Citation Nr: 1305156 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 09-31 355 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to service connection for low back disability, to include as secondary to service-connected chondromalacia of the patella of the right knee. REPRESENTATION Appellant represented by: Karl A. Kazmierczak, Attorney WITNESSES AT HEARING ON APPEAL Appellant and Dr. C.N. Bash ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from August 1985 to March 1987. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2007 rating decision in which the RO, inter alia, denied a claim for service connection for low back disability. The Veteran filed a notice of disagreement (NOD) in June 2008. The RO issued a statement of the case (SOC) in July 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in July 2009. In October 2010, the Veteran and Dr. Bash testified during a Board hearing before the undersigned Veterans Law Judge in Washington, D.C.; a transcript of that hearing is of record. In March 2011, the Board recharacterized the claim to include on a secondary basis consistent with what the RO had actually adjudicated, and remaindered the claim to the to include clarified the claim as one for service connection for low back to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After accomplishing further action, the RO continued to deny the claim (as reflected in a December 2011 supplemental SOC (SSOC)) and returned this matter to the Board for further appellate consideration. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. As a final preliminary matter, the Board noted in the March 2011 remand that the Veteran has raised the issues of service connection for a kidney disorder, request to reopen the claim for service connection for a right hip disability, and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). It does not appear that any of these claims have yet been addressed by the RO. As such, these matters are not properly before the Board, and are thus referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. The Veteran was involved in a motor vehicle accident in service (involving a car backing up over his leg). 3. Although the Veteran currently asserts that his back problems are due to in-service injury or, alternatively, developed secondary to his chondromalacia of the patella of the right knee, there were no complaints or findings of, or treatment for, the back in service or for years following service, and the most persuasive medical evidence on the question of etiology indicates that current low back disability is not medically related to service or service-connected right knee disability. CONCLUSION OF LAW The criteria for service connection for a low back disability to include as secondary to service-connected chondromalacia of the patella of the right knee are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310 (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 & Supp. 2012)) 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(s), 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(s); (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(s), 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 an October 2006 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for service connection for a low back condition, including on a secondary basis, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The October 2006 letter also 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. The April 2007 rating decision reflects the initial adjudication of the claim after issuance of the October 2006 letter. Therefore the letter meets content and timing requirements. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent associated with the claims file consists of in- and post-service treatment records. Also of record and considered in connection with the appeal is the transcript of the Veteran's Board hearing, and various statements submitted by the Veteran and by his representative, on his behalf. The Board finds that no additional RO action to further develop the record in connection with the claim, prior to appellate consideration, is required. As requested in the March 2011 Board remand, the RO/AMC obtained outstanding records from the East Orange VA Medical Center (VAMC), requested that the Veteran provide private medical records, including for his back surgery (in a May 2011 letter), and obtained a new VA examination (in August 2011). The Veteran submitted additional private medical records that were received by the RO/AMC in June 2011, prior to the August 2011 VA examination. As such, the development previously ordered by the Board has been substantially completed. In summary, the duties imposed by the VCAA have been considered and satisfied. Through notice of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the 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 the claim. Consequently, any error is deemed harmless and does not preclude appellate consideration of the matter herein decided, 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 injured his low back at the same that he injured his service-connected right knee, during a June 1986 incident when a car backed up onto his leg. In the alternative, he contends that his low back disability developed secondary to an altered gait caused by his service-connected right knee. The August 1984 enlistment examiner found the Veteran's spine to be normal. Service treatment records do not reflect any spine complaints throughout the Veteran's service. Although there are numerous records regarding the Veteran's knee following the June 1986 motor vehicle injury, none of the service treatment records document any complaints of, or treatment for, the spine. The report of an October 1986 evaluation reflects a diagnosis of post traumatic chondromalacia patella of the right knee that existed prior to service and was aggravated by service. The examiner opined that the Veteran would be unable to fulfill his duties as an active duty member. The January 1987 separation examiner found the Veteran's spine to be normal. In his report of medical history, the Veteran specifically denied having recurrent back pain. Post service, the record does not document any complaints of, or treatment for, a back disability for decades following service. On May 1987 VA examination, the Veteran complained only of right knee pain. The examiner found the Veteran to walk with a normal alternating gait. The Veteran received knee surgery in June 1996. The records for this procedure are not of record; however, a bill from Hunterdon Orthopaedic Specialists, P.A. document that the Veteran underwent surgery. Private medical records from Dr. D. Widman dated from October 2002 to March 2003 document that the Veteran was treated for various pain complaints, but not the low back. In February 2003, the Veteran complained of neck pain. In a May 2005 private medical record, the Veteran filled out a questionnaire, at which time he reported that his lower back pain began in May 2005. In December 2005, Dr. Widman noted further studies (including a CT and a MRI), but that the etiology of the back pain remained unclear. In the report of a December 2005 private initial consultation, an unnamed private medical provider noted a complaint of low back pain for seven to eight months, with a report of waking up one day with pain that never went away. In a December 2005 private patient screening record, Dr. M.I. Lipp noted that the Veteran complained of low back pain and had been diagnosed with a bulging disc, with an onset of seven months previously. In a December 2005 letter, R.S. Rosenberg, M.D. noted providing a neurological consultation. Dr. Rosenberg noted "a history of low back pain for the last eight months. The pain began spontaneously, one morning upon awakening and has persisted on a constant basis." Dr. Rosenberg found the Veteran to have a normal gait, including walking on heels, toes and tandem. Dr. Rosenberg found the Veteran to have chronic lumbosacral back pain without true radicular features of unclear etiology, but was possibly a side effect of medications. In a January 2006 letter, Dr. Lipp noted the Veteran's report of "acute onset lower back pain" from eight months previously. He found the Veteran to have a normal heel-toe-gait pattern and noted radiological report showing left-sided central disc protrusion at L4-L5 with irritation of the left exiting L5 nerve root and degenerative lower lumbar spine most pronounced at L4-L5 level. He found him to have degenerative disc disease and noted that he believed his pain was related to the degenerative disc. In March 2006, Dr. Lipp again noted a normal heel-toe-gait pattern and diagnosed him with degenerative disc disease. In a December 2006 private medical record, G.S. Naseef, III, M.D. found the Veteran to have symptoms consistent with stenosis and a left-sided disc herniation at L5-S1 and recommended a laminectomy. In a December 2006 VA examination for the knee, the examiner found the Veteran to walk without a limp. In January 2007 the Veteran underwent lumbar spine surgery, including a lumbar laminectomy and discectomy. Dr. Naseef provided preoperative and postoperative diagnoses of lumbar stenosis, left L5-S1 disc herniation, left-sided radiculopathy and stenosis. In a March 2008 letter, J.S. Larkin, DC reported that he treated the Veteran for hip, leg and low back pain. He opined that the Veteran's "present condition is a direct result of injuries to the lower leg (knee injury sustained...in military service. Surgery to his lower back was performed as a result of this injury due to the change in gait...experienced." In an April 2008 letter, a VA psychologist noted that she treated the Veteran for behavioral treatment for chronic low back pain "which was most likely caused by injuries sustained when the veteran was run over by a vehicle in service." In the report of a September 2008 VA joints examination, the VA examiner noted that the weight bearing joints, such as hip, knee and ankles were almost normal. In December 2008, the Veteran underwent a VA examination for the spine, which included a claims file review. He then reported occasionally wearing a knee brace and lumbar spine brace, and that he developed lower back pain approximately three years previously. The examiner found the Veteran's gait to be normal and nonantalgic. The examiner opined that the Veteran had right knee patellofemoral syndrome, status post lumbar laminectomy surgery and post laminectomy syndrome. The examiner opined that the current lumbar spine condition was not caused by or a result of his right knee, as the Veteran did not have an altered gait. Also, the examiner could see no reason as to "how an isolated right knee pain can cause a lower back abnormality if there is no dramatic change in his gait." The Veteran knee was again examined in August 2010 (by the December 2008 VA examiner). The examiner found the Veteran's gait to be normal and nonantalgic. In an October 2010 report, C.N. Bash, M.D., M.B.A. noted that he had reviewed the Veteran's records and had conducted a history and physical. Dr. Bash noted that the Veteran's right knee had pain, swelling, crepitus/pops/grinds and gives way (buckles) per the December 2006 VA examination. He also noted that the Veteran has a limp and abnormal shoe sole wear due to his abnormal gait. Dr. Bash opined that the Veteran had a serious auto accident in service, whereby he was knocked to the ground and developed back pain. He opined that major accidents routinely injure multiple body parts (multi-trauma) and often the worst injured body parts are analyzed first (here the knee) and other less injured regions are often not evaluated. He noted that the Veteran "had many years of a limp with associated abnormal gait and that abnormal gait place abnormal forces on the spine resulting in advanced for age degenerative disc disease (DDD)" and that the Veteran had a laminectomy in 2006. Dr. Bash opined that the Veteran's records do not support another more plausible etiology for his current lumbar pathology or other risk factors, that the time lag between service and the injury is consistent with medical principles and natural history of the disease and that his opinion is consistent with other medical opinions of record as to altered gait causing the back injury. Dr. Bash also discounted the 2008 VA opinions, claiming that the VA examiners had not commented on the other positive medical opinions of record and claiming that the VA examiners thus likely did not have the entire claims file to review. Dr. Bash also contended that the VA examiners did not provide medical literature or consider the Veteran's abnormal gait or lay statements. Dr. Bash further reported that he was dubious that the VA doctors were fully qualified physicians and that they did not discuss literature concerning etiology. The Veteran and Dr. Bash provided testimony in an October 2010 videoconference hearing. At the hearing, the Veteran reported that he had an altered gait that improved following his 1996 knee surgery. He also reported that his back pain symptoms started shortly after his discharge from service and got progressively worse. Dr. Bash reiterated his finding that the Veteran had an abnormal gait for several years before and after his knee surgery which caused extra forces and stresses on the back. He also reiterated his opinion that the Veteran also probably injured his back during the initial accident in service. In a December 2010 letter, J.S. Larkin, D.C. reported that the Veteran first reported to his office in February 2008 for left hip and low back pain and left sided radicular pain. He opined that following review of the bookmarked copy of the Veteran's claims file, "[d]ue to the nature of his low back condition and the stressors accompanying...gait (while attempting to run) my professional opinion is that his condition is more than 50% related to his prior injury of the right knee." He further noted that "[a]ltered gait mechanics due to lower kinematic chain injury can cause strain on the pelvis and lower lumbar spine and this I believe to be the case with [the Veteran]". August 2011 VA examination included a claims file review. The VA examiner noted that he had previously examined the Veteran in December 2008 and August 2010. That examiner noted that the report of initial injury and of occasional back and knee brace use. The examiner found the Veteran's gait to be normal and nonantalgic. The examiner diagnosed him with post lumbar laminectomy syndrome. The August 2011 VA examiner opined that, based on his review of the claims file, history and examination there was no evidence of a back injury occurring during military service. The Veteran reported that pain began in 2005, almost 20 years after discharge. Thus, the examiner did not believe his lumbar herniated disc is due to his military service. Furthermore, as far as the lumbosacral spine condition being related to the service-connected knee, the VA examiner opined that it was less likely as not related to his right knee injury. The VA examiner explained that the Veteran does not have an altered gait and that the knee injury was not that severe. He noted that the Veteran had knee surgery and appeared to respond well to it. Furthermore, the lumbar spine surgery was due to a herniated disc, which is not uncommon due to daily wear and tear and the vast majority of times in the general population it comes on just due to the trauma of daily wear and tear, sitting, standing, bending, or lifting. Again, the examiner found no altered gait from the knee. Moreover, the examiner found that if the back injury was due to the knee, the herniated disc would have occurred right after the knee surgery when the gait would most likely be at its most altered, which was not the case for the Veteran. VA treatment records generally do not document any complaints of, or treatment for, a back disorder. III. Analysis The Veteran has attributed his current low back disability to service, specifically the incident when an automobile backed onto his right leg. He alternatively contends that it developed secondary to his service-connected right knee disability. The Veteran has a current diagnosis of post lumbar laminectomy syndrome. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 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). Service connection can be granted for certain chronic diseases, including arthritis (degenerative joint disease), if manifest to a degree of 10 percent or more within one year of separation from active service. Such diseases shall be presumed to have been incurred in service even though there is no evidence of disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§3.307, 3.309. While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). Under 38 C.F.R. § 3.310(a), service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2011). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744 - 47 (Sept. 7, 2006). Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for a low back disability is not warranted under any theory of entitlement. In considering whether service connection is warranted based on the Veteran's contention that he had a back injury in service and chronic back pain since that time, or from shortly following service, the Board is required to assess the credibility and therefore the probative value, of proffered evidence in the context of the record as a whole. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). As for the lay assertions of record, the Board notes that the Veteran is certainly competent to report his own symptoms, or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, matters of medical diagnosis for disability not capable of lay observation (and, if competently shown, a medical relationship between such disability and service) are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the appellant is not shown to be other than a layperson without appropriate medical training and expertise to competently render a diagnosis of a back disability, or to opine as to the etiology of any such disability, the lay assertions in this regard have no probative value. 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'). The Veteran's reports of when his symptoms of back pain began have varied greatly and are inconsistent. The service treatment records are completely negative as to complaints of, or treatment for, back pain. The January 1987 separation examiner specifically found the Veteran's spine to be normal. In his report of medical history, the Veteran also specifically denied having recurrent back pain. Dr. Widman treated the Veteran for a few years prior to 2005 and did not note any reports of low back complaints at that time. Indeed, in February 2003 the Veteran complained of neck pain, but not low back pain. Such a complaint to Dr. Widman did not occur until September 2005. Similarly, the December 2005 private initial consultation, by an unnamed private medical provider, noted a complaint of low back pain for seven to eight months, with a report of waking up one day with pain that never went away. In December 2005, Dr. Rosenberg similarly noted "a history of low back pain for the last eight months. The pain began spontaneously, one morning upon awakening and has persisted on a constant basis." Dr. Lipp also noted in December 2005 that the Veteran complained of low back pain with an onset of seven months previously. In January 2006 Dr. Lipp again noted the Veteran's report of "acute onset lower back pain" from eight months previously. Indeed, during the December 2008 VA examination the Veteran reported that he started developing back pain approximately three years ago. The multiple treatment and VA examination records from the 1980s, 2005, 2006 and 2008 clearly show that that the Veteran did not develop back pain until over 15 years following his separation from service. Indeed, on a May 2005 private medical record form, he reported that his low back pain only began in May 2005. At the October 2010 Board hearing, however, the Veteran reported that his back pain began shortly after his discharge from service and he sought treatment at that time, but was unable to provide documentation of such treatment. At that time, Dr. Bash, reported the Veteran had told him that his back pain began at the time of the in-service knee injury. The multiple treatment and VA examination records from prior to the more recent lay statements of chronic pain since service, or shortly after service, carry far more weight, credibility and probative value than the recent lay statements. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). Such contemporaneous records are more reliable, in the Board's view, than the unsupported assertions of events now decades past, made in connection with his claim for monetary benefits from the government. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence). As such, the Board specifically finds that the Veteran's reports of an in-service back injury and chronic pain since that time, or shortly after service, to not be credible. The medical evidence also does not support finding service connection, as the most probative evidence does not support finding that the Veteran's low back disability developed in or was caused by directly due to service or developed secondary to his service-connected chondromalacia of the patella of the right knee. A low back disability was not documented by medical examiners until well over a decade following his discharge from service. Service connection for a low back disability is not warranted on a presumptive basis, as there is no competent evidence that arthritis was first diagnosed many years after service or was manifested within one year of the Veteran's discharge from service. The Board also points out that the passage of many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection for the disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As indicated above, there is conflicting medical evidence and opinions concerning the nature and etiology of the low back disability. Under these circumstances, 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, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (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). The Board finds the medical opinions of the August 2011 VA examiner (who also provided the December 2008 and August 2010 VA examinations), to be the most competent and probative medical evidence of record as to the question of whether the Veteran developed primarily due to service. The August 2011 VA examiner provided the most complete and credible medical opinion on the matter. He clearly explained the basis of his opinion and based it on the most complete review of the claims file, multiple examinations of the Veteran and his medical experience. It was also the medical opinion most consistent with the majority of the other medical evidence of record. In his October 2010 medical opinion, Dr. Bash reported reviewing four positive medical opinions for the Veteran. Although the claims file contains several records from Dr. G.S. Naseef, III, none of those records contain the medical opinion supportive of the Veteran's claim as reported by Dr. Bash. Additionally, the claims file does not contain a copy of a medical opinion or indeed a medical record by a "Florek". As such, any such opinions cannot be considered by the Board. The medical opinions of Dr. Bash, J.S. Larkin, D.C. and the VA psychologist will be further discussed herein. Other than the August 2011 VA examiner, the only medical opinion evidence of record addressing whether low back disability developed primarily due to service were the April 2008 medical opinion of the VA psychologist and the October 2010 medical opinion and Board hearing testimony of Dr. Bash. The Board finds that the April 2008 medical opinion of the VA psychologist, wherein she found that his back pain was most likely caused by injuries sustained when run over by a vehicle in service, is not be probative. She failed to provide any basis for her opinion, even including whether she ever physically examined the Veteran given that she treated him for his mental health, and also did not indicate that she had reviewed any medical evidence in forming her opinion. In Dr. Bash's October 2010 medical opinion and later hearing testimony, he opined that the Veteran's physical complaints and findings were consistent with the in-service injury and pain in service described by the Veteran that occurred in service. In this case, as previously discussed in some detail, the Board has not found the Veteran's report of an in-service back injury or pain to be credible. In Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005), the Court reaffirmed that in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by a veteran if they have been found to be inaccurate or because other facts present in the record contradict the facts provided by a veteran that formed the basis for the opinion. As such, the Board finds Dr. Bash's medical opinion for service connection on a direct basis for a low back disability that developed in service to not be probative to the present claim. The most probative medical evidence of record for considering whether service connection is warranted on a primary basis is the 2011 VA examination report. That VA examiner's found no nexus between the Veteran's service and any current low back disability, despite having considered the occurrence of the in-service accident involving the knee. Dr. Bash and J.S. Larkin, D.C. have provided medical opinions contending that service connection is warranted on a secondary basis - that the service-connected right knee disability caused an altered gait that subsequently caused the Veteran's low back disability. The Board notes that J.S. Larkin, D.C. did not indicate review of the claims file in March 2008. In December 2010, however, when he again opined that the Veteran's change in gait due to the right knee caused strain to the lumbar spine, J.S. Larkin, D.C. reported that he had reviewed a bookmarked copy of the Veteran's claims file. In October 2010, Dr. Bash reported reviewing the claims file when considering the low back disability claim as primarily due to service or the service-connected right knee. Such reviews did not have as complete a copy of the claims file as the August 2011 VA examiner did at the time of the last VA examination. Several additional and pertinent private medical records were associated with the claims file in June 2011 after those private examiners provided opinions. As such, the August 2011 VA examiner had the most complete review of the medical evidence of record in forming his opinion. The Board finds the medical opinion of the August 2011 VA examiner to be most probative as to the question of whether the Veteran has an altered gait. As pointed out by that examiner, he had seen the Veteran on numerous occasions (including December 2008, August 2010 and August 2011) and each time he found the Veteran to not have an antalgic gait. In contrast, Dr. Bash based his findings on one interview and J.S. Larkin, D.C. has not indicated how often he has seen the Veteran. Furthermore, the August 2011 VA examiner's findings of no altered gait are consistent with the majority of the medical evidence of record. The Veteran's private treatment physicians repeatedly and consistently found the Veteran to have a normal gait, including: Dr. Rosenberg in December 2005 and Dr. Lipp in January 2006 and March 2006. In January 2006 Dr. Widman noted that the Veteran had no difficulty walking. At most, the December 2006 VA examiner noted that the Veteran reported that the knee buckled and popped, but the examiner himself found the Veteran to walk without a limp and without an assistive device. The September 2008 VA examiner noted that the weight bearing joints, such as hip, knee and ankles were almost normal. The Board also finds the August 2011 VA examiner to be the most knowledgeable and skilled in making such a determination. Although, Dr. C.N. Bash is a radiologist and J.S. Larkin a chiropractor, per VA documents the August 2011 VA examiner is a physician that regularly works in ambulatory care and has a subspecialty in physical medicine and rehabilitation. The Board further finds that the August 2011 VA examiner provided the most considered medical opinion in explaining how he reached his conclusions. In the August 2011 VA examination report, he explained that the Veteran does not have an altered gait, that the service-connected knee injury was not that severe and that the Veteran appeared to have responded well to his prior surgery (which the Veteran himself had similarly reported in the October 2010 Board hearing). The VA examiner further explained that the Veteran's lumbar spine surgery due to a herniated disc was not uncommon due to daily wear and tear due to the trauma of daily wear and tear. He noted that the vast majority of times in the general population, such a disability comes on just due to the trauma of daily sitting, standing, bending, or lifting. Moreover, the examiner found that if the back injury was due to the knee, the herniated disc would have occurred right after the knee surgery when the gait would most likely be at its most altered, which was not the case for the Veteran. Indeed, the Board notes that the Veteran's knee surgery occurred in 1996 and the Veteran's back pain did not start until almost a decade later in 2005. The August 2011 VA examiner provided the most probative medical evidence of record and found the service-connected right knee to not be so severely disabling as to cause an altered gait and that it did not lead to a back disability. In sum, the most probative evidence weighs against the claim for service connection on a primary basis. The Board has found that the Veteran's assertions of having a back injury in service or back pain since his in-service knee injury, or shortly after service, are not credible. The Veteran's treatment records document that the Veteran did not start complaining of back pain until over a decade following his discharge from service. Additionally, the August 2011 VA examiner's found no nexus between the Veteran's service and any current low back disability, despite having considered the occurrence of the in-service accident involving the knee. Furthermore, the most probative medical evidence of record also weighs against service connection on a secondary basis. The August 2011 VA examiner found the service-connected right knee to not be so severely disabling as to cause an altered gait and that it did not lead to a back disability. For all the foregoing reasons, the Board finds that the claim for service connection for a low back disability, to include on a secondary basis, must be denied. In reaching the conclusion 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 v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a low back disability, to include as secondary to service-connected chondromalacia of the patella of the right knee, is denied. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs