Citation Nr: 1030277 Decision Date: 08/12/10 Archive Date: 08/24/10 DOCKET NO. 06-37 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder, to include intervertebral disc syndrome (IVDS). REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran served on active duty from October 1980 to October 1983. He also served in the National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran subsequently relocated and jurisdiction of his claim was transferred to the RO in St. Petersburg, Florida. In February 2008, the Veteran presented testimony at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims folder. The Board previously issued a decision in April 2008 denying the current claim on appeal. The Veteran appealed this decision to the U. S. Court of Appeals for Veterans Claims (Court). Pursuant to an Order dated in March 2009, the Court granted a Joint Motion for Remand (Joint Motion) filed by the parties, vacated the April 2008 Board decision, and remanded the matter for compliance with the instructions in the Joint Motion. Specifically, in the March 2009 Joint Motion, the Court directed the Board (1) to provide adequate reasons and bases that address the factors of chronicity and continuity of symptomatology as discussed in 38 C.F.R. § 3.303(b); (2) to address the credibility of the Veteran's lay assertions as they pertain to continuity of symptomatology; (3) to address whether private treatment records stating that the Veteran's degenerative disc disease preexisted his post-service December 2004 motor vehicle accident (MVA) constituted evidence in support of continuity of symptomatology; and (4) to provide the Veteran another VA etiological opinion if the Board finds that the Veteran's assertions as to continuity of symptomatology are credible. The case then returned to the Board so that it could implement the Court's directives. In turn, the Board remanded this case in August 2009 and again in February 2010 for further development. After completion of this development, the case has now been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. There is insufficient evidence of a chronic low back disorder including IVDS during service or of arthritis in the low back within one year after service, and there is probative medical evidence against a link between the Veteran's current low back disorder and his period of active military service - including the fracture treated during service. 2. The Veteran's lay assertions regarding continuity of symptomatology are not probative or credible in light of other evidence of record. CONCLUSION OF LAW A low back disorder to include IVDS was not incurred or aggravated during service and arthritis of the low back may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101(3), 1112(a), 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307(a)(3), 3.309(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in January 2005, August 2005, and May 2006. These letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his service connection claim; (2) informing him about the information and evidence the VA would seek to provide; (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Furthermore, the May 2006 letter from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Thus, the Veteran has received all required notice in this case, such that there is no error in the content of VCAA notice. With regard to the timing of notice, VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini II, 18 Vet. App. at 120 (2004). In the present case, the Board sees the RO did not provide the Veteran with all VCAA notice prior to the February 2006 rating determination on appeal. But in Pelegrini II, the Court also clarified that in these situations VA does not have to vitiate that decision and start the whole adjudicatory process anew, as if that decision was never made. Id. Rather, VA need only ensure the Veteran receives (or since has received) content-complying VCAA notice, followed by readjudication of his claims, such that he is still provided proper due process. In other words, he must be given an opportunity to participate effectively in the processing of his claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) recently held that a Statement of the Case (SOC) or Supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). In fact, as a matter of law, VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by a subsequent SOC or SSOC. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA cured the timing notice defect by issuing all additional VCAA notice letters prior to readjudicating the case by way of the June 2010 SSOC. Therefore, because VA cured the timing error and because the claimant did not challenge the sufficiency of the notice, the Board has not erred in finding that VA complied with its duty to notify. Stated another way, VA's issuance of a SSOC in June 2010 following the VCAA notice letters cured the timing error. In essence, the timing defect in the notice has been rectified, such that there is no prejudicial error in the timing of VCAA notice. Prickett, 20 Vet. App. at 376. As such, the Board concludes prejudicial error in the timing or content of VCAA notice has not been established as any error was not outcome determinative. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), VA outpatient treatment records, and private medical evidence as identified and authorized by the Veteran. The Veteran has submitted personal statements, hearing testimony, argument from his attorney, and private medical records. In addition, the Veteran was afforded January 2006 and May 2010 VA examinations with medical opinions addressing the etiology of his current low back problems. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). As discussed in detail below, the Board concludes the May 2010 VA examination from a physician's assistant thoroughly and precisely addressed the etiology of the Veteran's low back disorder. In addition, VA's attempt to secure post-service National Guard records yielded negative responses from the State Adjutant General in March 2005 and from the Veteran's National Guard unit in June 2007. There is no further basis to secure these records. Moreover, the Court in its March 2009 Order and Joint Remand did not direct the Board to secure these records. Finally, the Board also remanded this case in August 2009 and February 2010 for the RO to review additional evidence and for the RO to secure a VA examination with an etiology opinion. These remands were in light of the Court's March 2009 Order and Joint Motion. The Board is satisfied that there was substantial compliance with its August 2009 and February 2010 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In this respect, the RO secured a thorough, probative May 2010 VA examination by a VA physician's assistant that considered the factors listed by the Board, and the RO then readjudicated the claim in a June 2010 SSOC prior to receipt of the appeal at the Board. Overall, the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009). Governing Laws and Regulations for Service Connection Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing disability beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A disorder may also be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). For the showing of chronic disease in service, (or within a presumptive period per § 3.307), there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Id. Medical nexus evidence demonstrating an etiological link is not necessary to establish service connection when evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and that he or she still has the same chronic condition. Groves v. Peake, 524 F.3d 1306, 1309- 1310 (2008). See also 38 C.F.R. § 3.303(b). A Veteran can establish continuity of symptomatology in cases where the Veteran cannot fully establish the in-service and/or nexus elements of service connection discussed above. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the Court held a Veteran must show "(1) that a condition was 'noted' during service, (2) with evidence of post-service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology." Barr, 21 Vet. App. at 307. Whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question, that is, whether the relationship and disability are capable of lay observation. Savage, 10 Vet. App. at 497; accord Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For continuity of symptomatology, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Id. at 1337. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be demonstrated by showing direct service incurrence or aggravation, as discussed above, or by using applicable presumptions, if available. Combee, 34 F.3d at 1043. As to presumptive service connection, some diseases on the other hand are chronic, per se, such as arthritis, and therefore will be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year after service. Even this presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2002). With regard to lay evidence, the Federal Circuit Court recently held that lay evidence, when competent, can establish a nexus between the Veteran's disability and an in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); but see Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to"). Citing its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. Instead, under 38 U.S.C.A. §§ 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377 (footnote omitted). For example, a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer. Id. at 1377 n.4. In short, lay evidence that is both competent and credible may establish the presence of a condition during service, post- service continuity of symptomatology, and a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307-09. But "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Id. at 308. See also Savage, 10 Vet. App. at 498. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis - Service Connection The Veteran maintains that his current low back problems resulted from an in-service injury sustained when he slipped on ice and hit a steel pole in December 1982. The Veteran asserts that he has experienced low back pain from the time of his military service to the present. He states that he did not receive post- service treatment for his low back until after 2000 due to lack of health insurance. He still contends that he suffered from low back pain, locking of the back, and a burning sensation in his left leg ever since his military injury, prior to the occurrence of an intercurrent December 2004 MVA. See May 2006 Notice of Disagreement (NOD); March 2010 personal statement on a VA Form 9; hearing testimony at pages 4-11; and an April 2009 VA physical therapy consult. As mentioned, the first and perhaps most fundamental requirement for any service-connection claim is proof the Veteran currently has the claimed disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. In the present case, the May 2010 VA orthopedic examiner diagnosed degenerative disc disease at L4-L5 and L5-S1 with bilateral femoral stenosis. The January 2006 VA examiner rendered a similar diagnosis. These findings were based on VA magnetic resonance imaging (MRI) reports. In short, there is sufficient evidence of a current low back disorder. Consequently, the determinative issue is whether this disorder is somehow attributable to the Veteran's military service. 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 disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). And it is in this critical respect the Veteran's claim fails. STRs do confirm that the Veteran sustained in-service back injuries. An August 1981 STR shows that the Veteran presented for back pain. He was diagnosed with a muscle strain. It was noted that the muscle strain was due to lifting heavy objects and the way the Veteran slept. Subsequently, a December 1982 STR shows that the Veteran slipped on ice and complained of pain in his spine area which originated around the sacrum and radiated around causing difficulty urinating. In addition, December 1982 STRs also reflect that the Veteran had pain radiating to his feet, and there was "obvious deformity on inspection." X-rays dated in December 1982 showed a fracture of the L1 right transverse process. In January 1983, the Veteran reported pain over the coccyx. On periodic examination in March 1983, the Veteran indicated that he had recurrent back pain on his report of medical history. However, the March 1983 clinical evaluation was normal. In September 1983, the Veteran signed a disposition form stating that he did not wish to have a separation examination. With regard to chronicity during service, the Board acknowledges that the Veteran sustained a low back muscle strain and a fracture of the L1 right transverse process at different times during service. However, his subsequent March 1983 in-service clinical evaluation of the low back was normal. Thus, his STRs, as a whole, do not demonstrate a chronic residual low back disorder in service. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. 494-97. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. In the present case, there is no further diagnosis of a low back muscle strain or a fracture of the L1 right transverse process after the original injuries occurred, when reviewing either STRs or post- service private or VA treatment records. In fact, the May 2010 VA examiner pointed out recent MRI and X-ray evidence failed to find evidence of the earlier in-service fracture of the L1 right transverse process, such that there was "resolution of that [in- service] fracture without a residual pathology." There is also no post-service diagnosis for a low back muscle strain. Thus, it cannot be said that the Veteran had a chronic disease which manifested during service and then again "at any later date, however remote." In other words, there has not been a combination of manifestations sufficient to identify the disease entity post-service. See 38 C.F.R. § 3.303(b); Groves, 524 F.3d at 1309-1310. Furthermore, post service, the evidence as a whole does not establish continuity of symptomatology of a low back disorder since service. 38 C.F.R. § 3.303(b). In making this determination, the Board acknowledges the Veteran's lay assertions regarding continuous low back pain and symptoms since his discharge from service in 1983. He maintains that immediately after service in 1984 and 1985 he lost jobs due to his low back symptoms. He states that he did not receive post- service treatment for his low back until sometime after 2000 due to lack of health insurance. He still contends that he suffered from low back pain, locking of the back, and a burning sensation in his left leg ever since his military injury, prior to the occurrence of an intercurrent December 2004 MVA. See hearing testimony at pages 4-11; April 2009 VA physical therapy consult; May 2010 VA examination at page 2. In any event, he is indeed competent to report low back pain and other symptoms from the time of his military service. Layno, 6 Vet. App. at 469. See also 38 C.F.R.§ 3.159(a)(2). But once evidence is determined to be competent, the Board must determine whether the evidence also is also credible. The former, the Court has held, is a legal concept, which is useful in determining whether testimony may be heard and considered by the trier of fact, while the latter 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, 74 (1997). See also Layno, supra. The Veteran's credibility affects the weight to be given to his testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In this regard, the first medical evidence of possible treatment for a low back disorder in the claims folder is from a June 2000 VA treatment record which noted pain under the ribs on the left side. It began one and half years prior to June 2000. It is unclear whether this pain was indicative of a low back disorder, but in any event it began approximately 15 years after discharge from service. The next post-service record of definitive treatment for a low back disorder is from private treatment records dated in December 2004, after a MVA. A December 2004 MRI assessed a disc herniation at L5-S1 and bilateral foraminal stenosis at L4-L5 and L5-S1. This was approximately 20 years after discharge. Regardless, the Board cannot determine that lay evidence of continuity of symptoms lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1336-37. The Board may, however, in the present case consider a lack of contemporaneous medical evidence for at least 15 years post-service as one factor in determining the credibility of lay evidence. Id. at 1337. But most importantly, there are several other factors present that weigh against the Veteran's credibility as to his lay assertions of continuity of symptoms. Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony." Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board emphasizes that personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). As such, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza, 7 Vet. App. at 506 (citing State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992). In this respect, the Board acknowledges that December 2004 and January 2005 private treatment records from Dr. C.W.K., MD., assess that the Veteran's degenerative disc disease preexisted the intercurrent MVA accident in December 2004. In addition, the January 2006 VA examiner came to a similar conclusion due to the presence of degenerative changes in the Veteran's low back at the age of the 41. Thus, this evidence does lend some limited support to continuity of symptoms prior to the December 2004 MVA. However, the probative value of this evidence with regard to continuity of symptoms after discharge from service is rather limited since neither the private physician nor the VA examiner surmised how long these degenerative changes were present after discharge from service in 1983 or whether the degenerative changes are in fact related to any in-service injury. Moreover, the Veteran's lay assertions of continuity of symptomatology after discharge in 1983 are directly contradicted by other VA medical evidence. That is, to the extent the Veteran could argue that a June 2000 VA treatment record for notation of pain under the ribs on the left side is equivalent to low back pain, it was documented this pain only began one and half years prior to June 2000. There was no mention of continuity of symptoms since service. Further, no other VA treatment records from 2000 assess a low back disorder. Most significantly, however, a VA treatment record dated in November 2004, one month prior to the December 2004 MVA, reflected that there was no back pain upon flexion or extension, and normal lower extremity reflexes with normal neurological findings. The Veteran did not mention any low back pain at that time, and no assessment was made for a low back disorder. He only reported low back pain one month later after his December 2004 MVA. In short, this evidence of record is not consistent with, and in fact directly contradicts, his lay assertions as to continuity of symptoms. His personal interests also becomes a factor once the evidence of record is inconsistent with his lay assertions. In summary, the Veteran's lay assertions are less credible and persuasive in light of these factors. Therefore, overall, in-service and post-service medical and lay evidence of record does not demonstrate continuity of any in- service symptomatology seen. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 496-97. Likewise, since there is no objective indication of arthritis of the low back within one year after service, the Veteran is not entitled to application of the presumptive provisions either. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Arthritis, incidentally, must be objectively confirmed by X-ray. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Moreover, competent medical opinions of record provide evidence against a finding of a nexus between the Veteran's current low back disorder and his period of active service. Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). Specifically, in a March 2005 statement, Dr. M.R.P., MD., a VA physician, stated the Veteran had multiple body injuries including two herniated discs in the lumbar region, and he wrote that all of the Veteran's problems are a direct result of injuries sustained in the motor vehicle accident in December 2004. This opinion did not provide any further analysis, so it is entitled to only limited probative value. The Veteran also underwent a VA examination by a nurse practitioner and a physician in January 2006. At the examination, the examiners initially stated that the degenerative lumbar condition is at least as likely as not caused by or a result of his military injury. As rationale for the opinion, the examiners went on to state that due to the age of the Veteran and the presence of the degenerative changes at age 41, it can be inferred there was a low back condition present prior to the December 2004 MVA. The examiners went on to state that the Veteran's " L5-S1 annular tear impinging on the thecal space anteriroly [sic]" is at least as likely due to the 2004 MVA that occurred. A February 2006 addendum from these same examiners clarified that it is not likely the lumbar degenerative disc disease is due to the in-service L1 fracture. The examiners attributed the lower degenerative process of the Veteran's lower spine to factors such as obesity, smoking, a decrease in exercise, and aging. So the ultimate opinion of these examiners was against the Veteran's claim for service connection. However, since the January 2006 examination and February 2006 addendum are not consistent, this opinion is entitled to only limited probative value against the claim. In light of the Court's March 2009 instructions, the Board secured another VA medical examination and opinion in May 2010 from a VA physician's assistant. The examiner noted that X-rays and MRI's reveal that the Veteran's in-service fracture resolved without a residual pathology. The examiner remarked that degenerative disc disease is a misnomer and is in fact part of the aging process accelerated by inactivity and obesity. The examiner did not find there was evidence of chronicity. The examiner reflected that the February 2006 VA addendum was correct since there is objective evidence of resolution of the in-service fracture in the lumbar spine, and the Veteran's current degenerative process in the lumbar spine is exacerbated by risk factors such as aging and morbid obesity. Although a review of the May 2010 VA examination report reveals that the VA examiner documented the Veteran's assertions regarding continuity of symptoms since discharge, the VA examiner still did not corroborate the Veteran's lay assertions regarding continuity of symptoms. The examiner cited the pertinent VA treatment record (dated November 18, 2004 but mistakenly dated as September 18, 2004 by the examiner), which revealed no low back problems. In this vein, the Board has also determined, as discussed above, that the Veteran's lays assertions regarding continuity of symptoms are not particularly probative or credible. In short, the May 2010 opinion was thorough, supported by an explanation, based on a review of the claims folder, and largely supported by the evidence of record. The Board finds this opinion is entitled to great probative weight against the claim. The Board acknowledges that the physician's assistant who conducted the May 2010 VA examination was not an orthopedist. Nonetheless, VA medical examinations do not need to be conducted by examiners with any particular expertise or specialty in order to comply with the duty to assist; rather, the regulations and case law establish that VA medical examinations need only be provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing 38 C.F.R. § 3.159(a)(1)). The Board may assume a VA medical examiner is competent. Id. See also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (VA has no obligation to present affirmative evidence of a VA physician's qualifications during Board proceedings, absent a challenge by the Veteran); Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). Nothing suggests that the May 2010 VA examiner was not competent to perform the required examination and testing. There is no reason for deeming the examination to be inadequate. Again, this opinion was thorough, supported by an explanation, and based on an extensive review of the claims folder including the previous medical opinions of record. It is thus entitled to significant probative value, and provides strong evidence against the claim. The Board emphasizes that although the Veteran is competent to report any symptoms he previously or currently has as to his low back disorder, he is not competent to render an opinion as to the medical etiology of his currently diagnosed degenerative disc disease at L4-L5 and L5-S1 with bilateral femoral stenosis, because diagnosing this particular disorder requires medical training or expertise. See 38 C.F.R. § 3.159(a)(1)-(2); Jandreau, 492 F.3d at 1377. In this respect, "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr, 21 Vet. App. at 308. The Veteran does not meet any of the three exceptions for competent lay evidence as listed under Jandreau. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a low back disorder, to include IVDS, so there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a low back disorder, to include IVDS, is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs