Citation Nr: 1304089 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 03-28 775A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from October 1970 to January 1972. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2003 rating decision in which the RO denied service connection for a low back disorder. The Veteran filed a Notice of Disagreement (NOD) in July 2003, and the RO issued a Statement of the Case (SOC) in September 2003. The Veteran filed a substantive appeal (via VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2003. After receiving additional evidence, the RO continued to deny the claim (as reflected in the May 2005 supplemental SOC (SSOC)). In February 2006, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After accomplishing further action, the AMC continued to deny the claim (as reflected in the February 2009 supplemental SOC (SSOC)), and returned this matter to the Board for further appellate consideration. In April 2009, the Board again remanded the claim on appeal to the RO, via the AMC, for additional development. After accomplishing further action, the AMC continued to deny the claim (as reflected in the May 2010 SSOC), and returned this matter to the Board for further appellate consideration. In August 2010, the Board denied the claim for a low back disorder. The Veteran, in turn, appealed the Board's August 2010 decision to the United States Court of Appeals for Veterans Claims (Court). In May 2011, the Court granted the joint motion for remand filed by representatives for both parties, vacating the Board's August 2010 decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. In October 2011, the Board again remanded the claim on appeal to the RO, via the AMC, for additional development. After accomplishing further action, the AMC continued to deny the claim (as reflected in the August 2012 SSOC), and returned this matter to the Board for further appellate consideration. The Board notes that, while the Veteran previously was represented by Disabled American Veterans, in May 2011, the Veteran granted a power-of-attorney in favor of private attorney Kathy A. Lieberman with regard to the claim on appeal. The Veteran's current attorney has submitted written argument on his behalf. The Board recognizes the change in representation. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Although service treatment records document that the Veteran fell off a moving truck during service, and suffered abrasions to the back at that time, there is no documented evidence of any musculoskeletal complaints or diagnosed back disability for many years after service, and the most probative medical opinion on the question of whether there exists a medical nexus between the Veteran's degenerative changes of the back diagnosed many years post service and service weighs against the claim. CONCLUSION OF LAW The criteria for service connection for a low back disorder are not met. 38 U.S.C.A. §§ 1110 , 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) ). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a September 2002 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The July 2003 RO rating decision reflects the initial adjudication of the claim after issuance of the September 2002 letter. Post rating, a March 2006 letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the March 2006 letter, and opportunity for the Veteran to respond, the February 2009 supplemental SOC (SSOC) and August 2012 SSOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent evidence associated with the claims file consists of service treatment and personnel records, VA and private treatment records, and the reports of January 2009 and August 2012 VA examinations. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, as well as his wife, service comrade, and representative, on his behalf. The Board finds that no additional RO action to further develop the record in connection with the claim for a low back disorder, prior to appellate consideration, is required. The Board finds that the August 2012 VA examination report and opinion are in compliance with the October 2011 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Such examination report and opinion, along with the report and opinion from the June 2009 examiner, are sufficient to evaluate the claim, as each examiner conducted a thorough and contemporaneous examination of the Veteran, and his opinion took into account records of pre-service treatment, service treatment records, and records of post-service examination and treatment. See Lineberger v. Brown, 5 Vet. App. 367 (1993); Waddell v. Brown, 5 Vet. App. 454 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1994). In In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Background The Veteran contends that he has a current low back disorder that is related to an injury sustained when he fell out the back door of a moving truck during service and that he has experienced back pain ever since the injury. Statements provided in support of the claim from the Veteran's wife, who has known him since November 1973, attest to observed low back problems since she had known him. A November 1970 in-service emergency room note documents the Veteran's complaints of right elbow pain, right posterior rib pain, and several abrasions. It was noted that he fell off a moving truck, and "back injury" was written at the top of the page. Reported x-ray studies of the right elbow and chest were reported as normal, but were noted to reveal a fracture of the seventh right posterior rib. Records from his three-day hospitalization reflect admission for a concussion, as well as for multiple abrasions, including on his back; these records reflect no musculoskeletal complaints or findings related to the spine. The report of a November 1971 Medical Examination for Separation reflects that the examiner checked a box indicating that the Veteran's spine was normal on clinical examination. Moreover, on the Veteran's November 1971 Report of Medical History for Separation, approximately one year after the accident, he denied back trouble of any kind. Post-service private and VA treatment records are silent for any complaints, findings, or reference to any low back problems until 1991. A November 1991 private treatment record from Dr. S.M. reflects the Veteran's complaints of a history of back pain secondary to a fall from a second-story window with a history of spinal fracture and low back pain. An April 1992 treatment letter from Dr. T.N. stated that the Veteran was evaluated for low back pain and that it was not due to an injury but that there was a history of previous problems with the area when he fell 10 years ago from a window and fractured his spine. A November 1994 treatment note by Dr. S.M. reflects the Veteran's complaints of severe left lower back pain and reported a history of old spinal fracture from a fall while in service; the assessment was back pain, old fracture of the spine. In December 1994, the Veteran was seen by Dr. T.N. for a private orthopedic evaluation regarding his back and legs. It was noted that the orthopedic evaluation was not due to an injury but that there was a history of previous problems with this area when the Veteran was injured over 10 years ago and the present symptoms began six months prior; he was diagnosed with lumbar osteoarthritis. In October 1995, Dr. S.M. noted that the Veteran had lower back pain for seven days; the assessment was chronic and active back pain. In a February 1996 treatment note, Dr. S.M. noted the Veteran's statement that he had a disability evaluation and needed one year of observation for disability benefits. He complained of increasing back pain and was diagnosed with lumbar spondylosis. In March 1996, the Veteran was evaluated for complaints of long standing low back pain by Dr. D.K. It was noted that his initial pain began 24 years ago when he fell out of a truck while working in the military and that a few years after that he fell out of a secondary story window and "fractured his spine." Dr. D. K. stated that ever since then he had chronic low back pain and that the pain was tolerable for the most part until 1992 when the pain began to progressively worsen. In a May 1996 record, the Veteran's private doctor, Dr. S.G., noted that two years prior, the Veteran stopped working as a window laborer because of back trouble. It was noted that the Veteran's back problems dated back many years ago; it was noted that he had an Army injury where he fell from a height and fractured his back "he thinks." Dr. S.G. also noted that the Veteran had an injury when he was much younger, that there was a family history of osteoarthritis of the spine, and that the Veteran had been very sedentary and overweight for some time. Additional treatment records from Dr. S. M. dated from January 1991 to May 2002 also reflect consistent assessments of obesity, ranging from 225 pounds in 1991 to 246 pounds in May 2002. Other private medical record his height as 67 inches tall. The report of a March 2000 private medical evaluation by report by Dr. S.M., reflects that the Veteran requested a second opinion regarding musculoskeletal pain and stiffness primarily in his hands. He indicated that he used to work taking care of windows, but was now working as a limousine driver and interpreter. The Veteran reported a past medical and surgical history that included a fractured arm, a benign tumor on the right forearm, multiple injuries from a stab wound, and a fractured left patella in an accident. A March 2000 lumbar spine x-ray study revealed lumbar spondylosis. An August 2002 private treatment record from Dr. T.N. reflects that the Veteran stated that he began treatment for low back problems in 1996. It was noted that the impression of an August 2002 lumbar MRI (magnetic resonance imaging) study was degenerative disc disease. An October 2002 treatment note indicates that the Veteran had a lot of back pain for years that began in 1970 during his military service and that x-ray studies during service could not find anything wrong. There are two treatment notes from Dr. T.N. dated in March 2004. In the first, it was noted that the Veteran was seen for an evaluation of his back and that the Veteran had had back pain for many years with conservative treatment and no surgical procedures. The Veteran stated that he fell off a truck while in the Army in 1970 and sustained a severe injury to his lower back; some 30 years later, he has significant back pain, stiffness, and often needs a cane to walk. The impression was lumbar spinal stenosis secondary to an accident in the military in 1970. The second treatment note includes comment that the Veteran was seen for a longstanding back injury and that the Veteran injured his back in the Army in 1970. Dr. T.N. indicated that he had reviewed the Veteran's service records and opined that the Veteran's history, physical examination, and results of treatment are all consistent with the injury while in the military and resulting lumbar spinal stenosis. In the report of a January 2009 VA spine examination, the examiner thoroughly outlined his review of the claims file, including service treatment records, post-service treatment records, and the medical opinion from Dr. T. N. He also indicated that he had obtained a detailed subjective history regarding the nature and etiology of the claimed low back disorder from the Veteran, who reported that he had subsequent middle low back pain but did not seek medical attention during service after falling from the truck, that he had frequent back pain from picking up boxes in a factory position around 1971, that his back was essentially asymptomatic at discharge, that he fractured his left knee while playing baseball in 1981, and that he fell approximately 15 feet from a window ledge in 1991. The examiner observed that there were no medical records regarding back pain symptoms after the November 1970 truck incident until November 1991, when the Veteran reported falling from a second-story window followed by recurrent back pain symptoms and evaluations. The examiner opined that it was less likely than not that the Veteran's current back disorder was the result of or aggravated by the injury during service because no back symptoms were documented in 1971 or for the next 20 years. Instead, he opined that it was more likely than not that the Veteran's current low back disorder was the result of or aggravated by the injury that occurred in 1991 based on the nature of that accident and the association in time from the date of that incident onward to date with medical records that documented persistent back pain symptoms and abnormalities on x-ray study and physical examination. The VA examiner commented that the private physician who opined that the current disorder was related to the fall from a truck during service failed to address the post-service accident in 1991 that was associated in time with subsequent back pain symptoms and abnormalities on examination. Records from the Social Security Administration (SSA) were also received in June 2009 and contained mostly duplicative records. An SSA Disability Determination and Transmittal report dated in July 2005 listed a primary diagnosis of disorders of the back and indicated that the Veteran was not disabled through March 1992. A Case Analysis report detailed that there was no medical evidence from the time of the claimed back injury in 1970 to February 1991. A July 2010 statement from a service comrade of the Veteran which was to the effect that he witnessed the Veteran injuring his back in basic training after falling from a truck that was moving Following the appeal to the Court, and the Board's remand, in August 2012, the Veteran underwent a VA DBQ examination. Following examination of the Veteran and review of the claims file, the examiner diagnosed the Veteran with low back pain, lumbago. The VA examiner noted that the claimed condition was less likely than not incurred in or caused by the Veteran's claimed in-service injury, event, or illness. The rationale for his opinion was the objective medical evidence available does not support a nexus between the Veteran's active military service and the "minimal degenerative disc disease changes" at multiple levels as reported by the radiologist who interpreted the January 2009 lumbar spine radiographs. The examiner found that these reported "minimal degenerative changes" are not likely clinically significant or relevant, nor would these radiographic changes be due to or caused by the Veteran's active military service nor deemed to be the generator of the Veteran's subjective low back pain. It was noted that the Veteran's range of motion revealed age-appropriate thoracolumbar spinal range of motion. Also, the examiner noted that a causal condition for the Veteran's subjective lower back pain report resulting from or caused by the Veteran's active military service has not been identified based upon reasonable medical certainty and probability. The examiner found that objective medical evidence of a lumbar spine impairment has not been identified. The VA examiner stated that he was unable to identify service treatment records that would be consistent with the Veteran sustaining a serious lower back injury during his active military service that required an intensity of care commensurate with a serious lower back injury. III. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 ; 38 C.F.R. § 3.303 . Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumptive period. In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112. 38 C.F.R. §§ 3.307, 3.309. In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim; the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board has carefully considered the evidence of record, to include statements by the Veteran, his wife, his former representative and current attorney suggesting that the Veteran currently has low back disability that is related to service-in particular, a November 1970 truck incident. However, considering the pertinent evidence of record in light of the applicable legal authority, the Board finds the preponderance of the evidence weighs against the Veteran's claim. The Board notes, at the outset, that the evidence of degenerative disc changes revealed on MRI-albeit, minimal-suggests evidence of a current disability. Also, even though August 2012 examiner found that such changes did not appear to be clinically significant, he nonetheless addresses the question of whether there exists a medical nexus between such changes and service. The Board is thus satisfied that the evidence reflect current lumbar spine disability. However, the Board also finds that competent, persuasive evidence indicates that there is no medical nexus between any such disability and service. Service treatment records document that he fell off a moving truck during service. While such records reflect that the Veteran had multiple abrasions on his back at that time, there were no musculoskeletal complaints or findings related to the spine. Additionally, approximately one year after the accident, he denied back trouble of any kind and was found to be clinically normal. Thus, no chronic back disability was shown in service. Indeed, was not until November 1991 that the Veteran reported any back pain. This lengthy period, more than 19 years after separation from service and 20 years after falling out of a moving truck, without treatment tends to weigh against a against a finding of continuity of symptomatology, and, ultimately, against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). Furthermore, on the question of whether there exists a medical nexus between current lumbar spine disability and service, the Board finds that persuasive opinions of record weight against the Veteran's claim. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 4331995). However, the Board may not reject medical opinions based on its own medical judgment. See also Obert v. Brown, 5 Vet. App. 30 (1993); Colvin v. Derwinski, 1 Vet. App. 171, 173 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other 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. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). At the outset, the Board points out that private treatment notes dated in November 1994 and May 1996 do not appear to actually reflect medical etiology opinions, as the records merely document what appears to be the Veteran's own report that he fell off a truck during his military service and fractured his back. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional). Parenthetically, the Board notes that, to whatever extent either medical professional may have attempted to provide an etiology opinion, such would be based on unsubstantiated medical history-that the Veteran actually fractured his back in service, which clearly is not shown-and would not be entitled to any probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Swann v. Brown, 5 Vet. App. 229, 233 (1993) (holding that as a medical opinion can be no better than the facts alleged by a veteran, an opinion based on an inaccurate factual premise has no probative value). While the March 2004 private opinion clearly constitutes a competent medical opinion in support of the Veteran's claim, this opinion is not persuasive, as the physician clearly did not take into consideration all pertinent evidence of record. The physician indicated that the opinion was based on a review of the Veteran's service treatment records; however, the examiner failed to mention and discuss the intervening post-service injury where the Veteran fell from a window and fractured his back. Interestingly, that private doctor's own treatment notes dated in April 1992 and December 1994 indicate that the Veteran had back pain as a result of a fall from a window. Hence, the examiner's opinion is not only less than comprehensive, but is also inconsistent with his own treatment notes. By contrast, the Board accepts the opinions of the January 2009 and August 2012 VA examiners-both of which weigh against the claim-as persuasive medical opinion evidence on the medical nexus question. Both opinions are based on examination of the Veteran, review of the Veteran's service treatment records, and post-service evidence reflecting the Veteran's post-service accident-and continuous back complaints thereafter-and other opinions of record. In particular, the August 2012 VA examiner found that the Veteran's current low back condition was less likely than not related to the Veteran's in-service fall from the truck. In providing the rationale for this opinion he noted that he could not find in the Veteran's service treatment records a serious in-service injury that required an intensity of care commensurate with a serious lower back injury. This finding is consistent with the service treatment records documenting only the Veteran had contusions to his back, as well as the facts that that the Veteran's back was found to be clinically normal one year after the injury at separation, and that the Veteran did not report any problems with his back at the time of his discharge from service. Also, as indicated above Veteran's post-service treatment records are silent for any treatment, complaints, or diagnosis for back pain for 20 years after the Veteran's in-service injury. As this opinion clearly was based on consideration of, and is consistent with, the evidence of record, the Board accepts this opinion The Board notes that, in a November 2012 statement, the Veteran's attorney argued that the August 2012 opinion is inadequate because the VA examiner "articulated an incorrect legal standard in his opinion as to etiology" in using the statement a "reasonable medical certainty." The Board finds, however, that the August 2012 VA examiner was not using that as the standard but consistent with the current DBQ format for examination reports, the VA examiner checked the box indicating that a current relationship was less likely than not related to the Veteran's military service. The VA examiner then gave a detailed rationale for his opinion that the Veteran's current low back condition was less likely than not related to service and only part of his rationale included that language as a way to augment his opinion and it was not used as a legal standard. Thus, the Board finds that the August 2012 VA examiner used to correct legal standard in rendering his probative opinion. A veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). That has not been shown in this case, as the Board herein above finds that the only probative opinions of record on the question of medical etiology of current low back disability weigh against the Veteran's claim. Furthermore, to whatever extent the Veteran, his wife, and/or his representative/attorney attempt to establish an etiological relationship between the Veteran's current low back disability and service on the basis of lay assertions, alone, such attempt must fail. The Board points out that laypersons such as the Veteran and his wife are each competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). The Veteran is also competent to testify about observable symptoms or injury residuals. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Veteran is competent to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board, however, retains the discretion to determine the credibility and weight of all the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Here, while the evidence documents more or less continues back symptoms since the post-service accident, any assertions of continuity of symptoms since service are not consistent with the evidence. First, while the Veteran did report contusions to his back during service he did not report a low back disorder to his medical care providers at separation or for years thereafter, until after the Veteran's post-service accident. Furthermore, it is pertinent to note that when the Veteran reported that he had low back pain in November 1991, April 1992, and December 1994, he then related it to his post-service accident of falling out a window and never gave his medical care providers a history of having low back pain since service or as due to service. Moreover, in March 1996 while he did report that his back pain began in service he also reported that he fractured his spine when he fell out of a window and that his pain was since that fall. The Veteran misreported his in-service accident to some medical care providers by stating that he fractured his back during service when he fractured it in his post-service accident, and also failed to mention his post-service accident to some medical professionals. Additionally, when the Veteran was giving his medical history in March 2000, he reported various injuries but none in service. Lay statements made when medical treatment was being rendered may be afforded greater probative value. These 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, thus, are considered to have greater probative value. See White v. Illinois, 502 U.S. 346, 355-56 (1991) (noting that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. In light of evidence as noted above, the Board has reason to question the credibility of the Veteran's and his wife's contentions in connection with the current claim. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statement, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Thus, while competent, statements rendered by the Veteran and his wife asserting continuous back symptoms since the 1970's are not deemed credible or probative. The Board further notes that, as for an direct assertions of medical nexus, the matter of the medical etiology of the disability under consideration is one within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his wife or representative are not shown to be other than laypersons without the appropriate training and expertise, none is competent to render a probative (i.e., persuasive) opinion on the matter of medical etiology of the disability for which service connection is sought. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, lay assertions as to the current etiology of the Veteran's low back disability have no probative value. Finally, the Board noted the statement from the Veteran's in-service comrade only confirms what is already known-that the Veteran fell from a truck in service. For the foregoing reasons, the claim for service connection for a low back disorder must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102 ; Gilbert, 1 Vet. App. at 53-56 (1990). ORDER Service connection for a low back disorder is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs