Citation Nr: 1301264 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 07-29 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from September 1989 to May 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied service connection for multiple disabilities, including pes planus and a low back disability. As set forth above on the cover page of this decision, the appellant's claim is now in the jurisdiction of the RO in Pittsburgh, Pennsylvania. In April 2009, the Board remanded the matter for the purpose of affording the appellant the opportunity to testify at Board hearing in connection with his appeal, as he had requested. In October 2009, the appellant testified at a Board videoconference hearing and a transcript of that hearing is associated with the record. In December 2009 and July 2011, the Board remanded the matter for additional evidentiary development. The Board concludes that the RO has substantially complied with all remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). Neither the appellant nor his representative has argued otherwise. In February 2012, the appellant submitted a claim of entitlement to an increased rating for his service-connected shin splints. The record currently available to the Board, including the appellant's Virtual VA file, contains no indication that the RO has had the opportunity to address this claim. Therefore, the Board does not have jurisdiction over it and it is referred to the RO for appropriate action. In a November 2012 letter, the Board advised the appellant that he was entitled to elect an additional hearing as the Veterans Law Judge before whom he had testified in October 2009 was no longer employed by the Board. See 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2012). The Board advised the appellant that if he did not respond to the letter within 30 days, the Board would assume that he did not want an additional hearing. Having received no response from the appellant, the Board will proceed with consideration of his appeal based on the evidence of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The appellant's bilateral pes planus preexisted his period of active service and unequivocally was not permanently made worse therein. 2. A chronic low back disability was not present during the appellant's active service, the first evidence of arthritis was many years after service, and the appellant's current low back disability is not causally related to his active service or any incident therein. CONCLUSIONS OF LAW 1. Bilateral pes planus was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). 2. A low back disability was not incurred in active service, and arthritis may not be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA. In August 2005 and January 2006 letters issued prior to the initial decision on the claims, VA notified the appellant of the information and evidence needed to substantiate and complete his claims, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012). Additionally, in March 2006, the RO sent the appellant a letter for the express purpose of complying with the Court's decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In December 2009, VA sent the appellant another section 5103(a) letter. Since the issuance of these letters, the RO has reconsidered the appellant's claims, most recently in the September 2012 Supplemental Statement of the Case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). In addition to the notification letters discussed above, at a prehearing conference held in connection with the October 2009 Board hearing, and during the hearing itself, the Veterans Law Judge discussed the issues on appeal with the appellant and his representative and the information and evidence necessary to prevail in those claims. 38 C.F.R. § 3.103 (2012); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010). With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Copies of the appellant's service treatment records are on file. The RO has also obtained records from the Social Security Administration (SSA) as well as all available post-service clinical records which the appellant has specifically identified and authorized VA to obtain. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2), (3). The appellant has also been afforded VA medical examinations in connection with his claims. 38 C.F.R. § 3.159(c)(4). The Board finds that the opinions obtained are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the appellant nor his representative has argued otherwise. Sickels v. Shinseki, 643 F3d 1362 (Fed. Cir. 2011) (holding that in the absence of a challenge, the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issues now being decided. Background The appellant's service treatment records show that at his June 1989 military enlistment medical examination, he completed a report of medical history on which he denied having or ever having had recurrent back pain or foot trouble. On clinical evaluation, the examiner noted that the appellant exhibited moderate pes planus and assigned a physical profile of "2" for the lower extremities. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the appellant on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). The remaining service treatment records show that the appellant was seen on multiple occasions in connection with various complaints, including shin splints. These records, however, are entirely negative for complaints or findings of a low back disability or pes planus. In July 2005, more than a decade after his service separation, the appellant submitted an original application for VA compensation benefits, seeking service connection for multiple disabilities, including pes planus and chronic low back pain. In an August 2005 statement submitted in connection with his claim, the appellant indicated that at the time of his military enlistment, he had had slight pain and discomfort in his back and feet but claimed that his pain had intensified during active duty as a result of long periods of physical training and marching. In connection with his claims, the appellant was afforded a VA medical examination in April 2006 at which he claimed to have developed a bilateral foot condition in 1992 or 1993 due to the wear and tear of military service. He claimed that after he visited sick call a number of times, he was told he had flat feet which the examiner indicated corresponded to pes planus. The appellant, however, indicated that he never received treatment for his pes planus symptoms in service. With respect to his low back, the appellant claimed that he developed discomfort in the low back while performing calisthenics and sit ups. He claimed that from 1994 to 1995, his pain became worse. After examining the appellant, the examiner diagnosed him as having bilateral pes planus, X-ray normal; and lumbosacral strain, X-ray normal. In support of the appellant's claim, the RO obtained VA and private clinical records, dated from September 1997 to August 2012. In pertinent part, these records show that in September 1997, the appellant underwent a physical examination in connection with an application for employment. At that time, he was noted to have bilateral pes planus. No other pertinent complaints or abnormalities were noted. Indeed, examination of the appellant's spine showed that it exhibited full range of motion with no other abnormalities. The final diagnosis was healthy male. Additionally, in connection with the examination, the appellant completed a report of medical history on which he denied having or ever having had painful or unstable joints, bone disease, and foot problems. The examiner indicated that the appellant had no limitations to completing various physical tests, including a dummy drag, ladder climb, obstacle course, a run and cuff, and a stair climb. Subsequent clinical records show that in October 2000, the appellant was treated for a toe fracture. No complaints pertaining to pes planus were noted on that occasion. In February 2005, the appellant underwent a diagnostic lumbar puncture in connection with his complaints of headaches and a fever. In July 2005, the appellant sought treatment and complained of pain in his back since the spinal tap. He denied prior back pain or injury. He recalled an incident in which he fell from a ledge at work but indicated that he did not really notice any specific pain after the fall. The appellant made no mention of having developed low back pain in service and on a continuous basis thereafter. The initial assessment was low back pain. Subsequent July 2005 X-ray studies showed loss of lordosis consistent with spasm and foraminal narrowing at L5-S1. An MRI showed retrolisthesis of L5 over S1 secondary to hypertrophic degenerative changes of the facet joints as well as posterior osteophyte formations and desiccated disc bulge without evidence of nerve root impingement. The diagnoses were herniated lumbar disc and degenerative spondylolisthesis. Subsequent clinical records show that in August 2005, after filing his claim for VA compensation, the appellant claimed that his back pain had been present since 1992 but had been exacerbated in 2005. In an October 2009 statement, the appellant noted that his service treatment records documented treatment for shin splints on at least four occasions in 1994. He claimed that although these visits were primarily for shin splints, he had also complained of pain in his feet on each occasion. He further claimed that after his separation from service, he sought treatment for back and foot pain from a private physician, although records from that physician had been destroyed. At his October 2009 Board hearing, the appellant claimed that he had developed pain in his feet in late 1993 during physical training (PT) sessions. He indicated that his foot pain increased to the point that it became unbearable and in 1994, he sought treatment on several occasions at the base clinic. He claimed that the military examiner would notice right away that his feet were swollen and sometimes red. He also claimed that immediately after service, he sought treatment for pain in his feet but that records of such treatment were not available. With respect to his low back, the appellant testified that he vividly remembered that in January 1994, he had been performing strenuous physical training. On his way home, he noticed a pain in his back while getting out of the car. The appellant indicated the next morning, he developed the worst pain he had ever felt in his life so he went to sick call and complained of back pain. He indicated that he continued to seek treatment for back pain immediately after service and had remained under treatment for low back pain. Subsequent VA clinical records show that in February 2010, the appellant sought treatment and complained of foot problems for the past several years. He claimed that he had had foot problems in service. He also claimed to have had low back pain since service, worsening in recent years. The examiner noted that the appellant had gained over 100 pounds since service and had had jobs where he had to be on his feet. Examination of the feet showed that they were flat and tender. The low back was essentially normal. In March 2010, the appellant sought treatment for painful arches. He claimed that his arches had "collapsed" 15 years prior. The assessment was stage 2 flexible pes planus. In April 2010, the appellant underwent VA medical examination. The examiner reviewed the claims folder in detail, including the appellant's service treatment records. She noted that the appellant had been noted to have moderate pes planus at a service enlistment medical examination in June 1989. She further noted that he had been seen on several occasions in service in connection with shin splints, but that service treatment records contained no indication of any complaints of or treatment for pes planus or a low back disability. The examiner further noted that the post-service record on appeal documented the first episode of treatment for low back pain in 2005 and pes planus in 2010. In addition to conducting a review of the claims folder, the examiner also conducted a clinical interview of the appellant. During the interview, the appellant reported that he was aware that he had had pes planus prior to service but claimed that he did not develop foot pain until 1992. He claimed that he had been seen by medical doctors several times in service for foot pain and was treated with rest, ice, and insoles. He also claimed that he had been given physical profiles for his feet. The appellant further claimed that his bilateral foot pain had been present since service and that his symptoms had worsened since service. With respect to his low back, the appellant claimed that he first developed low back pain in 1994 and that he went to sick call. He further claimed that he had had continuous low back pain since that time. The appellant also reported that he had sought treatment immediately after service in 1995 for back pain but that records of that visit had been destroyed. He indicated that he did not seek treatment for low back pain again until 2005. After examining the appellant and reviewing the claims folder, the examiner diagnosed him as having bilateral pes planus and lumbosacral strain without radiculopathy. The examiner indicated that it was her opinion that the appellant's current bilateral pes planus had existed prior to service and had not been aggravated therein. She explained that the service treatment records contained no indication of foot symptoms and that it was not until many years after service separation, when the appellant had gained over 100 pounds, that he had been shown to be clinically treated for pes planus. She indicated that the appellant's weight gain and the normal progression of pes planus accounted for his current condition. With respect to the appellant's low back disability, the examiner concluded that it was not caused by or the result of his military service. She noted that the appellant's service treatment records contained no indication of low back pain or disability, nor was there any record of him having been seen until 2005, ten years after service separation. In an April 2011 statement, the appellant claimed that he had not been diagnosed as having pes planus at the June 1989 enlistment examination. He claimed that this "bad information" was actually from his Bureau of Prisons examination in the fall of 1997 and that the examiner had misunderstood the record. In a September 2011 addendum, the examiner indicated that she had reviewed the additional evidence in the claim folder, including the appellant's statement to the effect that he had not been diagnosed as having pes planus at service enlistment. She further indicated that she had reviewed his statement to the effect that he had been seen on at least four occasions during service complaining of foot pain in addition to shin pain. The examiner noted, however, that the claims folder did, in fact, contain a June 1989 enlistment examination report noting a finding of pes planus, moderate, asymptomatic. She further noted that she had thoroughly re-reviewed the service treatment records, including the records documenting treatment for shin splints. She indicated that those records, as she had previously noted, did not indicate complaints of foot pain. The examiner explained that had the appellant actually complained of foot pain on those occasions, the standard practice of the examining physicians would have been to record it. She indicated that it was therefore less likely than not that the appellant's recollections of his in-service foot pain were more accurate than the written records of all the military physicians who treated him in service. The examiner further noted that she had reviewed additional VA clinical records obtained since the April 2010 VA medical examination. She noted that these records showed that the appellant continued to seek VA treatment for foot pain. After reviewing all of the additional evidence, the examiner concluded that there was no basis on which to change her prior opinion or otherwise opine that the appellant's current pes planus condition was due to, caused by, or aggravated by service. With respect to the appellant's low back, the examiner noted that the additional evidence obtained included clinical records which continued to document a lack of chronicity prior to 2005. She concluded that this evidence lent further support to her conclusion that the appellant's current lumbosacral strain was not caused by or due to his service. She indicated that her prior decision remained unchanged. Thereafter, the RO received records from SSA showing that the appellant had filed an application for disability benefits, claiming disability since March 2008 due to obesity with back pain, depression, and an anxiety disorder. His claim was denied by SSA. Medical evidence used by SSA in reaching its determination included a June 2008 examination containing a diagnosis of chronic low back pain of uncertain etiology. Also included in the records received from SSA was a July 2008 consultation report noting that the appellant had dated the onset of his low back symptoms to 2005 after a lumbar puncture for a high fever. He indicated that his pain had been progressive since that time and was now constant and severe. Records were negative for notations of pes planus. In a September 2011 addendum, the examiner indicated that she had reviewed the additional evidence in the claims folder, including records from SSA. She indicated that the additional evidence did not change her prior negative opinion for reasons previously explained. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). A Veteran will be presumed to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated therein. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Service connection for certain chronic diseases, including arthritis, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA 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(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Pes planus The appellant seeks service connection for pes planus. He contends that his condition was either incurred in or aggravated during service as a result of strenuous training. After carefully reviewing the record in this case, the Board finds that the preponderance of the evidence is against the claim of service connection for pes planus. As a preliminary matter, the Board finds that pes planus was noted at the time of the appellant's military enlistment medical examination. Under these circumstances, the presumption of sound condition at service entrance does not attach. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Here, the Board notes that the appellant has recently claimed that pes planus was not noted at service enlistment. The Board has considered his contentions but finds them to be wholly lacking in credibility. First, the appellant's recent contentions are at odds with multiple earlier statements in which he acknowledges having pes planus and/or slight foot pain at service entrance. Second, the Board notes that his recent contentions are at odds with the June 1989 service enlistment examination itself which clearly notes pes planus at service entrance. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in cases such as this, where a preexisting disorder is noted upon entry into service, the appellant cannot bring a claim for service connection for that disorder, but may bring a claim for service-connected aggravation of that disorder. In such cases, the burden falls on the appellant to establish aggravation under 38 U.S.C.A. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, however, the burden shifts to the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). With respect to the question of aggravation during active duty, the Board notes that the service treatment records are entirely silent for any indication of in-service aggravation of pes planus. Indeed, the service treatment records are entirely silent for any indication of any foot symptomatology whatsoever. The appellant, however, claims to have experienced foot pain during service which he contends is indicative of an aggravation of his pes planus. He claims that he reported foot pain on multiple occasions during service, particularly when seeking treatment for shin splints. He also claims to have received treatment for pes planus during service, including with insoles. The Board does not find the appellant's claims of in-service foot pain or treatment for pes planus to be credible. Again, the record shows that the appellant was, indeed, seen on multiple occasions for shin splints. None of the clinical records of such treatment, however, contains any notation of foot pain. The Board expressly finds that had the appellant actually reported experiencing foot pain on multiple occasions during service, as he now claims, it would have been recorded by at least one of the examiners. Cf. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7))). The Board's conclusion is strengthened by the opinion of the VA medical examiner who explained in detail that had the appellant actually reported foot pain in service, including on the occasions he was seen for shin splints, his symptoms would have been recorded by military physicians in accordance with standard medical practice. The Board also observes that the appellant's statement regarding treatment for foot pain in service have been inconsistent over the pendency of his claim. For example, at the April 2006 VA medical examination, the appellant claimed that on multiple occasions during service, he visited sick call for foot pain and was advised that he had flat feet. He indicated, however, that he never received treatment for his pes planus. More recently, however, at the April 2010 VA medical examination, the appellant claimed that military doctors had prescribed rest, ice, and insoles for his pes planus. The Board finds that these inconsistencies raise significant questions regarding the appellant's credibility. See Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability); see e.g. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (discussing the factors to be considered in determining the weight to be assigned to evidence, including inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, witness demeanor, and desire for monetary gain). Questions of credibility notwithstanding, the Board further notes that given the nature of the medical question at issue in this case, the appellant is not competent to state that in-service foot pain was a manifestation of pes planus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Such an opinion may only be provided by a qualified medical professional. In any event, the Board finds that the appellant's contentions of in-service aggravation are wholly outweighed by the VA medical opinions described above. Again, in those opinions, a VA examiner concluded, after reviewing the appellant's claims folder, examining the appellant, and considering his contentions, that the appellant's pes planus had preexisted service and had not been aggravated therein. The Board finds that these VA medical opinions are persuasive and assigns them great probative weight. The opinions were rendered by a qualified medical professional who has the expertise to opine on the matter at issue in this case. In addition, the examiner addressed the appellant's contentions, based her opinions on a review of the appellant's claims folder, including the most pertinent evidence therein, and provided a rationale for her opinions. There is no medical evidence of record which contradicts these medical opinions or otherwise indicates that the appellant's preexisting pes planus was aggravated during service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing factors for determining probative value of medical opinions). On the basis of all the evidence of record pertaining to the manifestations of the appellant's pes planus prior to, during, and subsequent to service, the Board concludes that the evidence of record does not show that the underlying disorder increased in severity during active service. 38 U.S.C.A. 1153, (West 2006); 38 C.F.R. 3.306. Under these circumstances, the Board finds that the presumption of aggravation is not for application. 38 C.F.R. § 3.306(b); see also Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991); Beverly v. Brown, 9 Vet. App. 402, 405 (1996). The Court has made clear that aggravation may not be conceded where the disability underwent no increase in severity during service. Id.; see also Routen v. Brown, 10 Vet. App. 183, 189 n.2 (1997) (noting that in order to establish aggravation, the preexisting disorder must have undergone "a lasting worsening . . . that is, a worsening that existed at the time of separation"). Again, the Board has considered the appellant's arguments to the effect that his military duties and training generally aggravated his preexisting pes planus. The record on appeal, however, contains no medical evidence to support such a theory. Even though the appellant is competent to provide testimony as to his symptoms or other matters within his personal observation, questions of credibility notwithstanding, since he is not a medical professional, he is not competent to state that the underlying pathology of his pes planus was aggravated for VA purposes during his period of active service. Thus, the Board is unable to assign probative value to the appellant's assertions in this regard. In any event, as set forth above, the record on appeal shows that a VA examiner has specifically considered the appellant's contentions and concluded unequivocally that they are not supported by any medical data. Again, for the reasons discussed above, the Board has assigned great probative weight to the opinions of the VA examiner and finds that they outweigh the unsupported lay theories of the appellant, questions of credibility notwithstanding. For the reasons set forth above, the Board finds that the preponderance of the evidence is against the claim of service connection for pes planus. The benefit-of-the-doubt doctrine is not for application where the clear weight of the evidence is against the claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Low back disability The appellant also seeks service connection for a low back disability. He contends that he developed back pain in service as a result of performing physical training. He claims that he sought treatment for back pain in service and that his back pain has been present on a continuous basis since service. After carefully reviewing the record in this case, the Board finds that the preponderance of the evidence is against the claim of service connection for a low back disability. Although the appellant is certainly competent to describe low back pain, the Board finds that his statements of low back pain in service and on a continuous basis thereafter are lacking in credibility as the objective evidence contradicts his recollections. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept determining whether testimony may be heard and considered, and credibility, a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). As set forth above, despite his claim that he sought treatment for low back pain in service, the appellant's service treatment records are conspicuously silent for any mention of back pain. The record on appeal shows that the appellant sought treatment during service on multiple occasions for various complaints, yet none of these records note a complaint of back pain, including in January 1994 when the appellant claims he sought treatment for back pain. For the reasons discussed in detail above, including the VA medical opinion regarding medical protocol in recording reported symptomatology, the Board finds that had the appellant actually sought treatment for back pain during service as he now claims, it would have been recorded by military physicians. This is particularly true as the appellant has described his claimed in-service low back pain as being the worst pain he had ever felt in his life. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). With respect to the appellant's claim to the effect that his back pain remained continuous after service separation, the Board again notes that the record does not support his contentions. For example, when the appellant underwent a complete physical examination in September 1997, approximately two years after service separation, he denied having or ever having had painful joints and the examiner indicated that the appellant had no physical limitations for strenuous testing. Indeed, the examiner affirmatively indicated that the appellant's spine exhibited full range of motion with no other abnormality. The Board also observes that post-service clinical records show that in July 2005, prior to filing his claim for VA compensation benefits, the appellant reported that his low back pain had been present only since February 2005. It was not until August 2005, after filing his claim for VA benefits that the appellant first reported that his back pain had been present since service. These inconsistencies, particularly in the context of a claim for compensation, raise significant questions regarding the appellant's credibility. Caluza, 7 Vet. App. at 511-12. For these reasons, the Board finds that the appellant's statements that he developed low back pain in service and that such pain persisted thereafter are not credible. The Board finds that the contemporaneous records are entitled to more probative weight than the recollections of the appellant of events which occurred decades previously. The Board further finds that the contemporaneous, objective documentary evidence in service and after service, which indicates that a low back disability was not present during service nor did the appellant experience continuous symptoms thereafter, is more probative than the remote assertions of the appellant made in the context of a claim for monetary benefits. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). The Board also notes that the record on appeal contains no probative evidence establishing that the appellant's current low back disability is causally related to his active service or any incident therein. Indeed, as set forth above, a VA examiner has concluded that the appellant's current low back disability is not causally related to his active service. The Board considers this opinion to be persuasive and assigns it significant probative weight. The opinion was provided by a qualified medical professional who has the clear expertise necessary to opine on the matter at issue in this case. In addition, the examiner examined the appellant, considered his contentions, reviewed the medical record, and provided a rationale for her opinion, with citations to the evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (providing "important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence"). Again, there is no probative evidence contradicting this conclusion. In summary, absent credible evidence of an in-service low back injury, symptomatology, or disability, or of any indication that any post-service low back disability or symptom is causally related to the appellant's active service, any incident therein, or is causally related to or aggravated by any service-connected disability, service connection is not warranted. The preponderance of the evidence is against the claim of service connection for a low back disability. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for pes planus is denied. Entitlement to service connection for a low back disability is denied. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs