Citation Nr: 1303166 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 07-14 551 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for claimed sinusitis. 2. Entitlement to service connection for a claimed low back disorder. 3. Entitlement to service connection for claimed allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the U.S. Navy from July 1962 to February 1971. He also served in the Navy Reserve for periods in the 1970s and 1980s. The issues first came to the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by the RO. In October 2011, the Board remanded the case to the RO for additional development. After completion of this development by the RO, the case has been returned to the Board for the purpose of appellate disposition. In the same October 2011 decision, the Board remanded the Veteran's claim of service connection for posttraumatic stress disorder (PTSD). The RO then granted service connection for PTSD in a September 2012 rating decision. Since the Veteran has not since appealed either the initial rating or effective date assigned for his PTSD, that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the Veteran must separately appeal these downstream issues). The Board will adjudicate the issues of service connection for sinusitis and a low back disorder. However, the Board is remanding the issue of service connection for allergic rhinitis to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. There is no probative evidence of a current sinusitis disability. 2. The Veteran is not shown to have manifested credible complaints or findings referable to a low back disorder during his active service or within one year of service. 3. The Veteran's lay assertions regarding continuity of symptomatology referable to low back arthritis beginning in service are not found to be credible because they are not consistent with other evidence of record. 4. The currently demonstrated disease process manifested by low back arthritis not shown to be due to an event or incident of the Veteran's active service. CONCLUSIONS OF LAW 1. The Veteran does not have disability manifested by sinusitis due to a disease or injury that was incurred in or aggravated by his service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The Veteran's disability manifested by low back arthritis is not due to disease or injury that was incurred in or aggravated by active service; nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist For the service connection for sinusitis and a low back disorder issues being denied, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in April 2006, December 2006, June 2007, and October 2008. Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate the service connection issues; (2) informing him about the information and evidence the VA would seek to provide; (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the April 2006 and December 2006 letters from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). With regard to timing, the U.S. Court of Appeals for Veterans Claims (Court) and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued all required VCAA notice prior to the October 2006 rating decision on appeal. Thus, there is no timing error. Accordingly, prejudicial error in the timing or content of VCAA notice has not been established as any error was not outcome determinative. See Shinseki v. Sanders, 556 U.S. 396 (2009) (An error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), service personnel records (SPRs), Navy Reserve records, relevant VA outpatient treatment records, VA examinations, and private treatment records identified by the Veteran. For his part, the Veteran has submitted personal statements, lay statements from a friend and his wife, representative argument, and private medical evidence. With regard to certain private medical evidence, to satisfy the duty to assist, VA need only make "reasonable efforts" to consist of "an initial request for the records, and, if the records are not received, at least one follow-up request." 38 C.F.R. § 3.159(c)(1). In the instant case, the RO did not receive any response from several private physicians despite two requests for certain records. The RO also sent an explanatory letter to the Veteran in October 2008, advising him of VA's efforts. See id. The Board is satisfied the RO has made reasonable efforts to obtain these private medical records. 38 C.F.R. § 3.159(c). VA's duty to assist includes obtaining records of relevant VA medical treatment identified by the Veteran. VA must continue to obtain such records unless it is documented that the records do not exist or that further efforts would be futile. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive knowledge of evidence generated by VA). In the present case, the RO secured VA treatment records dated up until 2006 from the VA Medical Center (VAMC) in Tucson, Arizona. Although there are additional VA treatment records dated after 2006, there is no indication that these records are relevant in any way to the low back and sinusitis disorders being denied. There is no evidence or allegation of a diagnosis of sinusitis in the record (see e.g. November 2011 VA examination). Also, although there is no dispute as to the current existence of a low back disorder, there is no allegation or evidence that additional VA treatment records would provide a nexus to the in-service motorcycle injuries. Therefore, any VA medical records not currently secured could not alter the ultimate disposition of the sinusitis and low back disorder appeals. VA is not required to search for evidence which, even if obtained, would make no difference in the result. Allday v. Brown, 7 Vet. App. 517, 526 (1995) (quoting Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, there is no benefit to the Veteran in further delaying the final adjudication of his sinusitis and low back disorder appeals by remanding the case to look for VA medical records that do not pertain to these claims. See Soyini v. Derwinski, 1 Vet. App. 541 (1991) (declining to require strict adherence to technical requirements and impose additional burdens on VA when there was no benefit flowing to the claimant). In short, there is no further basis to secure these alleged records, as they are not material to the issues being denied. In fact, neither the Veteran nor his representative has contended that any additional evidence remains outstanding. In September 2012, the Veteran indicated he had no additional information or evidence to submit. Finally, the RO also substantially complied with the Board's October 2011 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). Specifically, pursuant to the remand, the Veteran was afforded November 2011 VA spine and ear-nose-throat examinations with medical opinions addressing the etiology of his current disorders. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). These examinations and opinions were thorough, supported by explanations, based on a review of the claims folder, and supported by clinical evidence of record. The RO has substantially complied with the Board's remand instructions. In summary, the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). Governing Laws and Regulations for Service Connection Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A disorder may also be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). That is, a Veteran can establish continuity of symptomatology in cases where the Veteran cannot fully establish the in-service and/or nexus elements of service connection discussed above. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the Court held a Veteran must show "(1) that a condition was 'noted' during service, (2) with evidence of post-service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology." Barr, 21 Vet. App. at 307. Whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question, that is, whether the relationship and disability are capable of lay observation. Savage, 10 Vet. App. at 497; accord Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For continuity of symptomatology, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Savage, 10 Vet. App. at 496; see also Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Id. at 1337. See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board is competent to consider "evidence of a prolonged period without medical complaint, along with other factors" in determining that a condition was not aggravated by service). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R.§ 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2002). The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). For instance, laypersons have been found to be not competent to provide evidence as to etiology in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). In summary, lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Analysis - Service Connection for Sinusitis The Veteran contends that he has a sinusitis condition that began during his military service. He states that, during service, he was treated for ear, nose, and throat problems. He dates the onset of symptoms such as a runny nose, watery eyes, sneezing, and headaches after in-service exposure to pollen allergens in Hawaii. He also states that his nasal symptoms may be due to in-service asbestos exposure. See January 2006 claim with accompanying statement; June 2011 representative statement. Upon review of the evidence of record, the Board concludes that the Veteran is not entitled to service connection for a sinusitis disorder. However, the Board is separately remanding the issue of service connection for allergic rhinitis. The STRs document treatment for cold symptoms in August 1962, February 1963, March 1963, January 1970 and February 1971. The Veteran was also diagnosed with otitis media in November 1969 and January 1970. However, no diagnosis of sinusitis was rendered during service, including at STR medical examinations dated in November 1964, November 1970, and most importantly at discharge in February 1971. Post-service, the Veteran denied having symptoms of sinusitis and hay fever in Navy Reserve Reports of Medical History dated in July 1986, March 1987, March 1988, and June 1989. The accompanying objective examinations were negative for a sinusitis diagnosis as well. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997). It is now well-settled that in order to be considered for service connection, a claimant must first have a present disability. In Brammer, 3 Vet. App. at 225, the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Initially, nasal symptoms in themselves are not a disease or injury that may be considered a disability for VA compensation purposes; rather, they are symptoms. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, in the absence of any probative evidence of a current sinusitis, service connection cannot be granted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. In post-service private and VA treatment records, there is no diagnosis for a specific sinusitis disorder. In fact, the November 2011 VA ear, nose, and throat examiner attributed the Veteran's symptoms to allergic rhinitis instead of sinusitis. The examiner specifically found that the Veteran did not have chronic sinusitis. The examiner noted no evidence of ethmoid, maxillary, sphenoid, frontal, or pansinusitis. With regard to lay evidence, the Veteran is competent to report purported nasal symptoms. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469. The Veteran in certain instances can be competent to testify to the fact that symptoms he experienced in service are the same that he currently manifests. Davidson, 581 F.3d at 1316. However, there is no competent evidence indicating that the Veteran has a chronic sinusitis disorder. Neither the Veteran nor his representative, without evidence showing that either has medical training or expertise, is competent to render an opinion as to the medical existence of sinusitis, a disorder requiring medical testing. See 38 C.F.R. § 3.159(a)(1)-(2); Jandreau, 492 F.3d at 1377. The present case also does not meet any of the three exceptions enumerated under Jandreau. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Laypersons have been found to not be competent to provide evidence as to etiology in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). A specific sinusitis disorder is a medical condition that can only be diagnosed by a medical professional, and no such diagnosis is of record in-service or post-service. Accordingly, the preponderance of the evidence is against the claim of service connection for sinusitis, so there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis - Service Connection for a Low Back Disorder The Veteran reports first injuring his low back while doing heavy lifting on board the USS Halibut and USS Grant. Subsequently, he indicates he reinjured his low back after sustaining injuries in motorcycle accidents during service in April 1965 and April 1969. He believes the April 1969 motorcycle accident, in particular, caused the most damage to his low back. He states that he was told by military doctors that he tore his low back ligaments and tendons such that the pain would continue for the rest of his life. Immediately after service in the 1970s, he reports, his low back continued to flare up. Over the years, he says he refused to take pain medications. He asserts repeated flare-ups of low back pain since service. See January 2006 claim; April 2007 VA Form 9; July 2006 VA treatment record; July 1979 Queen's Medical Center report; September 2006, May 2007, January 2011 Veteran's statements; and April 2007 lay statements from Veteran's buddy and wife. Upon review of the evidence of record, the Board concludes that the Veteran is not entitled to service connection for a low back disorder. The first - and perhaps most fundamental requirement for any service connection claim is the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. The VA X-rays of the low back dated in July 2006 confirmed the presence degenerative changes and disc space narrowing. In addition, more recently, a November 2011 VA examiner diagnosed arthritis of the lumbar spine. Consequently, it is undisputed the Veteran has a current low back disability. The determinative issue is whether his low back disorder is somehow attributable to the Veteran's period of active duty service from 1962 to 1971. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). And it is in this critical respect the Veteran's claim fails. The STRs dated from 1961 to 1972 are unremarkable for complaints, treatment or diagnosis for any low back disorder. Although the Veteran was involved in motorcycle accidents in April 1965 and April 1969, the STRs fail to document any mention of residual low back problems from these accidents. The Veteran was treated for a concussion and right knee and foot manifestations after these accidents, but not for a low back injury. The STRs confirm that right foot, right ankle, and right knee X-rays were performed, but no X-rays were deemed necessary for the low back by military physicians. At his STR discharge examination in February 1971, no low back disorder was reported or objectively noted. His STRs, as a whole, provide evidence against a finding of any low back disorder being present in service. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. 494-97. Post-service, there is also no clinical evidence of low back arthritis within one year after the Veteran's separation from service. Therefore, the presumption of in-service incurrence is not for application. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Arthritis, incidentally, must be objectively confirmed by X-ray. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Post-service, the evidence as a whole also does not establish a continuity of symptomatology of a low back disorder following service. 38 C.F.R. § 3.303(b). In making this determination, the Board acknowledges the Veteran's lay assertions regarding continuous low back flare-ups since alleged low back injuries in service. See July 2006 VA treatment record; July 1979 Queen's Medical Center report; September 2006, May 2007, January 2011 Veteran's statements; April 2007 lay statements from Veteran's buddy and wife. The Veteran is indeed competent to report low back pain and treatment from the time of his military service. Layno, 6 Vet. App. at 469. See also 38 C.F.R. § 3.159(a)(2). But once evidence is determined to be competent, the Board must determine whether the evidence also is also credible. The former, the Court has held, is a legal concept, which is useful in determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The Veteran's credibility affects the weight to be given to his testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight. See again Washington, 19 Vet. App. at 368. Credibility can be generally evaluated by considering interest, bias, or inconsistent statements, the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony." Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza, 7 Vet. App. at 506 (citing State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992). The Veteran is credible in describing low back symptoms and treatment in the 1970s shortly after service. See January 2006 claim; April 2007 VA Form 9; July 2006 VA treatment record; July 1979 Queen's Medical Center report; September 2006, May 2007, January 2011 Veteran's statements; and April 2007 lay statements from Veteran's buddy and wife. However, it is not clear what precipitated that treatment. A July 1979 Queen's Medical Center report documents the Veteran's reported a 10-year history of back problems back to 1969. A July 2006 VA treatment record documents a reported history of "constant" low back pain since 1965. Nonetheless, these reported histories by the Veteran are unsupported by the Veteran's clinical STRs dated from 1962 to 1971. In Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005), the Court, citing the previous Reonal case, reaffirmed that, in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the Veteran that formed the basis for the opinion. In this regard, as discussed below, the Veteran's lay assertions as to the actual occurrence of an in-service injury to the low back are not credible. Also, he was diagnosed with a low back strain in July 1979, but his X-ray studies at that time were normal, failing to reveal his current diagnosis of low back arthritis or disc space narrowing. Most importantly, there is no credible evidence of continuity of symptoms for low back problems continuing into the 1980s and 1990s. The Veteran's assertions regarding continuity of low back symptoms for over 40 years are inconsistent with the totality of the evidence of record, and entitled to less probative weight, for the following reasons: First, as to the in-service low back injury, the lack of any mention in STRs of low back problems during service is noteworthy given the Veteran's lay description of the severity of his low back injury, particularly in April 1969. The STRs confirm that right foot, right ankle, and right knee X-ray studies were performed, but no X-ray was deemed necessary for the low back by military physicians. A November 1970 STR examination, subsequent to the alleged injuries, is negative for any low back problems. At his STR discharge examination in February 1971, no low back disorder was reported or objectively noted. The Board may use silence in the STRs as contradictory evidence only if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the SMRs. See Buczynski v. Shinseki, 24 Vet. App. 221, 225-26 (2011). In this instant case, the Board finds it relevant that neither a low back injury nor low back symptoms was ever mentioned in the Veteran's STRs, given the purported severity of the low back injury as described by the Veteran on several occasions, particularly the April 1969 motorcycle accident. The Veteran on several occasions has alleged that he was told by military doctors during service that he "tore" his low back ligaments and tendons such that the pain would continue for the rest of his life. The Board finds this allegation to be contradicted by the STRs and not credible. As a result, the Veteran's credibility on the description of the incurrence of a low back injury is diminished. Second, the Board finds the Veteran's lay statements of continuity not credible, in part, because they contradict other post-service medical evidence of record. See Gardin v. Shinseki, 613 F.3d 1374, 1379 (Fed. Cir. 2010). Post-service, although it is true that the Veteran was treated for low back problems in the 1970s, Navy Reserve examinations dated in July 1986, March 1987, March 1988, and June 1989 were unremarkable for complaints, findings or diagnosis for a low back disorder. In fact, in Reports of Medical History conducted in connection with these Navy Reserve examinations, the Veteran repeatedly and specifically denied symptoms of "recurrent back pain." To the extent that the Veteran now reports having had such symptoms during this period, these lay statements are found to lack credibility for the purpose of establishing a continuity of symptomatology for a low back disorder throughout the 1980s. Moreover, in the 1980s, there is only one mention of low back pain in a July 1988 Navy Reserve treatment record due to a nonservice-connected fall at the Veteran's home. He was put on a temporary profile restricting sit-ups. No further back complaints were noted in the 1980s or 1990s. The Navy Reserve medicals records were generated with a view towards ascertaining the appellant's then-state of physical fitness, they are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). They contradict the Veteran's lay assertions regarding continuous low back pain and symptoms since his motorcycle accidents during service. His personal interest to receive monetary benefits becomes a factor in such an instance. Cartright, 2 Vet. App. at 25. Overall, in-service and post-service medical and lay evidence of record does not demonstrate continuity of in-service symptomatology for a low back injury. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 496-97. There is a lack of corroborating evidence for the Veteran's lay assertions regarding a low back injury with subsequent continuity of symptoms into the 1980s and 1990s. The Veteran's assertions are not probative or credible on this issue, for the reasons discussed above. With regard to a nexus, there is probative medical evidence against finding a connection between the Veteran's current low back arthritis and any documented manifestations or other event or incident of his active service. Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). Specifically, a VA examiner in November 2011 opined that it was "less likely than not" (less than 50 percent probability) that the Veteran's low back disorder was incurred in or caused by the claimed in-service injury. The examiner reasoned that there was no conclusive evidence that the Veteran's back complaints were related to his in-service motorcycle accidents. The examiner noted that STRs did not show treatment for a low back disorder during service, including at the time of the 1965 and 1969 motorcycle accidents. Moreover, the examiner reflected that the Veteran had no back complaints on medical examinations conducted in 1970, 1971, 1986, 1987, 1988, and 1989. The VA examiner discussed the July 1979 private treatment record documenting the Veteran's reported history of 10 years of low back pain at that time, as well as the Veteran's lay assertions regarding low back pain and treatment in the 1970s since his in-service injury. See November 2011 VA examination report at page 7. Where a Veteran has provided lay testimony of an in-service injury, unless the Board finds that the testimony is not credible, an examiner may not ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). In the present case, as discussed in detail, the Board has found the Veteran's statements not credible as to sustaining a specific low back injury during service in motorcycle accidents in 1965 and 1969. Overall, the VA examination and opinion was thorough, supported by well-discussed reasoning, based on a review of the claims folder, and supported by the evidence of record. The lack of credible or persuasive evidence of an in-service low back injury and continuity of symptoms in the 1980s for the low back lends support to the VA examiner's conclusions. The Board finds this opinion is entitled to great probative weight against the claim. There is no contrary, competent medical opinion of record. As to probative value, the Federal Circuit recently held that the Board can favor competent medical evidence over lay statements offered by the Veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). With regard to lay evidence, the Veteran is competent to report low back symptoms and treatment. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469. The Veteran in certain instances can be competent to testify to the fact that symptoms he experienced in service or shortly thereafter are the same that he currently manifests. Davidson, 581 F.3d at 1316. Thus, he is competent to report the date of onset when he first noticed low back pain. However, his lay assertions of continuity of symptoms and his description of an in-service low back injury are not credible in this case, as discussed above in detail. Moreover, he is not competent to opine that his current low back arthritis, a condition that can only be diagnosed by X-ray study, is due to an alleged in-service injury 40 years before, as this would require the opinion of a medical professional. He is however competent (but not credible here), in his description of a continuity of symptoms. Accordingly, the preponderance of the evidence is against service connection for a low back disorder, so there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for claimed sinusitis is denied. Service connection for a low back disorder is denied. REMAND However, before addressing the remaining service connection issue, the Board finds that additional development of the evidence is required. All relevant VA treatment records dated since August 2006 must be obtained from the VAMC in Tucson, Arizona and the VAMC in Erie, Pennsylvania. In this regard, the November 2011 VA sinus examiner noted that the Veteran was diagnosed with "allergic rhinitis" in a May 2009 VA treatment record from Erie, Pennsylvania. However, this relevant evidence is not present in the claims folder or on Virtual VA. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Accordingly, this remaining issue is REMANDED to the RO for the following action: 1. The RO should take all indicated action to secure copies of complete records of all relevant VA medical treatment dated after August 2006 from the VAMC's in Tucson, Arizona, and Erie, Pennsylvania. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. After completing all indicated development to the extent possible, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish a fully responsive SSOC to Veteran and his representative and they should afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs