Citation Nr: 1341192 Decision Date: 12/13/13 Archive Date: 12/20/13 DOCKET NO. 09-22 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for Type II Diabetes Mellitus and associated peripheral neuropathy of the upper and lower extremities, claimed as due to exposure to Agent Orange. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kedem, Calanit INTRODUCTION The Veteran served on active duty from June 1968 to April 1972 and from April 1975 to January 1991. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a February 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2011, in support of his claim, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. In September 2011, the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. FINDINGS OF FACT 1. The Veteran did not serve in Vietnam during the Vietnam Era, and it is not shown he was exposed to herbicides elsewhere during his service. 2. His Type II Diabetes Mellitus did not incept during his service or to a compensable degree within a year of his discharge from service, or for several ensuing years, and there is no competent and credible evidence otherwise etiologically linking this disease and associated upper and lower extremity peripheral neuropathy to his service. CONCLUSION OF LAW His Type II Diabetes Mellitus is not due to disease or injury incurred during or aggravated by his service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided by the VCAA, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimaint is expected to provide. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO as the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Also, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and evidence presented with the claim and provide the claimant notice of the information and evidence not previously provided, if any, which will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish entitlement to service connection (namely, Veteran status, existence of a disability, and a correlation between the disability and his/her military service), but also that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Here, this VCAA duty to notify was satisfied by way of a letter sent to the Veteran in June 2005 that fully addressed all three notice elements for service connection and that was sent prior to the initial RO decision in February 2006 denying this claim, so in the preferred sequence. The letter informed him of the evidence required to substantiate his claim and of his and VA's respective responsibilities or obligations in obtaining the necessary supporting evidence. Additional notice regarding the "downstream" disability rating and effective date elements of his claim was not provided until June 2006, so not until after that initial adjudication. However, a fully compliant statement of the case (SOC) was issued in April 2009 readjudicating the claim and considering all evidence that had been submitted or otherwise obtained since that initial adjudication. Thus the timing defect in the provision of that additional notice has been cured. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As a matter of law, VA may rectify ("cure") a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by opportunity to respond and a subsequent readjudication of the claim, including in an SOC or supplemental SOC (SSOC). Prickett, 20 Vet. App. at 376. VA also as mentioned has a duty to assist the Veteran in the development of this claim, unless no reasonable possibility exist that such assistance would aid in the substantiation of the claim. This duty includes assisting him in the procurement of relevant records, whether from during his service or in the many years since, so including his service treatment records (STRs) and post-service VA and private treatment records. He also is entitled to an examination or medical opinion when necessary to fairly decide his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudicing him in adjudicating his claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO and AMC have obtained all identified private medical records. The STRs are not available despite the fact that the RO made several efforts to obtain them. The Court has explained that when "VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources." Washington v. Nicholson, 19 Vet. App. 362, 369-71 (2005); Dixon v. Derwinski, 3 Vet. App. 261, 263 (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)). When, as here, at least a portion of 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. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). But having said that, the Board must also point out that the O'Hare precedent does not raise a presumption that the missing 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 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 his 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). Here, as will become apparent, the Veteran's Type II Diabetes Mellitus has been found to have incepted well after the conclusion of his service, not during it or even within a year of his discharge. And the Board does not find his assertion of earlier onset credible. Consequently, further efforts to obtain his STRs would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran should be avoided). He was provided an opportunity to set forth his contentions during the videoconference hearing he had in July 2011 before the undersigned Veterans Law Judge of the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that a hearing officer, pursuant to 38 C.F.R. § 3.103(c)(2), has two duties. The first is to explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id. , at 496-97. Here, at the very outset of the hearing the parties agreed that the issue on appeal was entitlement to service connection for the Type II Diabetes Mellitus and associated upper and lower extremity peripheral neuropathy. During the hearing, there was no confusion that the Veteran needed to present evidence showing he has these alleged conditions and that there is a relationship or correlation between them and his military service, such as by showing they are the result of exposure to Agent Orange (provided he also showed exposure to this toxic herbicide). This comprised the bulk of his hearing testimony. He did not raise any new issues pertaining to this claim during the hearing. Thus, the Board finds that the presiding Veterans Law Judge's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim and to suggest the submission of evidence when such evidence is missing or has been overlooked have been satisfied. See id. at 496-97. The Veteran has not alleged that there were any deficiencies in the hearing related to the presiding judge's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Moreover, even assuming there was such a deficiency, the Board finds that it did not prejudice the Veteran's claim. In Bryant, the Court held that, although the hearing officer did not explicitly lay out the material issues of current disability and medical nexus, the purpose of § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication the appellant had any additional information to submit. Bryant, 23 Vet. App. at 498-99. In this case, given the development of the Veteran's claim that since has occurred - particularly following and as a result of the Board subsequently remanding this claim in September 2011 - the Board finds that any deficiency in the hearing was non-prejudicial. See id. Equally, the Veteran and his representative also evidenced their actual knowledge of the type of evidence and information needed to substantiate this claim, in the course of their hearing testimony. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). On remand, the Veteran was afforded a VA medical examination in October 2011. Significantly, neither he nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained and that is obtainable. Hence, no further notice or assistance to him is required to fulfill VA's duty to assist him in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in Veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Discussion 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, or this is legitimately questionable, then generally, a showing of continuity of symptoms after service is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease 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). This notion of continuity of symptomatology since service as an alternative means of establishing the required relationship or correlation between the now claimed about condition and one's military service is only permissible if the condition being claimed is one of the ones identified as chronic, per se, according to § 3.309(a). This is indeed the situation here, however, because the Veteran's claimed disability (Type II Diabetes Mellitus) is a "chronic disease" according to 3.309(a). See generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). This being the case, service connection also may be granted for Type II Diabetes Mellitus on a presumptive basis if it manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of the Veteran's separation from service or if it was later diagnosed any time after service if there is confirmed evidence of exposure to herbicides (Agent Orange) during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) and (e). Exposure to herbicides generally is presumed if the Veteran served in Vietnam during the Vietnam Era (that is, during the period beginning on January 9, 1962 and ending on May 7, 1975) or in specific areas in Korea between April 1, 1968, and August 31, 1971, unless there is affirmative evidence establishing he was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii), (iv). See also Haas v. Peake, 525 F.3d 1168 (2008), cert denied, 129 S.Ct. 1002, 173 L.Ed 2d 315 (2009) (holding that VA reasonably had interpreted § 3.307(a)(6)(iii) as requiring that a Veteran actually have set foot within the land borders of Vietnam in order to be entitled to statutory presumptions of herbicide exposure and service connection). The Veteran is claiming entitlement to service connection for Type II Diabetes Mellitus primarily on the premise that he was exposed to Agent Orange while aboard the USS Saratoga, which he claims was used to transport the toxin to Southeast Asia. So he is requesting presumptive service connection under the provisions of 38 C.F.R. § 3.309(e). However, during his July 2011 hearing, he and his representative also argued that service connection is alternatively warranted on a direct-incurrence basis under the provisions of § 3.303(a) or the additional presumptive provisions of § 3.309(a). See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (indicating all potential theories of entitlement must be considered when adjudicating a claim for service connection). The National Personnel Records Center (NPRC) has indicated there is no evidence of Vietnam service in the case of this particular Veteran - meaning service on the landmass of Vietnam or inland waterways ("brown water"), versus instead just along the coastal waters of Vietnam ("blue water). In order for the presumption of herbicide exposure to apply, qualifying service in the Republic of Vietnam must have involved service on the landmass of Vietnam (often referred to as service "in country") or, at the very least, on the inland waterways ("brown water"), but does not include mere service on a deep-water naval vessel in the waters offshore ("blue water"). See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525); VAOPGCPREC 27-97. What constitutes "inland waterways" is not defined in VA regulations; however, VA Adjudication Procedure Manual provides interpretive guidance. The Manual indicates that inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k. However, the Manual clearly states that service aboard a ship that merely anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore to establish presumptive exposure to herbicides. Id. The Manual does note an exception regarding veterans who served as a coxswain. So service in the Republic of Vietnam means that the Veteran actually set foot within the land borders of Vietnam. Service in the Vietnam coastal waters without ever having gone ashore is not enough. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). As well, the RO has made formal findings, including in January 2012, indicating the STRs are missing. The file, however, contains a copy of his January 1991 military retirement physical. It appears to have been altered, and the Board herein finds that it has been altered in a fraudulent manner. In the section of the examination report entitled Laboratory Findings, the notation next to sugar indicates "Neg." However, it appears that the notation of "Neg" was altered to read "Med," presumably an abbreviation for medium. Next to that, there is a notation in the same pen color used to alter the word "Neg" indicating "Elev +200." As such, the notation next to sugar reads "Med Elev +200." The section pertaining to "other tests" indicates that fasting blood sugar (FBS) was 280. However, the number 280 is written over what appears to be correction fluid such as Wite-Out. It is impossible to see the number originally written next to FBS. The Board finally observes that the January 1991 examination report of record is a copy of the original, yet the markings discussed above do not appear to have been photocopied, namely, they seem to have been added to the photocopied document. The foregoing alterations of the January 1991 physical examination report lead the Board to conclude that these alterations did not appear in the original report that has not been located. Again, therefore, the Board finds that the Veteran has fraudulently tried to alter the evidence in this case so that it weighs in his favor. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In his May 2005 claim for benefits, the Veteran indicated that his diabetes had incepted in 1994, so more than one year after his retirement from the military in 1991. There is no competent and credible evidence of record indicating that his Type II Diabetes Mellitus had manifested before then, so at any earlier date or point in time. In a March 2005 statement, RF, M.D., indicated that he had been treating the Veteran for many years for several conditions to include diabetes mellitus and that he believed the Veteran's diabetes mellitus was due to Agent Orange exposure. This opinion holds little probative weight as it is speculative and uncertain. Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). There necessarily cannot be any linkage between the Veteran's diabetes and Agent Orange exposure during his service unless it is first shown he had that exposure. In a June 2006 letter, Dr. RF indicated that he had been treating the Veteran for diabetes for the past 11 years, so since approximately 1995. Dr. RF commented that, although the condition was never diagnosed while the Veteran was in service, his elevated blood glucose levels in service indicate the presence of the condition during his service, presumably in an early (prodromal) stage. Dr. RF apparently based his opinion on the report of the Veteran's January 1991 retirement examination since this is the only available STR listing the Veteran's blood glucose level while in service. Therefore this opinion is not probative because it was based on fraudulent evidence, namely, the apparent modification of the exit examination report. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value); see also Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (the Board is not required to accept unsubstantiated or ambiguous medical opinions as to the origin of the Veteran's disorder). During an October 2011 VA medical examination, the VA examiner confirmed the presence of Type II Diabetes Mellitus as well as complications including peripheral neuropathy and diabetic retinopathy. The examiner reviewed the record, including Dr. RF's March 2005 and June 2006 statements. The examiner also reviewed a form from the Federal Aviation Administration (FAA) completed in July 2000 by Dr. RF. At that time, Dr. RF indicated the Veteran had new-onset diabetes mellitus, suggesting this disease had only recently incepted. The VA examiner also observed that Dr. RF had dated the Veteran's diabetes mellitus back to approximately 1995, as apparent from the June 2006 statement. The VA examiner indicated that a FBS level of 280, as noted in the altered January 1991 retirement physical, would be indicative of the presence of diabetes mellitus. However, the VA examiner indicated the retirement physical examination report was altered. He stated that, based on the lack of original unaltered STRs and the lack of medical records dated within a year of service separation, he would be unable to render an opinion regarding the etiology of the Veteran's Type II Diabetes Mellitus. The Board resultantly finds that the Veteran's Type II Diabetes Mellitus was not incurred during his service, either directly or presumptively, as there is no competent and credible evidence of the onset of this disease during his service, to compensable degree within a year of his discharge, or other association to his service by indication he was exposed to Agent Orange. To the contrary, the Board emphasizes that the evidence tending to show incurrence of this disease during his service - such as in the way of the supposed separation examination report - has been found to lack credibility, so probative value. Only if evidence is both competent and credible does it ultimately have probative value. Competency of evidence differs from its credibility and ultimate probative value or weight. 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. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997). As already alluded to, a significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F. 3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran); but see again, too, Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board also finds that diabetes mellitus was not incurred within a year of service separation because, even according to the Veteran and Dr. RF, this disease was not present until the mid 1990's. Thus, service connection for the Veteran's diabetes mellitus is not available presumptively as a chronic disease. 38 C.F.R. § 3.309(a). Similarly, because there were at least 4 years between service separation and the onset of diabetes mellitus, service connection cannot be granted based on continuity of symptomatology. 38 C.F.R. § 3.303(b); see also Maxson v. Gober, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period following service without medical complaint can be considered, along with other factors, just not the only or sole factor, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following service during which there was no clinical documentation of the claimed disorder). The Board cannot "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). For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002) (flatfeet); Falzone v. Brown, 8 Vet. App. 398 (1995) (tinnitus). Lay testimony, however, is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity. See Barr, 21 Vet. App. at 309. For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). See also 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 the Secretary'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. The Board discounts the weight of evidence it finds not to be credible, regardless of whether it is medical or lay evidence. See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). And although 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 . . . ."). Finally, the Board finds that service connection for the Veteran's diabetes mellitus is not available presumptively based on herbicide exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In order for the herbicide exposure presumption to apply, the evidence must show presence in the Republic of Vietnam during the Vietnam Era. Id. The Veteran asserts that he was exposed to herbicides aboard the USS Saratoga. First, although his DD Form 214 indicates service aboard the USS Saratoga, the Dictionary of American Fighting Ships supplied by him indicates that during the Vietnam Era, the USS Saratoga arrived in Vietnam in May 1972. He separated from service in April 1972, before reenlisting in April 1975, the tail end of the Vietnam Era. There is no suggestion he was in Vietnam in either April or May of 1975. To the extent the Veteran maintains that herbicides stored aboard the USS Saratoga caused his diabetes mellitus, his argument fails. First, the statement from Dr. RF indicating that herbicides caused the Veteran's diabetes mellitus has been found to lack probative weight because it accepts, as true, the findings supposedly noted in the report of the Veteran's separation examination, which instead have been found to have been fraudulently modified, so compromised. Next, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), diabetes mellitus along with its causes and origins falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the Board cannot credit the Veteran's representations in this regard. The Board emphasizes that the presumption regarding herbicide exposure applies to those present in Vietnam during the requisite time period. The presumption does not apply to Veterans aboard ships transporting herbicides. 38 C.F.R. §§ 3.307, 3.309(e). Finally, in making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102, but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER The claim of entitlement to service connection for Type II Diabetes Mellitus is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs