Citation Nr: 1307644 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 06-19 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a head injury with migraines. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD) with depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. R. dela Rosa, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1971 to July 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran was scheduled to present testimony at a video conference hearing before a Veterans Law Judge in July 2007. However, the Veteran failed to report to the hearing. As the Veteran has not requested that the hearing be rescheduled, the Board deems the Veteran's request for such a hearing to be withdrawn. See 38 C.F.R. § 20.704 (2012). The issue of entitlement to service connection for scars has been raised by the record in May 2010, but still has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. There is no competent and credible evidence establishing that the Veteran suffered an in-service back injury. 2. There is no competent and credible evidence establishing that the Veteran suffered a head injury or migraines in service. 3. There is no competent and credible evidence establishing that an in-service stressor occurred. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for establishing service connection for a head injury with migraines have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for establishing service connection for PTSD with depression have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in July 2003, January 2005, and June 2010. Those documents advised the Veteran regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. Additionally, the June 2010 letter from the RO advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, he has received all required notice. Therefore, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the final adjudication in the December 2011 supplemental statement of the case. In June 2010, the Board remanded the case for further development. The Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran was provided with corrective VCAA notice in a June 2010 letter which also asked the Veteran to provide the names, addresses, and approximate dates of treatment for his claimed disorders. The AOJ also attempted to verify the Veteran's claimed stressor from the National Archives and Records Administration and Defense Personnel Records Information Retrieval System. Additional VA treatment records were associated with the claims folder and VA examinations with medical opinions were provided on remand. Accordingly, the information requested by the Board was provided and there was substantial compliance with the Board's remand instructions. With respect to the duty to assist, the RO secured VA treatment records. The RO has attempted to secure the Veteran's service treatment records, and have exhausted all attempts to locate and obtain such records from the National Personnel Records Center as well as from the Veteran himself. Here, the Veteran was informed of the unavailability of his STRs in an October 2004 letter and informed that he could submit any STRs in his possession. The Veteran did not submit any STRs and no other alternative sources of records have been identified. In light of the RO's formal finding, the Board concludes that any additional efforts to obtain such records would be futile. Additionally, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board notes that despite being provided with authorization forms in the various VCAA notice letters, the Veteran did not provide any completed forms. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Therefore, the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002). Factual History The Veteran seeks entitlement to service connection for a back injury and for head injury with migraines and PTSD with depression which he avers are related to a race riot that occurred aboard a ship during which his head was "busted open", he was stabbed in the side with a knife, his tongue was almost bitten off, his chin was split open, and he was beaten "black and blue," while he served as a penal guard with the 2nd Battalion, 4th marines, 3rd Marine Division aboard either the USS Tripoli or the USS New Orleans. He also avers that he was beaten unconscious. He indicated that he was treated aboard the ship by ship doctors and was seen by doctors at Okinawa and Camp Pendleton on several occasions. A review of the Veteran's service personnel records confirm that he served aboard the USS Tripoli from July 20, 1972, to July 25, 1972, that he served aboard the USS New Orleans from August 5, 1972, to October 14, 1972, and that he was stationed in Okinawa and Camp Pendleton thereafter. Command histories for the USS New Orleans from January 1, 1972, to December 31, 1972, and USS Tripoli for the 1972 calendar year fail to show a brig riot upon either ship as described by the Veteran. The service treatment records (STRs) that have been associated with the claims file consist of a July 1971 enlistment examination, a July 1971 report of medical history, a July 1971 audiogram, a July 1971 dental examination, and two September 1971 notations of dental treatment. The Board notes that the rest of the Veteran's STRs were found to be unavailable. After several unsuccessful attempts to locate and obtain such records from the National Personnel Records Center as well as from the Veteran himself, the RO issued a memorandum in October 2004 which outlined a formal finding of unavailability for these missing STRs. Low Back Disorder The Veteran's enlistment examination shows no findings regarding a low back disorder. Physical examination of the spine was normal. Post-service VA treatment records dated from January 1996 through May 2003 reflect the Veteran's ongoing complaints of chronic low back pain. In January 1996, he complained of having low back pain for months, and it was noted that he had lifted something at work. In February 1996, he complained of a history of low back pain for one year, and X-rays of his lumbosacral spine revealed degenerative changes. Later in February 1996, it was noted that the Veteran had an 8-month history of spontaneous low back pain. In August 2002, it was noted that he had initially started using heroin two years prior for relief of back pain, and he was diagnosed with a herniated lumbar disc. In September 2002, it was noted that he had a herniated lumbar disc from 1992 and chronic back pain because of that. In March 2003, X-rays of the Veteran's lumbar spine revealed spondylolisthesis and degenerative disc disease, and it was also noted on a March 2003 MRI report that he had a pertinent past history of an injury with lifting. Later in March 2003, he reported a 10-year history of back pain. In May 2003, the Veteran stated that he had a crooked spine and had always failed his physicals because of it, that he had a bulging disc, and that he had had constant pain for the last 10 years and had gotten on heroin to deal with it. However, during a May 2005 VA PTSD examination, the Veteran complained of back pain, and it was reported that he began to use opium and heroin in service when his ship was around Vietnam. In December 2011 the Veteran was accorded a VA orthopedic examination. During the examination the Veteran reported a history of disc pathology while in Japan in the Marine Corps. He indicated that he was treated conservatively with medication and light duty. The diagnoses were chronic herniated nucleus pulposus of the left lumbosacral spine, mild to moderate in character; chronic degenerative disc disease of the lumbosacral spine, related to his Marine Corps duty by Navy doctors in Japan; and mild to moderate degenerative arthritis of the lumbosacral spine. In the summary, the examiner noted that the Veteran had the medical problem while in the Marine Corps that was "definitely diagnosed by the Navy doctors in Japan." Head Injury with Migraines The Veteran's enlistment examination shows no findings regarding headaches or a head injury. Physical examination was normal. VA medical records show that in August 2002, the Veteran had an old recovered posterior head injury with small bump and an accompanying physical examination revealed a small bump on his posterior head. During a May 2005 VA PTSD examination, the Veteran complained of migraine headaches and reiterated that he had bitten his tongue during an alleged riot in service aboard his ship. The Axis III diagnosis was history of migraine headaches. In December 2011, the Veteran was accorded a VA headache examination. During the examination, the Veteran reported that he was struck on the head several times during a race riot aboard the USS New Orleans. He indicated that he was unconscious for approximately an hour and remained in the infirmary of the ship for approximately three days before returning to duty. He further stated that since that time he has had occasional, severe headaches that have neither increased nor decreased in frequency. The diagnosis was migraine headaches without aura. The examiner stated that he believed the history provided by the Veteran was reliable and opined that the Veteran's headaches are related to his military service. PTSD with Depression The Veteran's enlistment examination shows no findings regarding a psychiatric disorder. Physical examination was normal. Post-service VA treatment records dated from March 1996 through March 2003 reflect the Veteran's ongoing treatment for psychiatric issues as well as for drug and alcohol abuse. In March 1996, he was diagnosed with psychosis secondary to drugs. Later in March 1996, he was again diagnosed with substance-induced psychosis, and it was noted that he had a long history of alcohol abuse as well as two prior rehabilitations at a private facility. In August 2002, it was noted that the Veteran first began to use alcohol at the age of 16 or 17 and had received inpatient treatment for alcohol abuse in 1986. In September 2002, he was diagnosed with polysubstance dependence and substance-induced mood disorder, though it was noted that he may also have a depression independent of his substance-induced depression. In October 2002, he was diagnosed with major depression. In December 2002, it was noted that the Veteran had been treated for psychiatric problems starting in 1994, when he had depression and hallucinations and was diagnosed with schizoaffective disorder. In February 2003, after the Veteran filed his claim, he reported that his trauma issues included the witnessing his father's death, the loss of his sister, his mother's current illness, and racism in the Marines, and he was diagnosed with depressive disorder not otherwise specified. In March 2003, he expressed that his anger had started with the early death of his father, and that this tragedy (as well as the death of his sister) were followed by traumatic events in the service where he encountered racism and injuries as a Marine penal guard. In December 2003, the Veteran indicated that the racial tension in service was the reason for his drug abuse. In May 2005 the Veteran was accorded a VA mental health examination. During the examination the Veteran reported that he was treated extensively for depression and alcohol and drug dependence. The Veteran denied participating in combat even though the ship participated in combat operations in and around Vietnam. He described a long history of having had a very difficult relationship to African-American sailors and Marines. He reported that this problem had started in basic training and that he had once received a "blanket party." He also mentioned being beaten and stabbed during the riot on his ship in service. He indicated that he started using alcohol in school and his use had exacerbated when he was in the Marines. He also indicated that he began using heroin and opium when he was on the ship around Vietnam. The major trauma in his life was summarized as the loss of his father, as well as his drug and alcohol history and his fear of African-Americans. The diagnoses were alcohol and drug dependence in remission and depression. The examiner noted that the Veteran had had a difficult time while in military service (including getting into tense racial relationships where he had felt threatened time and again, racial violence, rioting, and alleged physical attacks), but that this did not amount to a category A trauma for PTSD and was decidedly secondary in importance when compared to the trauma of losing his father at age 6. The examiner also noted that the Veteran's symptoms were consistent with depression as well as a lifelong history of alcohol and drug problems. VA medical records show ongoing substance abuse group therapy notes. Diagnoses included opioid dependence and moderate major depressive disorder. In December 2011, the Veteran was accorded another VA examination. During the examination, the Veteran acknowledged a long history of polysubstance dependence/abuse beginning while he was in the Marine Corps. During the examination, the Veteran indicated that he used drugs and alcohol to assist him in avoiding thoughts and feelings related to being attacked aboard his ship while in the Marine Corps. The Veteran reported that all of his mental health treatment prior to this year dealt with issues related to drug and alcohol use. The Veteran reported that a riot broke out in the brig while he was deployed to the Philippines. He indicated that he was stabbed with a knife on his left side, hit over the head, and hit on the chin - resulting in him becoming unconscious. The examiner noted that if the Veteran's reports were true, that he would meet the diagnostic criteria A#1 for PTSD. The examiner noted that it was unclear whether the Veteran's reports of a brig riot actually occurred. However, the examiner noted that while the Veteran told his story, he became visibly upset and started shaking. He determined that this suggested the Veteran was experiencing anxiety and depressed mood as a result of some incident. The diagnoses were chronic PTSD and early full remission polysubstance dependence; the examiner opined that the Veteran endorsed suffering with PTSD symptoms since being attacked aboard a Navy ship in 1972. He further opined that it was as likely as not that the Veteran's PTSD was related to his time in military service and his nightmares, intrusive distressing memories, and avoidance phenomena are all related to trauma experienced from his military career. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence required to support the occurrence of an in-service stressor varies depending on whether the appellant was engaged in combat with the enemy. If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of such veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f) (2012). Where the record does not establish that a veteran engaged in combat with the enemy, his assertions of in-service stressors, standing alone, cannot provide evidence to establish an event claimed as a stressor occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, he must provide credible supporting evidence that the event alleged as the stressor in service occurred. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). However, effective July 13, 2010, VA amended its PTSD regulations by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010). Essentially, the amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the claimed in-service stressor is related to "fear of hostile military or terrorist activity." "Fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. As such is not alleged here, the revised provisions do not affect the outcome of this claim. The Board acknowledges that the Veteran's STRs are lost or missing. In such cases, VA has a heightened duty to assist a claimant in developing his/her claim. This duty includes the search for alternate medical records, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit-of-the-doubt rule. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Board has reviewed all the evidence in the appellant's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Competent medical evidence in this case shows the Veteran has been diagnosed with a current back disability, a psychiatric disability, and migraine headaches. As noted above, the Veteran's service treatment records are unavailable. Moreover, the Veteran denied participation in combat, and his claimed stressors must be supported by credible supporting evidence. The crux of this case revolves around the credibility of the Veteran's statements as to the in-service events he alleges are the cause of his claimed disabilities. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of a veteran, and a veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Upon review of the record in its entirety, however, the Board finds the Veteran's contentions as to the in-service events he alleges caused his back, psychiatric, and headache/head injury disorders are not credible. With regard to his back disability, he stated in his application that he injured his back in July 1971 and was treated in December 1971. He has advised his VA examiner in 2011 that he was definitely diagnosed with disc problems by Navy doctors in Japan. However, in 1971, he was in basic training in California. Moreover, although he now contends he has had back pain and disc problems since service, when seeking treatment for back pain in 1996, he noted only an 8 month history of spontaneous back pain, and that he had lifted a pump at his job drilling wells. In 2002 he reported to VA clinicians that he had a herniated lumbar disc from 1992 and chronic back pain because of that. In March 2003 he noted a 10 year history of back pain. None of the treatment records dated prior to the date the current claim was filed referenced an injury during service as the cause of his back pain. Further, while he now contends he started using opium and heroin in service, in August 2002 he reported to a VA treatment provider that he began using heroin 2 years prior for relief of back pain. The Board further notes that the Veteran has a long history of substance abuse, and was seen for hallucinations and delusions as a result of substance induced psychosis in March 1996. In September 2002 he noted that at times he feels people are watching him and sees people even though no one is there. Treatment records also reflect the Veteran reported that he has engaged in selling illegal drugs to fund his habit and to get by. Additionally, while in February 2003 he noted the death of his father in 1958 and the death of his half sister in 1990 as life-traumas, in March 2003 he stated that his sister died when he was a child. Treatment records dating prior to his current claim also do not reveal the Veteran mentioning a back injury, being stabbed, or being beaten during service, nor do they mention race riots. Indeed, even in a February 2003 treatment record shortly after filing his claim, he did not mention being stabbed or beaten in service, although he did mention racism. Further, the Board acknowledges the Veteran's allegation of being injured during a prison riot while on his ship. However, the command histories for the two ships he served on in 1972 make no mention of a brig or race riot. A brig riot where a guard was stabbed and beaten to a point of unconsciousness surely would garner at least a brief mention in the ship reports, especially where a mention of a crewmember dying ashore from a drug overdose was deemed noteworthy. Here, the Veteran's statements have been inconsistent between what he is stating for purposes of his claim for benefits and information reported to treatment providers prior to filing his claim. He has had hallucinations and delusions due to drug abuse, raising a serious question as to whether his recollections from service are reliable, especially given that he is reporting on events from more than 30 years previously. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). Moreover, the Veteran has resorted to illegal activities to maintain his drug habit, which further diminishes his credibility as his willingness to abide by legal principles is compromised. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."). Finally, the ship command histories make no mention of a brig riot, a matter that likely would have been mentioned in such reports. For the reasons set forth above, the Board finds the Veteran's assertions as to the origins of his low back, psychiatric, and headaches/head injury disorders are simply not credible. Accordingly, the in-service element necessary to support a claim for service connection has not been established in the case. Thus, while the Veteran has established current disabilities, in the absence of competent and credible evidence of an in-service injury or incident, service connection cannot be established. The Board acknowledges that the 2011 VA examiners who examined the Veteran for his claimed back disorder, headaches/head injury, and PTSD with depression linked his claimed disabilities to service. However, all such opinions were based on the history of his alleged injuries and stressors as relayed by the Veteran. Notwithstanding the VA examiners' apparent belief as to the reliability of the history provided by the Veteran, it is the duty of the Board to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). As noted above, the Board has determined that the Veteran's allegations regarding the events and injuries during service are not credible. None of the examiners addressed the inconsistencies between the Veteran's current allegations and the prior treatment records, or the ship command histories which made no reference to any race riot during 1972, when accepting the history he provided as being factual. As the Board has found the Veteran's reported history is not credible, the medical opinions based upon such history have no probative value, and cannot serve as a basis to establish service connection. In this regard, a medical opinion premised upon an unsubstantiated account is of no probative value. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993). The Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the Veteran that formed the basis of the opinion. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). For the reasons set forth above, the Board finds that the preponderance of the competent and credible evidence is against the claims for service connection for a low back disability, head injury with migraine headaches, and PTSD with depression, and service connection for these disabilities is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a back disability is denied. Service connection for a head injury with migraines is denied. Service connection for PTSD with depression is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs