Citation Nr: 1330969 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-16 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for Diffuse Idiopathic Skeletal Hypertosis (DISH syndrome) of the cervical spine and left hip, including as secondary to service-connected dermatofibrosarcoma protuberans and diabetes mellitus, type 2. 2. Entitlement to service connection for esophagus problems, including trouble swallowing and as secondary to the DISH syndrome of the cervical spine and left hip. 3. Entitlement to service connection for hypertension, including as secondary to the service-connected diabetes mellitus, type 2. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active military service from January 1970 to December 1972. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2010, in support of these claims, the Veteran testified at a hearing at the RO before a local Decision Review Officer (DRO). He later requested another hearing at the RO, but this time before a Veterans Law Judge (VLJ) of the Board. By letter, the RO acknowledged his request for this additional hearing and informed him of the date, time and location of it, but on that date (July 3, 2013) he failed to report for the proceeding, so was marked a "no show". Given that he did not request a postponement and rescheduling of the hearing, and did not provide any good-cause explanation for failing to appear, the Board deems his request for a hearing before the Board withdrawn pursuant to 38 C.F.R. § 20.704(d) (2013). The electronic ("Virtual VA") portion of the Veteran's claims file includes additional VA treatment records that the RO did not consider in the first instance. But none of these records are pertinent to whether the Veteran's DISH syndrome and esophagus problems are related to his service or a service-connected disability. So a remand for the RO's initial consideration of these records is not required. 38 C.F.R. § 20.1304. On a VA Form 21-8940 (Veteran's Application For Increased Compensation Based On Unemployability) dated in October 2012 and a VA Form 21-4138 (Statement In Support Of Claim) dated in March 2013, the Veteran raised claims of entitlement to a total disability rating based on individual unemployability (TDIU) and for the addition of his spouse as a dependent for compensation purposes. The RO has not initially considered these additional claims, so the Board is referring them to the RO for appropriate development and consideration. A November 2003 letter from The Center for Pain Relief raises another claim for consideration - entitlement to service connection for nerve damage in the shoulder secondary to the service-connected dermatofibrosarcoma protuberans. Thus, the Board also is referring this claim to the RO for appropriate development and consideration. As for the claims that are before the Board, the claim of entitlement to service connection for hypertension, including as secondary to the service-connected diabetes mellitus, type 2, requires further development before being decided on appeal. Consequently, the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. Whereas the Board, instead, is going ahead and deciding the claims for service connection for DISH syndrome of the cervical spine and left hip and for esophagous problems. FINDINGS OF FACT 1. Because of when and where he served, namely, in Thailand, it is presumed the Veteran was exposed to herbicides (the dioxin in Agent Orange) while there. 2. It is not however shown that the DISH syndrome of his cervical spine and left hip is the result of his service, including the presumed herbicide exposure, or his service-connected dermatofibrosarcoma protuberans and/or diabetes mellitus, type 2, but rather is of unknown etiology. 3. The DISH syndrome of his cervical spine and left hip did not manifest to a compensable degree within a year of his discharge from service. 4. His esophagus problems, including trouble swallowing, are likewise unrelated to his service, including the presumed herbicide exposure, or a service-connected disability, but rather are related to the DISH syndrome and/or gastroesophageal reflux disease (GERD). CONCLUSIONS OF LAW 1. The DISH syndrome of the Veteran's cervical spine and left hip was not incurred in or aggravated by his active military service, may not be presumed to have been, and is not proximately due to, the result of, or aggravated by his service-connected dermatofibrosarcoma protuberans and/or diabetes mellitus, type 2. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). 2. His esophagus problems, including trouble swallowing, also were not incurred in or aggravated by his service, may not be presumed to have been, and are not proximately due to, the result of, or aggravated by his service-connected dermatofibrosarcoma protuberans and/or diabetes mellitus, type 2. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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) (2013). 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, upon receipt of a complete or substantially complete application for benefits, 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; but also the "downstream" (4) degree of disability, i.e., disability rating; and (5) effective date. 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 notice prior to initially adjudicating 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 - including 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 Veteran this required VCAA notice concerning these claims by way of letters dated in March 2008, October 2008, February 2009, March 2009, January 2011 and April 2012. Two of the letters were 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 Veteran 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 had requested and/or received in support of the claims and the evidence that was no longer available, so unobtainable. They indicate the RO would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence, provided he identified its source(s), but that it was his ultimate responsibility to ensure VA's receipt of this and any other pertinent evidence. In the letters and a June 2011 memorandum, the RO specifically explains the steps it took to obtain the records upon which the Social Security Administration (SSA) had relied in awarding the Veteran disability benefits. It indicated that, despite these steps, the records could not be obtained as they had been destroyed. (As an aside, even though this evidence is unavailable, Volume I of the claims file includes SSA's May 2004 favorable decision, which summarizes the medical evidence upon which it relied.) The Veteran 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 notices. 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. 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 when necessary to decide the claim, 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 in this case satisfied its duty to assist the Veteran in the development of his claims by trying to secure and associate with the claims file all documents he had identified as being potentially pertinent to his claims, including his service treatment and personnel records, post-service treatment records, and as mentioned information from SSA. The RO also afforded the Veteran VA compensation examinations, during which examiners discussed the etiology of his DISH syndrome and esophagus problems, which is the determinative issue since he alleges these conditions are the result of his military service. When VA provides a claimant a VA examination or obtains a VA medical 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 Veteran nor his representative asserts there are any other outstanding records needing to be obtained in support of these claims or that the examinations provided were inadequate, including for rating purposes, so as to in turn require an additional examination. 38 C.F.R. §§ 3.327(a), 4.2 (2012). Given the development that has occurred, it is difficult to discern what additional guidance VA could have provided the Veteran 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 Veteran'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 Veteran 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 Veteran is alleging entitlement to service connection for DISH syndrome (considered a form of degenerative arthritis or osteoarthritis) of the cervical spine and left hip and problems with his esophagus, including difficulty swallowing, primarily on the basis that the former developed secondary to his service-connected dermatofibrosarcoma protuberans, or the treatment therefor (radiation), and/or diabetes mellitus, type 2, and the latter developed secondary to the DISH syndrome. According to his initial application for compensation, written statements he submitted in August 2008, October 2008, November 2008, March 2009, May 2009, April 2010 and March 2012 and his March 2010 hearing testimony, the DISH syndrome manifested in 2003 and the esophagus problems manifested in 2006 (years after his 2000 cancer diagnosis and his 2002 diabetes diagnosis). It is unclear whether he is also claiming entitlement to service connection for these conditions on a direct- or presumptive-incurrence basis. He asserts that he has multiple problems that might have developed secondary to his exposure to Agent Orange while serving as a missile system maintenance specialist at Udorn Royal Thai Air Force Base in Thailand in the early 1970s. He contends that the duties of this position included driving through and working near the munitions storage facility and base perimeter, both of which the military sprayed with Agent Orange, and even crossing the perimeter daily. He has not specifically mentioned his DISH syndrome or esophagus problems when so alleging. Regardless, based on his service in Thailand, the RO already has accepted and presumed that he was exposed to herbicides while there; indeed, this was the basis for resultantly granting presumptive service connection for his dermatofibrosarcoma protuberans and diabetes mellitus, type 2. But considering his statements, both written and oral, in conjunction with all other pertinent evidence in the claims file and applicable laws and regulations, the Board finds that the preponderance of the evidence is against these additional claims of entitlement to service connection for the DISH syndrome of the cervical spine and left hip, including as secondary to the service-connected dermatofibrosarcoma protuberans and diabetes mellitus, type 2, and for the esophagus problems, including trouble swallowing and as secondary to the DISH syndrome. The evidence establishes these disabilities are unrelated to his military service or any service-connected disability. Instead, the DISH syndrome is of unknown etiology and the difficulty swallowing is due to the DISH syndrome and GERD, but which, as mentioned, are unrelated to his service. 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; 38 C.F.R. § 3.303(a). 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; 38 C.F.R. §§ 3.307, 3.309(a). In some circumstances, a disease associated with exposure to certain herbicide agents also may be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). But neither DISH syndrome nor esophagus problems, including difficulty swallowing, is a disease presumptively associated with herbicide exposure. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Service connection nonetheless 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). 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). Thus, service connection may be established either by showing direct service incurrence or aggravation, presumptively, or secondarily by way of a service-connected disability. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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 VA and private treatment records dated since the Veteran filed his claims in 2008, reports of VA examinations in 2010 and 2012, and a July 2012 letter from Timothy Deer, M.D., establish the Veteran has the alleged DISH syndrome and a digestive system disorder manifested, in part, by swallowing difficulties (dysphagia). So resolution of this appeal turns instead on whether these claimed disabilities are directly or presumptively related or attributable to his military service, including the presumed Agent Orange exposure, or secondarily by way of a service-connected disability, including especially his dermatofibrosarcoma protuberans and/or diabetes mellitus, type 2. A. DISH Syndrome The Veteran reported a stiff neck in 1972 during his service, but no examiner diagnosed DISH syndrome, including affecting the cervical spine or otherwise. On separation examination in November 1972, the Veteran noted that he had not had any swollen or painful joints (other than Legg-Perthes disease in the right hip during childhood), arthritis, rheumatism or bursitis or recurrent back pain. The examiner noted normal clinical evaluations of the spine and lower extremities. The Veteran's military service ended the following month, so in December 1972. Many years later, in 1989, he had a lesion described as dermafibroma removed from his upper left back. In 1991 and 1997 the lesion recurred, requiring excision. In 2000 the lesion (then described as dermafibrosarcoma protuberans, a soft-tissue cancer) again recurred, necessitating a very wide and deep excision of skin and subcutaneous tissue and radiation therapy. That same year, he underwent an abdominal computed tomography (CT) scan that showed degenerative changes, including vascular calcifications and hypertrophic osteophytes. Thereafter, in 2001 or 2002, he was diagnosed with diabetes, type 2. In 2003, he began complaining regularly of pain in various joints. According to a February 2006 CT scan of his cervical spine, the changes shown were degenerative and characteristic of DISH syndrome. Since then, he has received treatment regularly for the DISH syndrome affecting multiple joints, including his cervical spine and left hip. In support of his claim of entitlement to service connection for the DISH syndrome of his cervical spine and left hip, he submitted an article from Memorial Sloan-Kettering Cancer Center, which discusses long-term and late effects resulting from the main types of cancer therapy, including surgery and radiation. He alleges this article substantiates a relationship between cancer therapy and accelerated arthritis in other joints, i.e., DISH syndrome. Indeed, it describes such a relationship, but in cases in which the patient underwent an amputation or limb-sparing procedure. He also submitted articles discussing DISH syndrome (Forestier's disease), including in conjunction with diabetes. These articles indicate that dysphagia can result, albeit rarely, from physical impingement by bony overgrowth associated with DISH syndrome, that the etiology of DISH syndrome is uncertain, and that the disease occurs more frequently, is more common, or has an increased incidence in people with diabetes as diabetes affects connective tissues. One article explains that DISH syndrome may be associated with type 2 diabetes, "perhaps due to insulin or insulin-like growth factors that promote new bone growth." Several medical professionals have addressed the etiology of the DISH syndrome or the pain the Veteran claims is associated with it, including in terms of whether there is a relationship to events that occurred during his military service or with service-connected disabilities. During treatment visits with Samar Atassi, M.D., the Veteran reported osteoarthritic pain that had started after his debilitating cancer. By letter dated in August 2004, Dr. Atassi indicated the Veteran had a history of dermatofibrosarcoma, which had recurred, necessitating a deep and wide procedure and radiation. Dr. Atassi explained that this procedure involved removing muscle and that the radiation had caused the Veteran to develop a great amount of pain. Dr. Atassi did not discuss whether the pain was joint-related and a symptom of the Veteran's DISH syndrome, much less whether the DISH syndrome was the result of the Veteran's military service, including by way of a service-connected disability. During a VA mental disorders examination in November 2010, a VA examiner succinctly noted pain as a complication of the Veteran's dermatofibrosarcoma protuberans. But this examiner also did not specify that the pain was joint-related and a symptom of the Veteran's DISH syndrome, much less whether the DISH syndrome was the result of the Veteran's military service, including by way of a service-connected disability. During a VA diabetes mellitus examination, an examiner acknowledged the Veteran's history of dermatofibrosarcoma, radiation therapy, diabetes and Agent Orange exposure and his assertions that his DISH syndrome might be related to one or all of these factors. This examiner diagnosed DISH syndrome of unknown etiology and ruled out a relationship between the DISH syndrome and the dermatofibrosarcoma protuberance or Agent Orange exposure. He therefore disassociated this condition from the Veteran's military service. He based this conclusion on medical literature and journals and VA's up-to-date website. He explained that DISH syndrome is a noninflammatory disease, the principal manifestation of which is calcifications or ossifications of the spinal ligaments or regions where tendons and ligaments attach to the bone. He further explained that, although the cause of DISH syndrome remains unknown, it has been hypothesized that mechanical factors, dietary contributions, drugs, environmental exposure (cited chronic fluoride intoxication and prolonged exposure to an excess of vitamin A as examples) and metabolic conditions are important. He noted that it is thought that the bone formation distinctive of DISH syndrome results from abnormal osteoblastic differentiation and activity at the enthesis and that external or local or systemic factors might stimulate the abnormal osteoblastic differentiation. He also noted that DISH syndrome is more common in men and the risk of developing it increases with age with cases diagnosed before the age of 40 being rare. He explained there is no literature establishing that dermatofibrosarcoma protuberance, radiation therapy or Agent Orange cause DISH syndrome and, as such, determined the Veteran's DISH syndrome is of unknown etiology. During a May 2012 VA examination, this same VA examiner discussed the etiology of the Veteran's DISH syndrome further. He found, in part, that the DISH syndrome was not caused or aggravated by a service-connected disability. He based this finding on the prior facts noted above, the fact that the question of aggravation did not arise, and an insufficient amount of studies or data available to support a cause-and-effect relationship between DISH syndrome and diabetes mellitus. He thus again concluded the Veteran's DISH syndrome is of unknown etiology (and unrelated to his service or a service-connected disability). The Veteran has not submitted a medical opinion refuting those of the VA compensation examiner. His assertions that his DISH syndrome results from his service or a service-connected disability 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 service. Unfortunately, however, because he has no medical expertise, he is not competent to relate his DISH syndrome to a particular event in service such as Agent Orange exposure or a service-connected disability. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F. 3d at 1377. And regarding the medical treatise evidence he submitted, where medical article or treatise evidence, standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay opinion, a claimant may use such evidence to meet the requirement for a medical nexus. See Wallin v. West, 11 Vet. App. 509 (1998). However, an attempt to establish a medical nexus between service and a disease or an injury solely by generic information in a medical journal or treatise "is too general and inclusive." Sacks v. West, 11 Vet. App. 314, 317 (1998) (holding that a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element). Still, medical treatise evidence can provide important support when combined with an opinion of a medical professional. Mattern v. West, 12 Vet. App. 222, 228 (1999). See also Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor's statements was "adequate to meet the threshold test of plausibility"). Here, though, there is no such supporting medical opinion, only instead opinions unfavorable to the claim. Inasmuch as there is no competent and credible evidence of record relating the Veteran's DISH syndrome to his period of active service, including his presumed Agent Orange exposure, or his service-connected dermatofibrosarcoma protuberans and/or diabetes mellitus, type 2, and the DISH syndrome manifested years after discharge from active service, the Board concludes this disability was not incurred during his active military service, may not be presumed to have been, and is not proximately due to, the result of, or aggravated by a service-connected disability. The preponderance of the evidence is against this claim. Thus, there is no reasonable doubt to be applied in resolving this claim. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Esophagus Problems, Including Difficulty Swallowing The Veteran did not report or receive treatment for digestive system complaints, and no examiner diagnosed a digestive system disorder, including one manifested by swallowing difficulties, at any time during the Veteran's active military service. On separation examination in November 1972, the Veteran noted that he had not had any stomach, liver or intestinal trouble or frequent indigestion. The examiner noted normal clinical evaluations of the abdomen and gastrointestinal system. The Veteran's service ended the following month, so in December 1972. He first reported difficulty swallowing in 1985, so some 13 years later, during an outpatient visit with a private doctor. Since then, he has continued to report this problem as ongoing and the feeling that he has food stuck in his throat. Physicians have objectively confirmed these problems and diagnosed GERD. An esophagram in March 2006, in response to the Veteran's report of food sticking in his throat, revealed a combination of large osteophytes as well as cricopharyngeal hyperplasia. The radiologist indicated these findings most likely accounted for the Veteran's clinical symptoms. In March 2007, during a visit with Dr. Atassi, the Veteran reported that he had undergone a swallow study for dysphagia with solids, which had revealed displacing osteophytes. Dr. Atassi diagnosed, in part, controlled GERD. In September 2007, the Veteran reported a one-to-two-month history of hoarseness. Dr. Atassi referred the Veteran to a specialist and diagnosed improved GERD since the Veteran had stopped using certain anti-inflammatories for pain relief. The specialist attributed the hoarseness to the GERD or to the osteophyte formation in the neck, which medical professionals now know is a characteristic of the Veteran's DISH syndrome. Since then, during outpatient treatment visits, medical professionals have discussed the difficulties the Veteran is experiencing swallowing in conjunction with his DISH syndrome or the osteophytes. One, Dr. Atassi, has noted other digestive system problems, including ulcers caused by arthritis medicines. One medical professional has specifically addressed the etiology of the reported "esophagus problems." During a VA examination in May 2012, the previously noted VA examiner focused on the Veteran's history of acid reflux, heart burn and indigestion since 2002, aggravated by arthritis medicine, and attributed these problems to the GERD caused by a hiatal hernia confirmed on testing (no esophageal stricture or obstruction revealed). The VA examiner ruled out a relationship between the problems and a service-connected disability on the basis that there were not sufficient studies done to support a cause-and-effect relationship between the DISH syndrome and GERD. He did not actually address the reported swallowing difficulties and the feeling of food stuck in the throat, presumably because this has been linked to the DISH syndrome and GERD, which he discussed. In any event, the matter of whether the Veteran's reported swallowing difficulties are due to his DISH syndrome, which, as alleged, the evidence supports strongly, or GERD caused by a hiatal hernia, or a combination of the two need not be explored further. Neither the DISH syndrome nor any digestive system disability is service connected and, as such, a grant of service connection for these "esophagus problems" is not possible on a secondary basis as related to a service-connected disability. To relate a disability to service by way of a service-connected disability, there necessarily has to be the service-connected disability, else, this purported chain link of causation is broken. The Veteran has not submitted a medical opinion refuting the VA examiner's or any of the other medical evidence linking his esophagus problems, including difficulty swallowing, to his DISH syndrome that is not an adjudicated service-connected disability. In fact, he asserts these problems are due to the DISH syndrome, so without correlation of the DISH syndrome to his service, his claim resultantly fails. Moreover, even assuming he were asserting these problems result from his service or a service-connected disability, for the same reasons discussed above, his assertions in this regard would be considered incompetent to establish the necessary nexus. Inasmuch as there is no competent and credible evidence of record relating his esophagus problems, including difficulty swallowing, to his service or a service-connected disability, the Board concludes this disability was not directly or presumptively incurred during his active military service and is not secondarily related to his service, either, meaning not proximately due to, the result of, or aggravated by a service-connected disability. The preponderance of the evidence is against this claim. Thus, there is no reasonable doubt to be applied in resolving this claim. ORDER The claim of entitlement to service connection for DISH syndrome of the cervical spine and left hip, including as secondary to service-connected dermatofibrosarcoma protuberans and diabetes mellitus, type 2, is denied. The claim of entitlement to service connection for esophagus problems, including trouble swallowing and as secondary to the DISH syndrome of the cervical spine and left hip, also is denied. REMAND The Board sincerely regrets the delay that invariably will result from remanding, rather than immediately deciding, this remaining claim for service connection for hypertension, including as secondary to the service-connected diabetes mellitus, type 2, but this remaining claim requires further development to ensure the Veteran receives all possible consideration. He alleges his hypertension is either directly or presumptively related to his service or secondarily related since alternatively caused or aggravated by his service-connected diabetes. He has submitted multiple articles addressing the relationship between the two conditions. Medical documentation of record establishes that both conditions were diagnosed in the early 2000s (2001 or 2002). During a VA examination in December 2010, an examiner provided an unfavorable medical opinion in response to the question of whether the diabetes caused or is related to the hypertension. The examiner did not however also address whether the service-connected diabetes is alternatively aggravating the hypertension. Two opinions are required for secondary-service-connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). The Board therefore must obtain supplemental comment addressing this additionally alleged possibility since, as already explained, once VA undertakes the effort to provide an examination in a service-connection claim, even if not statutorily obligated to, it must provide an adequate one, else, notify the claimant why one cannot or will not be provided. See again Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, during the course of this appeal, the RO associated additional VA treatment records with Virtual VA that are dated from 2011-2012. Virtual VA does not include any pertinent treatment records from 2013. The AMC therefore must consider the 2011-2012 and any 2013 treatment records in the first instance in support of this remaining claim. Accordingly, this remaining claim for hypertension is REMANDED for the following additional development and consideration: 1. Obtain and associate with the physical claims file or electronic ("Virtual VA") file any pertinent, more recent records of the Veteran's VA treatment. Since these additional records, assuming they exist, are in the custody of a Federal department or agency, namely, VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), so make as many attempts to obtain these additional records that this VA regulation requires. Also appropriately notify the Veteran if unable to obtain these additional records, again, assuming they exist. 2. Upon receipt of all additional records, obtain an addendum opinion from the VA compensation examiner that evaluated the Veteran in December 2010. If this examiner is unavailable, have someone else with the necessary qualifications review the claims file and provide the required medical opinion concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's service-connected Type II Diabetes Mellitus, even if not causing, is alternatively aggravating his hypertension. The opinion obtained in December 2010 only addressed causation, not also aggravation, so this supplemental comment is needed concerning this additional possibility. In commenting, the examiner is asked to do the following: a. Review the claims file, paying particular attention to the medical evidence showing diagnoses of diabetes and hypertension beginning in 2001 or 2002, the medical literature/articles discussing a relationship between diabetes and hypertension, and the December 2010 VA examiner's opinion. b. Offer an opinion as to whether the Veteran's service-connected diabetes is aggravating his hypertension. i. In so doing, discuss the significance of the medical literature the Veteran submitted. ii. Provide rationale with specific references to the record for any opinion expressed. iii. If an opinion cannot be expressed without resorting to mere speculation, indicate this in the report but, more importantly, discuss why a more definitive response is not possible. 3. Review this supplemental opinion to ensure it is responsive to this additional issue of aggravation (not just causation like the prior December 2010 opinion). If it is not, take corrective action. 38 C.F.R. § 4.2. 4. Then readjudicate this remaining claim for hypertension in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative a SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs