Citation Nr: 1320858 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 10-22 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for residuals of a right foot cold injury. 2. Entitlement to service connection for diabetes mellitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from September 1946 to September 1948, and from September 1950 to September 1953. This matter is before the Board of Veterans' Appeals (the Board) on appeal of an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columba, South Carolina, which denied the Veteran's service-connection claims for diabetes mellitus, type II, and for residuals of a right foot cold injury. The Veteran disagreed with the RO's determinations, and perfected an appeal as to both issues. In June 2011, the Veteran and his spouse testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the Veteran's VA claims folder. The Board remanded the Veteran's appeal in August 2011 and January 2013 for additional evidentiary development. The Appeals Management Center (AMC) subsequently readjudicated the Veteran's service-connection claims in October 2012 and May 2013 supplemental statements of the case (SSOCs), and returned the Veteran's claims file to the Board for further appellate review. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's currently diagnosed residuals of a right foot cold injury is not related to his military service. 2. The Veteran's currently diagnosed diabetes mellitus is not related to his military service. CONCLUSIONS OF LAW 1. Residuals of a right foot cold injury was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Diabetes mellitus, type II, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for residuals of a right foot cold injury and diabetes mellitus. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in August 2011 and January 2013, the Board remanded these claims and ordered the agency of original jurisdiction (AOJ) to obtain outstanding VA and private treatment records as well as obtain a VA medical nexus opinion with respect to the Veteran's residuals of right foot cold injury and associate a copy of the report with his claims folder. The Veteran's claims were then to be readjudicated. Pursuant to the Board's remand instructions, the AMC obtained outstanding VA treatment records and attempted to obtain outstanding private treatment records. Additionally, a VA medical nexus opinion was obtained in October 2012 with regard to the Veteran's residuals of right foot cold injury and a copy of the opinion was associated with the Veteran's claims folder. The Veteran's claims were readjudicated via the October 2012 and May 2013 SSOCs. Accordingly, the Board's remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the effective-date element of the claim, by a letter mailed in March 2009, prior to the initial adjudication of his claims. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims and there is no reasonable possibility that further assistance would aid in substantiating these claims. The evidence of record includes statements from the Veteran and other individuals, the Veteran's service treatment records, as well as VA and private treatment records. As noted above, the Veteran also was afforded a hearing before the undersigned VLJ during which he presented oral argument in support of his service connection claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the Veteran's right foot and diabetes symptomatology, and suggested the submission of evidence that would be beneficial to the Veteran's claims, namely evidence pertaining to a nexus between the Veteran's residuals of right foot cold injury and diabetes and his military service. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the rating criteria necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the criteria necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran was afforded a VA examination in December 2010 with an addendum obtained in October 2012 as to his residuals of right foot cold injury. The VA examination report reflect that the examiner interviewed and examined the Veteran, reviewed his past medical history, reviewed his claims folder, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination report with addendum is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board notes that the Veteran was not provided a VA examination and nexus opinion with regard to his claim for diabetes mellitus. Under 38 C.F.R. § 3.159(c)(4) (2012), VA will provide a medical examination or opinion if the information and evidence of record does not contain sufficient medical evidence for VA to make a decision on the claim but: (1) contains competent lay or medical evidence that the claimant has a current diagnosed disability, or persistent or recurring symptoms of disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further finds that there is sufficient evidence to decide this claim, and that further medical examination or opinion is not necessary to decide the claim for service connection for diabetes mellitus. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, as discussed in further detail below, there is no competent evidence that the Veteran suffered an event, injury, or disease, in service resulting in his diabetes. Specifically, the Board has found the Veteran's allegations concerning the alleged in-service manifestation of diabetes to not be credible. Furthermore, there has been no competent evidence to suggest in-service onset of diabetes. Accordingly, a VA examination is not warranted. The facts of this case are different than the facts in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case, there is no credible supporting evidence that the Veteran's claimed in-service manifestation of diabetes or manifestation within one year following his discharge from service occurred. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board notes that the Veteran submitted a release form [VA Form 21-4142] dated November 2009 indicating treatment for his diabetes from Athens Regional Medical Center in October 1953. The RO subsequently contacted this facility in January 2010 in order to obtain these records. However, a negative response was subsequently received. The Veteran was informed of the negative response by the RO in the March 2010 statement of the case and did not thereafter submit any records from Athens Regional Medical Center. Additionally, a letter from F.S., M.D., dated December 2009 indicates that he and P.P., M.D., treated the Veteran for diabetes "in the mid 1950s" at the Doctor's Clinic, now known as Doctor's Family Medicine. The AMC thereafter attempted to obtain these records from Doctor's Family Medicine but received a negative response. The AMC informed the Veteran of the negative response in the October 2012 SSOC and the Veteran did not thereafter submit any records from this facility that were not previously associated with his claims folder. Furthermore, the Veteran submitted a Statement in Support of Claim dated September 2011 indicating that he received medications from multiple pharmacies in the years following his separation from service to the present day. Indeed, he specifically noted prior dealings with Professional Pharmacy from the 1950's to the early 1990's. Pursuant to the Board's January 2013 remand, the AMC contacted the Professional Pharmacy in order to obtain potential outstanding records. However, in a response dated April 2013, the Professional Pharmacy reported that they did not have any records pertaining to the Veteran. The AMC informed the Veteran of the negative response in a letter dated April 2013 and further instructed him that if he had any records in his possession, he should submit them. As evidenced by the claims folder, the Veteran did not send any records in response to the AMC's letter. Although the absence of outstanding private treatment records from Athens Regional Medical Center, Doctor's Family Medicine, and Professional Pharmacy is regrettable, the Board finds that VA adjudication of the appeal may go forward without these treatment records. Crucially, the RO and AMC attempted to locate these records and subsequently informed the Veteran of the negative responses. Moreover, the Veteran had an obligation to assist VA in the development of his claims. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). The Board's decision to not remand the appeal for a third time to obtain these records is supported by the fact that it appears that the RO and AMC made sufficient attempts to locate the private treatment records. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has retained the services of a representative. Moreover, he testified at a videoconference hearing in June 2011. Accordingly, the Board will proceed to a decision as to the issues on appeal. Service connection for residuals of right foot cold injury Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including organic diseases of the nervous system, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. As to element (1), current disability, the medical evidence of record documents diagnosis of a history of cold injury in the right foot as well as neuropathy. See the December 2010 VA examination report; see also a VA treatment record dated June 2012. Element (1) is therefore satisfied. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Veteran has stated that during his period of military service in Korea, he injured his right foot from prolonged exposure to cold weather. See, e.g., the June 2011 Board hearing transcript, pgs. 3-4. The Board notes that the Veteran's service treatment records do not document complaints of or treatment for a right foot disability or an injury associated with exposure to cold weather. However, the Board notes that the Veteran is competent to attest to experiencing exposure to cold weather. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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). Therefore, although the Veteran as a lay person has not been shown to be capable of making medical conclusions, he is competent to report the circumstances of exposure to cold temperatures. Further, the Veteran's DD 214 verifies service in Korea and award of the Korean Service Medal. The Board notes that the record does not reflect medical evidence showing any manifestations of disease of the right lower extremity during the one-year presumptive period after the Veteran's separation from service. On the contrary, the record does not reflect any complaints or findings of an organic disease of the right lower extremity until November 2001 (more than 45 years after the Veteran's separation from active service). Service connection is therefore not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). Turning to crucial element (3), nexus, the Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record supports a finding that the Veteran's current residuals of right foot cold injury is not related to his military service. In this regard, the Board notes that the Veteran was afforded a VA cold injury examination in December 2010. Pertinently, the examiner considered the Veteran's report of injury to his right foot from cold weather during military service in Korea. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed the Veteran with a history of cold injury in the right foot and concluded in an October 2012 addendum that the Veteran's claimed right frozen right foot injury is less likely as not related to his military service. The examiner's rationale for his opinion was based on his finding that the Veteran's September 1953 separation examination did not mention any abnormality in his feet. Furthermore, there was no mention of any frostbite or frozen foot exposure to cold injury to his feet. The December 2010 VA examination report with October 2012 addendum appear to have been based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Additionally, the VA examiner's opinion appears to be consistent with the Veteran's medical history, which is absent any symptomatology of cold weather injury residuals of the right foot for several years after service. Further, in rendering the opinions, the VA examiner considered the Veteran's service treatment records as well as the Veteran's report of in-service cold weather exposure, and determined that the residuals of right foot cold weather injury is not related to the Veteran's military service. The Veteran has not submitted a medical opinion to contradict the VA examiner's opinion. As was explained in the VCAA section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has failed to do so as to. See 38 U.S.C.A. § 5107(a) (West 2002) [it is the claimant's responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board observes that the Veteran's wife testified at the June 2011 Board hearing as to the Veteran's right foot cold weather injury residuals symptomatology. The Veteran also submitted a statement dated April 2010 from A.J., who served with the Veteran in the U.S. Marine Corps and indicated that the Veteran was exposed to cold weather during service. The Board notes that the Veteran, his wife, and A.J., while entirely competent to report the Veteran's symptoms both current and past (including numbness in the right lower extremity), have presented no probative clinical evidence of a nexus between the Veteran's residuals of right foot cold injury and his military service. The Board finds that the Veteran, his wife, and A.J. as lay persons are not competent to associate any of the Veteran's claimed symptoms to military service. That is, the Veteran, his wife, and A.J. are not competent to opine on matters such as the etiology of the Veteran's current residuals of right foot cold injury. Such opinion requires specific medical training and is beyond the competency of the Veteran, his wife, A.J., or any other lay person. In the absence of evidence indicating that the Veteran, his wife, or A.J. have the medical training to render medical opinions, the Board must find that their contentions with regard to a nexus between the Veteran's residuals of right foot cold injury and his military service to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran, his wife, and A.J. in support of the Veteran's own claim is not competent evidence of a nexus. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. The Board notes that the Veteran appears to be contending that he has had residuals of right foot cold injury continually since service. However, the first postservice evidence of complaint of, or treatment for this disability is dated in November 2001. See a VA treatment record dated November 2001. This was more than 45 years after the Veteran left service in September 1953. While the Veteran is competent to report symptoms such as pain and numbness in his right foot over the years since service, the Board notes that a right foot disability associated with cold weather exposure was not diagnosed at the time of his service discharge. The Board finds that his current statements regarding a continuity of residuals of right foot cold injury are not credible. His September 1953 separation examination from service as well as the December 2010 VA examination with October 2012 addendum contradict any current assertion that his current residuals of right foot cold injury were manifested during service. There is no competent medical evidence that the Veteran complained of or was treated for residuals of right foot cold injury for many years after his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. The Board accordingly places no probative value on the assertions of the Veteran that there has been a continuity of symptomatology dating to service. Therefore, continuity of symptomatology after service is not demonstrated. Accordingly, Hickson element (3) is not met, and the Veteran's claim fails on this basis. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for residuals of right foot cold injury. The benefit sought on appeal is accordingly denied. Service connection for diabetes mellitus, type II The law and regulations generally pertaining to service connection have been set forth above and will not be repeated here. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) nexus. See Hickson, supra. The Veteran is claiming entitlement to service connection for diabetes mellitus, type II, which he contends is due to his military service. The Board notes that he has not claimed that his diabetes was associated with exposure to herbicides during military service, nor does the evidence of record otherwise reflect such. As to Hickson element (1), the competent and probative evidence of record documents diagnoses of diabetes mellitus. See, e.g., a VA treatment record dated June 2012. Hickson element (1) is therefore satisfied. Turning to crucial element (2), in-service incurrence of an injury or disease, the Veteran essentially contends that his current diabetes mellitus manifested during his period of military service or alternatively, within the one year presumptive period following his discharge from service in September 1953. However, the Board finds the Veteran's contentions to be lacking in probative value and are not credible. Crucially, his service treatment records, to include his September 1953 separation examination, indicate no suggestion of treatment for diabetes. Additionally, the evidence of record does not indicate suggestion of treatment for diabetes until many years following the Veteran's discharge from service. The earliest document showing a history by the Veteran of being diagnosed with diabetes dating back to service is in September 1998. See a private treatment record from Greenville Memorial Hospital dated September 1998. This is more than 40 years after his separation from service. 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 Maxson, supra. As discussed above, Dr. F.S. noted in a December 2009 letter that he and Dr. P.P. treated the Veteran for diabetes "in the mid 1950s" at the Doctor's Clinic which is now known as Doctor's Family Medicine. However, the AMC attempted to obtain these records and a negative response from Doctor's Family Medicine was provided. Furthermore, the Veteran was notified of the negative response and did not thereafter submit any treatment records. While the Board does not doubt the sincerity of Dr. F.S.'s statements, the available evidence of record does not show treatment for the Veteran's diabetes for more than 40 years after discharge from service. The Board observes that 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 (e.g. any evidence not requiring that the proponent has specialized education, training, or experience). 38 C.F.R. § 3.159(a)(2). As such, the Veteran can competently testify about symptoms he experienced in service. However, competency must be distinguished from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the present case, the Board finds that the Veteran's history of diabetes mellitus since service is not credible in light of both the lack of any post service treatment or complaints of diabetes mellitus until September 1998. Accordingly, the Veteran's recent unsupported and self-serving statements concerning in-service development of diabetes and treatment for such within one year following discharge from service in September 1953 are at odds with the remainder of the record, which is devoid any indication that any injury or disease occurred during service or for more than 40 years thereafter. As such, the Veteran's statements are lacking credibility and probative value. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. In short, there is no objective indication of an in-service diagnosis of diabetes mellitus or symptomatology attributed therewith. Element (2) is therefore not met, and the Veteran's claim fails on this basis. For the sake of completeness, the Board will discuss element (3), nexus. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) [the Board has the fundamental authority to decide a claim in the alternative]. There is no competent evidence of record that establishes a causal relationship between the Veteran's currently diagnosed diabetes mellitus and his military service. In the absence of in-service disease or injury, it would seem that such nexus opinion would be impossible. The Board notes that the Veteran submitted a statement dated April 2010 from A.J., who served with the Veteran in the U.S. Marine Corps and reported that at the end of 1953, the Veteran stated that he had been diagnosed with diabetes. To the extent that the Veteran and A.J. assert that the Veteran's diabetes mellitus is related to his military service, the Board observes that lay people are competent to testify to visible or otherwise observable symptoms of disability. See Jandreau and Buchanan, both supra. Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson, supra (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, the Veteran's statements that he has diabetes that is due to service and A.J.'s statement indicating such relate to an etiological question as to an internal, not directly observable disease, unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. Compare Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis) with Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The lay statements of the Veteran and A.J. concerning a relationship between the Veteran's diabetes and military service are therefore not competent in this regard. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. The Board notes that the Veteran appears to be contending that he has had diabetes continually since service. However, as mentioned above, the first postservice evidence of complaint of, or treatment for, diabetes is dated in September 1998. See a private treatment record from Greenville Memorial Hospital dated September 1998. This was more than 40 years after the Veteran left service in September 1953. The Board finds that the Veteran's current statements regarding a continuity of diabetes symptomatology since service are not credible. In particular, the Board reiterates that diabetes was not diagnosed at the time of his service discharge. His September 1953 separation examination from service as well as the medical evidence of record contradict any current assertion that his current diabetes was manifested during service. There is no competent medical evidence that the Veteran complained of or was treated for diabetes for many years after his separation from service. See Maxson and Mense, both supra. The Board accordingly places no probative value on the assertions of the Veteran that there has been a continuity of symptomatology dating to service. Therefore, continuity of symptomatology after service is not demonstrated. Accordingly, element (3) is not met, and the Veteran's claim also fails on this basis. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for diabetes mellitus. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for residuals of a right foot cold injury is denied. Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs