Citation Nr: 1303672 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-09 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a speech disability, to include on a secondary basis. 2. Entitlement to service connection for migraines, to include on a secondary basis. 3. Entitlement to service connection for a thyroid disability. 4. Entitlement to service connection for a left eye disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from February 1976 to February 1980 and from March 1981 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied, in pertinent part, the Veteran's claims of service connection for a speech disability and for migraines, each to include on a secondary basis, for a thyroid disability, and for a left eye disability. Having reviewed the voluminous evidence of record, the Board finds that the Veteran's original service connection claims for a speech disability and for vision migraines are characterized more appropriately as stated on the title page of this decision. The Veteran disagreed with this decision in March 2007. In September 2007, the RO granted, in pertinent part, the Veteran's claim of service connection for depressive disorder. The RO also issued a Statement of the Case (SOC) in September 2007 on the claims of service connection for a speech disability and for migraines, each to include as due to service-connected depressive disorder or a thyroid disability, a thyroid disability, and for a left eye disability. Following receipt of additional evidence, the RO promulgated a Supplemental Statement of the Case (SSOC) in February 2009 on all of these claims. The RO noted in the February 2009 SSOC that additional evidence had been received by VA before the September 2007 SOC was issued but was not associated with the Veteran's claims file until after the September 2007 SOC was issued. The Board observes that receipt of additional evidence listed in the February 2009 SSOC within 1 year of the date of mailing of notification of the September 2007 rating decision, which denied all of the Veteran's currently appealed claims, persuasively suggests that the Veteran had 60 days from the date that the February 2009 SSOC was issued in order to perfect a timely appeal on these claims. See 38 C.F.R. § 20.302(b) (2012). The Veteran submitted a VA Form 9 in March 2009 containing evidence and argument as to all of the claims listed on the title page of this decision. The Board acknowledges that, although the March 2009 VA Form 9 was received more than 1 year after the RO issued the September 2007 SOC, it was received within 60 days of the February 2009 SSOC. Id. The Board finds that, pursuant to 38 C.F.R. § 20.302(b) and the Court's decision in Percy v. Shinseki, 23 Vet. App. 37 (2009), any issue with respect to the timeliness of the Veteran's appeal has been waived by VA and his March 2009 VA Form 9 is accepted as timely filed with respect to the claims listed on the title page of this decision. The issues of entitlement to a disability rating greater than 30 percent for depressive disorder and 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). The Veteran's service representative raised both of these claims in a December 2012 Brief submitted to the Board. Therefore, the Board does not have jurisdiction over these claims and they are referred to the AOJ for appropriate action. As is explained below, the issues of entitlement to a left eye disability and to a thyroid disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The evidence of record shows that the Veteran does not experience any current disability due to a speech condition or migraines, which could be attributed to active service or any incident of service or with an injury or disease of service origin. CONCLUSIONS OF LAW 1. A speech disability was not incurred in or aggravated by active service, to include as due to service-connected depressive disorder or a thyroid disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). 2. Migraines were not incurred in or aggravated by active service, to include as due to service-connected depressive disorder or a thyroid disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in April and May 2005 and in September 2008, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the Veteran to submit medical evidence relating the claimed disabilities to active service and noted other types of evidence the Veteran could submit in support of his claims. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As will be explained below in greater detail, the evidence does not support granting service connection for a speech disability or for migraines, each to include as due to service-connected depressive disorder or a thyroid disability. Because the Veteran was fully informed of the evidence needed to substantiate these claims, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file. The Veteran's Virtual VA claims file has been reviewed and no relevant evidence was located there. The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required. The Veteran has contended that he was treated at Joslin Clinic in Boston, Massachusetts, for his claimed disabilities. In response to a request from the RO for the Veteran's treatment records, this facility notified VA in April 2009 that it had no records for any patient with the Veteran's name, date of birth, or Social Security number. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the Veteran shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the Veteran has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the Veteran's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although his argument is not a model of clarity, it appears that, in statements attached to his March 2009 VA Form 9, the Veteran questioned the adequacy of VA examinations he was provided during the pendency of this appeal. In advancing an argument concerning the adequacy of VA examinations he was provided during the pendency of this appeal, the Veteran appears to be raising a general challenge to the professional competence of the VA examiners who conducted these examinations. Both the Court and the Federal Circuit have held, however, that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner's competency must be raised by the appellant to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999)). The Court held in Cox that "the Board is entitled to assume the competence of a VA examiner." Id. at 569 (citations omitted). Absent evidence or argument which called in to question a VA examiner's professional competence, the Court concluded in Cox that it is not error for the Board to presume that a VA examiner is competent. Id. See also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (explicitly extending the presumption of competence discussed in Cox and Rizzo to VA examiners). The Federal Circuit in Rizzo expressly adopted the Cox standard regarding the presumption of competence of VA examiners absent specific argument or evidence concerning professional competence advanced by an appellant. See Rizzo, 580 F.3d at 1290-91. In adopting the presumption of competence of VA examiners announced by the Court in Cox, the Federal Circuit specifically held in Rizzo that: Absent some challenge to the expertise of a VA expert, this court perceives no statutory or other requirement that VA must present affirmative evidence of a physician's qualifications in every case a precondition for the Board's reliance upon that physician's opinion. Indeed, whereas here, the Veteran does not challenge a VA medical expert's competence or qualifications before the Board, this court holds that VA need not affirmatively establish that expert's competency. Id. Neither the Veteran nor his service representative has raised a specific challenge to the professional medical competence or qualifications of any VA examiner who saw him during the pendency of this appeal. Recent Federal Circuit precedent also suggests that VA may rely upon the VA examination reports of record in adjudicating the Veteran's claims. In Bastien, an appellant challenged the qualifications of a VA physician to provide a medical expert opinion on the grounds that this physician lacked objectivity and/or independence because he was a VA employee. See Bastien, 599 F.3d at 1306-7. Citing Rizzo, the Federal Circuit in Bastien rejected the appellant's challenge to the qualifications of a VA physician and held instead that the law and regulations provide that VA "is explicitly and implicitly authorized to use its own employees as experts." See Bastien, 599 F.3d at 1307 (citing 38 U.S.C. §§ 5103A(d), 7109(a); 38 C.F.R. § 20.901). The Federal Circuit also held in Bastien that an appellant challenging the expertise of a VA physician must "set forth the specific reasons...that the expert is not qualified to give an opinion." Id. That has not happened in this case. Neither the Veteran nor his service representative has identified or submitted any evidence or argument that the VA examiners who saw him during the pendency of this appeal were not competent or lacked the professional medical training necessary to review the claims file, including the Veteran's service treatment records and post-service VA and private treatment records, and provide a competent opinion concerning the contended etiological relationships between the Veteran's claimed disabilities and active service. There is no requirement, as the Court held in Cox and as the Federal Circuit held in Rizzo, that VA establish the competence of any VA examiner prior to relying on the VA examination reports of record in adjudicating the Veteran's service connection claims. The Federal Circuit noted in Rizzo that there was "no law or precedent suggesting that the Board must have first established [a VA examiner's] qualifications on the record before assigning his opinion probative value." See Rizzo, 580 F.3d at 1291-92. There has been no showing or even an allegation that the VA examiners who saw the Veteran during the pendency of this appeal were not competent or did not report accurately what they found in their review of the claims file. The Board also finds that a remand to obtain another opinion or examination would serve no purpose but to delay further the adjudication of the Veteran's claims with no benefit flowing to him. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran) and Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). With respect to the Veteran's service connection claim for migraines, he has been provided with VA examinations which address the contended causal relationship between the claimed disability and active service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding this claim. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. With respect to the Veteran's service connection claim for a speech disability, there is no record evidence, other than the Veteran's statements, which indicates that this claimed disability may be associated with service. The Veteran is not competent to testify as to etiology of this disability as it requires medical expertise to diagnose. The first prong of the McLendon test (current disability) requires "competent" evidence; the third prong of the test only requires "evidence" that indicates an association with service. Although VA must consider the lay evidence and give it whatever weight it concludes the evidence is entitled to, a "conclusory, generalized lay statement" that an event or illness during service caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Thus, the Board finds that obtaining another examination or opinion is not required with respect to this claim. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Service Connection for a Speech Disability and for Migraines The Veteran contends that he incurred a speech disability and migraines during active service. He alternatively contends that his service-connected depressive disorder or a thyroid disability caused or contributed to his speech disability and migraines. He finally contends that his current speech disability and migraines are related to service. Governing Law and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(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). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). 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. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. Service connection may also be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a)-(b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993) (explaining 38 C.F.R. § 3.310(a)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. § 3.310(b)). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Analysis The Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for a speech disability and for migraines, each to include on a secondary basis. Specifically, the Veteran contends that he incurred both a speech disability and migraines during active service. He alternatively contends that his service-connected depressive disorder or a (nonservice-connected) thyroid disability caused or aggravated his claimed speech disability and migraines. He finally contends that his claimed speech disability and migraines are related to service. The evidence of record does not support the Veteran's assertions regarding in-service incurrence, continuity of symptomatology since service, or a current disability which could be attributed to service for either of these claimed disabilities, however. A review of the Veteran's voluminous service treatment records from his approximately 27 years of active service shows no complaints of or treatment for either a speech disability or for migraines during service. These records document in-service treatment for a variety of psychiatric problems, to include depressive disorder, but no complaints of speech disability or migraines were noted during such treatment. It appears that the Veteran was placed on limited duty status following a Medical Board evaluation in October 2003 for psychiatric problems. His duty status was changed to permanently disqualified due to psychiatric issues in September 2004. On outpatient treatment in October 2004, 1 month prior to his retirement from active service in November 2004, the Veteran complained of headaches "all over his head" due to his psychotropic medication. Objective examination showed that the Veteran "appears well." The assessment was depression with anxiety. The post-service evidence of record also does not support granting service connection for a speech disability or for migraines, each to include as due to service-connected depressive disorder or a nonservice-connected thyroid disability. Although the Veteran's lay assertions regarding the exact nature of his claimed speech disability are not a model of clarity, it appears that he essentially contends that he has difficulty speaking or forming words during times of extreme stress, which he attributes to his service-connected depressive disorder. The post-service medical evidence shows that, although he has received treatment for the service-connected depressive disorder and for a nonservice-connected thyroid disability (variously diagnosed as hypothyroidism and hyperthyroidism), this same post-service evidence contains no medical complaint, finding or treatment for a speech disability at any time after his service retirement in November 2004. This evidence also shows that, on VA examination in May 2007, the Veteran's complaints included "visual migraines with intermittent partial field and vision loss. He sees 'wheels.' He has trouble focusing. His migraines began in the early 1990s. They are brought on by stress and fatigue. They last a couple of minutes. They occur a couple of times a year." The Veteran denied any "apparent weakness or other functional loss" associated with his migraines. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The physical examination showed intact cranial nerves, and pupils that were equal, round, and reactive to light and accommodation. The diagnoses included no evidence of migraine. The Veteran contended in a written statement attached to his March 2009 VA Form 9 that there were "three separate instances of speech difficulties" (emphasis in original) noted in his records, which demonstrated the presence of a speech disability attributable to active service. He also contended that his in-service speech difficulties were responsible for ending his career in the U.S. Coast Guard in 2004. He contended further that his migraines were secondary to his nonservice-connected thyroid disability. The Board acknowledges the Veteran's assertions that his claimed speech disability and migraines are related to active service or, in the alternative, that his service-connected depressive disorder or a nonservice-connected thyroid disability caused or contributed to his claimed speech disability and migraines. The evidence of record indicates no support his assertions concerning in-service incurrence of a speech disability or migraines or an etiological link between either of these claimed disabilities and his active service, however. Critically, this evidence shows that the Veteran does not experience any current disability due to either his claimed speech disability or his claimed migraines, which could be attributed to active service. Although he was seen repeatedly for a variety of complaints during his approximately 27 years of active service, a review of the Veteran's voluminous service treatment records shows no complaints of or treatment for a speech disability at any time during service. The Board acknowledges that the Veteran complained of headaches in October 2004, 1 month prior to his retirement from active service in November 2004; no diagnosis of migraines was rendered by the in-service examiner who saw him in October 2004, however. The VA examiner also specifically diagnosed the Veteran as having no migraines following VA examination in May 2007. VA outpatient treatment records dated subsequent to May 2007 also show that, although the Veteran complained of and was treated for both his service-connected depressive disorder and for a nonservice-connected thyroid disability, there were no complaints of or treatment for either a speech disability or for migraines. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced either a speech disability or migraines at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence of either of these claimed disabilities at any time during the pendency of this appeal. Hence, the Board finds that service connection for a speech disability and for migraines, each to include as secondary to the service-connected depressive disorder or a nonservice-connected thyroid disability, is not warranted. Lay Evidence In this decision, the Board has considered all lay and medical evidence as it pertains to the discrete issues of migraines and a speech disability. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons 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). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is 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); Layno v. Brown,6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, 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). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. at 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current VA disability compensation claims, in recent statements, the Veteran has asserted that his symptoms of a speech disability and migraines have been continuous since service. He asserts that he continued to experience symptoms relating to a speech disability (difficulty speaking and forming words) and migraines after he was discharged from service. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of either of these disabilities after service separation. Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible. While the Veteran is competent to assert that he has experienced continued symptomatology since active service, the Board finds that he is not credible. Here, the Veteran's more recently-reported history of continued symptoms of a speech disability and migraines since active service is inconsistent with the other lay and medical evidence of record. Indeed, while he now asserts that his disorders began in service, in the more contemporaneous medical history he gave at an examination completed in October 2003 as part of a Medical Board, approximately 1 year prior to his separation from service, he denied any history or complaints of symptoms of a speech disability or migraines. The Veteran also did not report any history or complaints of symptoms of a speech disability when seen on outpatient treatment in October 2004, approximately 1 month prior to his retirement from active service in November 2004; as noted above, although he complained of headaches in October 2004, no relevant physical examination findings were noted and no diagnosis of migraines was offered at that time. This in-service history of symptoms is more contemporaneous to his service separation so it is of more probative value than the more recent assertions made many years after service separation. It appears that a separation physical examination of the Veteran was not conducted and the October 2003 Medical Board examination was the closest physical examination in time to his retirement from active service in November 2004. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding 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). As noted above, the post-service medical evidence does not reflect complaints or treatment related to a speech disability at any time after the Veteran's retirement from active service in November 2004. This evidence also does not reflect complaints or treatment related to migraines until several years after the Veteran's service separation. The Board emphasizes the multi-year gap between discharge from active service (2004) and initial reported symptoms related to migraines when he reported for VA examination in May 2007 (a 3-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board finds it significant that, despite the Veteran's complaints of headaches, no migraines were found on VA examination in May 2007. The Board notes that the Veteran sought treatment for a myriad of medical complaints since discharge from service, including his service-connected depressive disorder and for a thyroid disability. Significantly, during that treatment, when he specifically complained of other problems, he did not report complaints related to a speech disability or migraines. Rucker, 10 Vet. App. at 67 (holding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). He did not claim that symptoms of his disorders began in (or soon after) service until he filed his current VA disability compensation claims. Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories. See Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). In sum, the Veteran's statements of continuous symptoms since service are contradicted by his previous more contemporaneous in-service history and the findings contemporaneous to service separation. Accordingly, the probative value of the Veteran's statements as to continuity of symptomatology are of lesser probative value than, and outweighed by, the more contemporaneous in-service medical history and findings contemporaneous to service separation and the absence of medical complaint for years after service. For the reasons discussed above, service connection for a speech disability and migraines is denied. ORDER Entitlement to service connection for a speech disability, to include on a secondary basis, is denied. Entitlement to service connection for migraines, to include on a secondary basis, is denied. REMAND The Veteran has contended that he incurred left eye and thyroid disabilities during active service. He also has contended that his current left eye and thyroid disabilities are related to service. The Board finds that a remand is necessary before the Veteran's service connection claims for a left eye disability and for a thyroid disability can be adjudicated. With respect to the Veteran's service connection claim for a left eye disability, a review of his voluminous service treatment records from his approximately 27 years of active service shows that he complained of and was treated for multiple left eye disabilities (variously diagnosed as benign iris pigmented lesion, blepharitis, and persistent iris nevi) during service. The Veteran also was diagnosed as having iris nevi of the left eye following VA examination in May 2007. Although it appears that the RO denied the Veteran's service connection claim for a left eye disability in the September 2007 rating decision on the basis that his current left eye disability (iris nevi) is considered a congenital disability for which service connection is prohibited, the basis for this determination is not clear from a review of the record. See also 38 C.F.R. § 4.9 (2012) (prohibiting service connection for congenital disabilities). In VAOPGCPREC 82-90, VA's Office of General Counsel held that Veterans can be granted service connection for diseases of congenital, developmental, or familial origin, if the evidence as a whole establishes that the familial conditions in question were incurred in or aggravated by service. The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability, however. See VAOPGCPREC 82-90 (July 18, 1990); see also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). The question of whether the Veteran's current left eye disability is congenital in nature essentially is medical in nature. The Board notes that it is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board also notes that, when the Veteran was seen for VA eye examination in May 2007, the VA examiner was not asked to provide, and did not provide, any opinion concerning in-service aggravation of the iris nevi of the left eye. Nor was this examiner asked to define iris nevi or determine whether this disability was congenital or acquired and, if acquired, whether it was related to service. The Court has held that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Given the foregoing, the Board finds that the May 2007 VA examination is inadequate for purposes of adjudicating the Veteran's service connection claim for a left eye disability. The Board also finds that a VA examination is necessary to determine whether the Veteran's left eye disability is congenital or acquired and, if so, whether it was incurred in or aggravated by service. Thus, on remand, the Board finds that the Veteran should be scheduled for appropriate examination to determine the nature and etiology of his left eye disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) ; McLendon, 20 Vet. App. at 79. With respect to the Veteran's service connection claim for a thyroid disability, the Board notes that a review of the claims file shows that, following VA examination in May 2007, the VA examiner diagnosed the Veteran as having, among other things, suppressed thyroid-stimulating hormone (TSH) which resolved in 2002 and a history of a thyroid nodule with no sequelae (or complications). The RO denied the Veteran's service connection claim for a thyroid disability in the September 2007 rating decision on the basis that the May 2007 VA examination showed no current thyroid disability that could be attributed to active service. VA outpatient treatment records dated subsequent to May 2007 show current diagnoses of a thyroid disability (variously diagnosed as hyperthyroidism and hypothyroidism), however. The Veteran also has maintained in lay statements that he has experienced continuous thyroid disability since service. Thus, on remand, the Board finds that the Veteran should be scheduled for appropriate examination to determine the nature and etiology of his thyroid disability. Id. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. A review of the claims file shows that the most recent VA treatment records associated with the claims file are dated only through February 2009. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify all VA and non-VA clinicians who have treated him for a left eye disability or for a thyroid disability since his separation from active service. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his left eye disability. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner should identify any left eye disability currently experienced by the Veteran, to include iris nevi, if possible. If iris nevi of the left eye is diagnosed, then the examiner should provide an appropriate medical definition of this condition. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner should state whether iris nevi of the left eye, if diagnosed, is a disease of congenital, developmental, or familial origin or a congenital or developmental defect. The examiner also should state whether iris nevi of the left eye was acquired by the Veteran. If iris nevi of the left eye is a disease of congenital, developmental, or familial origin, then the examiner is asked to address the following questions: (1) Is there clear and unmistakable evidence that this disease was not aggravated (permanently worsened) during the Veteran's active service? (2) Is there clear and unmistake evidence that any aggravation (permanent worsening) of this disease was due to the natural progression of that disease. Please explain the reasons for your opinion. If iris nevi of the left eye was acquired by the Veteran, then the examiner is asked address the following question: Is it at least as likely as not (i.e., a 50 percent or greater probability) that this disease had its onset during active service, or was otherwise caused or related to any incident of service. Please explain the reasons for your opinion. 3. Schedule the Veteran for appropriate examination to determine the nature and etiology of his thyroid disability. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner should identify any thyroid disability currently experienced by the Veteran, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked address the following question: Is it at least as likely as not (i.e., a 50 percent or greater probability) that a thyroid disability, if diagnosed, had its onset during service or was otherwise caused by or related to any incident of service. Please explain the reasons for your opinion. 4. The Veteran should be given adequate notice of the requested examinations which includes advising him of the consequences of his failure to report to the examinations. If he fails to report to the examinations, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 5. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs