Citation Nr: 1122014 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 10-36 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for left leg pain, claimed as secondary to a low back disability. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for left leg pain, claimed as secondary to a low back disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 1983. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The RO previously denied service connection for a low back disability and a left leg disability in a March 2008 rating decision and properly notified the Veteran, who did not appeal that decision. 2. Some of the evidence received since the March 2008 rating decision is not cumulative of evidence previously of record and raises a reasonable possibility of substantiating the claims. 3. Degenerative disc disease of the lumbar spine began several years after active duty, and the medical evidence shows that this disability is not related to active service. 4. Radicular symptoms of the left leg began several years after active duty, and the medical evidence shows that this disability is not related to active service or related to a service connected disability. CONCLUSIONS OF LAW 1. The March 2008 RO denial of service connection for disabilities of the low back and left leg is final. 38 U.S.C. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008); currently, 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2010). 2. New and material evidence having been received, the claims for entitlement to service connection for low back and left leg disabilities are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). 3. A low back disability was not incurred in or aggravated by active service, nor may arthritis be presumed to have been incurred during such service. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). 4. A left leg disability was not incurred in or aggravated by active service, nor is it secondary to a service connected disability. 38 U.S.C.A. §§ 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim to reopen a previously and finally denied claim, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. To satisfy this requirement, VA must look at the bases for the denial in the prior decision and provide a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The RO provided the appellant substantially compliant pre-adjudication notice by a letter dated in August 2009. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, and obtained medical opinions as to the etiology and severity of disabilities. The RO made unsuccessful attempts to obtain private medical records from R.H., MD, and notified the Veteran of this fact by a letter dated in December 2009. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Analysis New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2010). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Veteran submitted his original claims for service connection for disabilities of the low back and left leg in August 2007. The RO denied these initial claims in a March 2008 rating decision, finding that although the Veteran was treated for low back pain in service, a chronic low back disability was not shown in service, and his service treatment records were negative for left leg pain. The RO also found that the Veteran had a current low back disability but did not have a left leg disability, other than radiculopathy from the back. The RO notified the Veteran of this denial by a letter dated in March 2008, and the Veteran did not file an appeal. Therefore, the RO's March 2008 decision became final. 38 U.S.C. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008); currently, 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2010). In its September 2010 statement of the case, the RO reopened the previously denied claim for service connection for a low back disability, and then denied the claim for service connection. Throughout the appeal, the RO has determined that new and material evidence has not been submitted to reopen the claim for service connection for a left leg disability. Regardless of how the RO ruled on the question, the Board must determine for purposes of jurisdiction whether there is new and material evidence sufficient to reopen the claims. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2010). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In July 2009, the Veteran filed an application to reopen his previously denied claims for service connection for a low back disability and a left leg disability. He contended that his left leg disability was secondary to his low back disability. The evidence of record at the time of the March 2008 rating decision included the Veteran's service treatment records which reflect treatment for low back pain, and post-service VA and private medical records reflecting a current diagnosis of a low back disability, specifically lumbosacral disc disease with spinal stenosis, disc tears, and minimal lumbar scoliosis. A July 2007 VA outpatient treatment record reflects a diagnosis of low back pain with radiculopathy, status post laminectomy. The claims file also included a report of a February 2008 VA examination of the spine, which indicated that the Veteran complained of radicular left leg pain from the back. At the time of the prior rating decision, there was no medical evidence of record reflecting a current left leg disability other than radiculopathy related to the lumbar spine. Additional evidence submitted since the March 2008 rating decision includes the Veteran's written statements regarding his claimed back and left leg disabilities, and a June 2009 VA medical record diagnosing a current low back disability, and noting that the Veteran reported that he had radiation of pain to the left leg. The physician summarized service treatment records and opined that his back problem was more than likely related to in-service back injuries. Additional evidence associated with the file since the prior final March 2008 rating decision also includes records from the Social Security Administration (SSA), VA and private medical records, and a report of a March 2010 VA spine examination. Upon review of the record, the Board finds that some of the evidence received since the March 2008 rating decision is both new and material. Specifically, the Veteran has provided medical evidence demonstrating that he currently has a low back disability with radiculopathy to the left leg, which a VA physician opined was likely linked to in-service back injury, which was one basis for the prior denial. Thus, this evidence relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims, and the claims are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). Service Connection Since the claims have been reopened, service connection for disabilities of the low back and left leg are to be reviewed based on all the evidence of record. Manio, supra. Since the inception of the current appeal, the Veteran has consistently contended that his left leg disability is due to his current low back disability, and the medical evidence reflects that he has lumbar radiculopathy. The evidence does not reflect, and the Veteran does not contend, that he incurred a separate left leg disability (as distinguished from lumbar radiculopathy of the left leg) in service. Hence, the Board will address both issues together. The Board has considered whether adjudicating this claim on a de novo basis at this time would prejudice the Veteran. The Veteran has been provided with pertinent laws and regulations regarding service connection and has been given the opportunity to review the evidence of record and submit arguments in support of his claim. His arguments have focused squarely on the issue of service connection, not whether new and material evidence has been submitted. Therefore, the Board can proceed with this claim without prejudice to the Veteran. See Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2010). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2010). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's service treatment records reflect that on enlistment medical examination in September 1979, his spine was clinically normal. In June 1980 the Veteran complained of back pain for one week. The diagnostic assessment was low back pain. In August 1980, the Veteran complained of left knee pain for two weeks; the diagnostic assessment was ligament strain. In May 1982, the Veteran was seen for complaints of sharp low back pain for 2 weeks. The diagnostic assessment was possible muscle strain. A June 1983 treatment note reflects that the Veteran complained of low back pain for one day. He reported low back pain after lifting objects at work. The diagnostic assessment was low back strain. On separation medical examination in June 1983, the Veteran's spine and lower extremities were clinically normal. Service treatment records are negative for diagnoses of chronic back or left leg disabilities. A July 1983 private medical record from W.A.W., MD, reflects that the Veteran complained of headaches. He did not complain of any back or leg disability, and his reported medical history did not mention any back or leg disabilities. He did report that he had a brother with back trouble. Dr. W. performed a clinical examination, and noted that gait, motor examination, sensory examination, and deep tendon reflexes were all within normal limits. A September 1983 private medical record from M.D.J.R., MD, reflects that the Veteran was seen for complaints of headaches. In July 1983, the Veteran filed a claim for service connection for headaches. He did not file claims for service connection for back or leg disabilities. Post-service medical records are negative for complaints or treatment of a low back or left leg disability until 1995. VA medical records reflect that in March 1995, the Veteran was seen for complaints of back pain and lower extremity pain. It was noted that the Veteran was intoxicated, and the examiner did not indicate a diagnosis regarding the back pain. Private medical records from Columbia Medical Center reflect that in July 1995, the Veteran reported that the onset of his low back pain was four weeks prior to this visit, and there was no prior incident that could have accounted for the onset of his present condition. He was diagnosed with a herniated disc at L4-5 and underwent back surgery. Private medical records from Columbia Healthcare System reflect that in May 1997, the Veteran reported that he had lumbar pain for the past four weeks. It was noted that he had left hemilaminectomy in July 1995, did well after the surgery, and returned to work until December 1996 when he decided to quit his job. In May 1997, the Veteran underwent back surgery; the diagnosis was recurrent herniated lumbar disc at L4-5. VA outpatient treatment records show that in December 1997, the Veteran was seen for complaints of back pain radiating down his legs. He reported that he had a laminectomy in May 1997. A December 1997 VA mental health note reflects that the Veteran had not been able to work since December 1996 due to back surgery. He reported two surgeries, most recently in May 1997 for a herniated disc. He said the pain radiated all over his back and down his legs. A January 1998 treatment note from Texas Tech University Health Sciences Center reflects that the Veteran reported that his first episode of severe low back pain was in 1995, radiating down his left leg. He reported no history of trauma or heavy lifting. He had a past history as a construction worker. The diagnostic assessment was L5-S1 herniated nucleus pulposus, operated times two, and chronic low back pain. A January 1998 private physical therapy evaluation reflects that the Veteran began having low back pain in 1995 due to unknown cause. In March 1998, a Disability Determination Evaluation was performed for the Texas Rehabilitation Commission by a private physician, A.M.G., MD. The examination report shows that the Veteran had a history of chronic low back pain. He reported that his initial complaints started acutely, and it was unrelated to any trauma. He said he woke up with low back pain radiating to his left lower extremity, was evaluated, and found to have a herniated lumbar disc. He had surgery and returned to work until 1996. The same symptoms returned in May 1997. Pertinent diagnoses included chronic low back pain and chronic pain syndrome. A June 1998 treatment note from Texas Tech reflects that the Veteran said he had low back pain for three years, and denied any trauma. The diagnostic assessment was low back pain consistent with lumbar disc disease, currently questionable postoperative scarring with radicular symptoms unclear. SSA records reflect that in a September 1998 decision, the Veteran was found to be disabled from May 1997, due to a back disability. The SSA determined that the Veteran was performing substantial gainful activity at the heavy exertional level through December 1996. Private medical records from R.E.U., MD, dated from 2000 to 2003 reflect that in October 2000, the Veteran complained of low back pain and left lower extremity pain. He gave a history of two laminectomies, in 1994 and 1995. Both surgeries were done for back pain, but did not help his pain. Later that month, Dr. U. diagnosed degenerative disc disease of L5-S1 and L4-5. VA medical records reflect treatment for low back pain. In April 2002, the Veteran reported that he had back surgery about six or seven years ago, and that he had back pain ever since. Later that day, he was diagnosed with low back pain status post fusion in 1995. A week later, he reported that he had low back pain since 1994, and had two laminectomies, with the first one in 1994 and the second in 1995. He stated that the pain radiated to his lower extremities. After an examination, the pertinent diagnosis was low back pain. In July 2002, a VA pain physician indicated that the Veteran's symptoms were consistent with left L3-4, L4-5 radiculopathy. VA medical records dated in 2002 reflect a diagnosis of postlaminectomy syndrome of the lumbar region. An August 2007 private medical record from M.F., MD, reflects that the Veteran complained of low back pain that radiated into his left lower extremity. He also reported occasional sharp pain into his left knee. The Veteran reported that he had low back pain in the past, and first had low back pain in 1980 in boot camp. He said he also had back pain at work. He reported prior back surgery, in 1996 and 1997. Dr. F. noted that an X-ray study showed disc space narrowing at L5-S1. Further tests were planned, and a diagnosis was not indicated. A June 2007 VA X-ray study of the lumbosacral spine showed transitional sacralized L5, mild facet arthritis, and mild upper lumbar scoliosis. A July 2007 VA outpatient treatment record reflects that the Veteran complained of low back pain with radiculopathy status post laminectomy times two. An August 2007 internal medicine consultation by Z.A., MD, reflects that the Veteran reported that his last gainful employment was 14 years ago as a construction worker. He had a history of back problems and herniated discs, with two back surgeries. The Veteran said he never sustained an on-the-job injury. He complained of recurrent back pain that radiated to both lower extremities. After a clinical examination, Dr. A. diagnosed lumbosacral spine pain and neck pain most likely because of degenerative disease of the spine. In August 2007, the Veteran filed his original claim for service connection for a low back disability and a left leg disability, which was characterized as left leg pain. He related that these disabilities were incurred in June 1980. Private medical records dated in February 2008 from C.V., MD, reflect that the Veteran complained of low back pain and left lower extremity pain, which he said began in 1980 after boot camp. After an examination, Dr. V. diagnosed low back pain syndrome, lumbar radiculopathy, chronic intractable pain syndrome, and post-laminectomy syndrome, lumbar. At a February 2008 VA examination, the Veteran complained of low back pain radiating to the left leg. The examiner noted that the claims file was not available. The Veteran reported that he started having back pain in 1980 during service, in boot camp. The Veteran reported that he had lumbosacral pain with radicular pain down the left leg to the foot that was pretty much continuous since he began having pain in 1980. The examiner indicated that the Veteran's left leg pain was not secondary to a leg injury, but was radicular pain from the back. The Veteran denied any service-related injuries to the legs, and said the pain was secondary to the back problem. The examiner diagnosed lumbosacral disc disease with spinal stenosis, disc tears, minimal lumbar scoliosis and transitional sacralization of L5-S1 with pseudoarthrosis with two scars. The examiner indicated that no abnormality of the left leg was found. The examiner did not provide an opinion as to the etiology of the current back disability. A June 2009 medical opinion by M.S., MD, a VA staff physician, reflects that the Veteran reported that he injured his low back in boot camp and later sustained repeated injury during active service while working as a "fabric repairment" where he had to lift and move heavy tents. Dr. S. reviewed progress notes dated in June 1980, May 1982 and June 1983, reflecting treatment for acute low back pain. She stated that the pain became chronic and experienced radiation to the left leg. He underwent lumbar laminectomy in 1994 and 1995. He had been receiving VA treatment for chronic low back pain for the last 12 years. Dr. S. stated, "I believe his back problem is more than likely related to injuries to his back when active duty in the military service." At a February 2010 VA examination, the examiner noted that the claims file had been reviewed, and discussed pertinent medical evidence, including service treatment records showing treatment for low back pain, as well as post-service medical records. The Veteran reported that he developed low back pain in service, after the confidence course, rope climbing and rappelling. He said he was treated with medication. He related that he had exacerbations of pain in advanced training and when lifting a tent. He said he had low back problems since then, and said he treated this himself after service. He denied any other specific injuries, and denied post-service injuries. He reported that he worked as a delivery man, delivering fertilizer, from 1983 to 1987, was out of work for two years, and then worked as a stocker for about 3 years. He said he stopped working in 1994. On examination, he had a mild antalgic gait, favoring the left leg. After a clinical examination and review of medical records, the examiner diagnosed degenerative disc disease of the lumbar spine status post laminectomy times two; radicular symptoms of the left lower extremity. The examiner opined that the Veteran's current back condition was less likely than not secondary to military service. The rationale for the medical opinion was that although the Veteran was treated for low back strain, no abnormalities of his spine were found on separation examination. The examiner also indicated that the low back strain apparently improved with no residual findings, and that on his initial visit to VA in 1995, it was noted that the low back pain started in 1994. The examiner opined that the more likely etiology for degenerative disc disease of the lumbar spine was the Veteran's physical job as an assembler, a laborer and sales clerk which was heavy work as described in the SSA records. In September 2010, the Veteran contended that his low back disability was incurred in service and was the cause of his left leg condition. He stated that lifting heavy tents in service added problems to his back condition. He said that medical literature states that repeated trauma and stress to the lower back will cause a disability. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). In the context of determining whether evidence is "new and material," the credibility of that evidence is presumed. Justus, 3 Vet. App. at 513. In contrast, when rendering a decision on the merits of this appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 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"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current VA disability compensation claim, in recent statements, the Veteran has asserted that his symptoms of low back and leg disabilities have been continuous since service. He asserts that he continued to experience low back pain and left leg symptoms after he was discharged from service. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of disabilities of the low back and left leg after service separation. Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible. The Board finds that the Veteran's more recently-reported history of continued symptoms of low back and left leg radiculopathy since active service is inconsistent with the other lay and medical evidence of record. Specifically, the service separation examination report reflects that the Veteran was examined and his spine and lower extremities were found to be clinically normal. The post-service medical evidence does not reflect complaints or treatment related to the low back or left leg for approximately 12 years following active service. The Board emphasizes the multi-year gap between discharge from active duty service (1983) and initial reported symptoms related to a low back disorder in approximately 1995 (a 12-year gap). 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 notes that the Veteran sought treatment for other medical complaints since discharge from service, including migraine headaches in July 1983. Significantly, during that treatment, when he specifically complained of other problems, he never reported complaints related to the low back or left leg, even though he reported that his brother had back problems. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). When the Veteran sought to establish medical care with the VA and with private physicians after service in 1995, he did not report the onset of low back symptomatology during or soon after service or even indicate that the symptoms were of longstanding duration. In July 1995, he said his low back pain began four weeks ago, and there was no prior incident that could have accounted for the onset of his present condition. A January 1998 private medical record reflects that the Veteran reported that his first episode of severe low back pain was in 1995, radiating down his left leg, and he reported no history of trauma or heavy lifting. Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran filed a VA disability compensation claim for service connection for migraine headaches in 1983, shortly after service, but did not claim service connection for disabilities of the low back or left leg or make any mention of any low back or left leg symptomatology. He did not claim that symptoms of his back disability began in service until he filed his original VA disability compensation claim in August 2007. Such statements made for VA disability compensation purposes are of lesser probative value than his previous statements made for treatment purposes. 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). These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). 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 VA compensation benefits to be of lesser probative value than the contemporaneous findings at service separation, the absence of complaints or treatment for years after service, and his previous statements made for treatment purposes. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. The Board acknowledges the Veteran's own contentions with regard to his belief that his current disabilities of the low back and left leg are etiologically related to his military service. As a layperson, the Veteran is not competent to offer an opinion that requires specialized training, such as the clinical etiology of a medical disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). 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. Jandreau, 492 F. 3d at 1372. The Board finds that the Veteran is competent to present testimony regarding the details of his service and his recollections concerning his symptoms. However, the Veteran is not competent to establish a specialized medical determination such as the specific etiology of his current chronic low back and left leg disabilities, first diagnosed in 1995. Evidence in favor of the claim includes the June 2009 VA opinion by Dr. S. who opined that his back problem is more than likely related to injuries to his back during service. The Board observes that although Dr. S. noted that the Veteran was treated for low back pain in service and had been treated for low back pain for 12 years (i.e., since 1997), she does not mention the several post-service medical records reflecting the Veteran's repeated reports during medical treatment that his back pain began in 1995. It is not clear that she reviewed such records. The vast majority of the medical evidence demonstrates that after service, the Veteran did not complain of back pain until 1995. Thus, although the June 2009 medical opinion is competent, it is not credible, as it is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based upon an inaccurate factual premise has no probative value.) In this case, the contemporaneous medical evidence that is available indicates that the Veteran's account of his symptoms has changed over time. Given the inconsistencies in the Veteran's statements regarding the onset of his symptoms, the Board finds that these statements are not credible. Any medical opinion based on those statements, including that of the June 2009 VA physician, is given no weight. As discussed above, the Veteran was provided with a February 2010 VA examination in which the examiner provided a medical opinion to the effect that the current degenerative disc disease of the lumbar spine and radicular symptoms of the left lower extremity are not related to service. This medical report is of higher probative value than the June 2009 VA opinion. In the February 2010 VA examination, the examiner had the benefit of reviewing the Veteran's claims file and thus had knowledge of a longitudinal review of the case. In addition, the examiner had the benefit of the Veteran's current reported history and complaints in conjunction with medical findings on examination. When providing a nexus opinion, the examiner discussed the various pieces of evidence and contentions. Moreover, a rationale was provided with the nexus conclusions. All told, this report constitutes highly probative evidence. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 30 (1999). The Board finds that the February 2010 VA medical opinion and examination report is more probative than the June 2009 VA medical opinion, as the VA examiner discussed all the pertinent medical evidence of record including service treatment records and post-service medical records, acknowledged the Veteran's reported onset of symptoms in 1995, and provided a rationale for his opinion. Thus, on the basis of all the evidence of record, the Board finds that the most probative evidence demonstrates that the Veteran's degenerative disc disease of the lumbar spine and radicular symptoms of the left lower extremity is not attributable to his military service. Even considering the Veteran's lay testimony with regard to the matters it is competent to address, the most probative evidence weighs against the claim of entitlement to service connection. Competent medical evidence is required to establish an etiological nexus between this claimed disability on appeal and military service. See Jandreau, 492 F.3d at 1372. In this case, the Board finds that the preponderance of the probative evidence of record weighs against finding any such nexus for the issue denied in this appeal. In sum, the Board finds that the preponderance of the evidence indicates that degenerative disc disease of the lumbar spine and radicular symptoms of the left lower extremity was not shown in service or for years thereafter, and has not been shown by competent and probative medical evidence to be etiologically related to his active service. As the preponderance of the evidence is against the claim for service connection for disabilities of the low back and left leg, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49. ORDER As new and material evidence has been received, the claim for service connection for a low back disability is reopened and the appeal is granted to this extent only. As new and material evidence has been received, the claim for service connection for a left leg disability is reopened and the appeal is granted to this extent only. Service connection for a low back disability is denied. Service connection for a left leg disability is denied. ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs