Citation Nr: 1307668 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 05-34 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a low back disability, for purposes of accrued benefits. REPRESENTATION Appellant represented by: Sean A. Ravin, Esq. WITNESSES AT HEARING ON APPEAL The Veteran and the appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from December 1949 to December 1953. He died in June 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied a petition to reopen service connection for a low back disability. In June 2007, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge (VLJ), a transcript of which is of record. In August 2007, the Board reopened the Veteran's claim, and remanded the underlying claim on the merits for additional development. The case was remanded again in June 2008. The Board then denied the claim on appeal through a September 2009 decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The Court issued a June 2011 Memorandum Decision vacating the Board's decision and remanding the case back to the Board. The Court held that the Board's discussion of the evidence in this case offered an insufficient, or at the very least unclear, assessment of the Veteran's competent lay assertions of continuity of symptomatology. Thus, the Court remanded this case to the Board to make an explicit finding on the credibility of the Veteran's assertions, and their overall significance to this case, including obtaining a new VA medical opinion if required. Thereafter, as noted, the Veteran died in June 2011, during the pendency of his appeal. Normally the claim would then be dismissed; however, his widow filed a timely request to be substituted as the appellant in his place, which the Court granted pursuant to a November 2011 Order. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008); Breedlove v. Shinseki, 24 Vet. App. 7 (2010) (holding that when an appellant dies during the course of an appeal to the Court, substitution may be appropriate if the moving party would be eligible to receive accrued benefits based upon the appeal). Therefore, the Veteran's widow is now the appellant in this case. In May 2012, the Board determined that further development of this case was in order in furtherance of the Court's November 2011 Memorandum Decision. The Board noted that unlike prior accrued benefits claims, where there has been substitution under 38 U.S.C.A. § 5121A the record is not closed on the date of death of the original claimant, but remains open for the submission and development of any pertinent additional evidence. The Board specifically requested that a supplemental opinion will be requested from the January 2008 VA examiner to address the likelihood that the Veteran's post-service back disability was related to his military service, with consideration of all pertinent evidence of record. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). The January 2008 VA examiner subsequently provided a supplementary medical opinion in June 2012. For reasons discussed in more detail below, the Board accepts the June 2012 supplementary opinion as a probative analysis of all the pertinent information in this claim. In November 2012, the Board granted the appellant's attorney a 60-day extension from the date he was provided with a copy of the Veteran's claims file. The Board also granted another 60-day extension in January 2013. In February 2013 the Board received additional argument submitted by the appellant's representative. The appellant's attorney also waived any remaining time to submit additional evidence and argument and requested that a decision be issued without further delay. Although the February 2013 statement from the appellant's representative has not been considered by the RO, a remand, pursuant to 38 C.F.R. § 20.1304 is not necessary, however, as the appellant's representative's arguments are essentially cumulative of arguments previously submitted in August 2012. As there is sufficient information to make a decision in this case and all procedural rules have been followed, the case is now ready for appellate review. Through February 2012 correspondence, the Veteran's attorney raised the issue of the appellant's claim for entitlement to Dependency and Indemnity Compensation (DIC), in addition to the pending matter involving accrued benefits. The issue of entitlement to DIC has been raised by the record, but has not been adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claim, and it is referred to the RO for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the evidence does not establish that the Veteran's low back disability had its onset in service, that arthritis manifested within one year of service separation, or that his low back disability is otherwise related to his active military service to include an in-service back injury. CONCLUSION OF LAW The Veteran's low back disability was not incurred in or aggravated by active military service, nor may arthritis be presumed to have been so incurred, for purposes of accrued benefits. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 5103, 5103A, 5107, 5121A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Any error related to this element is harmless. Prior to and following the initial adjudication of the Veteran's claim, letters dated in February 2005, December 2006, and October 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Pelegrini II, 18 Vet. App. at 120-21. The letters advised the Veteran of the information necessary to substantiate the claim, and of his and VA's respective obligations for obtaining specified different types of evidence. The Veteran was informed of the specific types of evidence he could submit, which would be pertinent to his claim. He was also told that it was still his responsibility to support the claim with appropriate evidence. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In any event, it is noted that the Veteran was given proper notice in December 2006 and October 2007 letters and was given ample opportunity to respond. No response was received, and the claim was readjudicated in supplemental statements of the case dated from July 2009 to July 2012. Thus, there was no deficiency in notice and a harmless error analysis is not necessary. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. A request for private records from Dr. Rowe, chiropractor, returned a negative response. The Veteran was notified accordingly in a September 2008 letter. In addition, an attempt was made to obtain clinical records from Oak Knoll Naval Hospital from 1964 to 1966. No records were found, and in June 2009, the RO make a formal finding on the unavailability of Oak Knoll Naval Hospital records. The Veteran was notified of the negative response in a June 2009 letter. Neither the Veteran, nor the appellant, has at any time referenced outstanding records that he or she wanted VA to obtain or that he or she felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was afforded a VA examination in January 2008 to obtain an opinion as to whether his low back condition can be directly attributed to service. After the case was remanded by the Court, the same examiner provided a supplemental opinion in June 2012 addressing the Veteran's lay statements regarding his continued symptoms of low back pain since service. The Board finds that the medical opinion and report is sufficient in addressing the matter of nexus. In this regard, it is noted that the examiner reviewed the Veteran's claims file and medical records prior to the examination, and the report itself is thoroughly supported by objective and clinical findings. The examiner also has considered all relevant information of record, including the Veteran's reports of back pain since service and the pertinent medical evidence of record. The Board, therefore, concludes that the June 2012 supplementary opinion is adequate upon which to base a decision in this case. The appellant's attorney argued in August 2012 and February 2013 statements that the June 2012 examiner clearly disregarded the Veteran's credible statements that he had suffered back pain continuously since service and that VA failed to request another examination to correct this error. The representative asserts that the examiner's opinion equated a lack of medical records demonstrating treatment since service to a lack of symptomatology despite several lay statements indicating continuous symptomatology since service. Thus, the appellant's attorney sought another medical opinion in this matter. The Board disagrees with the attorney's arguments regarding the sufficiency of the June 2012 opinion. Contrary to the attorney's assertions, the June 2012 examiner, did, in fact, address the Veteran's assertions of continued symptomatology since service. The examiner specifically noted that the Veteran had indicated that he had had back pain for the 34 years from 1953 to 1987, when his complaints are first recorded in medical records. However, the examiner assigned more probative value to other evidence in the file, including the objective findings in the service treatment records, the subjective history reported by the Veteran regarding the incidents in service, and the post-service medical evidence, which noted that the Veteran first complained of back pain on medical records in 1987, and at that time noted that he had first started having back pain two days prior to this entry. Therefore, the examiner completed the task asked of her, namely to consider the Veteran's statements of continued symptomatology, which had been found to be credible by the Board. There is no indication that the examiner did not take the Veteran's complaints as not competent or not credible, but that the examiner instead assigned more probative weight to the medical evidence of record. As discussed in more detail below, while the Board accepts the Veteran's statements of experiencing continued back pain as credible, the Veteran was not competent to attribute this back pain to any underlying diagnosis, i.e., degenerative arthritis, back strain, etc. He also was not competent to render a medical opinion regarding the etiology of his back disability. Thus, his assertions, while important, are but one factor to consider in this claim. Medical evidence also is certainly important, which is what the VA examiner assigned more probative weight to in her medical opinion in June 2012. For these reasons, the Board accepts the June 2012 opinion as supported by a probative and reasoned rationale, based on all pertinent history including lay statements and medical history. There is no need for further development, as the medical evidence in this case is sufficient to make a decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in which he and his wife (who is now the appellant) presented oral argument in support of his service connection claim for a low back disability. Neither the appellant, nor her representative has identified any prejudice in the conduct of the Board hearing. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the appellant by VA would be capable of substantiating her claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. II. Service Connection During his lifetime, the Veteran sought service connection for a low back disability, which he asserted was as a result of active service. Specifically, he argued that he suffered a back injury while stationed in Korea when he fell from a rope about 15 feet. See Travel Board hearing transcript, June 2007, p.4. He also mentioned that he injured his back unloading boxes in service when he was back in the states. Id. at 9. He indicated that he attempted to seek VA treatment after service but was turned away. Id. at 6. He also indicated that he sought private chiropractor treatment in the 1960s, as well as treatment at the Navy Hospital in Oak Knoll. Id. at 7. As noted above in the VCAA section, these records are unavailable. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that proof of direct service connection may entail proof that exposure during service caused the malady that appeared many years later); Cosman v. Principi, 3 Vet. App. 503, 505 (1992) (holding that service connection can still be established even when a Veteran did not have a particular condition diagnosed during service or for many years thereafter). In order to establish service connection, the evidence must generally show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see generally 38 C.F.R. § 3.303. Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307. Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, --- F.3d ----, No. 2011-7184, 2013 WL 628429 *5 (Fed. Cir. February 21, 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added]. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Certain chronic disabilities, including arthritis, may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 38 U.S.C.A. § 1154(a) requires VA to give "due consideration" to "all pertinent medical and lay evidence" when evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations. Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). "Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer." Jandreau, 492 F.3d at 1377, n4. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lastly, a layperson may also be competent to testify to the manifestations of a chronic condition during service or a presumptive period or to continuity of symptomatology. Hickson, 12 Vet. App. at 253. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the 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). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Turning now to the facts of this case, the Board has reviewed the service treatment records and finds there to be medical evidence of a back injury in service. The records show that x-rays of the lumbosacral spine were taken in June 1953. It was noted that the Veteran had previously suffered an injury to the back in 1951 while in Korea and that he had experienced constant back pain since. The x-rays showed five lumbar bodies with a partial lumbarization of the 1st sacral segment. There was some loss of lordotic curvature but the films were otherwise negative. The sacro-iliac joints were also negative. Service treatment records show that the Veteran was seen again for back pain in September 1953 after unloading boxcars. He complained of pain in the lumbar area with symptoms of radiation. It was noted that the Veteran had previous difficulty with his back in July 1952. Based on the evidence in the service treatment records, although there is no diagnosis of a chronic disability under 38 C.F.R. § 3.309(a), such as arthritis, the Board acknowledges that the Veteran incurred a back injury in service. The inquiry that follows is whether there is medical evidence of a current disability. Private treatment records dated from 1987 to 1998 from Indian Health Services reflect ongoing complaints of back pain variously assessed as low back strain and back spasms. The initial treatment record dated in December 1987 notes that the lower back pain had an onset of "yesterday." However, an August 1992 private treatment record indicates the Veteran reported an "old war injury" when he fell 30 feet off of a helicopter. A February 1993 private treatment record also notes the Veteran had a previous strain in the Army. In August 1993, it was noted that the Veteran had had severe back pain for four days, and had been driving a lot. Additional information in the file notes that the Veteran was employed as a cross-country truck driver. VA treatment records dated in January 1999 indicate that the Veteran was wearing a back brace due to back pain. VA treatment records dated from February 2002 to November 2005 also note findings of degenerative joint disease of the low back. As the record shows an in-service injury to the back and post-service diagnoses of a back disability, the determinative issue in this case is whether there is any relationship between these. To address this issue the Veteran was afforded a VA examination in January 2008. The examiner provided a summary of the Veteran's relevant medical history and noted his in-service treatment for back pain. The examiner noted that the Veteran stated that he injured his back in 1952 when he was coming down a rope and fell approximately 15 feet, landing on his back. He had immediate back pain and continued to have some lower back pain that resolved over time. He was then shipped back to the states from Korea where the injury occurred and stated that the job duties that were given included loading and unloading boxcars. This caused a flare-up of his back pain and he states that he presented to the corpsman about this in 1953. Review of the service treatment records indicated that in September 1953 he presented to Sick Call at Camp Pendleton with two days of back pain present since unloading boxcars. He complained of pain in the lumbar area without radiation. He had previous difficulty in July 1952 and x-ray examination at Camp Pendleton. The x-ray four months prior was negative. The Veteran stated that he continued to have low back pain, but he took a job as a truck driver and worked in that position until the 1980s. Medical records in the claims file from the Anadarko Indian Clinic indicate that the Veteran was seen in December 1987 with low back pain and was treated. He was seen again in 1989 through 1998. In 2005, he was diagnosed with degenerative joint disease of the lumbar spine and continued to receive treatment for pain. A physical examination was conducted. X-ray of the lumbosacral spine showed diffuse severe degenerative disc disease at L1 through S1 with a vacuum disc phenomenon and posterior osteophytes at every level. Afterwards, the Veteran was diagnosed with lumbosacral degenerative disc disease and degenerative joint disease. In rendering an opinion as to the etiology of this condition, the examiner observed that there was a lapse of medical evidence between 1953 and 1987 to show ongoing symptoms of a spine disorder or a diagnosed condition thereof. It was noted that the Veteran was working as a truck driver during that time period. The examiner further pointed out that Indian hospital records dated in November 1989 indicated the Veteran was running about two and a half miles every day and was therefore shown to be very active during that time. Given the lack of medical evidence to substantiate the chronicity during the 34 year period between 1953 and 1987, the examiner opined that it was less likely than not that the Veteran's currently diagnosed spinal disorder could be related to his service injury to include the low back findings in 1953. When the Board previously denied the issue of service connection for a low back disability through a September 2009 decision, at that time the Board acknowledged that two out of three requisite elements of the Veteran's claim were demonstratively proven, those of (1) a current diagnosed low back disability, and (2) an in-service back injury. What remained to be proven, and the Board ultimately found lacking in this case, was the third element of a medical nexus between the present disability and military service. Medical causation is an indispensable criterion to establish service connection. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). The Board's denial placed significant emphasis upon the report of a January 2008 VA Compensation and Pension examination of the spine. As previously discussed, however, after the Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims, the Court vacated the Board's September 2009 decision and found that the Board did not sufficiently address whether the Veteran was found to be competent and credible in his assertions of having continued back pain since service. The Court noted that the Veteran in this case had reported having sought treatment for back pain at a Naval hospital in the 1960s (for which actual medical records were never located) and then from a private chiropractor (records also not found), with alleged consistent back problems from service discharge through the present time period. The Court pointed out that the Board in its role as a fact finder "is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself" (citing to Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006)). The Court further found that the Board's lack of definitive analysis of the credibility of the Veteran's lay statements constituted a prejudicial error, in that the Veteran's statements if deemed credible would be entitled to probative weight. This in turn would mean that the January 2008 VA examiner's opinion could not be deemed adequate, given its having overlooked the Veteran's own lay statements on continuity of symptomatology. Thus, the Court remanded this case to the Board to make an explicit finding on the credibility of the Veteran's assertions, and their overall significance to this case, including obtaining a new VA medical opinion if required. Thereafter, the Board remanded the case for a supplementary opinion noting that the Board accepted the Veteran's statements regarding his continued symptomatology in his back since service as credible. A medical opinion was provided by the same previous January 2008 examiner in June 2012. She noted that as indicated in the prior report of January 2008, the Veteran's records indicate that he had two visits to healthcare providers for back pain in service. The first visit was in 1952, most likely following the fall that the Veteran reports. The Veteran had previously reported to the examiner in January 2008 that his lower back pain resolved over time after the injury. However, he apparently had back pain again and was seen in 1953. These two visits alone, without associated physical or radiographic findings did not indicate chronicity of a lumbar condition at that time. The Veteran then began working as a truck driver after discharge. There was no indication that he continued to have back pain. In December 1987 it was noted that he had a complaint of back pain, "onset yesterday." From that point to the present there were records to indicate that the Veteran had ongoing back pain. The examiner assessed that according to the medical evidence, which is the only objective manner in which to determine the presence of past symptoms, there were no symptoms during the time from 1953 to 1987. This was not consistent with the clinical course of this Veteran's diagnosis, if it were to have had its onset in 1952. That said, if VA wished to lend more import to a lay person's statement than the objective evidence and concede that the Veteran was symptomatic over the entire 34-year time span, that is VA's discretion. It would be apparent, however, that this decision was based upon subjective factors, rather than a decision based upon medical factors and objective findings. The examiner went on to note that her medical opinion was unchanged; it was the examiner's opinion that it was less likely than not that the Veteran's current low back disability was related to his military service, for the reasons cited above. The Board notes that, in adjudicating a claim, it is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, the United States Court of Appeals for Veterans Claims (Court) has declared that, in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). After a careful review of the evidence of record, the Board finds that the preponderance of the evidence shows that the Veteran's low back disability is not related to any event in service. In making this determination, the Board finds it significant that the only evidence of record indicating a possible nexus between any current low back disability and his military service are the Veteran's (and the appellant's) assertions. The Board acknowledges that the Veteran was competent to report that he had continued to experience symptoms in his lower back since his injuries in service in 1951 and 1953. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). The Veteran was also competent to report that he suffered injury to his back in 1951 when he fell from a rope and again in 1953 lifting boxes. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). It was within the Veteran's realm of personal knowledge whether he was treated for his back in service and that he sought treatment for his back soon after service and again in the 1960s, and had continued to experience symptomatology in his back since that time. The Veteran's statements also are credible as they have been mostly consistent throughout the record, although in December 1987 it was noted that he had a complaint of back pain, "onset yesterday," which is in conflict with his later statements that he had experienced back pain since service in the 1950s. Nonetheless, his statements regarding injury in service are consistent with the medical evidence of record showing the complaints of back pain in service in 1951 and subsequent injury from lifting boxes in 1953. However, it does not follow that any present back disability is necessarily related to any demonstrated continuous symptomatology. While the Veteran was competent to state that he had suffered from back symptomatology since 1953, he was not competent to determine the underlying cause of that back pain, i.e., degenerative arthritis, degenerative disc disease, back strain, etc. It is also significant that the Veteran was employed as a truck driver driving long distances post-service. The appellant and the Veteran contend that his current back disability is related to his back injuries in 1951 and 1953; however, there is no competent medical evidence or opinion to corroborate these contentions. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The Veteran's opinions are insufficient to provide the requisite nexus between an in-service injury and any current disability because, as a lay person, he was not competent to establish a medical etiology merely by his own assertions; such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Stadin v. Brown, 8 Vet. App. 280, 284 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As such, his statements regarding the etiology of any low back disorder are merely speculation as to a possible cause as he was not medically qualified to prove a matter requiring medical expertise, such as an opinion as to medical causation. The Board finds the VA medical opinion in June 2012 to be more probative as to the etiology of the current lower back disorder. The examiner reviewed the claims file and had previously examined the Veteran and found that his current low back disability was not related to his military service. The examiner noted the Veteran's reports of injury to the lower back in service and the findings in the service treatment records, in addition to the Veteran's reports of continued symptomatology from 1953 to 1987, but found that any back disability that started in service would not have followed the course of treatment involving no treatment for the 34 years from 1953 to 1987. She also noted that x-ray examination in service was negative, which would not indicate a chronic lumbar condition at that time. While the examiner did not acknowledge the Veteran's assertions of seeking chiropractic treatment in the 1960s, the Board does not find that this is sufficient to render the June 2012 opinion as not sound. The fact remains that there is no medical evidence of treatment from 1953 to 1987. Again, even though the examiner acknowledged the Veteran's assertions that he had continued symptomatology in his back since service, she assigned more probative weight to the medical evidence of record. She gave no indication that she did not think the Veteran was credible, but merely found that any chronic lumbar condition would not have resulted in negative x-rays in service, and an absence of treatment for the back from 1953 to 1987. Even if the examiner had considered that the Veteran stated that he had sought chiropractic treatment in the 1960s, she still considered other factors aside from merely the lack of medical evidence between 1953 to 1987 as the basis for her opinion. The examiner had previously noted in her January 2008 opinion that the x-rays in service were negative, and also noted that the medical evidence available in 1989 indicated that the Veteran was able to run two miles daily at that time and that he also was employed as a truck driver after service. Thus, she ultimately made the medical determination that the Veteran's current back disability was not likely related to his injury during military service, in spite of his assertions of continued symptomatology since service. The examiner was fully informed of the pertinent medical history of the case, including the Veteran's assertions of continued symptomatology in his back since service; she provided a fully articulated opinion; and the opinion was supported by a reasoned analysis. Therefore, the Board assigns a high probative value to the June 2012 medical opinion. See Nieves-Rodriguez, 22 Vet. App. 295, 303-04 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The previous opinion provided by the same examiner also was not favorable to the Veteran's claim. There are no other medical opinions of record addressing the etiology of the Veteran's lumbar spine disability. As the Board also has determined that while the Veteran was competent and credible to state that he injured his back in service and experienced continued back pain since service, he was not competent to state what the underlying cause is for the back pain or to provide an etiology opinion on his present back disabilities, the fact that the examiner in this case assigned less weight to the Veteran's lay assertions and more weight to the medical evidence of record does not render the opinion unsound. As the Veteran's first finding of degenerative arthritis of the spine was in 2002, approximately 49 years after discharge from service, service connection on a presumptive basis is not warranted. See 38 C.F.R. §§ 3.307, 3.309. In addition with regard to the back disabilities other than arthritis, including back strain and degenerative disc disease, as these disabilities are not listed under 38 C.F.R. § 3.309(a), they are not considered chronic. Therefore, service connection cannot be awarded for back strain and degenerative disc disease on the basis of continued symptomatology under 38 C.F.R. § 3.303(b). Walker v. Shinseki, --- F.3d ----, No. 2011-7184, 2013 WL 628429 *5 (Fed. Cir. February 21, 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). The most probative medical evidence also does not establish entitlement to service connection for any disabilities of the back on a direct basis under 38 C.F.R. § 3.303(a)(d). While there is evidence of injury to the back in service, the most probative post-service medical evidence does not establish a relationship between the Veteran's present back disabilities and service. As such, after weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's current lower back disability had its onset during active service or is related to any in-service disease, event, or injury. See 38 U.S.C.A. §§ 1110, 1131. Accordingly, the Board finds that the criteria for service connection for a lower back disability are not met and the appellant's claim, for purposes of accrued benefits, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). ORDER Entitlement to service connection for a low back disability, for purposes of accrued benefits, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs