Citation Nr: 1306236 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 00-10 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for residuals of a circumcision. REPRESENTATION Veteran represented by: Daniel Krasnegor, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1979 to August 1982. The matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in October 1999 and May 2001 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2002, the Veteran appeared at a hearing before a Veterans Law Judge, who has since retired from the Board. A transcript of the hearing is in the claims file. As the Veterans Law Judge who presided at that hearing had retired, the Veteran was offered the opportunity for another hearing before the Board, but did not reply. The claims were previously before the Board in August 2002, when the claim of service connection for a low back disability was reopened and the claim of service connection for residuals of a circumcision was denied. The Veteran appealed the denial of service connection for residuals of a circumcision to the United States Court of Appeals for Veterans Claims (Court), which in April 2003, granted a Joint Motion for Remand of the parties (VA Secretary and the Veteran), and vacated the Board's decision and remanded the case pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the Motion. In accordance with the Court's order, in October 2003, the Board remanded the claim of service connection for residuals of a circumcision for further development. In a separate decision in October 2003, the Board remanded the claim of service connection for a low back disability for further development. In a decision in February 2006, the Board denied the claim of service connection for a low back disability and remanded the claim of service connection for residuals of a circumcision. The Veteran then appealed the Board's denial of service connection for a low back disability to the Court. In an Order in August 2007, the Court granted a Joint Motion for Remand of the parties, vacated the Board's decision and remanded the case pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the Motion. In accordance with the Court's Order, in February 2008, the Board remanded the claim of service connection for a low back disability for further development. The claim of service connection for residuals of a circumcision was also remanded to the RO for further development as a result of development undertaken pursuant to the February 2006 remand. In June 2009, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA), and provided the Veteran and his representative a copy of the opinion and afforded the Veteran the opportunity to submit additional argument and evidence. This claim was again before the Board in March 2010, when the claims of service connection were denied. The Veteran again appealed the denial to the Court which issued a Memorandum Decision in August 2011, vacating the Board's decision and remanding the case pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the Decision. The claim was then remanded for further development to specifically include additional VA examinations. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The current low back disability, degenerative disc disease of the lumbar spine, was not affirmatively shown to have had onset during service; and the current low back disability, degenerative disc disease of the lumbar spine, is unrelated to an injury, disease, or event, including a back strain and a low back injury, in service. 2. The in-service circumcision constituted ameliorative treatment for a pre-existing condition, and did not result in a permanent worsening; no unusual effects of the surgery or residual pathology that is not a usual effect of such procedure are shown. CONCLUSIONS OF LAW 1. A low back disability, degenerative disc disease of the lumbar spine, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2012). 2. Disabling residuals of an ameliorative circumcision were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1111, 1131 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post- adjudication VCAA notice by letters, dated in March 2001, in April 2004, in April 2007, in April 2008, and in September 2008. The Veteran was notified of the evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. Additionally, the Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent there was pre-adjudication notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided content-complying VCAA notice the claim was readjudicated, as evidenced by the supplemental statement of the case in June 2012. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained the service treatment records as well as VA and private medical records. In accordance with the Court's instructions, VA sought treatment records from the VA Medical Center for the period of January 1986 to January 2000. When the records could not be located, the Veteran was appropriately notified in accordance with 38 C.F.R. § 3.159(e). The Veteran has not identified any additional pertinent records for the RO to obtain on his behalf. The Veteran was afforded VA examinations in relation to his claim for residuals of a circumcision in October 2004 and May 2012 and in relation to his claim for a low back disability in May 2012. As the examination reports and the VHA opinion are based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination reports and the VHA opinion are adequate to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1131 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the 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 after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the vidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Low Back Disability The Veteran asserts that he had injured his back playing basketball and while lifting heavy parts or equipment in service. The service treatment records show that the Veteran complained of back pain in June 1982. In August 1982, he was seen for a back injury, after which he was put on a restriction with no physical training, bending, stooping, or lifting over 25 pounds for 3 days. On separation examination, the Veteran denied recurrent back pain and a back abnormality was not listed as a defect or as a diagnosis. The evaluation of the spine was normal. After service, the Veteran filed a claim of service connection for a low back injury, but he did not appear for a VA examination in September 1982, and the claim was denied. In August 1986, the Veteran sustained an on-the-job injury to his low back. He complained of early morning back pain and stiffness and reported he was on light duty at work. X-rays of the lumbar spine were negative, but degenerative changes were seen at T-11 and T-12. The diagnosis was lumbar strain and degenerative joint disease. In May 1988, the Veteran was treated for low back pain and gave a history of an injury one year earlier. He reported pain in the low back, but denied numbness or tingling in his legs. The physical examination was normal. X-rays were read as negative. Muscle spasm was diagnosed. In August 1991, the Veteran was treated for complaints of low back pain after an earlier on-the-job injury, which he was told had caused a bulging disc. In April 1992 a MRI showed mild disc degeneration and bulging at L5-S1 and L4-L5. In April 1999, a private physician, R.J.H., MD, stated that the Veteran had been under his care and treatment since April 1992. The diagnosis was herniated nucleus pulposus at L5-S1 and degenerative disc disease at L4-5 and L5-S1. In a statement in November 1999, the Veteran's mother stated after his discharge from service the Veteran visited and complained to her of lower back pain. She stated that the Veteran had been scheduled for an examination in Montgomery, Alabama but an important issue came up and he had to leave and he forgot the appointment. In May 2002, the Veteran testified that he injured his back while he was playing basketball as part of his individual physical training in Europe just prior to service separation in August 1982. He did not seek treatment for this injury in service, because he did not have time as he was left the next day, transferring from Germany to Fort Jackson, South Carolina, for discharge. He did not seek treatment at Fort Jackson as he thought it was simply a sore muscle. The Veteran testified that he first sought treatment for his low back pain at the Dallas VA Medical Center after leaving the service, where low back pain was diagnosed and he was told it was a pretty bad injury. A private physician later told him he had degenerative disc disease at L4-5 and L5-S1. After he left service he had a job which required heavy lifting and he sustained an on-the-job injury in 1989, which he asserted was merely an aggravation of his pre-existing back injury. At the time of hearing, he was still receiving treatment for his low back pain at both the VA Medical Center and with his private physician. In a statement in June 2003, the Veteran's mother-in-law noted that he complained of severe low back difficulties after his discharge from service which he attributed to something being badly damaged in his lower back prior to leaving Germany. She indicated that his problems were still present and there were times he could hardly walk. In June 2003 on VA examination, the Veteran stated that he sprained his back in service in 1982 just prior to discharge and that he had a job-related injury to his back in 1986, following which he received chiropractic treatment and was seen by a neurosurgeon. A MRI showed degenerative changes and signs of an annulus rupture of the discs at L4-5 and L5-S1. The VA examiner diagnosed degenerative disc disease of the lumbar spine with herniated disc at L5-S1, based on the MRI from 1992. It was the examiner's opinion that the Veteran's degenerative joint disease was the result of genetics, age, and mechanical factors. Further, since there was no documentation of any injury in service, the examiner concluded that it was less likely than not that the condition had its beginning in or was caused by service. On VA examination in October 2005, the Veteran stated that just prior to discharge from service he experienced back pain after lifting some heavy track parts, but he did not see a doctor for treatment because he was being transferred stateside from Germany for discharge. He stated that he had pain at the time of discharge and after discharge he continued to have intermittent back pain, radiating into the legs. The Veteran reported that he sustained either a motor vehicle or work injury in 1986 and was subsequently treated by VA. The Veteran stated that he had continued pain from 1992 to the present and that the pain caused him to miss work on occasion. The VA examiner noted that the Veteran did not give a full effort on examination, and stated that the Veteran's current low back disability could not be related to his active service because there were no records of treatment prior to discharge. Moreover, the injury reported to have occurred in service appeared to have been a soft tissue injury. The VA examiner offered the opinion that the Veteran's current condition was related to the general degenerative aging process. In January 2007, the Veteran was seen at VA by Dr. Nguyen and gave a history of chronic low back since 1982, but no current pain. He denied morning stiffness. Physical examination showed decreased range of motion with straight leg raising, bilaterally. The diagnosis was mild chronic low back pain. In March 2007, the Veteran was again seen by Dr. Nguyen and reported chronic low back pain since 1982 due to herniated discs at L4-5, and pain which occasionally radiated to his legs. The diagnosis was unchanged. In October 2007, the Veteran was again seen by Dr. Nguyen for worsening of low back pain, which he stated began in 1982 with herniated discs. In February 2008 and in January 2009, the diagnosis was chronic low back pain since 1982 due to herniated discs. In a statement in October 2007, the Veteran's brother stated that in August 1982 when the Veteran came home from Germany after his discharge he complained of low back pain. The brother recommended that the Veteran consult a doctor because he was not walking well. VA records show that repeated MRIs in 2008 and 2009 showed degenerative disc disease at L4-5 and L5-S1. In June 2009, the Board sought and received a medical advisory opinion from the Veterans Health Administration (VHA) regarding whether the Veteran's low back pain was related to the incident of back sprain in service in June 1982. The VHA expert was asked to comment on the Veteran's denial of back pain service separation and the negative X-ray in 1986. In response, the VHA expert expressed the opinion that the Veteran's post-service low back pathology was less likely than not related to the episode of back sprain in service in June 1982. The VHA expert explained that a back sprain is an injury to the musculature rather than the bony, ligamental, or discal components and usually healed quickly without residuals and, since the Veteran denied recurrent back pain on separation examination, the in-service low back sprain had healed. The VHA expert also stated that X-rays of the lumbar spine four years after separation were negative, and while X-rays showed degenerative changes at the levels of T-11 and T-12, degenerative changes at that level would not result in pain in the lower lumbar spine. In November 2009, a private physician, who specialized in neurosurgery and spinal surgery, reported that the Veteran complained of low back pain radiating to the bilateral lower extremities for the past 27 years, but he denied any history of trauma. He described constant back pain, exacerbated by walking, which radiated to the whole leg, but did not cause any numbness or paresthesias. In April 2010, the Veteran complained of back pain since heavy lifting in service. He stated that he was diagnosed with a lumbar sprain or strain and that he was given limited duty for three days. The medical provider expressed the opinion that it was possible the Veteran's current back pain was related to the reported in-service injury. In May 2012 on VA examination, the VA examiner noted a prior diagnosis of low back strain in 1986. The VA examiner also noted the Veteran's history of a back injury after heavy lifting in service. Based on a review of the record, the VA examiner stated that there was no evidence of a chronic back disability in service and there was clear evidence of a more serious back injury after service, and it was less likely than not that the current back disability, degenerative disc disease, was related to an inservice injury or event. Analysis On the basis of the service treatment records alone, the Veteran had back strain and an injury, resulting in physical restriction for three days in 1982, but the current disability degenerative disc disease of the lumbar spine was not affirmatively shown to have been present during service, and service connection under 38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not established. As the Veteran had back strain and an injury, resulting in physical restriction, which were noted in service, the principles of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply. 38 C.F.R. § 3.303(b) (Chronicity) For the showing of a chronic disability in service there is required a combination of manifestations sufficient to identify the disability and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b); see Savage v. Gober, 10 Vet. App. 488, 497 (1997) (chronicity requires evidence that the disability was present in service and the same condition currently exists, such evidence must be medical, unless the disability is one under case law that is capable of lay observation.). As the service treatment record lacks the documentation of the combination of manifestations sufficient to identify the condition that currently exists, namely, a degenerative disc disease of the lumbar spine, and as there was insufficient observation to establish chronicity at the time, on the basis of two entries, no more than two months before the Veteran was separated from service, chronicity in service is not adequately supported by the evidence of record. As chronicity in service is not adequately supported, service connection may still be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b). 38 C.F.R. § 3.303(b) (Continuity of Symptomatology) Although the current disability, degenerative disc disease of the lumbar spine, was not affirmatively shown to have been present in service, the Veteran did have back strain and an injury, resulting in physical restriction. Establishing service connection based on continuity of symptoms requires (1) that a condition was 'noted' during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. See Savage, 10 Vet. App. at 494-97 (continuity of symptomatology requires that the evidence either contemporaneous with service or otherwise show only that a condition was observed, that is, noted, during service); see Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (continuity of symptoms requires evidence of a nexus between the current disability and the postservice symptoms, which are identical to the symptoms that began in service). While the current disability of the lumbar spine was not affirmatively shown to be present in service and the evidence is insufficient to establish chronicity during service, the Veteran is competent to describe symptoms of low back pain in service and since service. See 38 C.F.R. § 3.159 (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 facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). To this extent, the Veteran's lay statements of neck pain since service is competent evidence of postservice continuity of symptomatology. But as it does not necessarily follow that there is a relationship between the current disability of the lumbar spine and the continuity of symptomatology that the Veteran avers, medical evidence is required to demonstrated such a relationship, unless such a relationship is one to which the Veteran as a lay person is competent. See Savage, 10 Vet. App. at 494-97 (establishing service connection based on continuity of symptoms requires medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology). The Veteran essentially states that his current disability of the lumbar spine is a continuation of back pain in service, which was the result of a back strain and an injury, which is an expression of a causal relationship between the current disability and continuity of symptoms. As the statement is an inference based on facts, it is an opinion rather than a statement of fact. The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question then is whether the Veteran as a lay person is competent to offer an opinion on the causal relationship or nexus between the current disability of the lumbar spine and the postservice symptomatology. A disability of the lumbar spine, degenerative disc disease, is not a condition under case law that has been found to be capable of lay observation and it is not a simple medical condition, because the disability cannot be identified or diagnosed by the Veteran as a lay person based on mere personal observation, that is, the disability cannot be perceived through the senses, for example, by visual observation, and therefore such a disability is not a simple medical condition. As the disability is not a condition that can be identified based on personal observation, either by case law or as a simple medical condition, and any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the current lumbar spine disability and the continuity of symptoms that the Veteran avers. For this reason, the Veteran's lay opinion is not competent evidence of a causal relationship or nexus between the current disability and the postservice symptomatology. Since the Veteran's lay opinion is not competent evidence, the Veteran's opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim based on continuity of symptomatology. As for the lay statements of the Veteran's family members, while the witnesses are competent to describe what they personally know, the statements amount to lay opinions attributing the Veteran's back disability to an injury in service. And no factual foundation has been established to show that the lay witnesses are e qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the current lumbar spine disability and the symptoms they witnessed. For this reason, the lay opinions are not competent evidence of a causal relationship or nexus between the current disability and back strain or an injury inservice. As the lay opinions are not competent evidence, the lay opinion are excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to the claim. Although service connection is not established either by chronicity or by continuity of symptomatology on the basis of lay evidence under 38 C.F.R. § 3.303(b), service connection may still be established based on an initial diagnosis after service under 38 C.F.R. § 3.303(d). As the lay evidence is not competent evidence on the questions of either a diagnosis or causation, applying 38 C.F.R. § 3.303(b) and (d), the Board looks to the medical evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. There is competent medical evidence in favor of and against the claim. Medical evidence supporting the Veteran's claim of service connection includes the opinion of Dr. Nguyen, who treated the Veteran from 2007 to 2009. The VA physician diagnosed chronic low back pain since 1982 due to a herniated disc at L4-5 on history provided by the Veteran. The other medical opinion of record supporting the Veteran's claim of service connection is that of the private physician in April 2010, who stated that it was "possible" that the Veteran's current back pain was related to the reported in-service injury from heavy lifting. While both medical opinions appear, on their face, to support the Veteran's claim of service connection for low back disability, the opinions are based on history provided by the Veteran. A bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Moreover, the statements by Dr. Nguyen do not include consideration of the negative spinal X-ray in 1986 or the fact that herniated discs at L4-5 and L5-S1 were not diagnosed until April 1992. As such, it does not appear to be based on a consideration of all of the available evidence. A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). For this reason, the favorable opinion has little probative value on the material issue of fact, namely, whether the postservice back disability is related to back strain or an injury in service. As for the opinion of the private physician in April 2010, the opinion does not account for the work-related injury in 1986 and in the opinion it was stated that it was "possible," that the postservice back pain was related to the in-service injury from heavy lifting. An opinion based on possibility is too speculative to establish a medical nexus. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in the term of "may" [the equivalent of possible] also implies "may or may not" and is too speculative to establish a medical nexus). For this reason, the favorable opinion has little probative value on the material issue of fact, namely, whether the postservice back disability is related to back strain or an injury in service. In contrast, the competent medical evidence against the Veteran's claim of service connection consists of the opinion of the VA examiner in May 2012. The VA examiner considered all of the evidence, including the Veteran's lay statements. The VA examiner determined that the Veteran did suffer an in-service injury which was minor, such as an acute muscle strain. The VA examiner also noted the occurrence of the work-related injury after service and the treatment provided on a recurrent basis ever since. As a result, it was the VA examiner's opinion that the Veteran's current low back disability of degenerative disc disease was not related to the injury in service. In light of the above, the Board finds that the preponderance of the evidence is against service connection, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Residuals of Circumcision The Veteran seeks service connection for penile soreness and irritation which he asserts is the result of an elective circumcision performed in service. In May 2002, the Veteran testified that he had never fully healed from the procedure and that the pain was due to a retained stitch in the area. He has also complained of skin discoloration. The record shows that in October 1980 the Veteran requested and was given an elective circumcision. The record shows that the Veteran had been treated for chronic irritation and cracks or fissures of the foreskin prior to his request for circumcision. The surgical site healed without complication, the doctors noted that the sutures had all dissolved, and a pathology report of the excised foreskin showed scattered, focal chronic inflammation. No other penile abnormality was noted during service or on separation examination. In March of 1989, the Veteran sought treatment for swelling on the distal side of the penis which had since resolved. He had epididymal tenderness and the diagnosis was epididymitis. In October 1996, the Veteran was seen for complaints of having cut the skin on his penis with a pair of scissors. In 2000, the Veteran sought treatment for complaints of sporadic discomfort at the circumcision site. Two physicians who evaluated the problem indicated that it was unlikely to be related to the circumcision. On VA examination in October 2004, the Veteran asserted that there was an undissolved stitch on the dorsum of the skin which was minimally tender even with deep palpation. In January 2005, an urologist stated that it was highly unlikely that the Veteran's complaints were the result of the circumcision. On a VA dermatology consultation in February 2005, the VA physician indicated that since the surgery was done in 1980 the discoloration was probably permanent. In February 2006, after a biopsy of the skin, the diagnosis was lentigo, a type of discoloration of the skin caused by an increased number of melanocytes. See Dorland's Illustrated Medical Dictionary, 1036 (31st ed., 2007). In August 2005, the Veteran reported that a "suture" had recently come. The provider found no evidence of a retained suture. In March 2009, the Veteran's file was reviewed by a VA physician on a dermatology staff. The VA physician stated lentigo was a common finding in dark skinned individuals and was not traumatic in nature. It was noted that a biopsy can distinguish between post-inflammatory hyperpigmentation, which can be of traumatic origin, and lentigo, which is based on the cell architecture. The VA physician expressed the opinion that it was not at least as likely as not that the skin discoloration, diagnosed as mucosal lentigo, was caused by the circumcision in service. In May 2012 on VA examination, the VA examiner noted that the Veteran had an elective circumcision in service with a normal recovery. The VA examiner stated that the Veteran did not experience any sexual or urinary tract dysfunction or other abnormal condition of the reproductive organs. Examination showed a normal penis and normal epididymis with no evidence of a retained suture and no inflammation, swelling, or other abnormalities in the area of the circumcision. The Veteran did have hyperpigmentation of the skin around the area of circumcision which was permanent scarring resulting from the surgery. Based on the normal examination, it was the VA examiner's opinion that there were no residuals of the circumcision. Analysis Service connection is not warranted for the usual effects of an ameliorative procedure, unless the "disease or injury" was otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). The Veteran requested circumcision to relieve irritation and fissures of the foreskin, which was done without complications. The Veteran as lay person is competent to describe penile pain and tenderness, as well as a sensation of a retained suture. See Jandreau, 492 F.3d at 1377. But it has not been established that the Veteran has specialized education, training, or experience to make a medical diagnosis or offer a medical opinion. And a genitourinary disability is not one the Court has found to be capable of lay observation. Jandreau at 1377. And complications of a circumcision are not simple medical conditions that the Veteran as a lay person is competent to identify without specialized education, training, or experience. Therefore competent medical evidence is required to support the claim. While the Veteran has describe symptoms of penile pain and tenderness and bleeding, no underlying pathology to account for his complaints have been found. And the Veteran has offered no competent medical opinion linking any of his complaints to the circumcision. The Veteran's allegations of a retained suture, which were first made twenty years after the circumcision, have been dismissed by health-care professional, who have examined the Veteran and no disabling residuals of the elective circumcision have been identified. On the basis of the evidence of record, the Board finds that the Veteran does not have disabling residuals of an elective circumcision in service. The Veteran does have a surgical scar at the site of the circumcision, which is of a different color from the surrounding skin. A postoperative scar is not subject to service connection unless the disease or injury, an uncircumcised male, is otherwise aggravated by service, which is not shown. 38 C.F.R. § 3.306(b)(1). As for the penile lentigo, a VA physician expressed the opinion that lentigo was unrelated to the circumcision, which is persuasive evidence against the claim. For the above reasons, the preponderance of the competent medical evidence is against, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for a low back disability, degenerative disc disease of the lumbar spine, is denied. Service connection for residuals of a circumcision is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs