Citation Nr: 1322976 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-16 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a low back or lumbar spine disability. 2. Entitlement to service connection for a neck or cervical spine disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The appellant had periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the Army National Guard, including a period of INACDUTRA in September 1984 when the relevant injury in question is said to have occurred. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's petition to reopen his claim for service connection for a low back or lumbar spine disability and denied his additional claim for service connection for a neck or cervical spine disability. In February 2012, in support of these claims, the appellant testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board. This type of hearing is often and more commonly referred to as a Travel Board hearing. The Board subsequently, in April 2012, determined there was the required new and material evidence so reopened the claim for service connection for a low back or lumbar spine disability. But rather than immediately readjudicating this claim on its underlying merits, the Board instead then proceeded to remand this claim and the claim for service connection for a neck or cervical spine disability to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. The additional development of these claims especially included having the Veteran undergo a VA compensation examination for a medical nexus opinion concerning the likelihood these claimed disorders are the result of a documented injury he sustained during his military service, in September 1984 while on INACDUTRA, or whether they instead are the result of the additional injury he since has sustained in August 1988 at his civilian job. The AMC obtained this requested medical nexus opinion in June 2012 and, after considering it, issued a Supplemental Statement of the Case (SSOC) in November 2012 continuing to deny these claims, so they are again before the Board. FINDING OF FACT The Veteran's low back or lumbar spine disability and neck or cervical spine disability are unlikely the result of the injury he sustained during his INACDUTRA in September 1984, instead, more likely the result of the additional injury he since has sustained in August 1988 at his civilian job. CONCLUSION OF LAW His low back or lumbar spine disability and neck or cervical spine disability are not due to disease or injury incurred in or aggravated by his active military service, in particular, his injury in September 1984 while on INACDUTRA. 38 U.S.C.A. §§ 101, 106, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Notice The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and 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 his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). When a claim arises in the context of a Veteran trying to establish his/her entitlement to service connection for a claimed disability, the VCAA notice must apprise him/her of all five elements of the claim, which are: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively "cure" this error by providing any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC) such that the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample 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, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis. As the pleading party attacking the agency's decision, the appellant has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The RO provided the appellant VCAA notice concerning these claims by way of letters dated in March 2008, April 2009 and February 2010. One of these letters was not sent in the preferred sequence, having been provided after, rather than before, the initial adjudication of these claims. But the RO rectified ("cured") this timing defect in the provision of the notice by since readjudicating the claims in a November 2012 SSOC. Mayfield v. Nicholson, 499 F.3d at 1317. These letters satisfy the content requirements noted above. They inform the appellant of the evidence needed to substantiate his claims and identify the type of evidence that would best do so. They apprise him of his and VA's respective responsibilities in obtaining this supporting evidence. They include all necessary information on the downstream elements of disability ratings and effective dates in the event service connection is granted. They identify the evidence the RO requested and/or received in support of the claims and the evidence it was responsible for obtaining versus that the appellant was responsible for providing. They indicate that the RO will make reasonable efforts to assist the appellant in obtaining all other outstanding evidence provided he identifies its source(s), but that it is his responsibility to ensure VA's receipt of this and any other pertinent evidence. VA provided the appellant further notice in February 2012, during his hearing at the RO before the undersigned VLJ of the Board (Travel Board hearing). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), the VLJ chairing a hearing must satisfy two duties to comply this VA regulation, consisting of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position. Here, by questioning the appellant regarding his in-service and post-service injuries and by holding the record open for 30 days specifically so that the appellant could obtain an opinion relating his low back and neck disabilities to his in-service vehicle accident and consequent injuries, the presiding VLJ indirectly addressed the nature of the issues on appeal. At the end of the hearing, to determine whether there were any shortcomings in the evidence the appellant planned to submit, the VLJ further questioned the appellant regarding the individual who would be submitting the opinion. The VLJ asked the appellant whether that individual - identified as a medical doctor - had actually told him that his current disabilities and the in-service injuries were related. Also, in a remand subsequently issued in April 2012, the Board elaborated on the type of evidence still needed to substantiate the claims on appeal by explicitly asking for it. The Board explained that there was no medical nexus opinion of record discussing whether the appellant's low back and neck disabilities were at least as likely as not related to his in-service injuries, rather than his post-service industrial accident. Indeed, this is precisely why the Board had the Veteran undergo a VA compensation examination on remand for a medical nexus opinion concerning this determinative issue. The appellant resultantly has received all essential notice, has had a meaningful opportunity to participate effectively in the development of these claims, and is not prejudiced by any technical notice deficiency along the way, including the previously mentioned untimely notice. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir., 2004). Neither he nor his representative asserts that VA failed to comply with the VCAA's notice provisions or the requirements set forth in Bryant. B. Assistance VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by offering a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). The RO/AMC in this case satisfied its duty to assist the appellant in the development of his claims by trying to secure and associate with the claims file all documents he identified as being potentially pertinent to his claims, including his service treatment and personnel records and post-service treatment records. The RO/AMC also as mentioned, at the Board's request, afforded him a VA compensation examination, during which an examiner discussed the etiology of the low back and neck disabilities at issue. When VA provides a claimant a VA examination or obtains a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Unless the claimant challenges the adequacy of the examination or opinion, however, the Board may assume, and need not affirmatively establish, the adequacy of the examination report and the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still entitled to assume the competency of a VA examiner and the adequacy of a VA opinion without demonstrating why the medical examiner's report is competent and sufficiently informed); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Indeed, even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). In this case, neither the appellant nor his representative asserts there are any other outstanding records needing to be obtained in support of these claims or that the examination provided is inadequate, including for rating purposes, so as to in turn require an additional examination. 38 C.F.R. §§ 3.327(a), 4.2. Given the development that has occurred, it is difficult to discern what additional guidance VA could have provided the appellant regarding the evidence needed to substantiate his claims. 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."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources). In deciding these claims, the Board has reviewed all of the evidence in the appellant's claims file, both his physical and electronic ("Virtual VA") files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss, certainly not in exhaustive detail, each and every piece of evidence the appellant has submitted or which VA has obtained on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each and every piece of evidence). Rather, the Board's analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him). II. Analysis The appellant seeks service connection for low back and neck disabilities on the basis that these disabilities developed secondary to a motor vehicle accident in which he was involved in September 1984 during a period of INACDUTRA in the National Guard. According to written statements he submitted in February 2008 and September 2009 and his hearing testimony in February 2012 in support of these claims, the accident and injuries in service necessitated a two-week hospitalization and ten months of treatment, after which he was told nothing more could be done, resulted in him going before a medical board and being released from active service a year later due to the injuries, still cause problems, and necessitate the use of a wheelchair and sleeping in a hospital bed. Allegedly, he was a healthy 23-year old man when he entered service tasked with training incoming soldiers on various weapons, including the 60s, 16s and 45s, and on how to handle specialized vehicles. He contends that, during one training lesson, a soldier ran off the road into a ditch, causing the appellant to "hit [his] head on top of the metal looking down, busted my tailbone." He allegedly fell out of the back of the vehicle and onto the pavement. He further contends that, the next thing he recalls, he woke up in an ambulance, then blacked out, then woke up again at Andrews Air Force base. He asserts that he since has had massive back pain and must now spend the rest of his life in a wheelchair. Considering these lay statements, both written and oral, in conjunction with all other pertinent evidence in the claims file and applicable law and regulations, the Board finds that the preponderance of the evidence is against these claims for service connection for low back/lumbar spine and neck/cervical spine disabilities. This evidence establishes these disabilities are unlikely the result of the September 1984 injury the appellant sustained during INACDUTRA and, instead, more likely the result of additional injury he since has sustained in August 1988 at his civilian job. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Active military, naval, or air service includes any period of active duty (AD) or active duty for training (ACDUTRA) during which the individual concerned was disabled from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from injury, but not disease, incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. § 3.6(a), (c), (d). ACDUTRA, among other things, is full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). It usually covers the 2 weeks of training a reservist does during each summer, whereas INACDUTRA generally is meant to encompass the one weekend of training the reservist does each month. So to the extent the appellant is alleging that his disabilities result from injury or disease incurred or aggravated during his time in the Army National Guard, it must be remembered that only "Veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(a). Thus, to establish his status as a "Veteran" based upon a period of ACDUTRA, he must have evidence showing that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106, 1110, 1131; 38 C.F.R. §§ 3.6(a), (d), 3.303(a). See also Harris v. West, 13 Vet. App. 509, 511 (2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). And if due to injury, though not disease, there also remains the possibility it was incurred in or aggravated while on INACDUTRA Id. National Guard duty is distinguishable from other Reserve service, however, in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States[; a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). "Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. Certain diseases are considered chronic, per se, including arthritis, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after 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). It also does not apply to claims predicated on ACDUTRA and INACDUTRA service, only AD. See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010). The presumptions of soundness and aggravation also do not apply to ACDUTRA and INACDUTRA service, only instead AD. Thus, service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be granted for a disease first 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). 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), (b) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is generally, though, as will be explained, not always, required to associate the claimed condition with service or a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); McQueen v. West, 13 Vet. App. 237 (1999). When deciding claims, the Board is required to consider all potential bases of entitlement - so direct, presumptive, and secondary. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). The Board has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the U. S. Court of Appeals for Veterans Claims (Court/CAVC) has jurisdiction by virtue of a notice of disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof). This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination. Going back first to the notions of direct and presumptive service connection, in interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to direct service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or correlation between the current disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show 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." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. "Symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology" under 38 C.F.R. § 3.303(b). Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, 708 F3d. at 1336. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit Court indicated that a showing continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Id. at 1339. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. at 1338-40. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required." Id. at *1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible). See also 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). Third, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales, 218 F.3d at 1380-81. As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent. See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue. See Davidson, 581 F.3d at 1316. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy). So in certain instances 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) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). This is not always the case, however, as in certain other instances laypersons have not been found competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever); 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). The Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007). Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Id. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id. To reiterate, the competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value. See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board discounts the weight of evidence it finds not to be credible. See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 711, 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"). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. 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, 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 . . . ."). In ultimately rendering a decision on appeal, the Board must analyze the competency, then credibility, and consequent 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). Moreover, the Veteran's 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). As a finder of fact, when considering whether lay evidence is satisfactory (meaning both competent and credible), 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 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). 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 C.F.R. § 3.102. Turning now to the facts and circumstances of this particular case. Post-service medical documents, including private treatment records dated since 2007, an August 2008 letter from S.S. Samrao, M.D., and a report of VA examination conducted in June 2012, establish the appellant currently has low back and neck disabilities manifested in part by back and neck pain, variously diagnosed, including as chronic low back pain with pain syndrome, post-laminectomy syndrome of the lumbar region, multilevel degenerative changes and osteopenia of the lumbar spine, cervical spine spondylosis and osteoarthritis, and cervical disorder with myelopathy. So resolution of this appeal turns on whether these disabilities, however diagnosed, are directly related or attributable to his military service (initially manifested during service in September 1984, after or the result of the accident and resultant injuries, as alleged). See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Because this case involves a period of INACDUTRA, the Board need not consider whether these disabilities are presumptively related to the appellant's military service (meaning initially manifested to the required minimum compensable degree of at least 10-percent disabling within the initial post-service year). In addition, as the appellant does not claim, and the evidence does not otherwise suggest, that his low back and neck disabilities are the result of a service-connected disability, the Board need not consider whether these disabilities are secondarily related to (meaning caused or aggravated by) any or a combination of service-connected disabilities. The appellant served in the Army National Guard. In October 1976 and November 1977, he underwent service evaluations, during which he reported recurrent back pain. Examiners noted that he had had a motorcycle accident in 1973, during which he went unconscious. They indicated that it had caused him to develop back pain, but that he had had no back problems or other sequelae (i.e., residuals) since then. In September 1984, he served on a period of INACDUTRA. His service treatment records (STRs) show that during that period of service, on September 16, 1984, he was a passenger in a motor vehicle accident (MVA). The driver was operating a Gamma Goat vehicle when he made a U-turn and drove through a drainage ditch, causing the appellant to bounce in the back and hit his tailbone on a metal seat. The appellant also hit the back of his head, became faint and eventually was knocked unconscious. Service personnel transported him by ambulance to the Kern Medical Center, where a physician noted that the appellant had hit his buttocks very hard on a curb and diagnosed a lumbosacral strain. X-rays were normal, revealing no evidence of a fracture or destructive process. The appellant was not admitted, but placed on temporary disability with a lightened load. The next week, he presented to the emergency room complaining that he had had dizziness and been feeling faint for one or two days and had also had pain in the low back since the accident. The provisional diagnosis was questionable post-concussive syndrome. Thereafter, he received treatment with a cervical collar, whirlpool, muscle relaxants, and warm, moist heat and, by October 1984, a medical professional noted that the Veteran still had some neck stiffness but was doing well. An October 1984 service disability report includes a final diagnosis of trapezius muscle spasm, post-concussive headaches and low back pain and noted that the nature of the healing process was good. Based on this, the appellant's service department took the appellant off of temporary disability that day. In May 1988, during a reenlistment examination, the appellant reported no back or neck complaints, but an examiner noted that the appellant had mild kyphoscoliosis. In August 1988, the appellant was involved in an industrial accident. According to a December 1992 application for VA compensation, he described this accident as "holding down 3 tons of sheet metal" to protect a co-worker, when he was hit by a crank, resulting in a stiff back and legs. According to a report of that August 1988 accident, he was indeed holding metal at work, when he sustained bilateral inguinal hernias. According to service and private treatment records dated thereafter, he also sustained a lumbar straining injury and radiculopathy on the left secondary to the accident. Effective April 1989, the Social Security Administration (SSA) found him disabled based primarily on chronic lumbar strain. Thereafter, in the 1990s, the appellant regularly received treatment, including surgery, for low back and neck complaints diagnosed as lumbar stenosis, disc disease and osteoarthritis and cervical spine arthritis and disc disease and, effective May 1993, a Medical Evaluation Board found the appellant unfit for retention in the California Army National Guard based on his chronic low back pain and associated mental health issues. In 1994 and 1995, during visits with William N. Scott, M.D., the appellant reported that all of his problems began in 1988, secondary to his work accident. In 1996, during visits with Brian H. Clague, M.D., he mentioned the 1984 motor vehicle accident and associated injuries, but did not relate any back or neck problems to those injuries. Later in 1996, he told Dr. Clague that he had had back pain for several years. According to the appellant's July 1996 reported history to Arvind C. Mehta, M.D., following the September 1984 motor vehicle accident and until he underwent surgery on his cervical spine in 1996, he had headaches. He did not mention having suffered low back pain during this time frame. Since the 1990s, the appellant has suffered other serious medical conditions, including diabetes and heart disease, and in August 2005, had a stroke. He is now partially paralyzed (left side) and in a wheelchair secondary to the stroke. On medical professional - a VA examiner - has addressed the etiology of the appellant's low back and neck disabilities. After examining the appellant during a VA examination conducted in June 2012 and reviewing all volumes of his claims file, including evidence of the September 1984 and August 1988 accidents, that examiner ruled out a relationship between the low back and neck disabilities and the appellant's September 1984 service. He found that it is unlikely that these disabilities result from the September 1984 crash and injuries and more likely that they are related to the August 1988 civilian industrial accident. He based this opinion on the following findings: (1) After the second injury, the appellant underwent surgery on both his lumbar and cervical spine (lumbar laminectomy and anterior cervical fusion) and became disabled and incapable of working; and (2) Subsequently, the appellant suffered a stroke, resulting in paralysis on the left side of his body. The appellant has not submitted a medical opinion refuting that of the VA examiner. His assertions that his current low back and neck disabilities result from the September 1984 accident he was involved in while serving on INACDUTRA are thus the only evidence of record tending to establish this required causal link. He is competent to describe lay-observable symptoms he has experienced over the years, including since September 1984. Unfortunately, however, because he has no medical expertise, he is not competent to relate a low back or neck disability to a particular in-service event. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F. 3d at 1377. In any event, even if he were, in 1988, after suffering the post-service accident, he related his symptoms to that accident, not the prior 1984 accident. His more recent assertions, made for the purpose of receiving VA compensation benefits, contradict those he previously made in 1988, which in turn tends to undermine the credibility and consequent probative value of his lay testimony and statements. This is especially true considering that he made many of those earlier statements in the course of his treatment in the aftermath of his intercurrent 1988 injury. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). See, too, Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later); Struck v. Brown, 9 Vet. App. 145, 155-56 (1996) (Contemporaneous medical findings may be given more probative weight). The fact that he earlier attributed his disabilities to the injury in 1988 rather than the one prior in 1984, but now gives a different account, is reason to find his current written and oral testimony concerning this not credible. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence.). Inasmuch as there is no competent and credible evidence of record relating the appellant's low back and neck disabilities to his period of INACDUTRA, the Board concludes that such disabilities were not incurred during his active military service. The preponderance of the evidence is against each of these claims. Thus, there is no reasonable doubt concerning his entitlement to be resolved in his favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER The claim of entitlement to service connection for a low back or lumbar spine disability is denied. The claim of entitlement to service connection for a neck or cervical spine disability also is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs