Citation Nr: 1237280 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-36 771 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for service-connected chronic lumbar strain. 2. Entitlement to service connection for spinal fusion at L3-L4 for spondylosis with spondylolisthesis, to include as secondary to the service-connected chronic lumbar strain. 3. Entitlement to service connection for adjustment disorder with depressed mood, to include as secondary to the service-connected chronic lumbar strain. REPRESENTATION Veteran represented by: South Dakota Division of Veterans Affairs ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by which the RO, in pertinent part, denied entitlement to service connection for spinal fusion at L3-L4 for spondylosis with spondylolisthesis and for adjustment disorder with depressed mood, both claimed as secondary to the service-connected chronic lumbar strain. The RO granted an increased evaluation of 10 percent for the Veteran's service-connected chronic lumbar strain. Although each increase represents a grant of benefits, the United States Court of Appeals for Veterans Claims (Court) has held that a decision awarding a higher rating, but less that the maximum available benefit does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, this matter continues before the Board. In May 2011, the Board remanded this case to the RO for further development of the evidence, which has been accomplished satisfactorily with regard to the issues of an increased rating for chronic lumber strain and service connection for spinal fusion at L3-4. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The issue of entitlement to service connection for adjustment disorder with depressed mood, to include as secondary to the service-connected chronic lumbar strain is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence of record demonstrates the Veteran's service-connected chronic lumbar strain is characterized by subjective complaints of low back pain, and by objective findings of forward flexion to 70 and 62 degrees, without findings of weakened movement, fatigue or excess fatigability, incoordination, lack of endurance or functional loss due to the service-connected disability. 2. Spinal fusion at L3-L4 for spondylosis with spondylolisthesis was not shown in service or for many years thereafter, and it is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected chronic lumbar strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2012). 2. Spinal fusion at L3-L4 for spondylosis with spondylolisthesis was not incurred in active duty service, and it is not causally related to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in May 2008 that fully addressed all three notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. The notice provided addressed the rating criteria or effective date provisions that are pertinent to the Veteran's claims in accordance with the Court's holding in Dingess. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records, relevant VA clinical records, and private medical records. The Board notes that certain VA mental health records from the 1980's might be missing from the record, but these would have no bearing upon the orthopedic issues herein. The Veteran was afforded adequate VA medical examinations in furtherance of the claims. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected chronic lumbar strain has been rated 10 percent disabling by the RO under the provisions of Diagnostic Code 5237. With the possible exception of intervertebral disc syndrome, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine provide as follows: 100% Unfavorable ankylosis of the entire spine; 50% Unfavorable ankylosis of the entire thoracolumbar spine; 40% Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 30% Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; 20% Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; 10% Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2011) (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides as follows: A 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of VA compensation, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 38 C.F.R. § 4.71, Plate V (2012). In his March 2008 claim for benefits, the Veteran asserted that he had been experiencing back pain since service and that his back symptoms had become worse but that he took pain medication only in the evening hours so that it did not interfere with his ability to concentrate during the day. He noted a work-related 2003 back injury and indicated that previous to that injury, his back pain would eventually subside but that following that injury, he required surgery. Indeed, private medical records show that in January 2005, the Veteran underwent a posterior spinal fusion with segmental instrumentation and iliac crest bone graft, L3-L4. The final post-operative diagnosis was of spondylolisthesis at L3-L4. On August 2008 VA orthopedic examination, the Veteran indicated that the nature of his low back symptoms did not change until a 2003 work-related injury. He was carrying a table with a coworker. After that, the Veteran immediately bent down to pick up a ratchet, which weighed only a pound. When bending to lift, he felt extreme pain in his back. The incident was treated as a workers' compensation injury. The Veteran was eventually found to have two ruptured disks. He tried conservative treatment methods for a year, which were not successful. He underwent surgery due to the herniation between L4 and L5 and fractured facets. The VA examiner reviewed the private medical records that confirmed a back injury in 2003. The Veteran reported constant low back pain as well as aching calves and feet. He took Vicodin at bedtime as needed and took over-the-counter analgesics as needed as well. Twisting, bending, lifting loads greater than 20 pounds, and prolonged sitting caused flare-ups during which pain was exacerbated. The Veteran denied being prescribed bed rest due to the low back in the previous 12 months. The Veteran could walk normally without assistive devices, and he could walk one to two miles at a time. He could perform the activities of daily living other than ones requiring twisting (such as wiping his back) or bending (such as clipping his toenails). The Veteran still hunted but reduced his recreational activities such as swimming by 60 percent. The Veteran's job allowed him to move around, which reduced achiness in the back. The examiner observed that the thoracic spine was slightly curved and that there was a low back scar. There was no tenderness, redness, swelling, warmth, or obvious muscle spasm of the low back. Flexion was from zero to 70 degrees, extension was from zero to 20 degrees, right lateral flexion was from zero to 18 degrees, left lateral flexion was from zero to 21 degrees, right rotation was from zero to 20 degrees, and left rotation was from zero to 18 degrees. The examiner indicated that with three repetitions of flexion and extension, it was negative for additional pain, fatigue, weakness, lack of endurance or incoordination. An X-ray study of the low back revealed postsurgical changes at L3 and L4 with pedicle screws and rods in place and mild narrowing of the L3-L4 disc; the remainder of the lumbar spine was negative for abnormalities. The examiner diagnosed lumbosacral strain without radiculopathy and spinal fusion L3-L4 in 2003 for spondylosis with spondylolisthesis. The latter, according to the examiner, was unrelated to service, as the Veteran reported that his lumbar spine stayed the same until the 2003 injury. It was also unrelated to the scoliosis noted on the separation examination, as spondylosis and spondylolisthesis were not related to scoliosis according to the medical literature. On June 2011 VA orthopedic examination, the Veteran indicated that he was still experiencing the pain that developed after the 2003 back injury. The Veteran underwent a medial nerve branch facet radiofrequency treatment in 2010, which helped. A February 2011 medial nerve branch facet rhizotomy and March 2011 transforaminal nerve root injection did not serve to alleviating symptoms. The Veteran reported symptoms such as low back pain radiating into the right lower extremity and pain in the feet. Flare ups were caused by twisting or bending the wrong way. The Veteran could walk a mile. When driving, he had to stop once an hour due to discomfort. He has back discomfort when climbing up and down hills during hunting expeditions. The Veteran was able to work at his current job without restriction. He could do the activities of daily living although he had to sit while dressing. The Veteran gave up certain recreational activities such as golfing and team roping. However he still hunted and could climb trees with a ladder. On objective examination, the lumbar spine was not tender to palpation and there were no spasms. There was mild tenderness over the right sacroiliac joint. There was excellent lower extremity strength. There was no evidence of additional pain, weakness, incoordination, or fatigability on repeated range of motion exercises. Flexion was from zero to between 60 and 62 degrees, extension was from zero to 20 degrees, right lateral flexion was from zero to 24 degrees, left lateral flexion was from zero to 25 degrees, right rotation was from zero to 27 degrees, and left rotation was from zero to 30 degrees. The examiner diagnosed chronic lumbar strain and opined that the condition was not active when the 2003 injury occurred. The examiner concluded that all of the current symptoms were due to the 2003 work-related injury and not the service-connected lumbar strain. The examiner found that the service-connected disability did not limit the Veteran's functional ability and that there was no weakened movement, excess fatigability, incoordination, objective evidence of pain, loss of motion, or functional loss due to the service-connected disability. The examiner explained that a 1981 VA medical examination report indicated that the Veteran was "perfectly well" and that there was no evidence of lumbar strain residuals on March 1986 VA examination. The examiner also noted that an indication of back pain in 1993 was attributed to prostatitis and that back pain treated in May 2000 occurred after riding a horse. At that time, back pain of one year's duration was noted. As well, the examiner emphasized that when seeking treatment after the 2003 injury, the Veteran indicated that he had never had back pain so severe in the past. As well, during treatment in January 2004, the Veteran denied a history of back problems and that an August 2004 private medical report reflected back pain of 18 months' duration. The examiner explained that spondylolisthesis at L3-L4 was said to be secondary to a pars defect that was noted after the work injury; X-ray studies accomplished during active duty and in 1980 did not show a pars defect. According to the examiner, the Veteran related his current problems to 2003. The examiner indicated that the Veteran was very active before 2003 when he golfed, hunted, roped cattle, etc and only reduced his activity level after the 2003 injury. Finally, the examiner explained that the 2003 injury and its residuals were treated via workers' compensation, indicating that the lumbar fusion and current problems were not attributable to the service-connected condition. The examiner concluded that the service-connected lumbar strain resolved without residuals and that the current symptoms were due to the 2003 on-the-job injury. The Board is precluded from differentiating between the symptomology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Here, the June 2011 examiner clearly asserted that no current symptomatology is attributable to the service-connected lumbar strain. Despite the foregoing, the criteria for a 20 percent evaluation are not met at any time. 38 C.F.R. § 3.71a, Diagnostic Code 5237, Hart, supra. Forward flexion has not limited to 60 degrees or less, the combined range of motion of the thoracolumbar spine exceeds 120 degrees, there has been no abnormal gait, and abnormal spinal contour was described as slight. In any event, it has not been associated with the service-connected lumbar strain, although it was shown on X-ray study in service. Thus, regardless of the origins of the Veteran's low back symptomatology, the criteria for a 20 percent evaluation are not met at any time, and an increased rating is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. The Board notes that because intervertebral disc syndrome has not been diagnosed and because incapacitating episodes have not been shown, the Board need not consider an increased rating under Diagnostic Code 5243 (Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40(2012) allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 (2012) provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements has not been shown. As well, there is no weakened movement, excess fatigability, or incoordination. Thus, these provision need not be considered further. The Court held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total disability rating due to individual unemployability (TDIU) as a result of that disability is warranted. Rice Shinseki, 22 Vet. App. 447 (2009). The Board finds that a claim for a TDIU is not raised by the record. The evidence of record shows that the Veteran is employed. Therefore, the Board finds that no further consideration of a TDIU is warranted. Id. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. In this case, an extraschedular rating need not be considered. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected lumbar strain is inadequate. The Veteran's back symptoms have been attributed to an etiology other than the service-connected disability. Regardless, a comparison between the level of severity and symptomatology of the Veteran's low back with the established criteria found in the rating schedule for disabilities of the spine shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. For this reason, the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore adequate. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). 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 a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Spinal fusion at L3-L4 for spondylosis with spondylolisthesis, to include as secondary to the service-connected chronic lumbar strain The relevant facts reported above regarding the claim for an increased rating for the service-connected lumbar strain are incorporated herein by reference. The Veteran alleges that his spinal fusion at L3-L4 for spondylosis with spondylolisthesis is due to his service-connected lumbar strain. A review of the lay and medical evidence does not show a direct link between the spinal fusion at L3-L4 for spondylosis with spondylolisthesis and service. The service treatment records reflect complaints of low back pain in April 1977 without history of trauma. Back pain was noted in June 1977. August 1977 complaints of low back pain were attributed to prostatitis. In January 1978, the Veteran complained of constant low back pain. In March 1978, back pain was found to be secondary to a fight. An X-ray study conducted prior to service indicated mild convex thoracic scoliosis. In the report of medical history for separation purposes, the Veteran noted recurrent back pain, and the reviewing examiner noted that there was no profile or limitation related to the Veteran's back. On January 1980 VA medical examination, the Veteran complained of low and mid back pain, and mild lumbosacral strain was diagnosed. An associated X-ray study was normal. On VA examination in January 1981, the Veteran complained of low back pain since 1977 that was not precipitated by injury or trauma. The examiner observed an abnormal lumbosacral area and tenderness of the lumbar spine with limitation of flexion and extension. The diagnosis was of minimal tendonitis of the lumbar spine. In 2003, the Veteran experienced a work-related back injury. Because conservative treatment was not effective, in January 2005, the Veteran underwent a posterior spinal fusion with segmental instrumentation and iliac crest bone graft, L3-L4. The final post-operative diagnosis was of spondylolisthesis at L3-L4. As stated above, the Veteran indicated that his back symptoms had been constant from service until the 2003 injury, when they were exacerbated. Before the 2003 injury at work, back symptoms would eventually subside. This was no longer the case after 2003. An X-ray study conducted pursuant to the August 2008 VA orthopedic examination revealed a normal lumbosacral spine other than postsurgical changes at L3 and L4 with pedicle screws and rods in place and mild narrowing of the L3-L4 disc. The examiner opined that it was not likely that the spinal fusion for spondylosis with spondylolisthesis was caused by or a result of service, as the record and history provided by the Veteran showed that this was related to the post-service 2003 back injury that later required surgery. As well, the examiner opined that it was not likely that the Veteran's spinal fusion for spondylosis with spondylolisthesis was caused by or the result of the scoliosis documented on service separation because the medical literature did not reveal a correlation between these disorders. In June 2011, the Veteran was afforded a VA orthopedic examination. The Veteran indicated that he was still experiencing the pain that developed after the 2003 back injury. The Veteran underwent a medial nerve branch facet radiofrequency treatment in 2010, which helped. A February 2011 medial nerve branch facet rhizotomy and March 2011 transforaminal nerve root injection did not help in alleviating symptoms. The examiner diagnosed, in pertinent part, L3-L4 spondylolisthesis with spondylolysis and spondylosis treated with a spinal fusion and indicated that all of the Veteran's current symptoms were due to that disability. the examiner opined that the Veteran's spondylosis, spondylolysis, spondylolisthesis and subsequent fusion did not have its onset in service and was not otherwise related to service. Also, the examiner opined that the service-connected lumbar strain did not cause or aggravate the spondylosis, spondylolysis, spondylolisthesis, or lumbar fusion. The examiner explained that X-ray studies showed no evidence of spondylolisthesis or a pars defect while on active duty or in the years that followed. Rather, the evidence of record demonstrated that the disability had its onset in 2003. The examiner emphasized that the service-connected lumbar strain was not an active problem when the Veteran sustained his work-related injury in 2003 that led to the current spondylosis, spondylolysis, spondylolisthesis, and lumbar fusion. The Veteran does not assert, and the evidence does not reflect, a direct nexus between the Veteran's spinal fusion at L3-L4 for spondylosis with spondylolisthesis and service or continuity of symptomatology from service to the present. Indeed, X-ray studies of the back prior to 2003 do not reflect the foregoing. Moreover, the August 2008 examiner opined that it was unrelated to scoliosis documented on service separation. As such, a direct nexus to service by in-service incurrent or by continuity of symptomatology is not shown, and service connection on a direct basis is not warranted. 38 C.F.R. § 3.303. The Veteran asserts that the spinal fusion at L3-L4 for spondylosis with spondylolisthesis is due to or aggravated by his service-connected chronic lumbar strain. The Board finds credible the Veteran's assertions of symptomatology and disability manifestations, and he is competent to provide such evidence. See Layno, supra. The Veteran, however, is not competent to provide evidence regarding causation in a medically complex question such as the one herein, which necessitates medical expertise to determine. Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms). The competent evidence regarding whether the Veteran's current spinal fusion at L3-L4 for spondylosis with spondylolisthesis is the proximate result of or aggravated by the service-connected chronic lumbar strain is contained in the August June 2011 VA orthopedic examination report as it is addresses the question specifically and is thorough, well reasoned, and based on a review of the evidence in its entirety. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that 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). The June 2011 examiner explained in detail why the Veteran's current spinal fusion at L3-L4 for spondylosis with spondylolisthesis was unrelated to the service-connected lumbar strain. He provided several rationales that are detailed above. The entirety of the competent, probative and relevant medical evidence indicates no relationship between the current spinal fusion at L3-L4 for spondylosis with spondylolisthesis and the service-connected lumbar strain. As such, service connection on a secondary is precluded. 38 C.F.R. § 3.310; Wallin, supra; Allen, supra. Because the preponderance of the competent evidence is against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER An evaluation in excess of 10 percent for the service-connected lumbar strain is denied. Service connection for spinal fusion at L3-L4 for spondylosis with spondylolisthesis, to include as secondary to the service-connected chronic lumbar strain, is denied. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claims for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, it appears that certain relevant VA clinical records have not yet been associated with the record. In June 2011, the Veteran was afforded a VA psychiatric examination. On examination, the Veteran indicated that he had received mental health treatment at the Las Vegas VA Medical Center (MC) in the 1980's. Such records are pertinent to the issue herein and must be obtained. See 38 C.F.R. § 3.159(c)(2); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990) (holding that all VA treatment records that could potentially be helpful in resolving a claim must be obtained); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). In the event that new records are obtained, the RO must schedule a VA medical examination to determine the etiology of the Veteran's claimed psychiatric disorder to include whether it is directly related to service. The examiner is to elicit a comprehensive psychiatric history from the Veteran to include symptoms experienced in service, shortly thereafter, and in the years that followed in order to determine whether the current disorder is directly related to service or whether there has been continuity of symptomatology since service. The examination instructions are contained in the second paragraph below. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Associate with the record all VA clinical records from the Las Vegas VAMC dated from September 1978 to the present. Records from September 1978 to 1990 are of particular importance, as noted above, there is an indication that the Veteran received treatment at that facility in the 1980's. In the event that there are no records at the Las Vegas VAMC dated from the late 1970's and 1980's, the RO must document its efforts to obtain these records. 2. In the event that new evidence is obtained from the Las Vegas VAMC, schedule a VA psychiatric examination. The examiner is to review all of the pertinent documents in the claims file and interview the Veteran. When interviewing the Veteran, who indicated that he was "bummed out" in service and thereafter, the examiner is to elicit a complete history of psychiatric symptoms in service and the years that followed and to opine whether it is at least as likely as not (50 percent or greater likelihood) that that any current psychiatric disorder is directly related to service or whether psychiatric symptoms have been continuous since service. A rationale for all opinion and conclusions should be provided, and the examination report must indicate whether the requested review of the record took place. 3. After the development requested above has been completed to the extent possible, the record should be reviewed. If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs