Citation Nr: 1309147 Decision Date: 03/18/13 Archive Date: 04/10/13 Citation Nr: 1309147 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 94-02 647 ) DATE 18 MAR 2013 ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a stomach disorder, including as secondary to service-connected pelvic inflammatory disease. REPRESENTATION Appellant represented by: Delaware Volunteer Legal Services, Inc. ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty (AD) from October 1979 to October 1982. She also had additional service on both active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) at various times from October 1982 to August 1987 in the Army Reserves and Army National Guard. The Board denied this claim at issue in a May 1, 2012 decision. The Board since has learned, however, that the Veteran had requested a hearing before the Board before the issuance of that prior decision. The Board was unaware of this hearing request when previously deciding this claim. The Veteran's attorney therefore since has filed motion to VACATE that prior Board decision, which the Board is granting. The Board is then remanding this claim to the Department of Veterans Affairs (VA) Regional Office (RO) to schedule the requested hearing. ORDER TO VACATE VA regulations provide that an appellate decision may be vacated by the Board at any time upon the request of the Veteran or her representative, or on the Board's own motion when there has been a denial of due process. 38 C.F.R. § 20.904(a) (2012). On May 1, 2012 the Board issued a decision denying this claim of entitlement to service connection for a stomach disorder. At the time that decision was issued the Board believed the Veteran did not have any outstanding hearing request and wanted a decision on her claim based on the evidence then of record. But the Veteran's attorney since has submitted a motion in October 2012 to VACATE that prior Board decision, contending that in February 2012 he spoke to a VA employee at the Indianapolis RO and requested the scheduling of a hearing concerning this claim. He says he was assured the hearing would be scheduled at the RO in Philadelphia, Pennsylvania, that the file therefore was forwarded from the RO in Indianapolis to the RO in Philadelpnhia, but that for some reason unknown to him the hearing was never scheduled, so the Board in turn unknowingly went ahead and adjudicated the claim in its May 2012 decision without the Veteran having had this requested hearing. Perhaps the reason for this administrative failing has something to do with the fact that the RO in Philadelphia, rather than the RO in Indianapolis, was asked to schedule the hearing. This appeal originated from the RO in Indianapolis, but the RO in Philadelphia apparently was asked to schedule and conduct the hearing because this allows the Veteran's attorney, whose office is located nearby in Delaware, to participate in a videoconference transmission from the RO in Philadelphia. Whatever the case may be, as there is evidence in the claims file indicating the Veteran had requested a Board hearing prior to the Board issuing its May 2012 decision, but was not provided this requested hearing, in order to prevent prejudicing her in this appeal and preserve her procedural due process rights and afford her claim every possible consideration, the Board's decision on May 1, 2012 is hereby VACATED. 38 U.S.C.A. § 7104(a). REMAND The Veteran, through her attorney, in February 2012 requested a videoconference hearing before the Board concerning this claim. The Veteran unfortunately was never provided this hearing and has not withdrawn her request. Indeed, to the contrary, this was the basis of her attorney's motion to VACATE the Board's May 2012 decision issued without the benefit of her hearing testimony, including as concerning continuous symptoms (i.e., continuity of symptomatology) she alleges to have experienced since her military service. A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). So if it is shown the Veteran's stomach disorder is amongst the conditions identified in § 3.309(a) as chronic, thus as falling within the purview of this VA regulation allowing for this exception in the pleading requirements, then it will be permissible for her to try and establish the required nexus between her current disability and service by way of a showing of continuous symptoms since service. If, instead, it is shown her stomach disorder is not included in § 3.309(a), then this required nexus must be established by other means. In the meantime, and in any event, she must be provided opportunity to testify concerning this at the hearing she has requested before the Board. See 38 C.F.R. §§ 3.103(c), 20.703, 20.704, 20.1304(a) (2012). Accordingly, the claim is REMANDED for the following action: Schedule a videoconference hearing before the Board concerning this claim. Appropriately notify the Veteran and her attorney of the date, time and location of this hearing. Put a copy of this notification letter in the claims file. The Veteran's attorney apparently wants to be able to conduct a videoconference transmission, possibly 3-way, from the RO in Philadelphia, so make this accommodation if feasible. If the Veteran changes her mind and elects not to have this hearing, or fails to report for it on the date scheduled, then also document this in her claims file. She has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012). Citation Nr: 1215667 Decision Date: 05/01/12 Archive Date: 05/10/12 DOCKET NO. 94-02 647 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a stomach disorder, including as secondary to service-connected pelvic inflammatory disease. REPRESENTATION Appellant represented by: Delaware Volunteer Legal Services, Inc. WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty (AD) from October 1979 to October 1982. She also had additional service on both active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) at various times from October 1982 to August 1987 in the Army Reserves and Army National Guard. She appealed to the Board of Veterans' Appeals (Board/BVA) from May 1992, July 1992, and October 1992 decisions by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Philadelphia, Pennsylvania, and Wilmington, Delaware, denying her claims for service connection for hypertension, a stomach disorder, depression, and pelvic inflammatory disease (PID). She had a hearing at the RO in January 1993. In April 1996, the Board remanded her claims to the RO for further development and consideration. In August 1997, the RO denied her claim for posttraumatic stress disorder (PTSD). And although she initially requested a hearing at the RO before a Veterans Law Judge (VLJ) of the Board (i.e., a Travel Board hearing), she withdrew this hearing request in a July 2001 statement. In an April 2004 decision, the Board denied her claims for service connection for PID and hypertension and remanded her claims for a stomach disorder and an acquired psychiatric disorder - inclusive of PTSD, to the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. She appealed the portion of the Board's decision that had denied her PID and hypertension claims to the United States Court of Appeals for Veterans Claims (Court/CAVC). And in a February 2005 Order, granting a Joint Motion, the Court vacated the part of the Board's decision that had denied her claim for PID. The appeal as to the remainder of the decision that held that she was not entitled to service connection for hypertension was dismissed. In December 2005, to comply with the Court's Order, the Board in turn remanded her PID claim to the RO via the AMC. In June 2009, the RO issued a supplemental statement of the case (SSOC) continuing to deny her claims for service connection for PID, a stomach disorder, and an acquired psychiatric disorder inclusive of PTSD. The Board since has issued another decision, however, in September 2009, granting her claim for service connection for PID, albeit while also continuing to deny her remaining claims for a stomach disorder and an acquired psychiatric disorder inclusive of PTSD. She appealed that decision to the Court, but only to the extent it had denied her claims for a stomach disorder and an acquired psychiatric disorder inclusive of PTSD. Because the Board, instead, had granted her PID claim, she did not contest the disposition of that claim. In an October 2010 Order, granting a Joint Motion, the Court partially vacated the Board's September 2009 decision to the extent it had denied these remaining claims for service connection for a stomach disorder and an acquired psychiatric disorder inclusive of PTSD. The Court remanded these remaining claims to the Board for further development and readjudication in compliance with directives specified. And in January 2011, to comply with the Court's Order, the Board in turn again remanded these claims to the RO for additional development. The RO since has completed this additional development but continued to deny the claim for service connection for a stomach disorder in a January 2012 SSOC, so this claim is again before the Board. But in a November 2011 decision, on remand, the RO granted service connection for PTSD (also claimed as depression) with alcohol dependence in remission. The Veteran has not, however, in response, separately appealed either the rating or effective date assigned for her psychiatric disorder, so that claim has been resolved and, thus, is no longer at issue before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). Hence, only her claim for a stomach disorder remains in dispute. FINDINGS OF FACT The most probative, meaning competent and credible, medical and other evidence of record indicates the Veteran's stomach disorder - namely, her gastroesophageal reflux disease (GERD), is unrelated to her military service, including especially to acute and transitory gastroenteritis episodes while in service, and was not caused and is not being worsened or exacerbated by a service-connected disability - in particular, her PID. CONCLUSION OF LAW The Veteran's stomach disorder (GERD) is not the result of disease or injury incurred in or aggravated by her military service, may not be presumed to have been incurred in service, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist VA has duties to notify and assist the Veteran in substantiating this claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record: (1) that is necessary to substantiate this claim; (2) that VA will obtain and assist her in obtaining; and (3) that she is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court may conclude generally that a specific type of error is more likely to prejudice an appellant, the error nonetheless must be examined in the context of the facts of the particular case. Id. The Veterans Court held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), since overturned on other grounds in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). In this case, notice letters were sent to the Veteran in November 2002 and December 2005, after initially adjudicating this claim in the 1992 decisions at issue in this appeal. These letters informed her of the type of information and evidence required to substantiate this claim for service connection and apprised her of her and VA's respective responsibilities in obtaining this supporting evidence. The AMC since has readjudicated her claim in a June 2009 SSOC. So although she was not provided this required VCAA notice before initially adjudicating her claim, since the VCAA did not even exist when the RO initially adjudicated her claim, her claim since has been readjudicated since providing all required VCAA notice, so the timing defect in the provision of this notice - since it was post-adjudicatory, rather than pre-adjudicatory, has been rectified ("cured"). Additional notice also was provided in a more recent May 2010 letter, while the claim was on remand. She also was advised of the requirements of secondary service connection, an alternative basis of her claim, and of the "downstream" disability rating and effective date elements of her claim. See again Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). And since providing even this additional VCAA notice, her claim has been readjudicated in the January 2012 SSOC, including considering any additional evidence received in response to this additional notice, thus again curing the timing error of the provision of the notice. See Mayfield and Prickett, supra. Hence, she has received all required VCAA notice concerning this claim. Moreover, she has not alleged any prejudicial error in the content or timing of the VCAA notice she received. As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), as the party attacking the agency's decision, she, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and, moreover, that it is unduly prejudicial - meaning outcome determinative of her claim. Thus, absent this pleading or showing, the duty to notify has been satisfied. And as for the duty to assist, the RO obtained her service treatment records (STRs), private medical records, and VA treatment records. She also had VA compensation examinations in May 1992, May 1996, July 1998, September 2006, and February 2011 (with a December 2011 addendum), including for a medical nexus opinion concerning the determinative issue of whether any current stomach disorder is directly or presumptively related to her military service or, alternatively, secondarily related as caused or aggravated by a service-connected disability, especially her PID. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4). Indeed, the Board primarily remanded this claim in January 2011 for additional medical comment on these determinative issues, and the VA examination she resultantly had in February 2011 (with the December 2011 addendum), and the medical opinions given at the conclusion of these evaluations provide the information needed to decide this claim. So there was compliance with this remand directive. Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board itself commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing the notion of "substantial" compliance, even when there has not been "exact" compliance). The reports of these examinations, and the other evidence in the file, contain the findings needed to make this critical determination of causation and properly adjudicate this claim. So another examination or additional medical comment concerning this is not needed. 38 C.F.R. § 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Also see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated). Thus, as there is no indication or allegation that other relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. II. Analysis The Veteran contends that her stomach disorder incepted in service. And recognizing that service connection since has been granted for PID, she alternatively contends that her stomach disorder was caused or is being aggravated by her PID. Service connection is granted if it is shown she has disability resulting from an injury sustained or a disease contracted in the line of duty during her active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303(a), 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 she has at some point since filing her claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Certain diseases such as peptic ulcers (gastric or duodenal) are considered chronic, per se, 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 of separation from 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). So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). If however chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then 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 (permanency) 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 during service, (2) symptoms of that condition continued after service, and (3) the current condition is related to those continuing symptoms. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). 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. See also 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). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2011). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence also is generally, though, as mentioned, not always, required to associate the claimed condition with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). When determining service connection, all potential theories of entitlement, direct, presumptive, and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). That is, a case encompasses "all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled." Id. Moreover, "the Board is required to adjudicate all issues reasonably raised by a liberal reading of the appellant's substantive appeal, including all documents and oral testimony in the record prior to the Board's decision." Brannon v. West, 12 Vet. App. 32, 34 (1998); see also Solomon v. Brown, 6 Vet. App. 396 (1994). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record 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. Turning now to the facts of this particular case. There is no disputing the Veteran has a stomach disorder. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it, and that, without this proof of current disability, there can be no valid claim). GERD was diagnosed in VA medical opinions dated in February and December 2011. So resolution of her appeal instead turns on whether this current stomach disorder is attributable to her military service - either directly, presumptively, or secondarily by way of a service-connected disability, in particular, her PID. 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."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Initially, the Board sees that the Veteran has sometimes complained of "stomach" symptoms when referring to her lower abdomen, and service connection already has been established for her PID. So this remaining claim is for a separate stomach disorder, apart from that, although, as mentioned, this claim is partly predicated on the notion that this service-connected disability, the PID, has caused or aggravated her stomach disorder - the GERD. Her STRs show that she complained of and received treatment for abdominal pain and gastrointestinal (GI) symptoms while in service. Her STRs also show that, in March 1981, she complained of diarrhea and was diagnosed with enteritis. In April 1981 she complained of abdominal cramping, and her symptoms were attributed to menstrual discomfort. In June 1981 she complained of symptoms including abdominal pain and diarrhea, and her symptoms were attributed to PID. In July 1981, she complained of diarrhea, nausea, and abdominal pain and was diagnosed with gastroenteritis, noted as probably viral. In mid-November 1981, she complained of symptoms including nausea and vomiting and was diagnosed with acute gastroenteritis. A few days later, she was diagnosed with viral syndrome. In May 1982, she complained of diarrhea and there was no associated diagnosis; rather, she was instructed to treat her symptoms with Kaopectate. STRs from her additional service in the reserves reflect that, in September 1984, she complained of abdominal pain, diarrhea, and nausea and was diagnosed with mild gastroenteritis versus irritable bowel syndrome (IBS). A statement of medical examination and duty status dated that same day diagnosed mild gastroenteritis. Her STRs also include intermittent examinations relating to her periods of enlistment that collectively tend to show that any gastrointestinal symptoms that she experienced in service were acute and transitory. Her April 1980 Worksheet for Screening Medical Records of Newly Assigned Active Duty Personnel (Ref: AR 40-403) is unremarkable for any GI symptoms or conditions. The report of her June 1981 Well Woman Exam provides that she reported having no GI symptoms including difficulty swallowing, recurrent indigestion, change in bowel habits, and dark or bright bleeding from her rectum. The reports of her September 1982 separation examination and her May 1985 entrance exam both provide that, upon clinical evaluation she exhibited no symptoms as might related to a GI condition and do not record any history relating to such. Although her STRs establish that she had occurrences of symptoms in service that relate to her abdominal area - whether it be relating to pelvic/gynecological causes or to GI conditions, her STRs do not show these symptoms and their occurrences resulted in a permanent GI disability. That is, separate and apart from any abdominal symptoms that were attributable to her gynecological disorders, there is no indication that her GI symptoms in service resulted in "chronic" (meaning permanent) residual disability. Instead, by all indications, these symptoms were merely acute and transitory tending to resolve while she was in service, prior to the conclusion of her active duty. This is probative evidence against a finding of chronic injury or disease in service, in turn requiring a showing of continuity of symptomatology following her discharge (retirement from the military). See 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Private medical records dated since 1986 reflect occasional treatment for episodes of abdominal pain, which was attributed to various different etiologies, including to gynecological conditions, as described below. In August 1986, she complained of cramps and diarrhea; the diagnostic impression was gastroenteritis. A 1989 private medical record shows she complained of right lower abdominal pain; the diagnostic assessment was right lower abdominal pain of unclear etiology. A June 1990 private medical record from S.D., MD, reflects that the Veteran was seen for a routine physical. It was noted that she was seen one month earlier, complaining of lower abdominal pain with urination and also with bowel movement. At that time a rectal examination was unremarkable, heme negative. She indicated that her symptoms had resolved. She also reported occasional constipation. On examination, her abdomen was soft, nontender, without hepatosplenomegaly. Neither a stomach disorder nor GI disorder was diagnosed. On VA compensation and pension (C&P) examination in May 1992, the examiner indicated that by a "stomach disorder," the Veteran meant lower belly pain. The pertinent diagnosis was recurrent lower belly (pelvic) pain, cause unknown. A May 1992 VA psychiatric examination reflects that the Veteran reported that she had experienced her first episode of cramping abdominal pain in 1980, so while in service, and that she resultantly was hospitalized in Germany. She said that in general the episodes of abdominal pain occurred in the lower half of her abdomen. The psychiatrist recommended further evaluation by internal medicine, gynecology, and also a GI consultation. VA outpatient records dated from July to August 1992 reflect treatment for complaints of abdominal pain variously diagnosed as probable ovarian cyst, PID or endometriosis, chronic pelvic pain - possible adhesions. In September 1992, she complained of dizziness, headache and abdominal pain, with no nausea, vomiting or diarrhea; the diagnostic impression was gastroenteritis - probably viral. By statement dated in November 1992, she identified her claimed stomach disorder as "enteritis." She also related her "lower stomach pain" to PID. During her January 1993 RO hearing, she testified that she was treated for stomach pains in service, but was not then currently receiving any treatment for this condition, although she still had problems and planned to seek treatment for it. Private medical records dated from 1993 to 1995 reflect occasional treatment for GI complaints. In July 1993, the physician diagnosed abdominal symptoms, questionably viral, questionably gastritis, questionably other; Zantac was prescribed. In October 1994, she complained of nausea for one week and episodes of dry heaves; the diagnostic assessment was gastritis. A November 1994 private abdominal X-ray showed no intestinal obstruction or definite significant abnormal calcifications. A November 1994 abdominal ultrasound showed no sonographic abnormality in the gallbladder, liver, pancreas, spleen or kidneys, and no evidence of bile duct dilatation. In December 1994, she was seen for complaints of abdominal pain, with no vomiting or diarrhea, but with nausea; she reported that Zantac was not helpful. The diagnostic assessment was questionable GERD. A July 1995 air contrast upper gastrointestinal (UGI) series with KUB (kidneys, ureter, and bladder) was consistent with duodenitis. There was no evidence of active ulcer disease. During a May 1996 VA C&P examination, the Veteran reported that her upper belly symptoms were distinctly different from her lower belly symptoms, which are attributed to PID. She reported nonspecific nausea and upper belly pain. A then recent UGI series was reportedly normal. The examiner reviewed her STRs and noted that she was seen in sick call on several occasions for upper belly pain, but that no studies were done in service. She was not then currently taking any medication for upper belly pain. The pertinent diagnosis was non-ulcer dyspepsia. In a November 1996 addendum, the examiner indicated the diagnosis was unchanged. A July 1998 VA medical opinion reflects that the Veteran's claims file and STRs were reviewed. The examiner noted the Veteran was seen during her service on multiple occasions with symptoms of upper abdominal pain, nausea, vomiting, and abdominal discomfort and repeated episodes of diarrhea. A diagnosis of gastroenteritis was entered on multiple occasions, but a UGI series was not done, nor was an endoscopy or stool studies. Subsequently, in 1995, an UGI series showed evidence of duodenitis, but there was no mention of whether there was scarring. The examiner diagnosed PID. With respect to the stomach condition, the examiner indicated it was impossible to determine with accuracy what the Veteran's condition was in service; the following possibilities were offered: ulcer or non-ulcer dyspepsia or infectious gastroenteritis. The examiner observed the Veteran was subsequently diagnosed with endometriosis, but he felt that the issue of the endometriosis and the PID were totally separate. Private medical records reflect the Veteran had a hysterectomy in December 1998. A report of a September 2006 VA C&P examination reflects that the examiner reviewed the claims file. The Veteran complained of gas and bloating, but denied pain. She denied melena and bright red blood per rectum. She reported occasional nausea but denied vomiting or diarrhea. The examiner indicated that upon review of her medical records, reported history and clinical examination, her records did not support a finding that she had continuous digestive problems. The report further provided that, in July 1995, an upper GI study showed duodenitis; the examiner opined that the Veteran had GI symptoms at the time that could have been gastroenteritis and that the records do not support the finding of any continuing condition. Rather, the examiner noted that her examination was normal currently, and she was not on any medication. The examiner opined that lactose intolerance could be a possible cause of the Veteran's reported gas and bloating. During a February 2010 VA gynecological examination, the examiner noted that the claims file was not available for review. The examiner indicated that reports of prior C&P examinations were reviewed, however. The Veteran complained of frequent constipation. An abdominal examination was not abnormal. The examiner noted the Veteran no longer had pelvic pain, although she did have occasional lower abdominal pain and constipation. During a February 2011 VA C&P examination, the examiner noted that the claims file was reviewed. The Veteran complained of abdominal pain since the 1980s. The examiner noted that her chart showed that she had been seen on and off for the past 20 years plus for vague complaints of abdominal pain, and that most were isolated incidents. She had been treated for gastritis and GERD. The course was intermittent with remissions. The examiner observed that, in 1995, a GI work up indicated gastroenteritis and duodenitis, and she was told to avoid dairy products. An endoscopy around 2007 was normal and she was told she was lactose intolerant. The diagnosis was stomach pain. The examiner opined that the Veteran's stomach disorder was less likely as not to be caused or a result of PID. The rationale was that the abdominal pain was intermittent, and that gastroenteritis, lactose intolerance, and GERD are all unrelated to PID which was resolved in 1981, and endometriosis which resolved in 1993 or uterine fibroids which resolved in 1997. The Veteran continued to complain intermittently of abdominal pain that had not changed despite resolution of the other problems. The examiner surmised that, if the abdominal pain were related to PID, endometriosis or uterine fibroids, it would have resolved as well. In a December 2011 addendum, this VA examiner noted the Veteran had been diagnosed with lactose intolerance, and that more recently she had experienced symptoms of GERD which the American College of Gastroenterology defines as symptoms of mucosal damage caused by the abnormal reflux of gastric contents into the esophagus. A review of the STRs did not show any diagnosis of a stomach disorder incurred while in service. Both lactose intolerance and GERD are aggravated by certain foods, which could explain the Veteran's intermittent complaints of stomach pain. Neither lactose intolerance nor GERD are caused by or aggravated by a previous diagnosis of PID. So it was the examiner's opinion that the Veteran's lactose intolerance and GERD are unlikely to be related to her military service - including secondarily as caused or aggravated by her already service-connected PID. In deciding this appeal, the Board has considered all lay and medical evidence as it pertains to this claim. 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 a Veteran's service as shown by service records, the official history of each organization in which he/she served, his/her medical records and all pertinent medical and lay evidence). In rendering a decision in this 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). 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, whereas 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"). 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) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("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"). See also 38 C.F.R. § 3.303(b), requiring continuity of symptoms, not treatment. But in determining whether statements submitted or made 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). See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (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). As part of this current VA disability compensation claim, in recent statements the Veteran has asserted that her symptoms of a stomach disorder have been continuous since service. She asserts that she continued to experience symptoms referable to her stomach or abdomen (including pain and nausea) after she was discharged from the service. But after considering of all the relevant lay and medical evidence, the Board finds that the weight of this evidence shows she has not experienced continuous symptoms of a stomach disorder since service. That is, her assertion of continuity of symptomatology since service, while competent, is not credible. In recent statements related to this claim, the Veteran has asserted that her current stomach condition (GERD) dates back to her service. She is competent to say she has had recurrent stomach or other GI symptoms. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (A Veteran is competent to report what occurred in service because testimony regarding first-hand knowledge of a factual matter is competent). She also is competent to say she has experienced stomach pain ever since service, i.e., continuity of symptomatology. 38 C.F.R. § 3.159(a)(2). However, the Board is not bound to accept her lay statements concerning this as also credible, and it does not necessarily follow that there is a relationship or correlation between her current stomach disorder (GERD) and GI symptoms (such as diarrhea) in service. As mentioned, the credibility of her lay statements concerning this determinative issue of causation, not just the competency of her statements, determines its ultimate probative value and must be judged in comparison to the other relevant evidence in the file - including the medical evidence, which includes the VA compensation examiners' opinions refuting the notion that any current stomach disorder is traceable to the GI symptoms in service. It is entirely within the Board's province to give more probative weight to certain pieces of evidence than others, so long as the Board provides adequate reasons and bases. See Schoolman v. West, 12 Vet. App. 307, 310-311 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). Here, after reviewing all the relevant lay and medical evidence, the Board finds that the weight of this evidence (the most probative of it) indicates the Veteran has not experienced continuous stomach-related symptoms since service like pain, etc. Her lay statements concerning this, while competent, are not also credible. Further, as noted in the reports of the several private and VA medical examinations over the years, she has often reported "stomach" pain when, in actuality, she was referring specifically to lower abdominal pain that has been attributed by her medical health care providers to her PID (not instead to a stomach disorder). Her more recently-reported history of continued symptoms of a stomach disorder since service is inconsistent with the other lay and medical evidence of record. Indeed, while she now asserts this disorder began in service, in the more contemporaneous medical history she gave during her military separation examination, she did not report any history or complaints of symptoms of a stomach disorder. Specifically, the service separation examination report reflects that she was examined and that her GI system was found to be clinically normal. The unremarkable history of symptoms she recounted while in service, including at the time of her separation examination, is far more contemporaneous to the discrete gastroenteritis episodes noted in service, so is of more probative value than her more recent assertions to the contrary made long after the fact. 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); Struck v. Brown, 9 Vet. App. 145, 155-56 (1996) (Contemporaneous medical findings may be given more probative weight). The post-service medical evidence does not reflect continuous manifestations of a stomach condition after service, but rather indications of varying GI complaints, and a chronic stomach disorder was not diagnosed until quite recently. And while it is true she need not have received continuous treatment for her stomach disorder during those many intervening years after the conclusion of her service up to the present, only instead have experienced persistent or recurrent symptoms, the absence of complaints or findings related to this disability for a lengthy period after service is a factor weighing against continuity of symptomatology. 38 C.F.R. § 3.303(b). See also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran had failed to account for lengthy time period between service and initial symptoms of disability). The Board cannot reject the Veteran's 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). Cf. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, actual evidence that weighs against a party, must not be equated with the absence of substantive evidence). Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). The Veteran did not claim that symptoms of her stomach disorder began in (or soon after) service until filing her VA disability compensation claim in April 1992, ten years after separating from active duty service. Such statements made for VA disability compensation purposes are of lesser probative value when in contradiction to histories she previously provided. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). These inconsistencies in the record weigh against her credibility as to the assertion of continuity of symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). The Board has weighed the Veteran's statements as to continuity of symptomatology and finds her current recollections and statements made in connection with this claim for VA compensation benefits to be of lesser probative value than her previous more contemporaneous in-service history and findings at service separation and the absence of complaints for years after service. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of stomach symptoms since service. But even noting the treatment for gastroenteritis episodes in service, the September 2006, February 2011, and December 2011 VA examiners have disassociated any current stomach disorder from those episodes in service. The September 2006 examiner noted that the current examination was normal, and the February 2011 and December 2011 examiner diagnosed GERD and lactose intolerance. These examiners provided medical opinions collectively to the effect that the current stomach disorders are unrelated to the events in service, and to the effect that a continuous chronic stomach disorder is not shown. These medical reports are of high probative value because these examiners are qualified to comment on the etiology of this claimed disorder and considered the Veteran's reported history as well as her STRs and extensive post-service medical records. 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). Moreover, the February 2011 and December 2011 examiner has specifically opined that the current stomach disorder also was not caused or aggravated by the service-connected PID. See 38 C.F.R. § 3.310(a) and (b). So the examiner also ruled out the premise of secondary service connection. These examiners had the benefit of reviewing the Veteran's claims file and, thus, not only considered what is said to have occurred during service but also during the many years since. The opinions are well reasoned, detailed, and consistent with the other evidence of record. Prejean v. West, 13 Vet. App. 444 (2000). But, even more importantly, these commenting VA examiners sufficiently discussed the underlying medical rationale of the opinions, which, rather than mere review of the claims file, is more so where the probative value of the opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Green v. Derwinski, 1 Vet. App. 121 (1991). Finally, the Board notes that peptic ulcers have not been diagnosed and were not demonstrated within the first year after separation from service, certainly not to the required minimum compensable degree of at least 10-percent disabling, and thus presumptive service connection is not warranted either. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Board therefore finds that the most probative evidence is against this claim. And since, for the reasons and bases discussed, the preponderance of the evidence is against this claim, there is no reasonable doubt to resolve in the Veteran's favor, and this claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim for service connection for a stomach disorder is denied. ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs