Citation Nr: 1227770 Decision Date: 08/10/12 Archive Date: 08/14/12 DOCKET NO. 93-28 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Virginia Y. Middleton , Attorney ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from May 9, 1968, to July 25, 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, that denied the Veteran's application to reopen a previously denied claim for service connection for a low back disability. In a May 1999 decision, the Board denied the application to reopen the previously denied claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. In an April 2001 Order, the Court vacated the May 1999 decision and remanded the matter to the Board. In a June 2002 decision, the Board determined that new and material evidence had been submitted, and the claim was reopened. The Board also determined that additional development was needed as to the underlying claim for service connection. Accordingly, in June 2002, the Board undertook additional development of the evidence as to the claim pursuant to 38 C.F.R. § 19.9(a)(2) (2002), a regulation that was later invalidated. Disabled Am Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). In August 2003, the Board remanded the claim for additional development. In a May 2004 decision, the Board denied the Veteran's claim for service connection. The Veteran appealed that decision to the Court. Pursuant to a Joint Motion to Vacate and Remand, the Court, in a January 2005 Order, vacated the May 2004 decision and remanded the appeal to the Board. In June 2005, the Board again remanded the claim for additional development. In March 2006, the Board denied the claim. The Veteran appealed that decision to the Court and in an April 2008 Memorandum Decision, the Court vacated the March 2006 decision and remanded the appeal to the Board. In April 2009, September 2009, September 2011, and January 2012, the matter was again remanded by the Board for further development. FINDING OF FACT The preponderance of the competent and credible evidence does not show that any current low back disability was caused or aggravated by an in-service event, or is otherwise related to the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2011). When no preexisting condition is noted at the time a Veteran enters service, the presumption of soundness arises and the Veteran is presumed to have been sound upon entry. The presumption of soundness may only be rebutted by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b) (2011). Service connection for some disabilities, including arthritis, will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§1101, 1112, 1113, 1137 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2011). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2011). Service connection may also be granted for a 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) (2011). It is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its entirety. Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993). In determining whether evidence submitted by a Veteran is credible, the Board may consider internal consistency, facial plausibility, and consistency with other information submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). In 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. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that her current low back problems arose from a lifting incident in service. Specifically, the Veteran asserts that she injured her back while attempting to lift a 50 gallon container of "pig slop." She has stated that she believed the container to be full of trash and, when she went to pick it up in a bent-over position, she was "stranded in mid-air" and could not move. She reports that she was given an injection and then rushed out of service. The Veteran's May 1968 enlistment report is negative for any complaints or clinical findings of low back problems. Clinical evaluation of the spine was normal, and the Veteran specifically denied a history of recurrent back pain. In support of the absence of a preexisting back disability, the Veteran has submitted two statements from pre-service employers indicating that the Veteran was in good health and without physical problems prior to service. Thus, in the absence of clear and unmistakable evidence of preexisting back pathology, the Board considers the Veteran to have been sound on entry. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b) (2011). The May 1968 entrance examination notes a history of bladder neck resection at age 16, with no sequelae since. Thereafter, service medical records show that in May 1968, the Veteran reported to sick call with complaints of a backache and dysuria. At that time, she also reported a history of bladder infections. A urinalysis was performed and Pyridium was prescribed for cystitis. Shortly thereafter, still in May 1968, she returned to sick call complaining of a three-week history of pain in the lower back and chronic episodes of back pain for the last five to six months. She also reported bed-wetting, backache, and a history of genitourinary infections. The impression was probable recurrent cystitis versus urethritis. It was noted that urinalysis revealed the presence of E. coli. In June 1968, the Veteran returned to sick call for a low back ache and was prescribed Norflex. Less than one week later, during sick call treatment, it was noted that she had been on medications for E. coli. However, she was not taking medication at the present time, and it was not clear whether the Veteran's symptoms were related to a possible genitourinary infection. Therefore, a repeat urine culture was ordered and the Veteran was referred to the orthopedic clinic for evaluation of the left hip. She was also prescribed Tylenol and Norflex. Thereafter, in July 1968, the Veteran was seen in the orthopedic clinic with complaints of low back pain. In describing her symptoms, she stated that she had no radiation of pain down the leg, no weakness, no tingling, and no increased symptoms with cough or sneeze. Examination revealed full range of motion, and no pain on straight leg raising. There was no neurological deficit found. In mid-July 1968, the Veteran reported to sick call with the same complaints. X-ray examination revealed narrowing of the L5- S1 disc space. Tylenol, Norflex, heat, and a bed board were prescribed. On separation examination later in July 1968, the Veteran reported a history of back trouble, particularly strained muscles. However, examination of her back at the time revealed no abnormalities. Service personnel records show that the Veteran was discharged from service due to behavioral problems, including poor performance, apathetic attitude, and excessive desire for discharge. On psychiatric examination on July 9, 1968, the Veteran was found to have no psychiatric diagnosis. However, she was noted to have failed the minimum requirements for basic training. She verbalized a strong desire for discharge, and was found to be unable or unwilling to make the necessary effort for improvement. On a July 12, 1968, report of recommendation for discharge, she was noted to have completed four weeks of training, during which time she was noted to have a problem with housekeeping, personal appearance, and attitude. In the third week of training, she was among trainees receiving the most demerits. During counseling sessions, the Veteran consistently stated that she could do the work and felt that basic training would be easy for her. It was felt that when the Veteran was not chosen to be a leader, she began to cause friction in the platoon by encouraging griping, gossiping, and disobeying the appointed leaders. She was deemed to have been the instigator in several racial disputes. When she found that she had been found to be at blame, she began to express desire for a discharge. It was at that time that she was found to show a complete lack of effort, as indicated by her third and fourth week demerits. In finding her fit for discharge, it was noted that her behavior was not due to any incapacity to become a satisfactory member within the meaning of unfitness. In a July 12, 1968, statement, the Veteran acknowledged that she was being discharged for reasons of apathy. Significantly, the Board notes that physical disability, including recurrent back pain, was not found to be a reason for discharge. Thereafter, the Veteran was hospitalized in November and December 1968 for menorrhagia, at which time she also complained of transverse low lumbar sacral ache with radiation to the left buttocks and down the left thigh. Her symptoms were aggravated on coughing. Findings were consistent with a degenerative disk at L5 with left sciatic radiation, and a brace was prescribed. Significantly, that report does not relate Veteran's low back disability to service. Nor does it mention an in-service lifting injury. In January 1989, a rating decision denied a claim for service connection for a low back disability upon a finding that the Veteran had degenerative disc disease prior to service and that there was no aggravation of the condition during the Veteran's short period of service. The conclusion was based on the fact that in the service medical records, there were no neurological findings, only complaints of low backache. A VA physician was a signatory to the rating decision. Post-service medical records dated in February 1995 indicate that the Veteran reported a two to three year history of diffuse joint pain, particularly in her hands, right arm, shoulder, back, and left foot. The assessment was rule out rheumatoid arthritis. Subsequent VA treatment records dated in 1997 show a diagnosis of rheumatoid arthritis, although, parenthetically, the Board notes that following a rheumatology consult in May 2007, it was determined that rheumatoid arthritis was unlikely and that the Veteran probably had fibromyalgia. VA treatment records thereafter through August 2011 show regular treatment for persistent back pain and diagnoses to include arthritis, fibromyalgia, rheumatoid arthritis, degenerative joint disease of multiple sites, and low back pain. Significantly, those records note the Veteran's report of an onset of back problems in 1968 when she lifted a garbage bag and injured her back. Additionally, June 2009 lumbar spine x-rays revealed a loss of space height at L5-S1 and posterior facet degenerative changes at L4-5 and S1, and a November 2009 lumbar spine MRI revealed multilevel spondylosis with mild segmental stenosis at L2-L3, L3-L4, and L5-S1, and multilevel mild to moderate exit neuroforaminal narrowing. In an April 2002 letter, a VA physician stated that the Veteran was currently under treatment for degenerative disc disease of the lumbosacral spine. The Veteran reported to him that she sustained an injury to her back during service, when she was lifting a barrel full of trash, for which she was prescribed a back brace. The physician stated, "It is my medical opinion that any such type of previous injury may result in future discomfort to the previously injured site, and in turn lead to the possible occurrence of degenerative disc disease as it is found in" the Veteran. In an August 2005 letter, the same physician stated that the Veteran has a long history of osteoarthritis and chronic back pain, apparently since a back injury she suffered in service in 1968. The physician determined that the injury led to chronic ailments and osteoarthritic changes, which affected her cervical, thoracic, and lumbosacral spine. The Veteran underwent a VA spine examination in November 2002 at which time the examiner diagnosed degenerative joint disease of multiple sites, including the low back. The examiner opined that, after a review of the evidence of record, the Veteran's degenerative disc disease of the lumbosacral spine could not be medically linked or attributed to her brief period of military service. Based upon the presence of degenerative arthritis in multiple sites, including the spine, knees, shoulders, and hips, which was appropriate for her age, the examiner felt that her back pain was most likely related to age. The Veteran was afforded a second VA spine examination in July 2005. Following examination of the Veteran, an examiner diagnosed degenerative disc disease of the lumbosacral spine. However, the examiner could not provide an opinion as to whether the Veteran's current back disability was etiologically related to her period of active service without resorting to mere speculation. Pursuant to an April 2009 remand by the Board, the Veteran was afforded a VA spine examination in June 2009 to reconcile conflicting opinions and to determine whether there was sufficient evidence to demonstrate a chronic low back disability in service. However, the examiner opined that the issue of whether the Veteran's current low back pain was related to her service could not be resolved without resort to mere speculation. The Veteran's claim was again remanded by the Board in September 2009, and the Veteran underwent another VA spine examination in January 2010. Following examination of the Veteran and a review of the Veteran's claims file, excluding private treatment records, the examiner diagnosed low back pain. However, the examiner could not relate the Veteran's low back pain to service without resorting to speculation. In support of that opinion, the examiner noted that the Veteran had a minor injury during service and that the changes in her spine were indicative of her age based on the date of the injury and the amount of time that had passed since then. Thereafter, in a November 2010 addendum, the January 2010 VA examiner opined that the Veteran's current low back pain was not as least as likely as not due to her service. The examiner found that the Veteran's current complaints were due to the aging process, and further noted that an X-ray examination at the time of her injury in service revealed narrowing of the disc space that was clearly there before her in-service injury. In support of the conclusion that the in-service X-ray findings preexisted the Veteran's injury, the examiner noted that the Veteran would not have an injury and then develop narrowing of disc space the same day. However, the examiner did not provide an opinion as to whether the Veteran had a chronic low back disability during her service, nor did the examiner reconcile the opinion with the April 2002, November 2002, July 2005, and August 2005 VA opinions as requested by the April 2009 remand. The Board again remanded the Veteran's claim in September 2011 to obtain an etiology opinion. Specifically, the Board requested that a VA examiner review the claims file, provide current diagnoses with regard to the Veteran's low back, and opine whether it is at least as likely as not that the Veteran had a chronic back disability during service or whether any current low back disability was incurred in or aggravated by the Veteran's service. The examiner was specifically requested to reconcile the opinion with other opinions of record dated in April 2002, November 2002, July 2005, August 2005, January 2010, and November 2010. Pursuant to the Board's September 2011 remand, the same VA examiner who provided the January 2010 and November 2010 opinions provided an additional opinion in September 2011 indicating that it was less likely than not that the Veteran's minor injury to her lumbosacral spine which occurred in 1968 resulted in significant degenerative joint disease, osteoporosis, chronic pain, and lumbosacral spine disability. The examiner found that the Veteran's injury in service was minor, noting that the Veteran experienced some mild low back pain after picking up a canister. The examiner noted that the Veteran had aged to the age of 67 and that her medical chart revealed multiple complicating factors including mild cervical kyphosis, mild thoracic scoliosis, progressive osteoporosis, and degenerative joint disease throughout her entire body. Therefore, the examiner felt that the Veteran's genetics, age, and post-service vocation caused significant low back disability. In a subsequent October 2011 opinion, the same examiner stated that the claims file had been reviewed in detail prior to all opinions offered. The examiner then opined that it was less likely as not that the Veteran had a "chronic back disability" in service. In support of that conclusion, the examiner noted that the Veteran picked up a can and experienced some low back discomfort, which resolved. Therefore, the condition was acute. The examiner concluded that the Veteran's back condition at age 67 was not caused by the one minor incident in service. The claim was once remanded by the Board in January 2012 for an additional etiological opinion. In May 2012, a VA examiner diagnosed low back pain, citing the Veteran's primary care problem list since 2001. The examiner then opined that it was less likely as not that the Veteran had a chronic low back disability during service and less likely as not that any low back disability was incurred in or aggravated by the Veteran's service, including her complaints of and treatment for low back pain and X-ray findings of L5-S1 disc space narrowing in service. In support of those conclusions, the examiner noted the Veteran's in-service complaints and then referenced the January 1989 rating decision, signed by a physician, indicating that the Veteran's degenerative disc disease preexisted service and was not aggravated during her short period of service based on an absence of neurological findings and only complaints of a low backache in service. In June 2012, an additional VA opinion was obtained following a review of the claims file. The VA examiner diagnosed osteoarthritis, fibromyalgia, lumbar spondylosis, and lumbar stenosis. The Veteran's medical history was detailed, including her in-service reports of back pain. The examiner found it noteworthy that, during sick call, the Veteran reported a history of back pain that preceded entry into service, and, further, that the Veteran's claimed lifting injury was not documented in the service medical records. The examiner noted the Veteran's post-service treatment for low back symptoms and her reports that the back pain began in service. The examiner also indicated that the Veteran was treated numerous times after service for urinary tract infections. Next, the examiner detailed the prior etiological opinions of record, as requested in prior Board remands. Finally, the examiner detailed the findings from relevant imaging, including the above-mentioned June 2009 x-ray and November 2009 MRI of the lumbar spine. Based on the foregoing, the examiner determined that it was less likely than not that the Veteran had a chronic low back disability during service, including her complaints of and treatment for low back pain and X-ray findings of a narrowing of the L5-S1 disc space in service. The examiner found that the Veteran's back pain in service appeared to be associated with cystitis. The examiner noted that the Veteran reported having multiple prior urinary tract infections, was status post bladder sling as an adolescent, and had back pain associated with urinary tract infections, including in the few months prior to service. Regarding the differing medical opinions, the June 2012 examiner noted that the examiners who believed the Veteran's condition to be related to service did not appear to have reviewed the Veteran's service medical records. Next, the June 2012 examiner opined that it was less likely than not that any current low back disability was incurred in or aggravated by the Veteran's service, including the complaints of and treatment for low back pain and the X-ray findings of a narrowing of the L5-S1 disc space in service. In support of that conclusion, the examiner found that the Veteran's report of an in-service lifting injury could not be substantiated by the record. Specifically, the examiner noted that the Veteran presented with a history of back pain associated with urinary tract infections, which preceded service. Moreover, neurological examination was negative in service. Finally, the examiner determined that, even if the in-service lifting injury in service was conceded, the Veteran's marked generalized osteoarthritic disease affecting multiple joints could not be considered due to a lifting injury. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The probative value of a medical opinion is generally based on the scope of the examination or review, the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board finds the opinion of the June 2012 VA examiner, indicating that the Veteran did not have a chronic low back disorder in service and that her current low back problems are unrelated to her complaints of back pain in service, or to any other aspect of her service, to be the most probative and persuasive medical opinion evidence of record. That VA examiner's findings were based on a thorough and detailed examination of the claims folder and supported by an adequate and persuasive rationale. Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). Additionally, the Board considers it significant that the VA examiner's opinion constitutes the most recent medical evidence of record and was undertaken directly to address the issue on appeal. Furthermore, the examiner's opinion addressed the contrary opinions of record, indicating that it did not appear that the examiners who provided the contrary opinions reviewed the Veteran's service medical records. The Board also considers it significant that the June 2012 VA examiner's opinion is consistent with the opinions of two prior VA examiners, who also found that the Veteran's current low back disability was not related to service. Instead, in opinions dated in November 2002, November 2010, September 2011, and October 2011, those examiners found the Veteran's current low back disability to be consistent with degenerative changes due to aging. Those opinions were also based on examination of the Veteran and a review of the claims file, and were supported by some rationale. Therefore, they are accorded significant probative weight. Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). In contrast, the VA physician's April 2002 and August 2005 opinions, indicating that the Veteran's current low back disorder was related to her active service, were not supported by adequate or any rationale and, thus, are of limited probative value. Sklar v. Brown, 5 Vet. App. 140 (1993). Additionally, the Board considers it significant that the VA physician does not appear to have had access to the Veteran's claims folder, or more specifically, her service medical records. 38 C.F.R. § 4.1 (2011). The Board acknowledges that claims folder review is not a requirement for medical opinions, and that a medical opinion may not be discounted solely because the opining clinician did not review the claims folder. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). However, the VA physician did not indicate that a familiarity with the Veteran's pertinent military history or medical history and appears to have based the positive opinion entirely on the Veteran's statements at the time of examination. The Board does not find the Veteran's report of an in-service lifting injury to be credible. Even so, a medical opinion premised upon an unsubstantiated account of a claimant is of negligible probative value. Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). Moreover, the April 2002 opinion is inherently speculative in that the physician stated that the type of injury alleged by the Veteran to have occurred in service "may result in future discomfort" and lead to possible degenerative disc disease. Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Swann v. Brown, 5 Vet. App. 229 (1993); Bostain v. West, 11 Vet. App. 124 (1998); Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of may also implies may or may not and is too speculative to establish medical nexus); Warren v. Brown, 6 Vet. App. 4 (1993) (doctor's statement framed in terms such as could have been is not probative). Further, the Board observes that in neither the November 2002 nor the August 2005 letter did the VA physician specifically relate the Veteran's current back condition to service. Rather, the physician reported what the Veteran had related to him. Therefore, the letters are of little probative value. Accordingly, the Board considers the VA physician's April 2002 and August 2005 opinions, which are the only positive medical opinion evidence of record, to be of significantly lesser probative value than the negative opinion rendered by the June 2012 VA examiner. Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board finds that the preponderance of the evidence is against a finding of a direct nexus between the Veteran's current low back disability and her active service, including to her low back complaints therein. The Board finds that the competent and credible evidence does not show a link between any aspect of the Veteran's active service and her current low back disability. A June 2012 VA opinion, which the Board finds to be both probative and persuasive, indicates that such a nexus does not exist. Further, the only positive medical opinion evidence of record was based on the Veteran's uncorroborated assertion of a lifting injury in service, which, for reasons set forth below, the Board finds to lack credibility. Accordingly, the Board finds that direct service connection for a low back disability is not warranted. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). The Board is cognizant that the record shows that the Veteran received treatment for her spine shortly after her discharge from service, and that she was diagnosed with a degenerative disc in the lumbar spine at that time. However, the Veteran had less than 90 days active service and, therefore, service connection for arthritis on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309 (2011). The Board also finds that the Veteran did not have chronic low back disability in service. While the service medical records show multiple complaints of low back pain and an X-ray finding of narrowing disc space at L5-S1, the June 2012 examiner found that the low back complaints were related to genitourinary problems. Service medical records show that, in service, the Veteran reported having multiple prior urinary tract infections, was status post bladder sling as an adolescent, had back pain associated with urinary tract infections, and was prescribed medication for genitourinary problems. Further, the Veteran was not diagnosed with any low back disorder in service and orthopedic examination revealed no neurological defect. Although X-rays showed narrowing disc space at L5-S1, the evidence does not show that the Veteran's low back complaints were attributed to that finding, and no diagnosis was made based on that finding. The service medical records do not show that the Veteran's low back complaints were attributed to anything other than genitourinary problems. Therefore, the Board finds the June 2012 opinion to be both probative and persuasive, and finds that opinion is supported by the evidence of record. Moreover, there are no contrary opinions of record indicating that the Veteran had a chronic back disorder in service. Therefore, the weight of the evidence demonstrates that chronicity in service is not established in this case. 38 C.F.R. § 3.303(b) (2011). The Board recognizes that the Veteran, herself, is of the opinion that her current low back disability had its onset in service or is otherwise related to a claimed lifting injury in service. Additionally, the Veteran's mother asserted in a July 1992 written statement that, had any low back disability preexisted service, it was definitely aggravated therein. Lay evidence is one type of evidence that the Board must consider when a Veteran seeks disability benefits. 38 C.F.R. § 3.307(b) (2011). Competency must be distinguished, however, from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). Here, the Veteran is competent to offer evidence about a lifting injury and related low back symptoms that are within the realm of her personal experience. Layno v. Brown, 6 Vet. App. 465 (1994). She is also competent to testify as to the presence of current low back problems, and her lay statements in that regard are considered credible. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007) (where a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination that is medical in nature and is capable of lay observation). However, to the extent that she and her mother relate the Veteran's current symptoms to service, their assertions are not probative. As lay persons, they are not generally considered competent to opine as to medical etiology or to render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007); Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Washington v. Nicholson, 19 Vet. App. 362 (2005). Additionally, the Board must still weigh the credibility of the Veteran's competent assertions regarding an in-service lifting injury and a continuity of low back symptoms since service by considering whether they are consistent with other evidence of record. The Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). In this context, the Board has reason to question the credibility of the Veteran's current assertions as they are inconsistent with her prior statements and other evidence of record. The Board finds the credibility of the Veteran's current contentions regarding the onset of her low back problems in service to be undermined by her service medical records, and prior statements regarding her low back problems, and post service medical records. Caluza v. Brown, 7 Vet. App. 498 (1995). Specifically, service medical records are negative for any report of a lifting injury in service. While those records do show multiple complaints of low back ache and low back pain associated with bladder infections, they are negative for back pain attributed to a lifting injury or any report of a lifting injury. Given the numerous sick call visits made by the Veteran during her short period of active duty service, the Board finds it likely that, had the Veteran experienced a specific lifting injury to her low back in service, subsequently described to the Social Security Administration by the Veteran as a "bad back accident," she would have sought treatment for that alleged injury and there would be evidence in the service medical records to support that contention. Further, the Board observes that, when then Veteran first filed a claim for service connection for low back and leg problems in December 1968, she did not report any lifting injury. Instead, she felt that "physical education" was the cause of her problems. Nor did the Veteran report a lifting injury in conjunction with her complaints of low back pain during her December 1968 treatment for menorrhea. Then, in a subsequent December 1988 application for benefits, she attributed back problems, and lower and upper extremity problems, to an unspecified injury in service. It was not until a February 1989 written statement, over 20 years after service, that she first mentioned the alleged lifting injury to which she now attributes her low back problems. Considering the inconsistencies in the Veteran's statements, the Board finds her account of an in-service lifting injury not credible, particularly as the Veteran did not report the alleged lifting injury in her initial December 1968 application for benefits. The Board's finding in this regard further shifts the preponderance of the evidence against the Veteran's claim by rendering inadequate for rating purposes any positive opinion of record that relied on the Veteran's not credible report of an in-service lifting back injury, including the April 2002 and August 2005 opinions of the VA physician. Next, regarding the various written statements and the hearing testimony provided by the Veteran, indicating that she has experienced low back problems since service, the Board also finds those accounts to lack credibility. The Board doubts the overall credibility of the Veteran because of her inconsistent statements regarding the onset of her back pain. For example, the Veteran currently asserts an initial onset of low back pain in service. During a September 1992 and February 1998 RO hearings, and in written statements, the Veteran expressly denied ever experiencing any complaints related to the back prior to service. However, her service medical records show a report of back pain for months prior to service. As those in-service statements were recorded contemporaneous with and made in furtherance of treatment, the Board finds them to be more probative and persuasive than the Veteran's subsequent assertions that she did not have back symptoms prior to service and experienced an initial onset of symptoms during her short period of active service. Additionally, during her various hearings and in written statements, the Veteran suggests that she was "rushed out" of service following her back injury. The Veteran has testified, and her mother also indicated in a July 1992 written statement, that the Veteran wanted to stay in service and planned on a military career. Contrary to those assertions, however, the Veteran's service personnel records show that she was discharged due to behavioral problems, specifically noting her "excessive desire for discharge," her desire to return home to her four-year-old son, and her refusal "to consider staying in the military service." The Board also finds it significant that the personnel records relating to the Veteran's separation are negative for any evidence of back problems, and further note that the Veteran's behavior was not due to any incapacity to become a satisfactory member within the meaning of unfitness, and that there "appear[ed] to be no other grounds for disposition of the [Veteran]." Those statements suggest that physical disability was not a factor in the Veteran's separation, contrary to the Veteran's assertions. The Board also notes that the July 1992 statement from the Veteran's mother does not specifically indicate a continuity of the Veteran's low back symptoms since service. Rather, the Veteran's mother states that the Veteran was in good health prior to service and that she was there when the Veteran got out of service and subsequently used a cane for one year. The Veteran's mother also stated that she was there when the Veteran could not stand without help or sit down without help, or obtain a decent job because of back problems. She also was aware of many trips the Veteran made to the VA hospital but that the Veteran could not get help because of her chronic arthritis. However, she does not state that the Veteran had low back symptoms following service that continued to the present time, nor did she provide dates for any of her observations. In this regard, as it relates to the statements offered by Veteran's mother, the record shows that the Veteran had low back complaints in November 1968 just after service, and then received VA treatment and SSA disability benefits in the mid-1990s for arthritis involving multiple joints. Therefore, absent specific dates or specific assertions regarding a continuity of low back symptoms, the July 1992 statement does not support continuity of symptomatology and, in fact, is largely supported by the current medical evidence of record showing a gap in treatment for or credible complaints related to the low back from 1968 to 1995. Finally, regarding the July 2005 statement from the Veteran's acquaintance, indicating that he had known the Veteran since 1978 and had known her to have back pain since then, the Board has no reason to doubt the acquaintance's credibility. However, even finding that assertion competent and credible, the statement is insufficient to establish a continuity of symptoms since service. Instead, it supports that the Veteran experienced low back pain since 1978, which is still 10 years after separation from service. Furthermore, the statement does not otherwise link the Veteran's low back problems to her service. Therefore, although supportive of a history of low back symptoms since 1978, the statement is insufficient to establish a continuity of low back symptoms since service. Therefore, the Board finds that the assertions of the Veteran, her mother, and her acquaintance, standing alone, are insufficient establish a nexus between the Veteran's low back disability and her time in service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board). In view of the lengthy period without treatment, there is no competent and credible evidence of a continuity of symptomatology since service, and this weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Accordingly, the Board finds that the preponderance of the evidence weighs against a finding that low back disability is related to a claimed in-service lifting injury or to any other aspect of her military service. Therefore, the Board concludes that a low back disability was not incurred in or aggravated by service. As the preponderance of the evidence is therefore against the Veteran's claim for service connection, that claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Veteran Upon receipt of a substantially complete application, VA must notify the Veteran and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the Veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the Veteran about the information and evidence that VA will seek to provide; and (3) inform the Veteran about the information and evidence the Veteran is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2010); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the Veteran to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in April 2009. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the June 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. As noted by the Court in its April 2008 memorandum decision, VA made several unsuccessful attempts to obtain records of VA treatment prior to February 1995, and received a negative response that records from 1968 and 1969 were not available. VA has also obtained multiple examinations with respect to the Veteran's claim. In addition, the Veteran has been afforded multiple RO hearings. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. Additionally, in light of the June 2012 VA opinion, the Board is also satisfied there was substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Thus, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a low back disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs