Citation Nr: 1128380 Decision Date: 07/29/11 Archive Date: 08/04/11 DOCKET NO. 95-42 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney-at-Law WITNESSES AT HEARING ON APPEAL Appellant and sister ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from October 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) from a November 2000 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. An October 2002 Board decision found that the Veteran had submitted new and material evidence to reopen his claim of entitlement to service connection for a low back disability since the most recent denial of reopening of that claim in October 1999 but denied service connection for a low back disability on the merits. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2004 Order, the Court vacated the Board's decision and remanded the matter for compliance with 38 U.S.C.A. § 5103(a) of the Veterans Claims Assistance Act of 2000 (VCAA). In a March 2008 per curiam opinion, the United States Court of Appeals for the Federal Circuit (Federal Circuit) summarily affirmed the Court's May 2004 decision. In October 2008, the Board remanded the claim for further development. A June 2009 Board decision again found that new and material evidence had been submitted to reopen the claim and denied the claim on the merits. The Veteran appealed that Board decision, and pursuant to a January 2010 Joint Motion for Remand, the Court vacated the June 2009 Board decision and remanded the claim to obtain the Veteran's service personnel records and to address lay evidence on file. In the Joint Motion it was stipulated that "[t]he parties agree that the Board's decision that the Appellant is not entitled to service connection for a low back disability should be vacated and remanded for development and readjudication in accordance with the foregoing discussion." In March 2010, the Board once again remanded this matter for further development, to include attempting to obtain any additional service records and scheduling the Veteran for a VA examination. In the remand, the Board indicated that as it had twice before been found that the additional evidence received since the October 1999 rating decision was new and material, the issue on appeal was limited to addressing the claim on the merits. In February 2011, the Veteran's attorney requested that a 90 day extension be granted so that additional development could be accomplished. In March 2011, the undersigned Veterans Law Judge granted the 90 day extension to submit additional evidence/argument. The 90 day period has passed and the matter is ready for appellate review. FINDING OF FACT The weight of the medical evidence fails to show a causal relationship between the Veteran's current complaints related to his low back disorder and military service. CONCLUSION OF LAW A low back disorder was not incurred in or aggravated during the Veteran's period of military service nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. § 1101, 1110 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Low Back Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The Board may not reject the credibility of the veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as arthritis, will be presumed to have been incurred in service if they had become manifest to a degree of ten percent or more within one year of the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran claims entitlement to service connection for a low back disability. He maintains that he was diagnosed with and treated for a chronic back disorder in service. Service treatment records reveal that the Veteran was seen in July 1970 with complaints of pain, limited range of motion, an inability to sit, and pain when he moved his legs after feeling "something give in his back" while working. Following examination, a diagnosis of muscle strain was rendered. Bedrest and Valium were prescribed. The Veteran was found to have minimal improvement upon a follow-up visit. He was noted to not be following the advice to put his mattress on the floor. No further complaints of low back problems were noted until July 1971, when the Veteran complained of back pain following heavy lifting the previous day. He was diagnosed as having muscle strain at that time. There was no additional follow-up treatment. At the time of the Veteran's October 1971 service separation examination, normal findings were reported for the spine. There were no notations of back problems made at that time. In a May 1984 letter, the Veteran's private chiropractor indicated that the Veteran was first seen in January 1979, while employed by Mountain State Fence Co. At that time, he had injured his back while raising fence post due to his losing his balance and falling, which resulted in an injury to his back. The diagnosis rendered at that time was acute traumatic lumbosacral stain with secondary structural misalignment of the cervical and dorsal vertebrae. In a May 1985 statement in support of claim, the Veteran indicated that he would submit evidence that he had continuously had back problems since service. At the time of a June 1985 VA examination, the Veteran reported sustaining an injury to his back in service when falling backwards onto his buttocks after a bolt he was tightening with a lug wrench snapped. A diagnosis of periodic low back pain, with no limitation of motion was rendered. In a May 1998 statement in support of claim, the Veteran indicated that he had received treatment at a VA medical center for his low back within the past week. Treatment records obtained in conjunction with the Veteran's claim reveal that he was seen in the mid to latter part of the 1990's with complaints of low back pain, with the Veteran reporting having had back problems for close to 30 years. Additional VA treatment records in the early 2000's also noted treatment of back pain, with the Veteran reporting that he initially injured his back in 1970. In a March 2001 letter, the Chief of the Neurology Section for the VA Tennessee Valley Health Care System, indicated that the letter was to document that the Veteran had been evaluated in his clinic since October 2000 for severe back pain. He had symptoms of neurogenic claudication which limited his ability to walk even very short distances. He was noted to have weakness in both lower extremities. A MRI of the lower back showed evidence of spinal stenosis, extensive degenerative joint disease causing foraminal narrowing, and facet joint hypertrophy. He noted that the Veteran had a history of back trauma (in 1970 while in service) which may have contributed to or accelerated advancement of degenerative joint disease of the lumbar spine. He stated that at present, his degree of degenerative change in the lumbar spine was far advanced for his age. He noted that the Veteran was not capable of doing any work which involved physical activity. At the time of his August 2001 hearing, the Veteran testified that his back problems started in July 1970. He indicated that his back did not bother him prior to service. The Veteran stated that he injured his back when attempting to remove a nut with a wrench. He noted that he pulled very hard and the pain caused him to drop to his knees. The Veteran reported that following the incident it would take 20 minutes for him to get from the floor to the bed. He also noted again injuring his back when lifting a grease gun up to one of his crew. The Veteran reported that he performed no duty for three months and was then placed on light duty. He stated that he performed more of a supervisory role while on light duty. The Veteran's sister testified that she spoke to the Veteran following his release from service, as well as other family members, with the Veteran's back problems being mentioned at that time. The Veteran stated that he did not receive treatment after service and that he took alcohol and pain pills to alleviate the pain. He reported having several jobs after service, which were too physical for him and lasted one year or less. The Veteran indicated that he went to Utah in search of a better job and obtained a job as a fencer. He stated that he first sought treatment for his back following an injury he sustained when fencing but noted that he had hurt his back many times before actually receiving treatment. He testified that he finally went to see a doctor after the pain became so bad that he was no longer afraid of doctors. He reported that he was scared to death of doctors. The Veteran's sister stated that she had seen the Veteran pass out, out of fear, when having to go to the doctor. The Veteran testified that there was no evidence of medical treatment between his separation from service and the time he sought treatment for his back following the fencing injury. He further noted that there was no treatment subsequent to that until 1984. He then reported receiving treatment for his back again in 1996. The Veteran's representative indicated that the Veteran felt that the fencing injury was not the onset of a new injury but an aggravation of the inservice injury. In conjunction with the Board remand, the claims folder was referred to a VA examiner for an opinion as to the etiology of any current low back disorder and its relationship to service. The examiner noted the back injures sustained by the Veteran in service, in July 1970 and July 1971, and the resulting diagnoses of lumbar strain and muscle strain. He further observed that the October 1971 service separation examination results for the spine were normal. He noted that the Veteran reported that he never had treatment for back pain up until injuring his back while working for a Fencing Company in 1979. He also noted the May 1984 statement from the Veteran's chiropractor who indicated that the Veteran was initially seen in January 1979 for an injury sustained to his back while performing his fencing duties. The diagnosis was acute traumatic lumbosacral strain with secondary structural misalignment of the cervical and dorsal vertebrae. He further observed that the Veteran had another injury to his back on July 22, 1979, when he stretched fence and slipped, resulting in an injury to his back, with a diagnosis of acute vertebrogenic radiculitis of L5 being rendered. The examiner also noted the results of the May 1985 VA examination as well as x-rays performed at that time which revealed a congenital transitional vertebrae at L5 with incomplete bony bridging to S1 demonstrating degenerative sclerosis at this articulation on the left. The impression was congenital transitional vertebra with osteoarthritic changes on the left related to this anomaly. It was noted that the Veteran still had problems with chronic low back pain. The examiner indicated that the Veteran had two back injuries while in service, which were not a severe type injury. The problems with his back were acute. At the time of discharge, spinal examination was normal. He noted that the Veteran never had treatment for his back after service until he injured his back while working for a fencing company in 1979. He stated that it would be difficult for the Veteran to work for a fencing company doing physical work if he had significant low back pain. He noted that because of the type of injury the Veteran had in service with no problems recorded at separation, as well as no treatment for back problems after he left service until back treatment by a chiropractor in July 1979 after he sustained a back injury, it was his professional opinion that the current low back disability was not the result of his inservice injuries. Social Security records obtained in conjunction with the Veteran's claim continued to note treatment for low back complaints as well as the Veteran reporting that his back problems had their onset in service. In conjunction with the Board's October 2008 remand, the Veteran was afforded an additional VA examination in October 2009. Following examination, the examiner rendered a diagnosis of slight anterolateral vertebral spurring of the lumbar spine. The examiner stated that the claims folder had been available and had been reviewed. He noted the May 1984 chiropractic report as well as the results of an examination performed in 1999. He also observed that the Veteran had been found to be disabled for Social Security purposes in 1995. The examiner further noted the two findings of inservice back injuries as well as the report of examination on separation. The examiner stated that it was less likely as not (less than 50/50 probability) that the low back disability was caused by or a result of military service. The examiner indicated that there was no complaint of or treatment for back pain dating from last injury in military service on July 12, 1971, until discharge from military in October 1971 and none noted on discharge examination. He further observed that the medical record was silent from October 1971 until January 6, 1979, when the Veteran underwent chiropractic treatment. The records indicated that the Veteran injured his back twice while working for the Fencing Company, with the first injury on January 6, 1979, with a diagnosis of acute traumatic lumbosacral strain with secondary misalignment of cervical and dorsal vertebrae, and the second injury on July 22, 1979, with a diagnosis of acute vertebrogenic radiculitis of L5, which were the first mentions in any record, VA, military, or private, of any injury to the bones (vertebrae) of the lower back. As result, it was less likely than not that the current low back disability was related to the soft tissue injuries (strain and spasm) incurred while in military service and most likely related to the injuries to the lumbar vertebrae incurred while working at the Fencing Co. in 1979. The examiner stated that there was no evidence in literature that linked soft tissue injuries to the development of arthritis. In its March 2010 remand, the Board noted that the January 2010 Joint Motion stated that because the Veteran had reported that following two inservice back injuries he had been placed on light duty for the remainder of his career during service, the Veteran's service personnel records should have been obtained prior to the Board's having adjudicated the claim on the merits. In this regard, the Board observed that following a March 2006 request, the National Personnel Record Center (NPRC) stated that it had conducted an extensive and thorough search for its records and was unable to locate the records requested (i.e., the Veteran's service personnel records in conjunction with a claim for service connection for PTSD). It noted that on the basis of the request presented, the NPRC concluded that the records either did not exist, the NPRC did not have them, or that further efforts to locate them at the NPRC would be futile. The Board stated that nevertheless, the Joint Motion, which had been approved by the Court, instructed the Board to remand the case for the purpose of obtaining the Veteran's service personnel records. The Board further noted that the evidence on file indicated that in 1979, the Veteran incurred two work-related injuries. It also noted that a May 1984 statement from a private chiropractor reflected that the Veteran had first been seen in January 1979 while employed by Mountain States Fence Company. It was indicated that his treatment had extended through September 1979 and it was felt that he would still have a very weakened structural problem that would require proper follow-up care and a maintenance program. The Board also observed that other than the service treatment records, there was no evidence prior to 1979 that the Veteran had low back disability. The Board further noted that since the Veteran apparently sustained work-related injuries, it was expected that he would have filed one or more claims for Workman's Compensation. It observed that the records of any Workman's Compensation claim(s), including any medical records associated therewith, could prove invaluable in adjudicating the claim and should be obtained. The Board also indicated that assuming additional evidence was obtained, further examination of the Veteran was needed for an examination which encompassed all evidence on file. The Board requested that the RO take the appropriate steps to obtain the Veteran's service personnel records. It also indicated that, if necessary, NPRC should be re-state whether the service personnel records (1) could not be located, (2) that NPRC did not have the service personnel records, and (3) whether further efforts to locate and obtain those records would be futile. The Board also requested that the RO contact the Veteran and inquire whether he had copies of his service personnel records and request that he submit duplicate copies of all such records to the RO. The Board also indicated that the RO should request that the Veteran provide as much identifying information as possible concerning any Workman's Compensation claims he had filed since his discharge from military service in October 1971, to include any claim(s) filed for one or more job-related back injury(ies) in 1979. If sufficient information was not provided by the Veteran, the Veteran was to asked to provide the mailing address of his employer in 1979 and the RO was ordered to take the appropriate steps to contact the employer to obtain as much information as possible regarding the Veteran's apparent work-related back injuries in 1979. If necessary, the RO was to take the appropriate steps to contact the appropriate state agency to obtain all records pertaining to any Workman's Compensation claim(s) filed by the Veteran for any injury(ies) sustained in 1979. The Board also requested that the RO make arrangements with the appropriate VA medical facility for the Veteran to undergo a VA examination to obtain a medical opinion concerning the nature, etiology, and probable time of onset of any low back disorder that the Veteran now had. The VA examiner was to indicate whether it was at least as likely as not that any disorder currently present was etiologically related to the Veteran's military service, including any events or incidences during service, e.g., his inservice muscle strains. In making these determinations, the VA examiner was to review and consider the May 1984 statement of a private chiropractor that, after two work-related back injuries, the Veteran still had a very weakened structural problem; the undated statement of a VA Chief of Neurology that the Veteran had a history of inservice back trauma which "may have" contributed to or accelerated advancement of degenerative joint disease of the lumbar spine; the VA examination in February 2002 which found that (a) the Veteran's inservice injuries were not severe but acute and (b) at service discharge his spine was normal and (c) he had not had treatment for back problems until his post service work-related injuries, and (d) that it would have been difficult to work for a fencing company if had had significant low back pain, and that his current low back difficulty was not the result of inservice injuries; and the VA examination in January 2009, wherein it was noted that the May 1984 statement of a private chiropractor reflected that the first evidence of any injury to the vertebrae were the post service injuries in 1979, and so the current low back disability was less likely than not related to the inservice soft-tissue injuries and most likely related to the injuries in 1979. Any inconsistencies between the findings, diagnoses or opinions of the foregoing were to be explained or reconciled and the rationale for all opinions expressed was to be discussed. In conjunction with the March 2010 remand, NPRC, in April 2010, again forwarded the results of the April 2006 prior search conducted which indicated that NPRC had conducted an extensive and thorough search of the records among their holdings. It noted that it was unable to locate the records identified in the request (personnel file). NPRC concluded that the records either did not exist or the records were not located at NPRC. In a May 2010 letter, the RO requested that the Veteran provide copies of all service personnel records in his possession. It also requested that the Veteran forward any military records in his possession. The RO further requested that the Veteran provide as much information as possible concerning any Workman's compensation claims made since discharge from military service in October 1971, to include any claims filed for one or more job-related back injuries in 1979. To date, the Veteran has not provided the requested information. The Veteran was afforded an additional VA examination in July 2010. The examiner indicated that the claims folder had been reviewed. The examiner noted the May 1984 report from the Veteran's chiropractor. She also noted the results of a 1999 medical examination, wherein a diagnosis of chronic low back pain that occasionally became worse was rendered. The examiner further observed that the Veteran was found to be disabled for Social Security purposes in 1995. The examiner also noted the July 1970 and July 1971 inservice findings with regard to the low back. The examiner further observed that a July 1985 x-ray of the low back revealed a congenital transitional vertebrae at L5 bridging to S1, demonstrating degenerative sclerosis at this articulation on the left, with the examiner indicating that this was a congenital transitional vertebra with osteoarthritic changes on the left related to this anomaly. Following examination, the examiner rendered a diagnosis of degenerative joint disease of the lumbar spine. She stated that the degenerative joint disease of the lumbar spine was less likely as not (less than 50/50) caused by or the result of military service. The examiner noted that the Veteran had soft tissue injuries (muscle strains) in military with a normal physical examination on October 4, 1971. She observed that there were no other complaints or record of back pain from that date until his on-the-job injuries in 1979. Therefore, it was less likely as not that the current back condition was caused by the Veteran's military service and more likely caused by the on-the-job injuries in 1979. The examiner noted the May 1984 statement from the chiropractor that after two work-related back injuries, the Veteran still had a very weakened structural problem; the examiner stated that there was no inconsistency, only a statement that the Veteran's on-the-job injuries had not fully recovered after chiropractic treatment. The examiner also noted the undated statement from the VA Chief of Neurology that the Veteran had a history of inservice back trauma which may have contributed to or accelerated advancement of degenerative joint disease of the lumbar spine. She also noted the February 2002 report from the VA examiner, who indicated that the Veteran's inservice injuries were not severe but acute and at service discharge his spine was normal and he had not had treatment for back problems until his post-service related work injuries, and that it would have been difficult to work for a fencing company if he had had significant low back pain, and that his current low back difficulty was not the result of inservice injuries. The examiner further noted the January 2009 VA examination report, wherein it was indicated that the May 1984 statement from the chiropractor reflected that the first evidence of any injury to the vertebrae were the post-service injuries in 1979, so the current low back disability was less likely than not related to the inservice soft-tissue injuries and most likely related to the injuries in 1979. The examiner indicated that the only inconsistency in the above-cited statements was in the undated statement that the inservice back trauma may have contributed to or accelerated advancement of degenerative joint disease of the lumbar spine, which she stated was an ambiguous statement at best made by a provider who it appeared may have had a personal professional relationship with the Veteran. She noted the statement of three unbiased and impartial compensation and pension examiners (including herself) had all concluded that it was unlikely that the Veteran's current back condition was caused by the Veteran's muscle strains in the military and most likely caused by the on-the-job injuries in 1979. The Veteran claims entitlement to service connection for a low back disability. He contends that he was diagnosed with and treated for a chronic back disorder in service. As noted above, the Veteran's service treatment records reveal that he sought treatment in July 1970 for complaints of pain, with a diagnosis of muscle strain being rendered at that time. There is no other notation regarding the low back until July 1971, when the Veteran complained of back pain after heavy lifting the previous day, with a diagnosis of muscle strain being rendered with no additional follow-up. As to the issue of whether a chronic disability was shown in service, the Board places high probative value on the October 1971 service separation examination, which showed a normal clinical evaluation of the Veteran's spine. The Board has also considered the Veteran's statements that he was placed on light duty for the remainder of his military career but finds no supporting medical evidence indicating a low back profile. Moreover, several attempts have been made to obtain additional records to support his claim but the search for these records has proved unfruitful. As such, the Board assigns greater probative value to the showing of a "normal" back examination at the time of service separation. As the Board has found that there was no chronic low back disorder noted in service, it must next consider whether the Veteran has shown continuity of symptomatology or a medical nexus between his in-service muscle strains and current diagnosis. While he has related that he experienced back pain since military discharge, the Board finds that the medical evidence does not support the Veteran's contentions. First, post-service medical evidence is absent for complaints of, treatment for, or diagnosis of a low back disorder for several years after discharge. Specifically, at the time he filed his initial claim for service connection for a low back disorder, he submitted a letter from a private treating chiropractor to the effect that he had been treated for a work-related back injury in January 1979. The chiropractor noted that the Veteran had again injured his back in a July 1979 work-related accident. Despite the Veteran's contentions to the contrary, the Board finds that this evidence does not, in fact, support his assertions that he had back symptoms since military service. To that end, the Board places significant probative value on the absence of low back complaints prior to the January and July 1979 work-related accidents, some 8 years after service separation. Of note, there is no other medical evidence associated with the claims file, nor has the Veteran indicated that any exists, reflecting complaints of, treatment for, or diagnosis of a low back disorder until the 1979 injuries. Therefore, the Board finds that this medical evidence does not support his claim of continuity of symptomatology. The July 1985 VA examination also fails to support a finding of continuity of symptomatology or medical nexus. At that time, the Veteran related an in-service history of back pain but did not report his post-service work-related injuries in 1979. While the examiner diagnosed periodic low back pain with no limitation of motion, there was no opinion rendered as to a causal relationship between the Veteran's complaints and military service. The Board also notes that a June 1985 X-ray report showed a congenital transitional vertebra with osteoarthritic changes on the left related to the anomaly. Therefore, to the extent the Veteran claims osteoarthritis of the lumbar spine, it appears to be related to a congenital deformity which cannot be service-connected. Under the relevant regulations, congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). The Board has also considered multiple outpatient treatment records showing on-going treatment for low back pain since the late 1990s. While the Veteran related his pain to an in-service injury, the Board is not obligated to accept the Veteran's recitation of the facts. See Godfrey v. Brown, 8 Vet. App. 113 (1995). While recognizing that the Veteran has been diagnosed with a current low back disorder, the Board is placing less probative weight on this evidence as the issue of a causal relationship between his symptoms and current diagnosis were either not addressed or appeared to be based wholly upon statements of past medical history provided by the Veteran. The Board, however, is not bound to accept such statements simply because treating medical providers have done so. Wilson v. Derwinski, 2 Vet. App. 614 (1992); Wood v. Derwinski, 1 Vet. App. 190, reconsideration denied, 1 Vet. App. 406 (1991). The Board is also placing less probative value on the undated letter from a VA treating physician to the effect that the Veteran's in-service history of back trauma "may have contributed" to degenerative joint disease of the lumbar spine. First, the such language is equivocal in nature. The Board notes that "may" or "may not" language has been found insufficient to support a claim for service connection. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Moreover, the undated statement did not discuss the relationship, if any, of the Veteran's post-service work-related injuries or congenital spinal disorder to his current low back complaints, nor does it appear that the physician had the claims file available for review prior to rendering an opinion. The Board finds the claim cannot be granted based on a suggestion that there "may be" a relationship between the Veteran's current complaints and military duty as it contradicts the weight of medical evidence showing no such relationship. The Board places significant probative value on a February 2002 VA medical opinion that the Veteran's "current low back disability [was] not the result of his in-service injuries." Specifically, the Board is particularly persuaded to assign greater probative weight to the February 2002 medical opinion because the physician-reviewer had the claims file for review, outlined the Veteran's in-service injuries, discussed the post-service work-related injuries, and considered multiple outpatient treatment records and VA examination reports already of record prior to rendering his opinion. Moreover, the Board finds the physician-reviewer's recitation of the facts to be consistent with the medical evidence of record. Further, the physician-reviewer focused on whether there was a causal relationship between the Veteran's in-service complaints and current low back pathology. The physician-reviewer noted the normal service separation examination findings and indicated that it would have been difficult for the Veteran to have been performing physically demanding work after military separation if he had been experiencing significant low back pain. The physician-reviewer noted that because of the types of injuries in service, the normal findings on separation, and no treatment for back problems for several years, there was no causal relationship between the Veteran's current complaints and military service. As the physician-reviewer was aware of the Veteran's in-service back injury and had access to the claims file, the Board assigns significant probative weight to the medical opinion. Also of significant probative value is the January 2009 VA medical examination. At that time, the examiner diagnosed the Veteran with slight anterolateral vertebral spurring of the lumbar spine and rendered the opinion that the Veteran's low back condition was less likely as not caused by or a result of military service. The examiner based his opinion on the Veteran's lack of complaints, diagnosis, or treatment for any low back condition after service prior to a reported back injury while working at a fencing company. Moreover, the Board also places significant probative value on the July 2010 VA examiner's opinion that it was less likely than not that the Veteran's current low back disorder was related to his period of service. This opinion was rendered following a comprehensive review of the claims folder and a thorough examination of the Veteran. In rendering her opinion, the examiner cited to the Veteran's inservice treatment, the lack of treatment in the years immediately following service, and the specific findings made by the various examiners/treating physicians located in the claims folder. She also addressed the specific findings which the Board referenced in its March 2010 remand when rendering her opinion, noting any inconsistencies that were contained in the report/examinations. The Board has also considered the statements and sworn testimony of the Veteran and his sister and the statements of his family and a service buddy. Competency of evidence differs from weight and credibility. The former is a legal concept 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Specifically, in an August 2001 personal hearing, he testified that he injured his back during service and continued to have problems since discharge. He noted that he was treated for back pain in July 1970 and was placed on light duty for the remainder of his military service. His sister indicated that she talked with him or his wife by telephone after he was discharged and knew he was having problems with his back. He acknowledged that he did not seek any treatment for low back pain after service separation but used pain pills and alcohol for pain management. Further, the Board has reviewed statements from his wife and mother-in-law submitted in the late 1980s to the effect that the Veteran hurt his lower back in service and continued to have pain. More recently, a service buddy indicated that the Veteran injured his back during active duty and had experienced pain since. The January 2010 Joint Motion for Remand (JMR) specifically indicated that the Board did not address the Veteran's statements that although he was not receiving treatment he was taking pain pills and drinking alcohol to relieve the pain. It was further noted that the Veteran reported at that time that after his 1979 work-related accidents his pain was bad enough where he wasn't scared of doctors no more. The JMR also noted that the Board did not address the Veteran's sister statement that his family was aware of his fear of doctors and that she and family members knew of the Veteran's back problems. In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He has indicated that he continued to experience symptoms relating his low back problems after he was discharged from the service. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). In this case, the Board finds that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. The Board again notes that the medical evaluation board examination was normal, indicating low back problems were not present at that time. Such objective evidence is more reliable than the Veteran's subjective observations. The Board also emphasizes the multi-year gap between discharge from active duty service (1971) and initial reported symptoms related to back problems in approximately 1979 (more than 8 years). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for benefits to be of lesser probative value. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). Therefore, continuity has not here been established, either through the competent evidence or through his statements. Likewise, while the Veteran's sister reporting the Veteran's fear of doctors, and of family members speaking about the Veteran's back, such testimony does not provide a continuity of symptomatology from the time of the Veteran's separation from service until 1979. The Veteran's sister did not indicate that she spoke to the Veteran on a continuous basis about his back nor did she testify that the Veteran indicated that his fear of doctors prevented him from seeking treatment until 1979. In addition, after considering the Veteran's testimony and the other statements in support of his claim, the Board notes that neither the Veteran, his family, nor a friend have the medical expertise to clinically establish that his current complaints resulted from an injury during active military duty. Despite his testimony, the service medical records are negative for a chronic low back disorder. Further, post-service medical evidence is devoid of complaints related to the Veteran's low back until a work-related injury many years after service separation. The mere contentions of the Veteran, no matter how well-meaning, without supporting medical evidence that would etiologically relate his current complaints with an event or incurrence while in service, are not of sufficient probative value to rebut the February 2002, January 2009, and July 2010 medical opinions. Caluza v. Brown, 7 Vet. App. 498 (1995); Lathan v. Brown, 7 Vet. App. 359 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1994); King v. Brown, 5 Vet. App. 19 (1993). In this case, there is no evidence that the Veteran, his family, or friend have any medical expertise, or are otherwise qualified to render a medical opinion. Consequently, his statements and the statements of his family and a friend, without some form of objective medical corroboration, are not deemed to be of significant probative value. Given that there was no evidence of a chronic low back disorder in service, no complaints related to the Veteran's low back for several years after discharge, and the opinions by a VA examiners-reviewers that there is no causal relationship between the Veteran's current complaints and military service, the preponderance of the evidence is against the claim. For all these reasons, the Veteran's claim for entitlement to service connection for a low back disorder is denied. Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, in regard to the Veteran's claim of entitlement to service connection for a low back disability, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the appellant in December 2008 that fully addressed all notice elements. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statements of the case issued in February 2009 and March 2010 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, 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 service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Such notice was also provided in the December 2008 letter. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has made several attempts to obtain all service personnel and treatment records, with the notation being made on two separate occasions that no additional records are available. The RO has obtained all pertinent VA treatment records and the records regarding the Veteran's award of Social Security Administration disability benefits. The Veteran has also submitted private treatment records in support of his claim. The claims folder was reviewed by a VA examiner in February 2002 and the Veteran was afforded VA medical examinations in January 2009 and July 2010. The results from the examinations provided sufficient detail and opinions to properly address the Veteran's claim. The results of the July 2010 VA examination complied with the requests in the March 2010 Board remand. Significantly, neither the appellant 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. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and his testimony at a hearing if he so desired. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the 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). ORDER Service connection for a low back disorder is denied. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs