Citation Nr: 1331673 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-35 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for residuals of a gall bladder removal (claimed as a stomach condition, intestinal condition, and a loss of control of bowel movements). 2. Entitlement to a rating higher than 40 percent for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active military service from November 1954 to November 1958. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of his claim for residuals of a gall bladder removal during a videoconference hearing in May 2013 before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is part of the electronic portion of the Veteran's claims file ("Virtual VA"). At the outset of the hearing, the Veteran withdrew the appeal of his remaining claim for a rating higher than 40 percent for his bilateral hearing loss, so the Board is summarily dismissing his appeal of this claim. 38 C.F.R. § 20.204 (2013). That leaves only the claim for residuals of a gall bladder removal as still at issue. In August 2013, the Board advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. There is no evidence of record corroborating the Veteran's assertion of having undergone gall bladder removal surgery (cholecystectomy) while in the military, so, although he may have residuals of such a procedure, they may not be considered as attributable to his military service. 2. His digestive system disability has been variously diagnosed, including as Irritable Bowel Syndrome (IBS) and Barrett's disease, but has not been shown to be attributable to his military service, especially to removal of a pilonidal cyst during his service. 3. At the outset of his videoconference hearing on May 31, 2013, prior to the promulgation of a decision in this case, he withdrew his appeal of the claim for a rating higher than 40 percent for his bilateral hearing loss. CONCLUSIONS OF LAW 1. Residuals of a gall bladder removal (claimed as a stomach condition, intestinal condition, and a loss of control of bowel movements) were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 2. The criteria are met for withdrawal of the substantive appeal concerning the claim of entitlement to a rating higher than 40 percent for the bilateral hearing loss. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. 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). (i) 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 VA 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) (2013). 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 in the eventuality service connection is granted. 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 this 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 all 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 VCAA notice concerning this claim for residuals of a gallbladder removal by way of letters dated in January 2008, July 2008, August 2008 and July 2012. The latter letter was not sent in the preferred sequence, having been sent after, rather than before, initial adjudication of this claim. But the RO rectified ("cured") this timing defect in the provision of this additional notice by since readjudicating the claim in a March 2013 SSOC. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). These letters, especially in combination, satisfy the content requirements noted above. They inform the Veteran of the evidence needed to substantiate his claim 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 rating and effective date in the event service connection is granted. They also, in conjunction with a November 2008 Memorandum, identify the evidence the RO requested and/or received in support of the claim, the steps it took to obtain such evidence, and the evidence it was unable to secure. They indicate the RO will make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence, provided he identifies its source(s), but that it is his ultimate responsibility to ensure VA's receipt of all pertinent evidence. The RO specifically informed him that it had attempted to obtain his service treatment records (STRs) on multiple occasions, but unfortunately had learned they are unavailable, apparently having been destroyed in a 1973 fire at the National Personnel Records Center (NPRC), which is a military records storage facility in St. Louis, Missouri. See Dixon v. Derwinski, 3 Vet. App. 261 (1992) (holding that, where a Veteran's STRs have been destroyed or lost, through no fault of his, VA has a duty to advise him to obtain other forms of evidence, such as lay testimony, to support his claim). To this end, the RO advised him that, given these circumstances, it would help him reconstruct his service file. The RO also notified him there was certain evidence he could submit to substitute for his missing STRs and establish incurrence of a relevant disease or an injury in service, including "buddy statements". VA provided him further notice in May 2013 during his videoconference hearing before the undersigned Veterans Law Judge of the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), the Veterans Law Judge 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, the presiding Veterans Law Judge satisfied both duties by specifically identifying and discussing the three elements that must be met to establish entitlement to service connection for an alleged condition, indicating whether the evidence satisfied each element, questioning the Veteran regarding whether there was any outstanding evidence that needed to be obtained in support of this claim, discussing missing records of his alleged gallbladder removal in service, and asking him whether any doctor or other qualified medical health care professional had linked any of the asserted gastrointestinal symptoms to the Veteran's active military service, including especially to the alleged gallbladder removal. When, as here, the Veteran's STRs are unavailable or incomplete, the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). See also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that this heightened duty also includes the obligation to search for alternative records, such as by having the Veteran complete and return VA Form 13055 allowing for the search for evidence from the National Archives and Records Administration (NARA) or for extracts or other evidence from the Surgeon General's Office (SGO)). But having said that, the Board must also point out that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim. That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367). The Veteran resultantly has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. 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 satisfy the requirements of Bryant and 38 C.F.R. § 3.103(c)(2). (ii) 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 also satisfied its duty to assist the Veteran in the development of his claim by trying to obtain and associate with the claims file all records and other documentary evidence he had identified as potentially pertinent to his claim, including his service treatment and personnel records and post-service treatment records. The RO also afforded him a VA compensation examination for a medical nexus opinion, at the conclusion of which the examiner discussed the etiology of the Veteran's gastrointestinal/digestive system complaints and purported relationship with events during his military service - in particular, the alleged removal of his gall bladder. 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 Veteran nor his representative asserts there are any other outstanding records that are available and needing to be obtained in support of this claim 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 Veteran regarding the evidence needed to substantiate his claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). 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 this claim, 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 claim. 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). B. Analysis of the Claim of Entitlement to Service Connection The Veteran is claiming entitlement to service connection for what he believes are residuals of a cholecystectomy in service and/or pilonidal cyst excision. He describes these residuals as very loose, runny stools three to ten times daily, fecal leakage and indigestion. According to written statements submitted in October 2007 and February 2008 and his May 2013 hearing testimony, he began losing control of his bowel movements and experiencing very bad indigestion after undergoing a gallbladder removal and work on his intestines in 1957 at Fairchild Air Force Base in Spokane, Washington. He claims his body never fully healed after that operation, necessitating the use of medication for 20 years, which had helped the indigestion, but not the diarrhea. He further claims that he remained in the hospital for two or three weeks after the procedure and then was placed on six months of light duty, after which he followed up several times with his physicians. Considering his statements and testimony in conjunction with all other pertinent evidence in the claims file and applicable statutes and regulations, the Board unfortunately must find that the preponderance of the evidence is against this claim. This evidence fails to corroborate his assertion that he underwent a cholecystectomy in service, so, although he may have residuals of such a procedure, they may not be considered as attributable to his military service. This evidence establishes his digestive system disability, which has been variously diagnosed, including as IBS and Barrett's disease, is not attributable to his service, including to his pilonidal cyst removal in service. So none of his alleged present-day disability has been attributed to his service, including to any particular procedure, surgical or otherwise, during 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, 1131; 38 C.F.R. § 3.303(a), 3.304. Certain diseases are considered chronic, per se, 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; 38 C.F.R. §§ 3.307, 3.309(a). 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). 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). In the third and final step, 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). When there exists an approximate balance of positive and negative evidence on a matter material to the determination, reasonable doubt is to be 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 treatment records dated since 1998 and a report of VA examination conducted in February 2013, establish the Veteran currently has a digestive system disability manifested by reflux, chronic diarrhea and abdominal cramps, variously diagnosed, including as Barrett's esophagus, gastroesophageal reflux disease (GERD), diverticulosis/diverticulitis, IBS, and functional bowel syndrome. So resolution of this appeal turns instead on whether this disability, however diagnosed, is directly related or attributable to his military service, including especially to his alleged cholecystectomy. 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."). As previously acknowledged, the Veteran's complete STRs are unavailable, having been destroyed in a fire, so there are none to corroborate that he underwent the alleged 1957 cholecystectomy. There also is no alternative evidence such as buddy statements or copies of letters in the claims file confirming he underwent this particular procedure during his service. Available STRs show that, in June 1955, he received antibiotics for, and then underwent an excision of, an inflamed pilonidal cyst. So not all of his STRs are missing, only apparently some. His military service ended in November 1958. According to available post-service medical evidence, since 1998 he has received ongoing treatment for various digestive/gastrointestinal system complaints. One medical professional, a VA examiner, has addressed whether the Veteran's digestive system disability is related to his military service or dates back to his service, including to the documented pilonidal cyst excision in June 1955. At the conclusion of a February 2013 examination, that examiner ruled out any relationship between this disability and the Veteran's service, including the pilonidal cyst excision and alleged cholecystectomy in service. She based this opinion on the following findings: (1) although the Veteran has had chronic diarrhea since the surgery and also has abdominal distention and a scar in the right upper quadrant of his abdomen, which is consistent with a cholecystectomy, medical evidence in the claims file does not show when this procedure took place; and (2) the Veteran's in-service pilonidal cyst excision was uncomplicated and would not cause IBS. The Veteran has not submitted a medical opinion refuting the VA examiner's. In testimony during the May 2013 videoconference hearing before the Board, the Veteran maintained that a doctor had told him the current disability "could be" related to the alleged events in service and supposedly had written a supporting letter to this effect. There is no such letter in the file, however. Moreover, a statement like this that, for all intents and purposes, is equivocal or inconclusive as to the origin of a disorder generally cannot be employed as suggestive of a linkage between the disorder and the Veteran's military service. See, e.g., Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). Indeed, there is a line of precedent cases discussing the lesser probative value of opinions like this that are equivocal, in various contexts, which essentially state that it is possible that what posited could be true. See, e.g., Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Perman v. Brown, 5 Vet. App. 227, 241 (1993). In fact, in past decisions the Court also had held that saying a condition "may" be related to the Veteran's military service is tantamount to saying it just as well "may not" be related to his service, so, because of this equivocality, also an insufficient basis to grant service connection. See Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Winsett v. West, 11 Vet. App. 420 (1998). See, too, Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). An etiological opinion, however, has to be viewed in its entire context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). Here, though, there is no such opinion to review or scrutinize. And the connection between what a physician said and a layman's account of what was purportedly said, filtered through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent evidence in support of a claim of entitlement to service connection. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Consequently, the Veteran's personal assertions that he has residuals of a cholecystectomy and/or pilonidal cyst removal in service are the only evidence of record tending to establish this required causal link or correlation. He is competent to describe lay-observable symptoms he has experienced over the years, including, for instance, loose stools. Unfortunately, however, because he has no medical expertise, he is not competent to characterize these symptoms as residuals of a particular medical procedure. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F. 3d at 1377. He similarly cannot ascribe them to a particular diagnosis. Inasmuch as there is no evidence corroborating his allegation that he underwent a cholecystectomy during his service or competent and credible evidence of record otherwise relating his digestive system disability to his service, including to the June 1955 pilonidal cyst removal that is documented in the records concerning his service, the Board concludes that his disability was not incurred in or aggravated by his active military service. The preponderance of the evidence is against this claim. Thus, there is no reasonable doubt to be applied in resolving it. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Increased Evaluation for the Bilateral Hearing Loss Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal (VA Form 9 or equivalent statement) may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2013). Either an appellant or his or her authorized representative may request withdrawal. 38 C.F.R. § 20.204 (2013). Here, at the outset of his videoconference hearing on May 31, 2013, prior to the promulgation of a decision in this case, the Veteran indicated he was withdrawing his appeal of this remaining claim for a rating higher than 40 percent for his bilateral hearing loss. He submitted written confirmation of this right after the hearing. Given this request for withdrawal of his appeal of this claim, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this claim and it must be dismissed. ORDER The claim for entitlement to service connection for residuals of a gall bladder removal (claimed as a stomach condition, intestinal condition, and a loss of control of bowel movements) is denied. Whereas the appeal of the claim of entitlement to a rating higher than 40 percent for the bilateral hearing loss is dismissed. ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs