Citation Nr: 1316494 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 09-13 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for Type II Diabetes Mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1978 to February 1982 and from April 1986 to August 2002. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, denied service connection for Type II (i.e., adult-onset) Diabetes Mellitus. In July 2012, as support for this claim, the Veteran testified at a hearing at the RO in San Antonio, Texas, before the undersigned Veterans Law Judge of the Board (Travel Board hearing). The RO in San Antonio is a satellite office of the RO in Houston, which decided the claim and certified the appeal to the Board. In October 2012 the Board remanded the claim to the RO via the Appeals Management Center (AMC) for further development, including especially for additional medical comment concerning when the Veteran's diabetes incepted, particularly insofar as whether it was during or since his military service. The AMC obtained this supplemental medical opinion in February 2013 and, after considering it along with other evidence the Veteran also had submitted, continued to deny this claim in a supplemental statement of the case (SSOC) issued in March 2013. So this claim is again before the Board. FINDING OF FACT The preponderance of the evidence weighs against finding that the Veteran's Type II Diabetes Mellitus incepted during his service, or to a compensable degree within one year of his discharge, or that it is otherwise related or attributable to his service. CONCLUSION OF LAW The Veteran's Type II Diabetes Mellitus was not incurred in or aggravated by his service and may not be presumed to have been. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See Gonzales, 218 F.3d at 1380-81. The Board's analysis, therefore, focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning the claim. The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed. The law requires only that the Board address its reasons for rejecting evidence favorable to him. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, so including both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead the preponderance of the evidence is against the claim, in which case the claim is denied. Id. Veterans Claim Assistance Act (VCAA) The VCAA provides that VA has duties to notify and assist a claimant 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). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of the evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and, (3) that he is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial decision on the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of the notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the United States Court of Appeals for Veterans Claims (Court/CAVC) observed that a claim of entitlement to service connection consists of five elements: (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. See 38 U.S.C. § 5103(a) (West 2002 & Supp. 2012). So compliance with the first Quartuccio element requires notice of all five of these elements of the claim, including the "downstream" disability rating and effective date elements. See Dingess, at 486. But a VCAA notice error is not presumptively prejudicial, rather, must be determined on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, a VCAA notice letter sent in June 2006 informed the Veteran as to each element of notice as set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The notice indicated the joint obligation between him and VA in obtaining pertinent evidence and information, also indicated that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. The notice also provided information on the "downstream" disability rating and effective date elements. As well, the notice was sent prior to the initial adjudication of his claim, so in the preferred sequence. The Board therefore finds that he has received all required notice concerning his claim. The VCAA further provides that VA has a duty to assist him in the development of this claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes assistance in obtaining service treatment records (STRs) and other pertinent medical records, as well as the provision of an examination when necessary to make a decision on the claim. Id. This duty to assist in the development of this claim has been satisfied. His STRs and post-service VA and private medical records have been obtained and associated with the claims file for consideration in this appeal. He also was provided a VA compensation examination in January 2009, which the Board found inadequate for adjudicatory purposes. So the Board remanded the claim in October 2012. An addendum opinion resultantly was obtained in February 2013 and, unlike the prior opinion, this one is sufficient to decide this claim. The same VA examiner authored both opinions, and in the second one it is clear he reviewed the Veteran's claims file and medical records because references were made to specific findings. Additionally, he discussed the significance of the diagnostic tests results in the file, which he cited as support for his conclusions. The opinion therefore has the necessary factual predicate and underlying medical rationale, which is where most of the probative value of a medical opinion is derived, not just from the conclusions ultimately reached. See, e.g., Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board thus finds that the duty to assist in the development of this claim has been satisfied. With regards to the Veteran's July 2012 hearing before the Board, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that a Veterans Law Judge (VLJ) chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position. Bryant, 23 Vet. App. at 488. During the July 2012 hearing, the parties agreed that the only issue on appeal was for service connection of Type II Diabetes Mellitus. The Veteran testified and presented evidence regarding his symptoms in service, including as to why they represented the initial, i.e., early or prodromal manifestations of his diabetes, even though it was not actually diagnosed until later, after the conclusion of his service, and he argued that his initial VA examination in January 2009 was inadequate. But this is primarily why the Board subsequently remanded this claim in October 2012, to remedy the deficiencies in that initial VA examination by obtaining further medical comment concerning the time of inception of his diabetes in relation to whether it was during or since his military service. And, as mentioned, the AMC since has obtained this additional medical opinion in February 2013. The Veteran and his representative clearly understood that he needed to establish the required nexus or correlation between his diabetes and military service, such as by establishing it incepted during his service, as their arguments and testimony were focused on this very point. Hence, they evidenced their actual knowledge of the type of evidence and information needed to substantiate this claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can proceed to adjudicating this claim based on the current record. The Board is satisfied the AMC complied with the Board's October 2012 remand directives, including in terms of obtaining this necessary additional medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); but see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand not required under Stegall when there was substantial compliance with prior remand directives). As instructed, in February 2013 the AMC obtained an addendum opinion to the opinion that earlier had been provided during the January 2009 VA examination. But, as also instructed, the AMC also obtained additional treatment records. And an attempt was made, as well, to obtain the report of another examination the Veteran said even earlier had been arranged by VA, which he asserted took place in or about April 2001 and was set up by the Houston RO. The RO/AMC incorrectly sought this record from the local VA Medical Center (VAMC) in Houston, to no avail. In previous statements, the Veteran had described taking part in a program whereby he applied for VA benefits prior to separating from service. That was an apparent reference to the Benefits Delivery at Discharge (BDD) program, which allows service members to file pre-discharge claims for VA disability compensation. It reportedly was under the guise of this program that he attended an examination in April 2002 with a private contractor who tested his blood sugar and then asked him to return to test his fasting blood sugar. It appears, however, the Veteran has mistaken that examination as having occurred in either April 2001 or April 2002, when, in actuality, his claims file contains an application for benefits filed in May 2002, albeit still prior to his separation from service, and a report of an examination conducted by a private contractor and arranged by the Fort Sam Houston Intake Site for the purpose of adjudicating that earlier claim. The examination contains glucose and fasting glucose readings. It clearly did not, however, occur in either April 2001 or April 2002, but rather in June 2002, and the report of it is already in the file so does not need to be obtained. The Board finds that the June 2002 VA examination report, done by QTC Services on contract with VA, which took place under the same circumstances described by the Veteran, just at a slightly different time, is indeed the record he referenced during his hearing and in various statements, so again remanding this claim to look for an examination report instead from April 2001 or April 2002 is unwarranted. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). This is especially true when, as here, there already has been a prior remand to obtain all outstanding records. See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand, especially another remand, would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran). He has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. It is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claim. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In response to the SSOC issued in March 2013, the Veteran's representative indicated a short time later that they did not have any additional evidence to submit regarding this appeal. So, in order to expedite the processing of this claim, they asked that the AMC go ahead and return this case to the Board immediately, in the process waiving their right to wait the full 30 days allotted to submit additional evidence and argument. They also indicated that, should they submit evidence at a later time, they were waiving the right to have the claim remanded (sent back) to the Agency of Original Jurisdiction (AOJ), i.e., to the RO/AMC, for initial consideration of the evidence, preferring instead to have the Board do so in the first instance. 38 C.F.R. § 20.1304. The Veteran, himself, subsequently submitted a statement later in March 2013. Thus, as there is no indication or allegation that any other relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002). Relevant Statutes, Regulations and Cases Service connection is granted for disability resulting from a disease contracted or an injury sustained in the line of duty during active military service or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing entitlement to service connection on a direct-incurrence basis requires competent and credible evidence showing: (1) the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain diseases like diabetes are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year following separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). But if chronicity of disease or injury in service is not shown, or if it is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). 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 show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service; (2) symptoms of that condition continued after service; and, (3) the current condition is related to those continuing symptoms. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, recently held that continuity of symptomatology only can be used to establish this required linkage between the current condition and service if the condition is one of those explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Diabetes, though, is among the conditions listed. 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) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is generally, although, 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). So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if they are available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is "credible", or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible). Only if the evidence is both competent and credible does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition 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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). On the other hand, laypersons equally have been found not competent in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Turning now to the relevant facts and circumstances of this particular case. The Veteran asserts that blood tests during his military service revealed elevated glucose and triglyceride levels, which, when considered with his other symptoms of weight loss, painful feet, weakness and fatigue, frequent urination (usually about three to four times a night), shakiness (jittery), and sweating whenever he missed a meal, prove he had diabetes while in service, even though it admittedly was not actually initially diagnosed until a short time later, in 2005, after he had retired from the military. He also asserts that a nutritionist and the physician that eventually diagnosed his diabetes both told him or suggested that he had had the condition for "quite a while" or quite some time, suggesting it had originated during his service or dated back to his service. See, e.g., Board hearing transcript, pp. 3-4. In other testimony during his hearing, the Veteran insisted that the VA compensation examiner who had provided a negative medical nexus opinion in January 2009 only had considered just one instance of an elevated blood glucose reading during the Veteran's military service, in December 2001, when in actuality he had multiple elevated blood glucose readings in service - including as reflected on a STR dated April 3, 2001, and a pre-retirement examination in June 2002. That hearing testimony, as mentioned, prompted the Board to remand this claim in October 2012 for a supplemental medical nexus opinion, which since has been provided in February 2013. The STRs reveal that a glucose tolerance test (GTT) on September 9, 1981, was negative. On March 9, 1988, the Veteran's blood glucose was 58 mg/dl. On March 10, 1988, his fasting blood glucose was 82 mg/dl. On March 11, 1988, his fasting glucose was 74 mg/dl. So that represented a three-day consecutive measurement. A few months later, on September 3, 1988, he complained of lightheadedness and dizziness, which he said he had been experiencing for about a week and a half. He stated that he only felt better if he had something with sugar like candy or soda. He also complained that he was thirsty a lot. He was noted to have a strong family history of diabetes and was ordered to have his blood tested. The evaluating physician assessed dizziness of unknown etiology, and Antivert was prescribed. On November 3, 1988, he followed up on the dizziness, noting that the Antivert had helped. The evaluating physician was still unsure of the etiology of the dizziness and assessed a questionable viral syndrome as the cause. The Antivert was continued. On March 24, 1992, his triglycerides were 236 mg/dl. On May 19, 1993, after an extreme forcible plantar flexion injury, his right foot was X-rayed. There were no abnormalities seen. On November 20, 2000, his triglycerides were 460 mg/dl. On November 27, 2000, he weighed 210 pounds. On December 29, 2000, he indicated that he had "never [actually] been screened" for diabetes. His positive family history for the disease was noted, however, and he agreed to follow up, though no further immediate testing is shown. On January 16, 2001, he was sent to nutritional education. His triglycerides were 460 mg/dl. He weighed 220 pounds. On April 3, 2001, he weighed 215 pounds. On July 9, 2001, he weighed 220 pounds, and his triglycerides were noted to have been 438 mg/dl in June 2001 and 334 in March 2001. On September 10, 2001, he weighed 220 pounds. On December 3, 2001, his glucose reading was 129 mg/dl. His triglycerides were 311 mg/dl. He again was noted to have a positive family history of diabetes, but not a personal history. The laboratory results included a chart indicating this blood glucose reading, if it was taken during a fasting, would result in a provisional diagnosis of diabetes under the American Diabetes Association (ADA) criteria for diagnosing diabetes mellitus in 1997 (since it was greater than or equal to 126 mg/dL). But, as conceded, the results did not indicate whether the test was casual (non-fasting) versus fasting. The resultant assessment therefore was limited to slightly elevated glucose rather than diabetes. A week later, on December 10, 2001, the Veteran was assessed as having probable diabetes, and he was ordered to have his hemoglobin A1c checked. He weighed 218 pounds. On December 18, 2001, his fasting blood sugar was 108 mg/dl, his hemoglobin A1c was 5.0 percent, and his triglycerides were 307 mg/dl. He weighed 218 pounds. The evaluating physician assessed the Veteran as having slightly elevated glucose, in reference to the December 3rd reading of 129, but normal glucose on December 18th. He thus was advised to have his glucose checked on a yearly basis, and he was given advice on diet and exercise. On April 15, 2002, his triglycerides were 203 mg/dl. On June 4, 2002, he had a QTC examination that was arranged by VA concerning other claims that are not currently under consideration in this appeal. His glucose was 121 mg/dl, and his fasting glucose was 104 mg/dl. He retired from the military in August 2002. On December 30, 2002, he had an appointment to "check on diabetes." He was noted to be recently retired from the military and working long hours. He was not eating right or exercising and weighed 230 pounds. His triglycerides were 963 mg/dl and his glucose was 108 mg/dl. He complained of feeling thirsty and of his feet hurting. On September 24, 2004, his hemoglobin A1c was 5.6 percent. A chart on the lab results indicate a normal result falls between 4.4 and 6.7 percent. His glucose was 115 mg/dl. On November 3, 2005, he was noted to have had borderline elevated sugar in the past, and that he resultantly should undergo another fasting basic metabolic panel, which would also check his glucose levels. He initially was diagnosed with non-insulin-dependent diabetes in December 2005. His glucose was 128 mg/dl. It was noted that he said he was usually told he was a borderline diabetic. He was to repeat a fasting glucose test, and if it was high again, he would be referred to diabetes education. He was advised to lose weight and exercise. See Medical record dated December 15, 2005. On December 19, 2005, a message from his physician indicates he was informed that his second fasting glucose test was high, which was consistent with a diagnosis of diabetes. During the January 2009 VA examination, the examiner noted he had reviewed the Veteran's claims file. He commented that, in December 2001, the Veteran had slightly elevated glucose of 129 and normal hemoglobin A1c of 5.0. During the then current VA examination, his blood glucose level was 121 and his hemoglobin A1c was 6.7, which was elevated. Kidney function was normal, and the examiner commented this indicated the Veteran's hypertension was not due to diabetes. This examiner determined the Veteran's diabetes was not related to his military service because his hemoglobin A1c was normal less than one year before separation from service. The normal hemoglobin A1c, this examiner explained, indicates that glucose levels were under control. This examiner only observed one instance of elevated glucose in service, in December 2001, and concluded it was likely an anomaly or indicative of the Veteran's tendency to develop diabetes, which is also termed "prediabetic." He said that being prediabetic does not guarantee eventual fully developed diabetes. He said that when hemoglobin A1c is normal, then a diabetes diagnosis cannot be made. See the report of that VA compensation examination dated January 23, 2009. As already alluded to, as a result of the Board remanding this claim in October 2012, supplemental comment to that opinion was added in February 2013. This same VA examiner was directed to consider the Veteran's lay statements regarding his symptoms during and since service, including feelings of thirst and dizziness and having painful feet. In his supplemental report, the examiner noted that the Veteran's fasting blood sugar was 108 and his hemoglobin A1c was 5.0 in December 2001. At that time, a yearly check up, at the minimum, was recommended. He also noted that the Veteran's glucose was 108 mg/dl in November 2002, 112 in February 2003, 98 in January 2004, and 115 in September 2004. He said that glucose levels between 110 and126 were defined as "impaired fasting glucose." Hemoglobin A1c was 5.6 in September 2004. He said that he did not see evidence in the file of the Veteran's claimed weight loss, noting weights of 230 pounds in February 2003, 235 in April 2005, 230 in November 2005, and 261 in February 2006. He also said that it would not be possible to comment on the other symptoms described, as they were non-specific and he was unable to determine whether they were clinically significant. Again, though, he reiterated the Veteran clearly had impaired fasting glucose, which is also termed "borderline diabetes." But he added that it was not unexpected for the Veteran to have borderline diabetes given his family's history of diabetes. In further comment and explanation for the basis of his opinion, this VA examiner said the most telling piece of evidence is the Veteran's normal hemoglobin A1c in September 2004, which was 5.6. He noted that the upper limit of a "normal" test result was 6.7. He again noted that the Veteran's glucose on that day was 115, which falls under the category of impaired fasting glucose. He said the evidence shows the Veteran had impaired fasting glucose for many years, meaning that he had the potential or the tendency to eventually develop diabetes, but that this was not actually realized until 2005. This VA examiner therefore again determined that it is less likely than not the Veteran's Type II Diabetes Mellitus was present prior to the initial diagnosis in 2005. This VA examiner explained that many people have borderline diabetes and never ultimately develop diabetes, and that the presence of impaired fasting glucose cannot be used as a predictor of when or if diabetes develops. See VA examination addendum dated February 8, 2013. A captain of the United States Air Force also submitted an opinion. He noted he too had reviewed the Veteran's medical records, and that the Veteran had reported to him that he had symptoms of weight loss, fatigue, and frequent urination as early as December 2001. He said these findings, at the time, did not trigger an evaluation to rule out diabetes. The Veteran reported to him that, in April 2002, he had elevated fasting glucose levels, which prompted a follow-up evaluation, after which he was advised to talk about the issue with his primary care provider. Captain D.S. said the Veteran did not follow-up until he got a new physician in 2005, however, his glucose was above 129 in April and December 2002. He also said the Veteran showed triglyceride levels over 1000 throughout 2001 and 2002, and that these readings, combined with his high glucose readings, met the criteria for a Type II Diabetes Mellitus diagnosis. See Letter from D.S., Capt, USAF, PA-C, dated August 1, 2012. The Veteran also has submitted several personal lay statements regarding his medical history, including especially as concerning his diabetes in particular. He noted that his medical providers in service never showed any concern for his high blood sugar and family history of diabetes, and instead focused on his cholesterol and lipids. He asserts he had diabetes prior to separating from service, although it was never actually diagnosed, and that no credence was given to his other potentially pertinent symptoms, such as thirst and painful feet. He said the physician's assistant always said he was "slightly diabetic." He also asserts that, during the 2002 VA examination, arranged in connection with claims filed prior to separation, his glucose was high, and that he was called back for another test, which was also high. He said he was advised to speak to his primary care provider regarding diabetes. See generally statements dated April 16, 2006; June 19, 2008; April 1, 2009. He also asserts his triglycerides and fasting blood sugar were consistently over 1000 and 130 mg/dl, respectively, and that the doctor who diagnosed his diabetes in 2005 told him that he had diabetes for quite some time, so, even earlier during his service. See Statement dated February 23, 2009. The Board does not find the Veteran to be a credible historian in regards to his assertions that his triglycerides and blood sugar were consistently elevated prior to the initial diagnosis of diabetes in 2005, indeed, over 1000 and 130 mg/dl, respectively. To the contrary, the highest triglyceride level was 963 mg/dl, in December 2002, with accompanying glucose level of 108. His glucose was as high as 129 mg/dl in December 2001. None of the evidence shows readings as high as asserted, certainly not on the alleged consistent or recurring basis. He also is not credible in regards to his testimony concerning a 20-pound weight loss, which the Board sees was not accompanied by a specific time frame, although Captain D.S. indicated symptoms, including weight loss, began in 2001. But as the VA compensation examiner observed, the Veteran actually gained (rather than lost) weight between November 2000 and January 2001, and hovered between 215 and 220 pounds until after separation from service, when he weighed in at 230 pounds in December 2002. At that time, he was also noted to be working excessive hours at his civilian job and not eating right or exercising as apparently had been recommended. Further, the VA examiner noted the Veteran's weight was steady from 2003 through 2005, then increased in 2006. So while the Board is not permitted to find lay evidence not credible solely on the basis that it is unaccompanied by confirmatory contemporaneous medical evidence such as actual treatment records, see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), there is evidence in this instance tending to contradict rather than support or substantiate the Veteran's assertions. And it is entirely permissible for the Board to weigh this other evidence, including medical evidence, against his lay testimony. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991), 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). See Madden, 125 F.3d at 1481 (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue in question). The Board places more weight on the contemporaneous medical evidence and findings than on the Veteran's recollections of his test results or weight after the fact. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran); see also White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736 (1992) (statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). In regards to his other symptoms of painful feet and thirst, which he asserts also support his contention that he had diabetes in service, he is competent to report his own experiences, including the history of symptoms that are capable of even his lay perception. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (a lay person is competent to provide testimony regarding factual matters of which he or she has first-hand knowledge). He has not been shown, however, to have the medical or scientific training or expertise needed to competently ascribe or associate these symptoms with a diabetes diagnosis. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Moreover, his account that he was told by his physician and nutritionist that he was diabetic for quite a while or quite some time prior to actual diagnosis does not constitute competent and credible evidence of a nexus or relationship between his service and this eventual diagnosis. Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (finding the connection between what a physician said and a layman's account of what was purportedly said, filtered through a layman's sensibilities, simply too attenuated and inherently unreliable to constitute competent evidence). This is especially true where, as here, the VA compensation examiner has provided possible explanation for this discrepancy over just how long the Veteran has had diabetes, essentially pointing out that the terms "impaired fasting glucose", "borderline diabetes", and "prediabetic" are often used synonymously or interchangeably and do not, in fact, predispose someone to actually having diabetes or even indicate they did at the particular time when these terms were used. So while it is true to say there was mention of these terms in years past, that is, before the eventual clinical diagnosis of diabetes, also even prior mention of "probable" diabetes, it was always at most in the context of a provisional, not final or ultimate, diagnosis. The VA compensation examiner's opinions have the most probative weight as concerning how long the Veteran has had diabetes - including especially in relation to whether it started during versus since his service. He specifically references the results of diagnostic testing and evaluation during and since service used to make this diagnosis, and he explains why the earlier elevated blood sugar reading in service is offset or counterbalanced by the subsequent readings that instead were within normal limits. This, then, is why he concluded that any elevated reading in service was an anomaly rather than true indication of diabetes, that is, until the eventual diagnosis in 2005. In particular, he cited the intervening A1c reading that was just 5.6. And although the Veteran argued in his most recent March 2013 statement that the examiner's suggestion that a reading up to as high as 6.7 was within normal limits, when in fact it is not according to the medical literature the Veteran cited, the Veteran did not allege, and the evidence does not otherwise suggest, that his reading of 5.6 was outside the bounds of normal limits, even according to the medical literature he cited. In other words, he has not shown that his particular A1c reading, even according to this literature, was elevated. Indeed, even according the empirical data he cited in regards to "What's a Normal Hemoglobin A1c Test?", "[f]or people without diabetes, the normal range for the hemoglobin A1c test in between 4% and 5.6%. Hemoglobin A1c levels between 5.7% and 6.4% indicate increased risk of diabetes, and levels of 6.5% or higher indicate diabetes." So even using this empirical data he has provided, and even accepting it as true for purposes of this discussion, still shows that his 5.6 A1c reading at the intervening time mentioned was within normal limits, albeit on the boundary or fringe of normal. That was more so why the VA examiner considered that particular reading especially significant. The rest of the Veteran's March 2013 statement primarily concerns how his medications (Metformin and Byetta) and other treatments for his diabetes, namely, diet and exercise, which have been instituted since the diagnosis, now result in lower A1c readings, even if still higher than optimal. He therefore points out this only shows that his medications and other treatments in the way of diet and exercise are working as intended. But this does little to address the more determinative issue of when his diabetes originated in relation to his time in service because it only concerns what has occurred since the diagnosis, meaning since 2005. It is equally noteworthy that the VA compensation examiner also considered the Veteran's lay statements regarding the other symptoms mentioned during and since service and, yet, after investigation, found there was no indication the reported symptoms (feet pain, thirst) were clinically significant in this particular instance. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Rather, to reiterate, he indicated the Veteran's hemoglobin A1c was the most important factor in assessing when he actually developed diabetes, and that a diagnosis of diabetes could not be made or substantiated until the A1c was abnormally high, which he pointed out did not occur during the Veteran's service or even within the one-year presumptive period following his retirement from service. Consequently, this VA compensation examiner's opinion has the proper factual foundation and predicate. Generally, the degree of probative value that may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran). So as the Court made clear in Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008), the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion, not just from mere review of the claims file). See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[a] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board, then, may conversely reject a medical opinion that was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As the Court explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible if the Board rejects the statements of the Veteran as lacking credibility. In this particular instance, in questioning the credibility of his lay testimony and any medical opinion resultantly relying on this lay testimony, the Board is by no means attempting to call the Veteran an outright liar, indeed, far from that. What the Board is saying, instead, is that he seemingly has misinterpreted what actually occurred during his service in terms of whether it was concluded he actually had diabetes versus just was "prediabetic" or had "impaired fasting glucose" or "borderline diabetes". The VA compensation examiner has explained why the use of these terms, so including during the Veteran's service, might lead one to mistakenly believe they actually had diabetes. But the VA compensation examiner considered all of the relevant medical and lay evidence and, most importantly, provided explanation or rationale for ultimately disassociating the Veteran's eventual, post-service, diagnosis of diabetes from his military service, which, again, is where most of the probative value of a medical opinion is derived. Mere review of the claims file cannot compensate for this. In Miller v. West, 11 Vet. App. 345, 348 (1998), the Court held that a bare conclusion, even one reached by a medical health care professional, is not probative without a factual predicate in the record. Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connected or rating context if it contains only data and conclusions. Neives-Rodriguez, 22 Vet. App. at 304, citing Stefl, 21 Vet. App. at 125 (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); see also Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). Contrarily, the Board does not find the opinion by Captain D.S. to be probative. His opinion is seemingly largely, if not entirely, based on the medical history recounted by the Veteran. And while as mentioned, this, alone, is by no means determinative of the opinion's probative value, Captain D.S. references triglyceride levels as consistently over 1000 mg/dl, that the Veteran had numerous glucose test results of 130 mg/dl and over, and that he had a clinically significant weight loss (rather than gain) at the end of active duty. The clinical evidence in the file, however, contradicts these assertions, so undermines the essential fabric and bases of this opinion, even if on its face it is seemingly supportive of the claim. See again Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (the Board is not bound to accept medical opinions that are based upon an inaccurate factual background). The preponderance of the evidence is thus against the Veteran's claim, not instead in favor of it or even in relative balance. It is undisputed he has Type II Diabetes Mellitus and has since 2005. It has not been shown, however, to have initially manifested during his military service or within the first year following his retirement from service, or to be related to his service in any way. Accordingly, this claim of entitlement to service connection for Type II Diabetes Mellitus must be denied since the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The claim of entitlement to service connection for Type II Diabetes Mellitus is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs