Citation Nr: 1322101 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-04 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for multiple sclerosis (MS) to include as due to herbicide exposure. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In August 2012, the Veteran testified via videoconference before the undersigned Veterans Law Judge (VLJ). In January 2013, the Board remanded this case. FINDING OF FACT MS was not manifest during service or within 7 years of separation, and is not attributable to or related to service. CONCLUSION OF LAW MS was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran 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. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VCAA letters were sent in December 2008 and February 2013. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. 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) 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 issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determination or the elements that were lacking to substantiate the claim. The VLJ asked specific questions, however, directed at identifying whether the elements necessary to establish service connection were met. The VLJ sought to identify any pertinent evidence not currently associated with the claim. The Veteran volunteered his treatment history and symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, 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 elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements 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). Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records (STRs), VA medical treatment records, and identified private medical records were obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication that any additional evidence, relevant to these claims, is available and not part of the claims file. The Veteran also was provided a VA compensation examination, including for a medical nexus opinion concerning the etiology of the claimed MS disorder and any potential relationship with military service, as the Board directed when remanding this claim in January 2013. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The medical nexus opinion obtained is responsive to the determinative issue of causation, so additional examinations and opinions are not needed. 38 C.F.R. § 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). And see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated). The examination of record is adequate to address all pertinent concerns, as the claims file was reviewed for the relevant medical and other history, the Veteran examined, the findings reported in sufficient detail, and there was discussion of the underlying medical rationale, which is where most of the probative value of an opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA examination report is thorough and supported by the record. The records taken as a whole satisfy 38 C.F.R. § 3.326. When an appellant does not challenge a VA medical examiner's competence or qualifications, VA need not affirmatively establish the examiner's competency. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). However, even in this case, when the Veteran implies some impartiality, as in his April 2013 correspondence, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The Board further finds that in obtaining this additional medical evidence, the Board is satisfied there was compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). So, in summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." 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."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Herbicide Presumption The Veteran, during his Board hearing, asserted that he was entitled to service connection for MS on the basis that his MS began during his active service. He asserted that during service, in 1970, he lost some feeling in the right arm and sought treatment. He reported that he was told to come back for additional treatment if the symptoms did not resolve. He reported that in 1975 or 1976, after his period of active service, he underwent examination that included a finding that his facial movements were good. He reported that since separation from service, he has experienced occasional dizziness or numbness, with some unbalanced walking and dropping things. He asserted that five or six years prior, he sought treatment for an audiological issue and underwent testing that revealed MS. He described to the Board that his son was very ill with MS and that he wondered about the etiology of his son's multiple sclerosis as well. He noted that he did not know if exposure to herbicides could have caused his MS. He asserted that testing and knowledge of MS was not sophisticated enough in 1970, or 1976, for him to have been properly medically evaluated. Initially, the Board will consider if MS is presumptively due to the Veteran's inservice herbicide exposure. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. If a veteran, who served in the Republic of Vietnam was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service- connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), type II diabetes, and chronic lymphocytic leukemia. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449 (1996). Section 2 of the Agent Orange Act of 1991, Pub. L. 102-4 (Act), codified in pertinent part at 38 U.S.C.A. §§ 1116(b) and (c), provides that whenever the Secretary determines, based on sound medical and scientific evidence, that a positive association (i.e., the credible evidence for the association is equal to or outweighs the credible evidence against the association) exists between exposure of humans to an herbicide agent and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease. If the Secretary determines that a presumption of service connection is not warranted, he is to publish a notice of that determination, including an explanation of the scientific basis for that determination. The Secretary's determination must be based on consideration of reports of the National Academy of Sciences (NAS) and all other sound medical and scientific information and analysis available to the Secretary. Although 38 U.S.C. § 1116 does not define "credible," it does instruct the Secretary to "take into consideration whether the results [of any study] are statistically significant, are capable of replication, and withstand peer review." Simply comparing the number of studies which report a positive relative risk to the number of studies which report a negative relative risk for a particular condition is not a valid method for determining whether the weight of evidence overall supports a finding that there is or is not a positive association between herbicide exposure and the subsequent development of the particular condition. Because of differences in statistical significance, confidence levels, control for confounding factors, bias, and other pertinent characteristics, some studies are clearly more credible than others, and the Secretary has given the more credible studies more weight in evaluating the overall weight of the evidence concerning specific diseases. Section 3 of the Act directs the Secretary of VA to seek to enter into an agreement with the NAS to review and summarize the scientific evidence concerning the association between exposure to herbicides used in the Republic of Vietnam and each disease suspected to be associated with such exposure. Claims based on Agent Orange exposure are unique in that entitlement, under the presumptions codified in 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307 and 3.309, is based on an analysis of scientific evidence. Section 3 of the Agent Orange Act of 1991 directed the Secretary of VA to seek to enter into an agreement with NAS to review and summarize the scientific evidence concerning the association between exposure to herbicides used in the Republic of Vietnam and each disease suspected to be associated with such exposure. The Secretary determined, based on sound medical and scientific evidence, that a positive association (i.e., where the credible evidence for the association was equal to or outweighed the credible evidence against the association) existed between exposure to an herbicide agent and the disorders listed in the statute. See 64 Fed. Reg. 59232, 592233 (Nov. 2, 1999). In addition, the Secretary has published a list of specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. These include hepatobiliary cancers, nasal/nasopharyngeal cancer, bone cancer, female reproductive cancers, breast cancer, renal cancer, testicular cancer, leukemia, abnormal sperm parameters and infertility, cognitive and neuropsychiatric disorders, motor/coordination dysfunction, chronic peripheral nervous system disorders, metabolic and digestive disorders, immune system disorders, circulatory disorders, respiratory disorders (other than certain respiratory cancers), skin cancer, gastrointestinal tumors, bladder cancer, brain tumors, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 64 Fed. Reg. 59232-59243 (1999). Recent action concerning herbicide-related disability has been undertaken by VA. On October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of Veterans Affairs announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias. On August 31, 2010, VA published a final rule amending 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. 75 Fed. Reg. 53202. MS is not a condition which is presumptively related to herbicide exposure, a Veteran who contracts a disease not presumed under the regulation to be caused by herbicide exposure. Thus, presumptive service connection on that basis cannot be established. However, the Veteran may still seek to establish service connection for MS by offering competent evidence that MS was caused by military service. See 38 C.F.R. § 3.309 (2012); Combee v. Brown, 34 F.3d 1039, 1042 (1994). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In addition, MS will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within seven years of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board notes that 38 C.F.R. § 3.303(b) provides that with chronic diseases shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of cases, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of 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 disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Thus, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and the Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to 'intercurrent cause' as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. 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" such as actual treatment records). The Veteran is competent to report that which the Veteran can observe and feel through the senses. See Layno. 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. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (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). In 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 U. S. Court of Appeals for the Federal Circuit (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 United States Court of Appeals for Veterans Claims 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). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he/she has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 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). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. The Veteran's STRs do not reflect any complaints, treatment, findings or diagnosis of MS or other condition related to numbness of the right arm, or any body part. When there is silence in the STRs regarding a claimed disability, the silence may be construed as contradictory evidence if the alleged injury, disease, or related symptoms ordinarily would have been recorded in the STRs. Kahana; see also Bardwell v. Shinseki, 24 Vet. App. 36 (2010). In this circumstance, the Board must make two preliminary findings in order to rely on this inference per Kahana: (a) First, the Board must find that the STRs appear to be complete, at least in relevant part. If the SMRs are not complete in relevant part, then silence in the STRs is merely the absence of evidence and not substantive negative evidence. See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). (b) If the STRs are complete in relevant part, then the Board must find that injury, disease, or related symptoms ordinarily would have been recorded had they occurred. In making this determination, the Board may be required to consider the limits of its own competence on medical issues. Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). In this case, the STRs do appear to be complete. Secondly, the Board finds that the symptoms described by the Veteran would ordinarily have been recorded had they occurred and had the Veteran reported them. As noted, there were no inservice reports of neurological symptoms or other symptoms which were related at that time, or since that time, to MS, except as otherwise asserted by the Veteran. Moreover, post-service, the Veteran was afforded VA examinations in May 1972 and October 1976. The earlier examination noted that the neurological examination and psychiatric examination were normal. The October 1976 examination, conducted for the purpose of adjudicating the Veteran's claim for service connection for hematuria, indicated that the Veteran's neurological system was examined, along with other body systems, and no abnormality was noted. The examiner indicated that the Veteran exhibited no facial weakness, no hemiparesis, and displayed a normal gait. The remainder of the post-service medical evidence reflected an initial diagnosis of MS as shown in October 2008 VA treatment records and thereafter, which was decades after the Veteran separated from service. As already explained, competent lay evidence may establish the presence of observable symptomatology and, in certain circumstances, it may provide a basis for establishing service connection. See Barr. Although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions beyond simple observations. Jandreau; see 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 aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Indeed, even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive and, thus, not ultimately probative. Buchanan; see also Rucker and Layno. The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases. Buchanan at 1337. The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence. Id. Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In the Board's prior remand, it was noted that the Veteran reported that he did have neurological symptoms during service and thereafter, and that the Veteran was competent to report these types of symptoms, such as a loss of feeling in his right arm as well as problems with dizziness or numbness, unbalanced walking, and dropping things. Since the Veteran is competent to report these types of subjective symptoms, the Board remanded this case for the Veteran to be examined by VA and for a medical opinion to be obtained due to the medical complexities in this case. In March 2013, the Veteran was afforded a VA examination. The examiner reviewed the record and referred to pertinent findings. The examination confirmed that the Veteran has MS. The examiner stated the following. Even though, according to the Veteran, he had vague complaints of right arm numbness which he said he mentioned to a medic in 1970, and maybe even several times thereafter, the examiner noted that there was no record of such complaints. More importantly, the examiner stated that this did not give enough information to make a compensable diagnosis of MS. The examiner stated that there are many conditions which meet these symptoms, citing to inservice treatment for anxiety around that time. Also, of significance, the examiner reported that the symptoms went away, according to the Veteran, until 1976, when he had an entrance examination for the Reserves and also complained of dizziness, but there was no record of these complaints in the STRs. The record indicated that the Veteran was fit for duty on his physicals. The examiner noted that the Veteran did have hearing loss in 1970 at an early age and noted that one of the earliest signs of MS according to medical literature is hearing difficulty associated with vertigo. However, on the other hand and as evidenced in the VA records, it was almost 31 years later that an actual diagnosis of MS was made. The examiner noted that, according to the Veteran, the only complaints he had during service was right arm numbness and vertigo which was not reported in the record. The examiner indicated that if the Veteran had MS at that time, he would have had other progressive signs and symptoms before his initial diagnosis in 2007, such as bowel and bladder problems, diplopia, and profound weakness on one or both sides of the body. In light of the foregoing, the examiner opined that it was less likely as not that his MS began in the military as demonstrated by right arm numbness. The examiner explained that if the MS began in 1970, it would be hard to say that it was in remission for 31 years. The examiner further indicated that MS was not a presumptive disorder for herbicide exposure. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez. The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; 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."). In this case, the examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Although the Veteran expressed that he wanted another VA examination because of an implication that the VA examiner could not express his true opinion and because he purportedly encouraged the Veteran to pursue his appeal, the examination report is unequivocal and gives no reason for the Board to question the findings contained therein. Rather, the Board finds that the March 2013 examination is sufficient, for the reasons noted above. While the Veteran may disagree with the conclusion reached, the examiner is competent to provide an opinion as a medical professional. The opinion is probative as the examiner reviewed the record, examined the Veteran, discussed pertinent findings, and provided a thorough and reasoned analysis. The VA examiner's opinion is more probative than the Veteran's personal assessment because, as noted, the examiner is more qualified as a medical professional to assess and resolve complex medical question, as are presented in this case, than the Veteran is able to assess. Accordingly, the Board finds that service connection for MS is not warranted as it was not initially manifest during service, in the 7 year period following service, and is not otherwise attributable to service. ORDER Service connection for MS is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs