Citation Nr: 0724172 Decision Date: 08/03/07 Archive Date: 08/15/07 DOCKET NO. 99-16 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for shortening of the right leg. 2. Entitlement to service connection for a low back disorder, claimed as secondary to the shortening of the right leg. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran reportedly had active duty from October 1985 to February 1990. These matters come to the Board of Veterans' Appeals (Board) from the timely appeal of a March 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The RO denied entitlement to service connection for shortening of the right leg and a low back disorder secondary to the leg shortening. In an April 2002 decision, the Board denied service connection for shortening of the right leg and a low back disorder secondary to the leg shortening. The Board determined that the shortening of the right leg had existed prior to service and had not been aggravated by service. The Board also found that a low back disorder had not been incurred in service, and was not secondary to a service- connected disability. The veteran appealed the Board's April 2002 decision to the United States Court of Appeals for Veterans Claims (Court). As the result of a Joint Motion for Remand by the veteran and the Secretary, in a December 2002 order the Court vacated the April 2002 Board decision and remanded the appeal to the Board for readjudication. In a June 2003 decision, the Board denied the claims on appeal. The Board determined that a defect in the right lower extremity resulting in a leg length discrepancy existed prior to, and was not aggravated by service. In addition, a chronic low back disorder was unrelated to an inservice disease or injury or a service-connected disorder. Pursuant to a March 2004 Joint Motion for Remand, the Court vacated the June 2003 Board decision and remanded the appeal to the Board for readjudication. In October 2004, the Board remanded this case. FINDINGS OF FACT 1. The veteran had a defect in the right lower extremity resulting in a leg length discrepancy prior to entering service and it did not worsen during his period of active service. 2. The veteran currently has low back pain; a chronic low back disorder is not due to disease or injury during service, and is not related to an inservice disease or injury or a service-connected disorder. CONCLUSIONS OF LAW 1. Shortening of the right leg was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 101, 1111, 1131, 1153 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2006). 2. A low back disorder was not incurred or aggravated in active service nor is it proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304, 3.310(a) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. VCAA letters dated in October 2004, March 2005, and July 2005, cumulatively fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letters told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Although the notification letters were not sent prior to the initial adjudication of the claimant's claims, this was not prejudicial to the claimant since the claimant was subsequently provided adequate notice and the claim was readjudicated and an additional supplemental statement of the case (SSOC) was provided in April 2007. If there is VCAA deficiency, i.e., VCAA error, this error is presumed prejudicial to the claimant. VA may rebut this presumption by establishing that the error was not prejudicial. See Simmons v. Nicholson, No. 2006-7092 (Fed. Cir. May. 16, 2007); see also Sanders v. Nicholson, No. 2006- 7001 (Fed. Cir. May. 16, 2007). In this case, the claimant was allowed a meaningful opportunity to participate in the adjudication of the claim. Thus, even though the initial VCAA notice came after the initial adjudication, there is no prejudice to the claimant. See Overton v. Nicholson, No. 02- 1814 (U.S. Vet. App. September 22, 2006). The claimant's service medical records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded VA examinations in March 1999 and September 1999. 38 C.F.R. § 3.159(c)(4). In addition, an expert opinion was obtained by VA and the veteran submitted his own expert opinion. The records satisfy 38 C.F.R. § 3.326. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Since the Board has concluded that the preponderance of the evidence is against the claims of service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Background The veteran contends that he has shortening of the right leg as the result of surgery conducted during service. In the alternative, he contends that the shortening of the right leg existed prior to service, but was aggravated by in-service surgery. He further claims to have a low back disorder that was caused by the leg length discrepancy. Medical records from the Northern Michigan Hospital show that prior to entering service, the veteran was examined and treated for congenital shortening and bowing of the right tibia. An x-ray study of both hips, both legs, and the right ankle for that stated purpose in August 1980 revealed an abnormality at the junction of the middle and distal thirds of the right tibia. The abnormality measured 2.7 by 2.5 by 1.5 centimeters in size and was interpreted to be a multiloculated bone cyst. In September 1980, the veteran underwent the surgical removal of the bone cyst from the right tibia, resulting in the removal of a piece of bone that was 3/8th inch by 3/8th inch in size from the medial aspect of the tibia. The contents of the cyst were removed from the cavity of the tibia, and the bone was then filled with bone chips. A December 1980 treatment record from the Burns Clinic Medical Center shows that the veteran complained of problems with his right knee, assessed as tendonitis. He was doing some cross-country skiing, but had not yet returned to full activity. The treating physician recommended that the veteran perform exercises to stretch his hamstrings. An x- ray study then revealed that the lesion resulting from the surgery was about healed, although a small cystic area remained. The veteran was released to resume full activity. An additional x-ray study was conducted in April 1981 due to a history of a leg length discrepancy. The report of the x- ray study indicates that the leg length discrepancy on the right had been slightly over-corrected, with the right iliac crest being 7 millimeters higher that the left. Measuring the lower extremities from the tip of the medial malleolus to the extreme upper cortex of the femoral heads showed the left leg to be 4 millimeters shorter than the right. On July 1985, the veteran underwent an enlistment examination. On his Report of Medical History, the veteran reported having or having had swollen or painful joints, broken bones, and a cyst. In explaining those complaints, the examining physician found that the veteran had Osgood- Schlatter's disease in the left knee, and that the veteran had undergone the excision of a benign cyst from the lower left leg with a bone graft. On physical examination, the physician documented full range of motion in both knees, and a scar on the right leg. An x-ray study of the lower right leg (the distal 1/3rd of the right tibia and fibula) was requested in conjunction with the examination, but if it was performed, a report of the study is not of record nor are any x-ray results. The service medical records show that in February 1986, the veteran complained of a throbbing pain in the lower right leg of 2 months in duration. He reported having had a bone tumor removed in 1980. The pain normally occurred after running or prolonged standing. Physical examination revealed tenderness to palpation in the right lower extremity, and his complaints were attributed to shin splints. He again complained in April 1986 of right lower leg pain, progressively worse since December 1985. He again reported having had surgery for a benign tumor in October 1980. X-rays revealed evidence of an old bony density and the prior surgery, but no acute changes. On evaluation by an orthopedist, the pain was attributed to a questionable stress reaction. The veteran reported having pain, clicking, and giving way of the right knee in March 1987, and having had a tumor removed from the tibia in 1980. Physical examination then showed a 1/4th inch shortening of the right lower leg, and a 30-degree external rotation deformity of the right tibia and fibula. An arthrogram of the right knee was negative. The symptoms were attributed to probable symptomatic mal-alignment of the lower leg with external rotation and a varus bow. Medication did not sufficiently alleviate the symptoms, and surgery was performed in May 1987. The records pertaining to the May 1987 surgery show that the veteran's history was pertinent for a prior curettage and bone graft of the distal right tibia due to a bone cyst in his early teenage years, with resulting 60-degree external mal-rotation of the right lower leg in comparison to the orientation of the right knee, 1/2 inch shortening of the right lower leg, and medial right knee pain secondary to the deformity. Surgical correction of the deformity was performed, with a rotational osteotomy of the right tibia with fixation. According to the operative report, a transverse osteotomy was performed one centimeter distal to the post-operative changes to the tibia. The fibula was also incised. The external rotation deformity was corrected by rotating the distal fragment of the tibia, and the incision fixed with a steel plate. The final diagnosis following the surgery was external rotation deformity, right tibia, secondary to benign bone cyst. There were no complications from the surgery, and the post- surgical course was uneventful. The right lower extremity was placed in a short leg walking cast until October 1987. Multiple x-ray studies following the surgery showed the right tibia and fibula to be in good alignment and that the osteotomy was well healed. The veteran reported having fallen down in June 1987, while the leg was casted. The diagnosis was a contusion around the cast margin. In September 1987 the veteran complained of increasing pain in the right leg, and was then walking with a cane and a slight limp. Physical examination revealed the wound to be well healed, and the alignment to be excellent. The physician determined that the osteotomy needed additional time to heal. The veteran was still limping in December 1987, and examination showed the leg lengths to be equal. The physician prescribed physical therapy, to include gait training. The veteran did not appear for the appointments. The veteran did well until March 1988, when he fell off an embankment and sustained a contusion to the right leg at the site of the surgery. He was walking with a marked limp. He complained of pain in the right lower leg, attributed to bursitis resulting from the fixation screw. A treatment record dated later in March 1988 shows that the veteran had undergone surgery to remove a bone cyst at age 16, and had then developed an external rotational deformity. Surgery was then performed to remove the screws and plate from the right tibia. Physical examination in May, August, and November 1988 disclosed the operation site to be well healed, and the veteran was asymptomatic in November 1988. Following the surgery, he had been given a limited profile through November 1988. The veteran injured his right knee in May 1989 when riding a motorcycle, with pain and locking of the knee. X-rays showed no abnormalities. The symptoms were assessed as traumatic right patellofemoral pain. He was given exercises to perform and an additional limited profile. The right knee symptoms were found to be resolving in July 1989. In January 1990, the veteran underwent a separation examination. On his Report of Medical History, the veteran again reported having or having had swollen or painful joints, broken bones, and a cyst. In commenting on those complaints, the examiner indicated that the veteran had a history of post-surgical degenerative joint disease in the right knee and that the veteran had had a bone cyst of the right tibia. Although the examiner indicated that the veteran had a past history of post-surgical degenerative joint disease in the right knee, there were no supporting clinical or x-ray findings. Further, the physical examination revealed no abnormalities in the right lower extremity other than the surgical scars and no such diagnosis was made. Thereafter, the veteran submitted the report of a June 1987 x-ray study of the right tibia and fibula. The study was conducted while he was on convalescent leave following the leg surgery. In comparison to the December 1980 x-rays, the June 1987 x-rays disclosed a recent interval osteotomy of the distal fibular and tibial diaphyses. A plate and six screws secured the tibial osteotomy; the tibia and fibula were in anatomic alignment. The non-ossifying fibroma of the distal tibia had been removed. In an April 1996 report, J.M.M., M.D., stated that the veteran complained of right leg pain, and reported a 6 month history of low back and right hip pain. He also had a history of a tibial rotation osteotomy, and attributed a leg length discrepancy to the osteotomy. He had previously been given a lift to wear in his right shoe, but had not used it recently. On physical examination, he walked with a short leg gait on the right. There was a 2.5-centimeter leg length discrepancy, right shorter than left. Dr. M. attributed the veteran's complaints to probable sacroiliitis, and stated that the leg length discrepancy was more than likely exacerbating his back complaints. A whole-body bone scan in April 1996 disclosed a single focus of abnormal activity in the proximal left fibula, but no other abnormalities. An April 1996 private treatment record from an unknown provider indicated that the veteran reported having had 5 surgeries on his right leg, resulting in shortening of the right leg. He complained of mid-back pain, and reported having injured his back in a fall several years previously. He asserted that his back problems were made worse by a chiropractor two years previously. Physical examination revealed moderate spasm in the mid-dorsum area. Physical examination 4 days later showed a significant (greater than one inch) shortening of the right leg. The veteran complained of low back and right hip pain in December 1996 after having lifted a snowmobile. In March 1997, he reported that his back pain was worse. The veteran initially claimed entitlement to compensation benefits in November 1998. He stated that the shortening of the right leg was caused by the inservice surgery, and that his low back and right hip problems were due to the shortening of the right leg. In March 1999, the veteran was afforded a VA examination. At that time, the veteran again stated that the one-inch shortening of the right leg was due to the in-service osteotomy. He stated that he started having pain in the low back and right hip in 1996, with shortening of the right leg. The examiner found that the right leg was one inch shorter than the left, and that the veteran walked with a limp on the right when not using a shoe lift. Physical examination of the low back and right hip, including x-ray studies, showed no abnormalities. The examiner assessed the complaints and findings as lower back pain and right hip pain as secondary to ligamentous strain. The examiner found that the ligamentous strain was due to the inservice surgery, which resulted in shortening of the right leg. The documents in the claims file do not indicate that the examiner was provided the claims file for review during the examination. In an April 1999 statement, his June 1999 notice of disagreement, and his July 1999 substantive appeal, the veteran reported that following the osteotomy in service his right knee pain went away. He stated that he started to have hip and back pain in 1995, at which time he found out that his right leg was one inch shorter than the left. He asserted that the shortening of his right leg was caused by the surgery in service. He attributed his back and hip pain to not having been given a shoe lift following the inservice surgery. In September 1999, the veteran was afforded another VA examination. The claims file was reviewed. At that time, the veteran again complained of right lower back and right hip pain. He reported having had a bone cyst removed from the right tibia at the age of 14 years, following which he had no problems and played sports in school. He developed pain in the right knee after having been in service a couple of years, when he was advised of a deformity in the right leg. He had an osteotomy performed in 1987. His right leg was then casted for 18-19 months. In 1995 he again experienced pain in the right leg, when he was notified of the shortening of the right leg. Physical examination revealed a 5/8th inch shortening of the right leg with shortening of the femoral bone, but not the tibia. There was also a varus deformity of the right leg. An x-ray study of the right leg disclosed the healed osteotomy of the distal tibia, which was in normal alignment, and no abnormalities pertaining to the right knee. The long x-ray film for leg length measurement showed moderate pelvic tilt, with the right femur being 2 centimeters shorter than the left, resulting in a 2 centimeter shortening of the right leg. The examiner provided diagnoses of chronic low back and right hip pain, with no objective evidence of orthopedic pathology, and 5/8th inch shortening of the right femoral bone. Based on review of the evidence in the claims file, the examiner opined that the shortening of the right lower extremity was due to a developmental defect that pre-existed service and that the inservice corrective surgery did not result in any residual disability or cause any ambulatory symptoms. The examiner concluded that the pre-existing developmental abnormality had not been aggravated during service. The examiner also found that the shortening of the right lower extremity was due to shortening of the femur and not the tibia, where the surgery had been performed. The examiner further found that the bone graft site in the right iliac crest did not result in any ambulatory symptoms. The veteran testified before an RO Hearing Officer in January 2000. He denied having had any problems with his right leg between the surgery in 1980 and his entrance on active duty, or any problems during basic training. He denied that the in-service surgery alleviated any of the pain he was having in the right knee. He was having pain in his low back and right hip in 1996, when the shortening of the right leg was initially found. He was then prescribed shoe lifts to alleviate his limp. He stated that he had walked with a limp on the right leg since the inservice surgery, which he had previously attributed to having worn a cast for so long, but that he did not develop any pain in the leg, hip, or back until four years later. He denied having any limp when he entered service, because it would have been found during his entrance examination or during basic training. The veteran presented the report of an April 2000 computerized tomography (CT) scan of the right lower extremity that was conducted to investigate a leg length discrepancy. That study showed the length of the left femur to be 47.9 centimeters in length, while the right femur was 47.2 centimeters in length. The left tibia was 36.8 centimeters, and the right tibia was 36.2 centimeters. The overall length of the left lower extremity was 84.7 centimeters, compared to 83.4 centimeters on the right, resulting in the right lower extremity being 1.3 centimeters shorter than the left. The veteran also presented testimony before the undersigned in November 2000. In addition to the information previously provided, he stated that he did not have an abnormal gait while in basic training because it would have been discovered by his drill instructor. He denied having had any surgical procedures performed on the right femur, or thighbone. In view of the conflicting evidence concerning whether the veteran's leg length discrepancy was aggravated by service, the Board requested an independent medical expert (IME) opinion. In an August 2001 report, the IME, an orthopedic surgeon, stated that he had reviewed the veteran's claims file. He noted that the August 1980 x-ray request documented that the veteran had a congenital shortening and bowing of the right tibia prior to entering service. He also referenced the April 1981 x-rays that showed that the leg length discrepancy had been over-corrected, again indicating that a leg length discrepancy existed prior to the veteran entering service. The hospital summary pertaining to the in- service osteotomy showed that the veteran's right leg was 1/2 inch shorter than the left prior to the surgery. That degree of shortening was also reflected in the April 2000 CT scan because the 1.3 centimeters shown in the CT scan was approximately the same as one-half inch. Six millimeters of that discrepancy was due to shortening of the right tibia, and the remainder was due to shortening of the femur. The IME noted that although the April 1981 x-ray study disclosed that the right lower extremity was 4 millimeters shorter than the left, the evidence did not indicate whether the veteran had then reached skeletal maturity (he was then almost 16 years of age). He found that the osteotomy performed in service would not have resulted in significant shortening of the leg, in that the only shortening that would occur was due to the width of the saw blade. He described that shortening as trivial, and stated that it would not contribute significantly to the pre-existing leg length discrepancy. He found, with a reasonable degree of medical certainty, that it was not at least as likely that the veteran's current leg length discrepancy was due to the corrective orthopedic surgery performed while he was in service or was otherwise related to service. In response to the IME's opinion, the veteran's representative provided a medical opinion from C.N.B., M.D., a neuroradiologist. Dr. B. also reviewed the claims file, and determined that the veteran had entered service with the right leg being 1/4th inch shorter than the left, as shown in the March 1987 service medical records. Measurements taken before the May 1987 osteotomy showed the right leg to be 1/4th to 1/2 inch shorter than the left. Measurements taken after his separation from service showed the right leg to be 1.3 centimeters to one inch shorter than the left. Based on that evidence, Dr. B. stated that, to a reasonable degree of medical certainty, the veteran acquired additional shortening of the right leg during service. He also stated that the leg length discrepancy caused the veteran's current right knee, right hip, and back problems due to an abnormal gait. Additional medical records were thereafter received. In June 1998, the veteran was seen for right knee and back pain. The veteran's history of the inservice osteotomy was noted. In October 1998, the veteran reported to a VA examiner that he underwent leg surgery during service which resulted in a one- inch shortening and he therefore needed a shoe lift. September 1999 x-rays were taken to include a determination if there was arthritis. They revealed healed fractures of the distal shafts of the tibia and fibula. In October 2000, it was noted that the veteran currently wore a shoe lift on the right leg for shortened leg syndrome. He had a history of osteotomy for bow leg repair. In June 2005, the veteran was provided pain medication for low back pain. Subsequent correspondence was received from the veteran and his representative in which they maintain that preservice right leg disability was aggravated during service. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 38 C.F.R. § 3.303(b). In addition, 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). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity. Townsend v. Derwinski, 1 Vet. App. 408 (1991); 38 C.F.R. § 3.306(a) (2002). In contrast, a flare-up of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in- service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). In July 2003, the VA General Counsel issued a precedent opinion, which held that, to rebut the presumption of sound condition under Section 1111 of the statute, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. Although VA's General Counsel has determined that the definition of "aggravation" used in 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306 does not apply in determining whether the presumption of soundness has been rebutted, the statute and regulation do not otherwise provide any definition of "aggravation" to be applied in making that determination. The word "aggravate" is defined as "to make worse." Webster's II New College Dictionary (1999). After determining whether the presumption of soundness has been rebutted the Board will consider whether the claimed disabilities were "made worse" by his military service. The service entrance examination is negative for any right lower extremity abnormality, other than a scar, which was apparently not symptomatic and is not at issue at this time. The veteran claims service connection for right leg shortening, an orthopedic disability. The pre-service records show that the veteran had congenital shortening and bowing of the right tibia. X-rays revealed an abnormality of the tibia, shown to be a bone cyst. The veteran underwent removal of this bone cyst from the medial aspect of the tibia and the cavity which remained was filled with bone chips. The lesion healed with a small cystic area remaining. Thereafter, April 1981 x-ray showed that the left leg was shorter than the right leg. The IME explained that at the time that this x-ray was taken, when the veteran was 16 years of age, the report did not indicate that the veteran had then reached skeletal maturity. Physical examination during service, prior to the May 1987 surgery, revealed a 1/4th inch to 1/2 inch shortening of the right lower leg, and a 30-60 degree external rotation deformity of the right tibia and fibula. The physician providing the treatment determined that the pre-service benign bone cyst caused the shortening and mal-alignment of the right leg. The treating physician in March 1988 also indicated that the external rotational deformity had developed as a result of the pre-service bone cyst. The report of the September 1980 surgery is included with the veteran's service medical records; therefore indicative that the inservice examiners did not rely on a history as provided only by the veteran. Rather, they had a record of the preservice surgery. Further, even if the inservice opinions were based on the veteran's reported history of having had the bone cyst, because he did, in fact, have the bone cyst, the medical opinion is probative. Reliance on a veteran's statements renders a medical report incredible only if the Board rejects the statements of the veteran. Coburn v. Nicholson, 19 Vet. App. 427 (2006). The Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). In this case, the history was accurate. A bare conclusion, even one written by a medical professional, without a factual predicate in the record does not constitute clear and unmistakable evidence sufficient to rebut the statutory presumption of soundness. See Miller v. West, 11 Vet. App. 345, 348 (1998), In this case, however, there was a factual predicate in the record since the veteran has submitted treatment records documenting the pre-service defect and surgery on the right leg. In addition, the Court's holding in Miller was essentially overruled in Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000), in which the Federal Circuit Court of Appeals for the Federal Circuit held that contemporaneous evidence of treatment is not required to rebut the presumption of soundness. In Harris, the Federal Circuit found that all medically accepted evidence can be considered, including a recorded medical history. This is consistent with Coburn. The medical opinions documented in the service medical records are, therefore, probative of the etiology of the shortening and rotation defect in the right leg. The VA examiner who conducted the March 1999 examination concluded that the shortening of the right leg resulted from inservice surgery. However, there is no reference to any preservice medical treatment or diagnosis. Since the examiner did not consider the veteran's pertinent and relevant preservice medical history, this examination report is of no probative value. Dr. M. was provided a history by the veteran and furnished no independent medical opinion regarding whether a right leg defect preexisted service and/or worsened during service. He limited his opinion to the effect of the leg length discrepancy on the veteran's back. Thus, Dr. M.'s opinion has no probative value regarding whether a right leg defect preexisted service and/or worsened during service. The IME found that the veteran had a congenital defect in the right lower extremity that pre-existed his entry into service. Although the IME incorrectly referenced the April 1981 x-ray study as showing that the right leg was 4 millimeters shorter than the left, he also noted that that x- ray study indicated that the previous shortening of the right leg had been over-corrected. He relied on the x-ray study as evidence of a leg length discrepancy, and not a specific finding that the right leg was then shorter than the left. He also noted that the leg length discrepancy shown in April 1981 did not reflect whether the veteran had reached skeletal maturity, or was still growing. In addition, Dr. B. acknowledged that a leg length discrepancy pre-existed the veteran's entry on active duty. He found that it was clear from review of the medical evidence that the veteran entered service with a leg length discrepancy, as shown in the medical records pre-dating the May 1987 osteotomy. The examiner who conducted the September 1999 examination also concluded that the veteran had a preexisting right leg defect. Thus, conversely to the March 1999 examiner, the inservice medical records considered the preservice history and the examiner who conducted the September 1999 examination, the IME, and Dr. B. all considered the preservice medical history and their opinions were based on a review of the claims file. Thus, these opinions are more probative than the opinion of the March 1999 examiner, which, as noted, is not probative due to the fact that the examiner did not base the opinion on a complete medical history. The Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In sum, the service medical records as well as the probative post-service medical records establish that the veteran had a defect of the right lower extremity prior to service. The veteran has asserted that his right leg was not shorter than his left leg when he entered service. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Although the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno. Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, No. 04-0534 (U.S. Vet. App. June 15, 2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, No. 2007-4019 (U.S. Vet. App. July 3, 2007), the Federal Circuit Court determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. 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")). See Barr. In this case, the veteran is competent to report that one of his legs does or does not feel shorter or look shorter than the other leg. He is also credible to report such information. However, the veteran is not competent to report whether he had reached his skeletal maturity as this is not a simple medical assessment. Further, the veteran testified that he was not aware that he had a leg length discrepancy until he sought treatment for back pain in 1995, so it is apparent that the existence of a leg length discrepancy in this case was not subject to lay observation and not within the veteran's competency in this case. Further, a layperson's account does not constitute the type of evidence that would serve as the basis for a finding that a condition preexisted service. Paulson v. Brown, 7 Vet. App. 466 (1995). The Board finds, therefore, that the veteran's assertions are not competent and therefore not probative of whether the lower extremity defect pre-existed service. As noted, a veteran is presumed to have entered service in sound medical condition. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions," Id. at (b)(1). At the time of entry, there is a presumption that the veteran entered in sound health. Here, there is no evidence at entry of any defect, infirmity, or disorder with regard to any orthopedic disability of the right lower extremity (other than an asymptomatic scar) on objective examination. The musculoskeletal examination was normal. Although an x-ray was apparently requested of the right lower extremity, it is not of record. Because there were no pertinent objective findings on the entrance examination, the veteran is entitled to the presumption of soundness. Because the veteran is entitled to the presumption of soundness, the Board must determine whether, under 38 U.S.C.A. § 1111, the presumption of soundness is rebutted by clear and unmistakable evidence. The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service and that it was not aggravated during service. See Wagner v. Principi, 370 F 3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C.A. § 1153; Wagner at 1089. In this case, the service medical records recorded a history of a preservice right lower extremity defect, treatment, and surgery. The veteran had congenital shortening and bowing of the right tibia. There was an abnormality at the junction of the middle and distal thirds of the right tibia, which was determined to be a multiloculated bone cyst. The veteran underwent the surgical removal of the bone cyst from the right tibia. There is no question that the veteran had surgery on his right lower extremity prior to service. There was leg length discrepancy prior to service. The Board finds that the probative evidence of record (the service medical records and opinions contained therein, the September 1999 VA medical opinion, the IME opinion, and Dr. B.'s opinion) constitutes clear and unmistakable evidence that a right lower extremity defect existed prior to service entrance as the veteran clearly had preservice surgery to remove a bone cyst and had leg length discrepancy. However, VAOPGCPREC 3-03 (July 16, 2003), has established that there are two steps to rebut the presumption of soundness at entry. First, there must be clear and unmistakable evidence that a defect preexisted service. Second, there must be clear and unmistakable evidence that this defect was not aggravated during service. If both prongs are not met, the presumption of soundness at entry is not rebutted. The service medical records indicate that the veteran began experiencing symptoms in the right lower leg in December 1985, about 2 months after he entered service. Physical examination in March 1987 showed 1/4th inch shortening of the right lower extremity, in comparison to the left. Physical examination in May 1987 disclosed 1/2 inch shortening. The right leg was, therefore, shorter than the left leg prior to any surgery being performed on the right leg during service. Physical examination in December 1987 showed the leg lengths to be equal. The May 1987 surgery resulted in straightening of the right leg. No residual disability due to that surgery was shown in the service medical records. Although the veteran fell in March 1988, his complaints associated with that fall were alleviated by the surgical removal of the hardware from the right leg (the plate and screws). The veteran also injured his right knee in May 1989. However, no residual or chronic disability resulted from that injury as no sequelae was shown. In fact, physical examination at discharge in January 1990 showed that the veteran no orthopedic abnormalities in the right lower extremity. Although the examiner who recorded the Report of Medical History noted a history of post-surgical degenerative joint disease in the right knee, there was no supporting x-ray evidence and no current residuals were shown as the physical examination was normal. There is no further documentation of the comparable lengths of the lower extremities until April 1996, 6 years after the veteran separated from service, at which time Dr. M. determined that the right leg was 2.5 centimeters, or one inch, shorter than the left leg. The veteran did not report having any symptoms attributable to a leg length discrepancy, including pain in the leg, back, or hip, until 1995. Although Dr. M. documented the shortening of the right leg, he did not provide any cause or etiology for the abnormality. As noted, he did not opine as to whether a right leg defect preexisted service and/or worsened during service. Thus, the opinion is not probative on that point. The veteran was examined by VA in March 1999; however, as previously indicated, that opinion is not probative as it was not based on a complete medical history. The VA examiner in September 1999 found that the leg length discrepancy had not been aggravated during service because the shortening of the right leg documented in September 1999 x-rays showed the shortening to be in the femur, not the lower leg where the osteotomy was performed. The examiner also found that the in-service surgery had not resulted in any residual disability. Because that opinion was based on review of the evidence in the claims file, and not the veteran's reported history, it is highly probative. See Owens, 7 Vet. App. at 433. The Board attaches significant probative value to this opinion, as it is well reasoned, detailed, consistent with other evidence of record, and included review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). There are two other probative medical opinions of record, the IME opinion and Dr. B.'s opinion. In reviewing their qualification, the IME is an Associate Professor at a major University School of Medicine. He practices orthopedic and reconstructive surgery. Dr. B. is a neuroradiologist, Associate Professor of Radiology and Nuclear Medicine, Uniformed Services University of the Health Sciences. Both of these physicians are competent to provide an opinion. As their opinions are based on the record, they are both probative. As set forth below, the Board must consider which expert opinion is more probative. Based on review of the evidence in the claims file, the IME concluded that the in-service rotational re-alignment of the tibia and fibula could not have resulted in any additional shortening of the right leg, other than the trivial amount due to the thickness of the saw blade used to cut the bone. He also noted that the April 2000 CT scan reflected the same leg length discrepancy found prior to the surgery in May 1987, that being 1/2 inch or 1.3 centimeters. Because that opinion was provided by an orthopedic and reconstructive surgeon, was based on review of the medical evidence of record, and was supported by logical reasoning, the Board finds that the opinion is highly probative. In addition, the September 1999 VA examiner's opinion supports this opinion. Conversely, Dr. B. concluded that the pre-existing leg length discrepancy was aggravated by service. He based that opinion, however, on the conclusion that the veteran had entered service with 1/4th inch shortening of the right leg, and that while in service, he developed a limp, degenerative joint disease of the right knee, and right knee pain. Although the veteran had a limp following the May 1987 surgery, no gait abnormalities were documented after the hardware was surgically removed from the leg in March 1988. The veteran also testified that he had a limp since the May 1987 surgery, but that assertion is not supported by the contemporaneous records, which show no abnormalities after March 1988. Contemporaneous evidence has greater probative value than history as reported by the veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). In addition, evidence of the veteran having been asymptomatic on entering service, and later developing symptoms of the pre-existing disorder, does not constitute aggravation in the absence of evidence of an increase in the underlying disorder. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). If the disorder becomes worse during service and then improves due to in- service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. See Verdon v. Brown, 8 Vet. App. 529 (1996). The reference to degenerative joint disease of the right knee during the separation examination was apparently based on the veteran's subjective complaint inasmuch as the x-ray study in May 1989 did not show any degenerative changes in the right knee. No additional x-rays were conducted during the separation examination. The examiner in September 1989 expressly found no evidence of arthritis in the knee, and none of the remaining medical records documents such a finding. The right knee pain that the veteran experienced in service was alleviated by the May 1987 surgery, based on his own report, and cannot be considered in finding whether the pre-existing disorder was aggravated during service. See generally Verdon v. Brown, 8 Vet. App. 529 (1996). Dr. B. also based his opinion on the finding that prior to the May 1987 osteotomy, the right leg was 1/4th to 1/2 half inch shorter than the left leg, but that in April 1996, the right leg was found to be 1/2 inch (1.3 centimeters) to one inch shorter. Although he stated that "to a reasonable degree of medical certainty" the increase in the leg length discrepancy occurred during service, he did not (1) provide any medical analysis of the surgical procedures performed during service; (2) account for the difference in the lengths of the femurs, which were not operated on in service; (3) consider whether the veteran had reached mature skeletal growth when he entered service; (4) account for the absence of any leg length discrepancy in December 1987; (5) articulate any reason why the increase occurred during rather than after service; or otherwise provide any rationale for his conclusion. The failure of the physician to provide a basis for his or her opinion goes to the weight or credibility of the evidence. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Thus, the probative value of Dr. B.'s opinion is diminished. In addition, as a neuroradiologist, Dr. B. is not specialized in orthopedic surgery, as contrasted to the IME, who is such a specialist. The IME rendered a medical opinion within his specialized field of medical expertise. Thus, the IME's opinion is not only thorough and based on a complete review of the record, but it reflects specialized medical expertise in the area of orthopedic surgery. As such, the Board finds this opinion is more probative than Dr. B.'s opinion. Dr. B. found the IME's opinion deficient because the IME did not address the limp that the veteran demonstrated in service. As previously stated, no abnormalities were shown following the March 1988 removal of the hardware, and the development of symptoms does not constitute aggravation. Davis, 276 F.3d at 1345. He also interpreted the IME's reference to a "trivial" increase in the shortening of the leg as referring to the 2.5-centimeter discrepancy shown in April 1996, or the 1.3-centimeter discrepancy shown in April 2000. The IME was not referring to the additional shortening of the leg documented after the veteran's separation from service; the IME described as "trivial" any shortening of the bone due to the osteotomy, which was limited to the width of the bone saw. Dr. B. also relied on the veteran having had documented back pain during service. In summarizing the evidence, however, the only documented back pain referenced by Dr. B. occurred in 1984, prior to the veteran's entry on active duty. The Board finds no contemporaneous evidence of any complaints or clinical findings pertaining to a low back disorder during service. The veteran has claimed entitlement to service connection a the low back disability as secondary to the shortening of the right leg. The IME was not required to provide an opinion on the etiology of the low back complaints documented in 1996, because he did not find that shortening of the right leg had been aggravated by service. For the reasons discussed, the Board finds that the opinions of the VA examiner who conducted the September 1999 examination and the IME are more probative than the opinions of the examiner who conducted the March 1999 examination and Dr. B.'s opinion, and therefore the most probative evidence of record. The most probative evidence of record establishes that there was no increase in the underlying defect resulting in shortening of the right leg during active service. See Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board finds that there is clear and unmistakable evidence demonstrating that the veteran's preexisting right lower extremity defect was not aggravated by service. The preservice right lower extremity defect did not undergo an increase in severity during service. Accordingly, because there is clear and unmistakable evidence that the right lower extremity defect preexisted service and clear and unmistakable evidence that it was not aggravated during service, the presumption of soundness is rebutted. See Wagner. As to a determination under 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306 of whether the veteran's preexisting right lower extremity defect was aggravated in service, the Board finds that the probative evidence establishes that there was no worsening during service. The Board relies on the evidence as outlined above to support this determination. Further, since there is clear and unmistakable evidence that pre- existing right lower extremity defect which resulted in shortening of the right leg was not aggravated during service for the purpose of rebutting the presumption of soundness (38 U.S.C.A. § 1111), it necessarily follows that such disorder was not, in fact, aggravated during service (38 U.S.C.A. § 1110). The Board has found by clear and unmistakable evidence that the veteran's right lower extremity defect was not aggravated by service in order to rebut the presumption of soundness. VA's General Counsel has held that such a finding would necessarily be sufficient to rebut the presumption of aggravation under 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306(b). The Board therefore concludes that the preponderance of the evidence is against the claim of entitlement to service connection for shortening of the right leg. The Low Back Disorder The veteran has also claimed entitlement to service connection for a low back disorder. As previously stated, the service medical records are silent for any complaints or clinical findings related to a back disorder, and the veteran does not claim otherwise. After service, the veteran has been diagnosed as having low back pain. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, in order for a veteran to qualify for compensation under those statutes, the veteran must prove the existence of disability and that a disability has resulted from a disease or injury that occurred in the line of duty. See Sanchez- Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Stated differently, a claim fails if there is an absence of disability or an absence of disease or injury. "Arthralgia" is defined as pain in a joint. See DeLuca v. Brown, 6 Vet. App. 321, 322 (1993) (citing Dorland's Illustrated Medical Dictionary 147 (27th ed. 1988)). Continued complaints of pain after service do not suffice to establish a medical nexus, where the issue at hand is of etiology, and requires medical opinion evidence. Clyburn v West, 12 Vet. App. 296, 301 (1999). Pain cannot be compensable in the absence of proof of an in- service disease or injury to which the current pain can be connected by medical evidence. See Sanchez-Benitez, supra. Such a "pain alone" claim must fail when there is no sufficient factual showing that the pain derives from an inservice disease or injury. Id. In this case, there is no diagnosis beyond low back pain. The board further notes that the low back symptoms are secondary to the shortening of the right leg. Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2006). With regard to the matter of establishing service connection for a disability on a secondary basis, there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 71 Fed. Reg. 52744- 52747 (Sept. 7, 2006). Because the Board has determined that service connection for shortening of the right leg is not warranted, there is no basis for awarding service connection for a low back disorder on a secondary basis. Thus, service connection is not warranted for a low back disorder. The preponderance of the evidence is against the claim. Conclusion In reaching the decisions above, the Board has considered the doctrine of resolving reasonable doubt in the veteran's favor. Because the preponderance of the evidence is against the veteran's claims, however, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim of entitlement to service connection for shortening of the right leg is denied. The claim of entitlement to service connection for a low back disorder is denied. ____________________________________________ Charles E. Hogeboom Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs