hospitalized for three to four days for "psychological stress", and that after being discharged from the hospital he was transferred to another unit (a tank unit). He went on to testify that, because of that incident and treatment during his service, he became very angry and stressed, and that these feelings have persisted even since his service ended to the present day. Although he reported having no mental health treatment from 1958 to 1980, he stated he treated himself. As a way of treating himself along the way, he added, he would purposely isolate himself at times to relieve his stress or go to the YMCA, etc., and that, over time, he came to realize he needed professional help, so he requested and received treatment at various places, including Kaiser Permanente, Berkeley Therapy Institute, and the local VA medical center (VAMC), which in turn led to the eventual diagnosis of depression. He also claimed that some treatment providers had told him that his depression was the result of the incidents during his active service, however, he later clarified that no physician had ever actually specified to him that his diagnosed mental disorder was the result of the things that had happened in service, although he "got the impression that that was their intent." The Court has held, however, that the connection between what a physician said and the layman's account of what the physician purportedly said, filtered as it is through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent medical evidence in support of a claim for service connection. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). At the conclusion of his April 2012 VA compensation examination, on remand, the Veteran was diagnosed with recurrent MDD, severe, with psychotic features. He continued to maintain that, while in the military, his basic training was a "hellhole" due to prejudice and racism and that he was later sent to Germany, an experienced he described as "OK." He reported he was initially happy to be in Germany but that, when his black sergeant was replaced, he was the only black soldier in the unit. He said he was targeted by other white soldiers, which led to a physical altercation at one point and he was sent to an Army hospital in Frankfurt for a few days "due to stress." In commenting on the determinative issue of causation, however, the examiner ultimately concluded the Veteran's claimed condition was less likely than not incurred in or caused by the claimed injury, event or illness in service. In explanation, the examiner noted that it was conceded the Veteran had experienced racism and prejudice both in service and throughout his life. But without resorting to mere speculation, it was impossible to draw a direct link to the experience of racism while in service and any related physical altercation to the Veteran's current diagnosis of major depression or any other mental disorder. This examiner further explained that "medical knowledge was not such that physicians could definitively state the exact etiology or cause of a mental disorder such as depression." He also pointed out there was much evidence to say the Veteran did quite well following his discharge, noting that he reported he was "OK" when he got out in 1958, that he was "young, carefree and had no responsibilities," and that he had friends and enjoyed living in Las Vegas before moving to Oakland. The examiner further observed the Veteran then had many productive years and went on to earn a master's degree and a Ph.D. at a major university. Therefore, this examiner concluded that, based upon the accumulated evidence, it was his opinion that the Veteran's current diagnosis of major depression was less likely than not incurred in or caused by a claimed in-service event. So, after considering the evidence of record as a whole, the Board concludes that service connection for an acquired psychiatric disorder, claimed as "psychological stress," is unwarranted. Although there is no disputing the Veteran has a psychiatric disorder, namely major depression/MDD, and even accepting he experienced the type of racial stress, turmoil and strife during his service that he has alleged, the most competent and credible (and therefore ultimately probative) lay and medical evidence of record does not provide the required linkage between his current mental illness and those events that concedingly occurred during his military service See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Merely showing he sustained relevant injury in service, such as in the way of this racial harassment, and that he now has the disorder claimed, major depression/MDD, is not tantamount to concluding there is a correlation between the events in service and his present-day disability or that they are interrelated. The post-service medical evidence of record does not show indication of complaints of or treatment for a psychiatric disorder of any sort until September 1999, so not until approximately 41 years after the Veteran's separation from service. And while this, alone, is not altogether determinative or dispositive of whether he had a psychiatric disorder during those many intervening years, it is nonetheless probative evidence tending to refute this notion. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, just not the only or sole factor); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability). The Board recognizes his lay statements and testimony regarding his experiences in service, his treatment and hospitalization for psychological stress in service, and of having supposedly experiencing continuity of symptoms during the many years since, along with the lay statements from his uncle and sister attesting that he had reported being treated for stress in service and of having been hospitalized while in the military. They are competent to make these proclamations. The Board cannot reject this lay testimony concerning this out of hand. Kahana v. Shinseki, 24 Vet. App. 428 (2011) (indicating the Board cannot make categorical exclusions of competency of lay evidence, such as in this circumstance; rather, there has to be discussion of the reasons and bases for rejecting the lay 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). Ultimately, though, 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). Moreover, to the extent these lay statements and testimony by the Veteran and these others are attempting to ascribe certain symptoms to a particular or specific diagnosis, including the psychological stress in service, they are not competent to make this distinction. 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 had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Ultimately, the lay statements and testimony regarding the Veteran's psychiatric treatment and hospitalization in service and continuity of symptoms since service, even to the extent competent, are not entirely credible as they are internally inconsistent and inconsistent with some of the other evidence in the file. Thus, these lay statements and testimony are not ultimately probative. Notably, their rather recently reported history of continuous symptoms in service and since is not supported by the post-service medical evidence. See Cromer v. Nicholson, 19 Vet. App. 215 (2005); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) ("in a merits context the lack of evidence of treatment may bear on the credibility of the evidence of continuity"). To wit, in a June 1997 private medical record, the Veteran denied any prior hospitalization, and in September 1999 he indicated that he initially had received psychiatric treatment in 1977, then later in 1988 and 1989 by Dr. P at the Berkley Therapy Institute and a Kaiser psychiatrist many years ago. Even the VA medical records reflect that the Veteran had denied any prior psychiatric hospitalization from 2002 until October 2008, at which time he initially reported having a past psychiatric hospitalization with trouble understanding, concentrating and remembering in the past 30 days. Indeed, he first reported having a past psychiatric hospitalization in 1957 for stress in the military in September 2009, approximately 51 years after his active service and only after he had filed this claim of entitlement to service connection for a psychiatric disorder. Moreover, upon initial treatment for a psychiatric disorder by VA in May 2002 he reported his only past psychiatric history included an earlier period of stress in 1985, and that, although his military history included prejudice and racism in basic training, his time in Germany overall was "OK," with no reports of any incidents or psychiatric evaluation or treatment as a result of them. The fact that he has at times mentioned having a history of psychiatric treatment in service after filing his claim for service connection whereas at earlier times had specifically denied having any past or prior psychiatric hospitalization or treatment in service for mental health related issues tends to undermine his credibility in terms of concluding he has had continuous symptoms of a psychiatric disorder since service or any treatment or hospitalization during service for mental health issues. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later). The medical records cited are highly probative both as to his subjective reports and their resulting objective findings. They were generated with a view towards ascertaining his then state of mental health and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Accordingly, the lack of contemporaneous evidence in this instance, and by this the Board is referring to the earlier occasions since service when there was no mention of mental illness in service, diminishes the reliability of the lay statements and testimony provided by the Veteran, his uncle and his sister to the contrary, long after the fact, so resultantly are afforded little-to-no probative value. The fact also remains that the April 2012 VA examiner opined that, based upon the accumulated evidence, it was his opinion that the Veteran's current diagnosis of major depression was less likely than not incurred in or caused by a claimed in-service event (even, as mentioned, acknowledging the occurrence of the claimed event in service). This opinion was based on a review of the claims file, a personal examination of the Veteran, and the Veteran's own reports as regarding his relevant history. So this opinion has the proper factual foundation and predicate and, therefore, has a lot of probative weight. See Elkins v. Brown, 5 Vet. App. 474 (1993); Black v. Brown, 5 Vet. App. 177 (1993). This is especially true since major depression/MDD is not the type of simple condition that is readily amenable to mere lay comment regarding its diagnosis and etiology. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic fever or rheumatic heart disease). And this unfavorable medical nexus opinion is uncontroverted, so unrefuted by any of the other medical evidence in the file. For these reasons and bases, the evidence does not demonstrate any connection between the Veteran's acquired psychiatric disorder, major depression/MDD, claimed as "psychological stress," and the events that are accepted to have occurred during his military service. Thus, his claim of entitlement to service connection for this condition must be denied since the preponderance of the evidence is against his claim, in turn meaning the benefit-of-the-doubt doctrine is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER The claim of entitlement to service connection for an acquired psychiatric disorder, claimed as "psychological stress," is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs