Citation Nr: 1313724 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 09-19 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder (claimed as nerves). 2. Entitlement to service connection for a disorder manifested by nerve damage, specifically involving the right shoulder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision in which the RO denied the Veteran's claim for entitlement to service connection for nerve damage, nerves, residuals of a car accident. The Veteran filed a Notice of Disagreement (NOD) in June 2008. The RO issued a Statement of the Case (SOC) in April 2009. In May 2009, the Veteran filed her Substantive Appeal. Thus, the Veteran perfected a timely appeal on these issues. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in January 2012. A transcript of that hearing has been reviewed and associated with the claims file. The Board notes that the issues on appeal have been recharacterized. Initially, as the issue was adjudicated by the RO, it was phrased as follows: entitlement to service connection for nerve damage and nerves claimed as due to an automobile accident. After speaking with the Veteran and her representative the VLJ decided to break the claim into two discreet issues, as listed on the title page. In April 2012 and January 2013, the Board remanded these matters to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The case has now been returned to the Board. As a final preliminary matter the Board has reviewed the Veteran's Virtual VA paperless claims processing system, in addition to the Veteran's paper claims file. FINDINGS OF FACT 1. The Veteran's current acquired psychiatric disorder was not manifested during her active military service, is not shown to be causally or etiologically related to her active military service, and is not shown to have manifested to a degree of 10 percent or more within one year from the date of separation from the military. 2. The Veteran's current right shoulder disorder was not manifested during her active military service, is not shown to be causally or etiologically related to her active military service, and is not shown to have manifested to a degree of 10 percent or more within one year from the date of separation from the military. CONCLUSIONS OF LAW 1. Service connection for an acquired psychiatric disorder (claimed as nerves) is not established. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. Service connection for a disorder manifested by nerve damage, specifically involving the right shoulder, is not established. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). I. VA's Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in December 2007 provided the Veteran with an explanation of the type of evidence necessary to substantiate her claims, as well as an explanation of what evidence was to be provided by her and what evidence the VA would attempt to obtain on her behalf. The letter also provided the Veteran with information concerning the evaluations and effective dates that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided prior to the initial RO adjudication of her claims in the June 2008 rating decision. Accordingly, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist a veteran in the development of the claims. This duty includes assisting the veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. Her STRs and post-service treatment records have been obtained. The RO received a response from Dr. D., the Veteran's private physician, in March 2008, in which the physician stated that he did not have any records pertaining to the Veteran. VA also sent the Veteran a letter in April 2012, which provided her with the appropriate release form (VA Form 21-4142) to obtain her confidential records from her private physicians. The Veteran, however, did not return the release forms, and all other evidence that she has indicated as relevant to her claims has been obtained. The claims file also does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disorders currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran participated in VA examinations in February 2013, the results of which have been included in the claims file for review. The examinations involved reviews of the claims file, thorough examinations of the Veteran, and opinions that were supported by sufficient rationale. Therefore, the Board finds that the examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claims. Furthermore, the Veteran was afforded a Board hearing in January 2012. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2012); Procopio v. Shinseki, No. 11-1253, 2012 WL 4882287 at 3 (Vet. App. Oct. 16, 2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Here, during the Board hearing, the VLJ specifically noted the issue as entitlement to service connection for nerve damage and nerves claimed as due to an automobile accident. See Board hearing transcript, page 2. The VLJ then rephrased the issue as two separate issues for entitlement to service connection for a psychiatric disorder, claimed as nerves, and entitlement to service connection for a disability manifested by nerve damage, specifically involving the right shoulder. Id. The Veteran was assisted at the hearing by an accredited representative from the Texas Veterans Commission. See Board hearing transcript, page 1. The representative asked the Veteran questions regarding the elements of the claims that were lacking to substantiate the claims for benefits. See Board hearing transcript, page 3-7. The VLJ asked questions to ascertain whether the Veteran had submitted evidence in support of these claims. See Board hearing transcript, page 7-10. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Id. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claims for benefits. As such, the Board finds that the VLJ complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Board is also satisfied as to substantial compliance with its April 2012 and January 2013 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included sending the Veteran a letter in April 2012, which provided her with the appropriate release form (VA Form 21-4142) to obtain her confidential records from her private physicians. The Veteran, however, did not return the release forms, and all other evidence that she has indicated as relevant to her claims has been obtained. This also included scheduling the Veteran for VA examinations, which she had in February 2013. Finally, the remands included readjudicating her claims, which was accomplished in the November 2012 and February 2013 Supplemental Statements of the Case (SSOCs). Thus, the Board finds that there has been substantial compliance with its remand directives. Id. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Service Connection A. General Regulations and Statutes To establish direct service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). Certain diseases, chronic in nature, may be presumed to have been incurred during the active military service, if the evidence shows that the disease became manifest to a degree of 10 percent or more within one year from separation from active duty, even though there is no evidence of the disease during the active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Psychoses and degenerative joint disease (i.e., arthritis) have been identified as chronic diseases subject to presumptive service connection under 38 C.F.R. § 3.309(a). Id. Service connection may be awarded for a "chronic" disorder when: (1) a chronic disorder manifests itself and is identified as such during the active military service (or within the presumption period under 38 C.F.R. § 3.307, and the veteran presently has the same disorder); or (2) a disorder manifests itself during the active military service (or during the presumptive period), but is not identified until later, there is a showing of continuity of symptomatology after the military discharge, and medical evidence relates the symptomatology to the veteran's present disorder. 38 C.F.R. § 3.303. For the showing of chronic disease during the active military service, there is a required 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." 38 C.F.R. § 3.303(b). If a chronic disease is shown during the active military service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). However, continuity of symptoms is required where a disorder is noted during the active military service, but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. B. Acquired Psychiatric Disorder The Veteran seeks service connection for an acquired psychiatric disorder (claimed as nerves). In her June 2008 NOD, the Veteran indicated that she has experienced a "mental nerves condition" since her military discharge. As noted above, the first element of service connection requires medical evidence of a current disorder. Here, a current diagnosis has been established. The Veteran was diagnosed by the VA Medical Center (VAMC) with an anxiety disorder and depressive disorder in February 2009. Thus, the Veteran has satisfied the first element of service connection. As stated above, the second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. The Veteran's June 1972 military entrance examination did not document any psychiatric disorders. During service, the Veteran was seen on several occasions from April 1973 to July 1973 by the Mental Health Clinic for depression and nervousness. In June 1973, the Veteran was afforded a psychiatric evaluation, and diagnosed with an "immature personality." A discharge was recommended based on this psychiatric evaluation, and the Veteran was subsequently discharged from the military in August 1973. The Veteran's July 1973 military separation examination did not document any psychiatric disorders. However, on the Veteran's July 1973 separation Report of Medical History, the Veteran checked the boxes to indicate that she currently experienced "depression or excessive worry" and "nervous trouble." Thus, the second element of direct service connection has been satisfied. Post-service, the Veteran was first treated for her psychiatric symptoms by the VAMC in 2009. The Veteran left the active military service in 1973 and did not complain of symptoms until over thirty years later. This intervening lapse of so many years between her separation from the military service and the first documented manifestation of this claimed disorder is probative evidence against her claim. See 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 which resulted in any chronic or persistent disability). As previously mentioned, the third element of service connection requires medical evidence of a nexus between the current disorder and the in-service disease or injury. Here, the only medical nexus opinion of record is negative. On VA examination in February 2013, following a review of the claims file and a physical examination of the Veteran, the VA examiner diagnosed the Veteran with "symptoms of depression and anxiety" because her symptoms did not appear to meet the clinical threshold for a psychiatric disorder. The examiner stated that this could be because of the Veteran's current mental health treatment. Nonetheless, as that the Veteran did have current psychiatric diagnoses from her VA treatment records, the VA examiner found that it was less likely as not that the Veteran's anxiety and depressive symptoms were the result of her military service. The examiner reasoned that the Veteran's STRs suggest a history of personality disorder, and there was no evidence of a personality disorder upon an interview with the Veteran at the February 2013 VA examination. The examiner indicated that the Veteran's STRs suggest that she was distressed by work problems and that she was diagnosed with a personality disorder ("immature personality") due to perceived lack of motivation to correct work-related problems and a history of dropping out of high school. The examiner noted that, since her military discharge, the Veteran had completed her General Educational Development (GED) and held jobs for up to 7 years. The examiner found that the Veteran's current symptoms were mild and appeared to be related to situational stressors, to include unemployment, financial problems, son's incarceration, and responsibilities in caring for her grandson. Thus, in summary, the VA examiner determined that it was less likely as not that the Veteran's current acquired psychiatric disorder was the result of her active military service. The February 2013 VA examiner clearly reviewed the STRs and other evidence in the claims folder. She provided an opinion that is supported by and consistent with the evidence of record. There is no positive evidence to the contrary of this opinion in the claims file. The treatment records do not provide contrary evidence. For all of these reasons, service connection on a direct basis is not warranted. The Veteran reports continuous symptomatology since her active military service. However, the Veteran's contentions are not supported by the medical evidence of record. As stated above, the earliest pertinent post-service medical evidence associated with the claims file is dated from 2009, over thirty years after the Veteran's military separation in 1973. Further, the STRs do not show that the Veteran developed a chronic psychiatric disorder during her active military service. The STRs document a diagnosis of a personality disorder, which is not a chronic disorder for purposes of service connection. By regulation, congenital or developmental defects, such as personality disorders, are not diseases or injuries for the purposes of service connection, and thus cannot be service-connected. 38 C.F.R. §§ 3.303(c), 4.9 (2012); see Winn v. Brown, 8 Vet. App. 510, 516 (1996); see also 38 C.F.R. § 4.130 (2012); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV). Additionally, the Veteran's July 1973 military separation examination did not document any psychiatric disorders. When the Veteran was first treated post-service in February 2009, she did not indicate that her psychiatric symptoms had been present since her active military service. Thus, the Board finds that the medical evidence does not establish a "chronic disorder." 38 C.F.R. § 3.303. The Veteran's service connection claim cannot be granted on this theory of entitlement. The Board further finds that the Veteran is not entitled to presumptive service connection for psychoses. As stated above, the earliest post-service pertinent treatment records are dated from 2009, and the Veteran was separated from the active duty in 1973. No psychoses diagnosis was made within one year of the Veteran's military discharge. Thus, the presumption for service connection for chronic diseases does not apply. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). In reaching this decision, the Board has considered the Veteran's arguments in support of her claim. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which she has first-hand knowledge, e.g., an injury during her active military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Id. Although the Veteran is competent to report that she was depressed and nervous during her active military service, which resulted in her current acquired psychiatric disorder, the Board must still weigh her lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In making this credibility determination, the Board does not find the Veteran's statements concerning the etiology of her acquired psychiatric disorder to be credible, since her STRs make no reference to a psychiatric diagnosis, with the exception of a non-service-connectable personality disorder, and her military separation examination was normal. The Veteran also first complained of psychiatric symptoms in 2009, more than 30 years after her separation from the active duty. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); 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). It is important to point out that the Board does not find that the Veteran's lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson, 581 F.3d at 1313, quoting Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the Veteran's statements are found to be incredible because they are inconsistent with the evidence of record, which fails to show a service-connectable psychiatric diagnosis during her active military service, which fails to show a psychiatric diagnosis until over three decades after her separation from the active duty, and which contains a negative medical nexus opinion. For the reasons set forth above, the Board finds that the Veteran's lay statements that her psychiatric symptoms have been present since her active military service are not credible. Therefore, these statements do not warrant a grant of service connection or a determination that further development of the medical evidence is required. All other evidence of record, aside from the Veteran's statements in support of this current claim, is unfavorable to the claim for service connection for an acquired psychiatric disorder. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is not warranted. C. Right Shoulder Disorder The Veteran seeks service connection for a disorder manifested by nerve damage, specifically involving the right shoulder. As noted above, the first element of service connection requires medical evidence of a current disorder. Here, a current diagnosis has been established. The Veteran was diagnosed with degenerative changes in the acromioclavicular (AC) joint and tenonitis of the rotator cuff tendon of the right shoulder by a private physician in July 2007, based on magnetic resonance imaging (MRI) findings. The February 2013 VA examiner also diagnosed the Veteran with degenerative joint disease of the right shoulder and AC degenerative joint disease status post AC resection and supraspinatus tendinopathy. Thus, the Veteran has satisfied the first element of service connection. As stated above, the second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. In this regard, in her July 2007 claim, the Veteran stated that she was filing a claim for nerve damage due to an in-service car accident. The Veteran's STRs do not document the car accident. The STRs also do not document complaints of or treatment for the Veteran's right shoulder. However, the Veteran's separation Report of Medical History dated in July 1973 documents that the Veteran was involved in an auto accident with her military recruiter in 1972. The examining physician, in response, noted that the auto accident involved trauma to the Veteran's back and bruises to various portions of her body. The examiner indicated that no medical attention was sought for the accident. The Veteran told the examiner that she thought she might have some disability from the accident. The right shoulder was found to be normal on the military separation examination. Notwithstanding the foregoing, the Veteran is competent to testify to her in-service car accident and subsequent shoulder problems. Therefore, the Board finds the Veteran's contentions are competent and credible. It is reasonable to conclude that the Veteran was involved in a motor vehicle accident during her active military service. Thus, the second element of direct service connection has been satisfied. Post-service, the evidence of record documents that the Veteran was first treated by a private physician in 2007 for her right shoulder. The Veteran left the active military service in 1973 and did not complain of symptoms until over thirty years later. This intervening lapse of so many years between her separation from the military service and the first documented manifestation of this claimed disorder is probative evidence against her claim. See 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 which resulted in any chronic or persistent disorder). As previously mentioned, the third element of service connection requires medical evidence of a nexus between the current disorder and the in-service disease or injury. Here, the only medical nexus opinion of record is negative. On VA examination in February 2013, following a review of the claims file and a physical examination of the Veteran, the VA examiner diagnosed the Veteran with degenerative joint disease of the right shoulder and AC degenerative joint disease status post AC resection and supraspinatus tendinopathy. The examiner then determined that the Veteran's current right shoulder disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner found that the right shoulder disorder was not related to the Veteran's active military service, to include the in-service 1972 car accident. The examiner reasoned that the Veteran's right shoulder disorder was most likely related to aging. Specifically, the examiner stated that the rotator cuff is linked to females over the age of forty. The tendon most commonly injury within the rotator cuff is the supraspinatus muscle because it is subject to more stress than the other muscles of the rotator cuff. Supraspinatous tendinopathy is associated with tendon load past physiological threshold, intrinsic degeneration, and age - all of which influence the mechanical properties of the tendon. The examiner noted that calcification of the tendons is common in the elderly and alters the biomechanics of the shoulder, leading to a greater susceptibility to microtears. The examiner then reported that there was no evidence of any shoulder injury or treatment during the Veteran's active military service. The examiner indicated that the Veteran had a motor vehicle accident in 1972, but there was no evidence of any chronic or residual musculoskeletal disorder found following the months after the accident, whether in service or after the military separation. The examiner also pointed out that the Veteran had surgery for her right shoulder more than 30 years after her military discharge, and thus the current right shoulder disorder was related to the aging process. Additionally, the VA examiner noted that the Veteran had neck and arm numbness at the examination, which seemed to be related to cervical pathology and/or possible carpel tunnel syndrome. The examiner reported that the initial presentation of the neck and arm paresthesia was a few years after the Veteran's 2007 right shoulder surgery. Therefore, the VA examiner found that these symptoms are also not related to the Veteran's in-service motor vehicle accident. The VA examiner based her medical opinion on the recent medical literature, the Veteran's claims file, and an examination of the Veteran. The February 2013 VA examiner clearly reviewed the STRs and other evidence in the claims folder. She provided medical opinions that are supported by and consistent with the evidence of record. She provided an alternative theory to address the etiology of the Veteran's current right shoulder disorder - namely, aging. There is no positive evidence to the contrary of this opinion in the claims file. The treatment records do not provide contrary evidence. For all of these reasons, service connection on a direct basis is not warranted. The Veteran reports continuous symptomatology since her active military service. However, the Veteran's contentions are not supported by the medical evidence of record. As stated above, the earliest pertinent post-service medical evidence associated with the claims file is dated from 2007, over thirty years after the Veteran's military separation in 1973. Further, the STRs do not show that the Veteran developed a chronic right shoulder disorder during her active military service. The STRs do not document any complaints of or treatment for the right shoulder. The Veteran's right shoulder was normal at her military separation examination, following the conceded in-service car accident. There is no evidence in the STRs that the Veteran's right shoulder did not resolve during the time period following the in-service car accident and prior to her military discharge. When the Veteran was first treated post-service in 2007, she did not indicate that her right shoulder disorder had been present since her active military service. Thus, the Board finds that the medical evidence does not establish a "chronic disorder." 38 C.F.R. § 3.303. The Veteran's service connection claim cannot be granted on this theory of entitlement. The Board further finds that the Veteran is not entitled to presumptive service connection for degenerative joint disease of the right shoulder. As stated above, the earliest post-service pertinent treatment records are dated from 2007, and the Veteran was separated from the active duty in 1973. No diagnosis of degenerative joint disease of the right shoulder was made within one year of the Veteran's military discharge. Thus, the presumption for service connection for chronic diseases does not apply. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). In reaching this decision, the Board has considered the Veteran's arguments in support of her claim. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which she has first-hand knowledge, e.g., an injury during her active military service. See Washington, 19 Vet. App. at 368. The Federal Circuit has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan, 451 F.3d at 1335. In Davidson, 581 F.3d at 1313, and in Jandreau, 492 F.3d at 1372, the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Id. Although the Veteran is competent to report that she injured her right shoulder during her active military service, which resulted in her current right shoulder disorder, the Board must still weigh her lay statements against the medical evidence of record. See Layno, 6 Vet. App. at 465 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In making this credibility determination, the Board does not find the Veteran's statements concerning the etiology of her current right shoulder disorder to be credible. Her STRs do not contain any complaints of or treatment for her right shoulder. Following the conceded in-service motor vehicle accident, there is no evidence of treatment for the right shoulder, and the shoulder was found to be normal at the military separation examination. Further, the Veteran first reported symptoms of right shoulder pain in 2007, more than thirty years after her separation from the active duty. See Caluza, 7 Vet. App. at 511-12, aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); see also Macarubbo, 10 Vet. App. at 388 (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). It is important to point out that the Board does not find that the Veteran's lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson, 581 F.3d at 1313, quoting Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the Veteran's statements are found to be incredible because they are inconsistent with the evidence of record, which fails to show a right shoulder disorder during her active military service, which fails to show a right shoulder disorder until over three decades after her separation from the active duty, and which contains a competent negative medical nexus opinion. For the reasons set forth above, the Board finds that the Veteran's lay statements that her right shoulder symptoms have been present since her active military service are not credible. Therefore, these statements do not warrant a grant of service connection or a determination that further development of the medical evidence is required. All other evidence of record, aside from the Veteran's statements in support of this current claim, is unfavorable to the claim for service connection for a right shoulder disorder. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim and thus that doctrine is not applicable. Gilbert, 1 Vet. App. at 49. The Veteran's claim of entitlement to service connection for a disorder manifested by nerve damage, specifically involving the right shoulder, is not warranted. ORDER The claim for service connection for an acquired psychiatric disorder (claimed as nerves) is denied. The claim for service connection for a disorder manifested by nerve damage, specifically involving the right shoulder, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs