Citation Nr: 1308567 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 05-28 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to March 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. The Veteran had a hearing before the Board in September 2006. The individual who conducted the hearing is no longer employed by the Board. The Veteran was given the opportunity to appear at another Board hearing, which he declined in August 2009. The Veteran initially filed his claim in January 2003 and the May 2003 rating decision followed. The Board notes that there was a procedural question as to whether the Veteran initiated new claims in October 2003 and July 2004 statements or whether these statements were actually timely notices of disagreement (NOD). The RO originally deemed them new claims, "reopened" the claims and denied them on the merits in additional rating decisions dated June 2004 and December 2004. The Board concludes the context of the Veteran's statements in addition to subsequent statements indicates the Veteran intended to appeal the original May 2003 rating decision rather than to initiate applications to reopen. Ultimately, the RO's Statement of the Case (SOC) and Supplemental Statement of the Case (SSOC) accept January 2003 as the initial date of the Veteran's claim and denied the Veteran's claims on the merits. Accordingly, this appeal is before the Board on the merits. The Board denied the Veteran's claims in a July 2007 decision. However, the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims and following a December 2008 order granting a joint motion to remand the case was returned to the Board. The Board in turn remanded the case to the RO in January 2010 for additional development including providing another VA examination and also obtaining recent VA treatment records. The directives of the Board's remand have been substantially complied with as updated records were obtained and the Veteran was provided with relevant VA examinations and opinions concerning the disabilities on appeal. FINDINGS OF FACT 1. Current migraine headaches were not diagnosed in service, and are not related to service or any incident therein. 2. Current low back disabilities, to include degenerative disc disease, arthritis, bulging disc and chronic low back strain were not diagnosed in service or for many years thereafter, and are not related to service or any incident therein. 3. Current right shoulder disabilities, to include moderate sclerosis, chronic impingement and right shoulder strain were not diagnosed in service, and are not related to service or any incident therein. CONCLUSIONS OF LAW 1. Migraine headaches were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). 2. A low back disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1112, 1113 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303 , 3.304, 3.307, 3.309, (2012). 3. A right shoulder disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his case, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). RO letters dated in January 2003, March 2005, August 2005 informed the Veteran of three of the five elements required by 38 C.F.R. § 3.159(b), as stated above. The letters do not provide the criteria for assigning effective dates and disability ratings, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, the Board finds no prejudice to the Veteran in proceeding with the present decision. Since the claims for service connection for migraine headaches, a right shoulder disability, and a back disability are being denied on the merits, no effective date will be assigned, so there can be no possibility of any prejudice to the Veteran. The claims were subsequently adjudicated in supplemental statements of the case in May 2006 and January 2013, thereby curing any timing defect. Regarding the duty to assist, VA obtained the Veteran's service treatment records and copies of the Veteran's VA treatment records and private treatment records. The Veteran provided copies of some private treatment records and statements from his employer, friends, and family. The RO also provided the Veteran with VA examinations in January 2006, April 2010, and May 2012 with supplemental opinions provided in October 2012, December 2012 and January 2013. The examination reports obtained contain sufficient information to decide the issue on appeal and further examination is not necessary. See Massey v. Brown, 7 Vet. App. 204 (1994). The Veteran has been afforded a hearing before a Veterans Law Judge in which he presented oral argument in support of his service connection claims. Neither the Veteran nor his 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 his 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 A. Legal Requirements 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. §§ 1110, 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 disability 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); 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. 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, the veteran can establish service connection by demonstrating a continuity of symptomatology, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, --- F.3d ----, 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. VA regulations provide that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b). The presumption of soundness attaches only where there has been an induction examination that did not detect or note the disability that the veteran later complains about. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). VA's General Counsel held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOGCPREC 3-2003. 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."). B. Analysis Turning now to the facts of this case. The Veteran alleges that his migraine headaches began while he was in the military and that his low back and right shoulder problems are the result of in-service injuries where he injured himself shoveling dirt and falling down a set of stairs, respectively. In support of his claim the Veteran submitted a statement in February 2003 that he started having severe headaches in service and was told it was from a cold or sinus issue. He also noted that he had to take blood pressure medicine because of spikes in his blood pressure from these headaches. He also indicated injury to his back and shoulder. The Veteran also submitted numerous lay statements from friends and family in February 2003 noting they recall the Veteran suffering from headaches, right shoulder pain, and back pain for many years since service. A fellow service member indicated that he recalled the Veteran started having severe headaches in service. Statements from an individual, C.K., and the Veteran's mother, note they recalled the Veteran had problems with headaches, back pain, and shoulder pain since he was in the Army. Another individual, B. H. notes she knew the Veteran since 1976 and that they went to the same church and she recalled him having bad headaches that started while he was in the Army. She also had worked with the Veteran for the past 16 years. The Veteran's service treatment records indicate an injury or some trauma resulting in multiple complaints and treatments for his right shoulder and low back. The records also indicate in-service treatment for headaches. Specifically, the Veteran complained of headaches and light sensitivity during an April 1974 optometry examination where he was prescribed a new eye glasses prescription. He complained of frontal headaches when in the sun in April and June 1974 where the examiner indicated the veteran's self-reported history of three to four years with headaches. The Veteran was also seen in December 1975 with headaches associated with a diagnosed upper respiratory infection. In regard to his back, the Veteran was seen in March 1977, March 1978 and December 1978 with complaints of back pain. The March 1978 treatment record identifies pain starting after shoveling dirt. At those times the Veteran was diagnosed with muscle strain. The Veteran was also seen for complaints of right shoulder pain in June 1976, October 1976 and December 1978 where he was diagnosed with right shoulder strain, post-trauma ache and muscle strain respectively. His right shoulder was treated with Tylenol and heat. The Veteran's November 1978 separation examination indicates no abnormalities although the Veteran at the time reported being in "poor health." After service, within the obtained medical records, the Veteran was diagnosed with migraine headaches as early as 1985, over five years after service. He was diagnosed with low back muscular spasm in January 1992, over ten years after service, and right shoulder bursitis/tendonitis in October 2001, over twenty years after service. Both private and VA outpatient treatment records indicate on-going treatment for migraine headaches; back disabilities, to include degenerative disc disease, bulging disc and muscle strain; and shoulder disabilities, to include bursitis/tendonitis, moderate sclerosis and muscle strain since those dates. The Veteran also has been diagnosed with degenerative changes in the lumbar spine on VA x-ray examinations in October 2003, April 2010, and May 2012. As the record shows the Veteran has diagnoses of migraine headaches, a right shoulder disability to include bursitis/ tendonitis, moderate sclerosis, and muscle strain, and a back disability to include degenerative disc disease, bulging disc, muscle strain, and degenerative joint disease, the Veteran meets the requirement of showing current disabilities. The next question that must be addressed is whether incurrence of migraine headaches, a low back disability or a right shoulder disability are factually shown during service. The Board concludes they were not. Although complaints and treatment for headaches, low back pain and right shoulder pain are well documented in the service treatment records, in each instance the Veteran was treated with over the counter medications and sent back to active duty. The Veteran served six years on active duty despite these periodic complaints and his separation examination is silent as to any of these disabilities. Although the Veteran indicated on his separation examination that he was "in poor health," the medical examiners at the time found nothing abnormal. The Veteran filed a claim in 1979 shortly after separation for tuberculosis and residuals of pneumonia. He was afforded a VA examination in August 1979 for those two disabilities. But during that examination the Veteran did not mention any problems with his low back, right shoulder or frequent headaches nor did the examiner note any such abnormalities. Although he commented at separation about his poor health, the medical evidence at the time of separation and shortly thereafter is not consistent with the claims of in-service inception of chronic headaches, a low back disability, or a right shoulder disability. Even if a chronic condition was not shown during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. However, where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis, the veteran can only establish service connection by demonstrating a continuity of symptomatology, if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, --- F.3d ----, 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 crucial inquiry, then, is whether the Veteran's current migraine headaches, low back disabilities and right shoulder disabilities are related to his in-service injuries and complaints or any other remote incident in service. The Board concludes they are not. Initially the Board notes that the only disability claimed by the Veteran that is considered a chronic condition under 38 C.F.R. § 3.309(a) is the arthritis (i.e., degenerative joint disease) that has been shown in his lumbar spine. Migraine headaches, bursitis, tendonitis, degenerative disc disease, and muscle strain are not listed as chronic conditions under 38 C.F.R. § 3.309(a). Additionally, while sclerosis is mentioned in the right shoulder, it is not shown to be the type of sclerosis (i.e., amyotrophic lateral, or multiple sclerosis) as contemplated under 38 C.F.R. § 3.309(a). Therefore, other than arthritis in the back, the record must establish medical evidence relating disorders of the back, shoulder, and headaches to his military service under 38 C.F.R. § 3.303(a) (addressing disabilities incurred coincident with service) or 38 C.F.R. § 3.303(d) (addressing postservice initial diagnosis of disease). On the other hand, the Veteran can establish service connection for degenerative arthritis of the lumbar spine by demonstrating continued symptomatology since service under 38 C.F.R. § 3.303(b). The Board has determined that based on a review of the service treatment records there is not a clear diagnosis of migraine headaches, bursitis, tendonitis, degenerative disc disease, sclerosis, arthritis, or muscle strain in service. The record shows that after service, the Veteran testified during his September 2006 Board hearing that he sought treatment immediately from a private medical clinic for his headaches, right shoulder and low back. Those records could not be obtained. Rather the most recent private treatment records date back to 1986 from Dr. Carson. Dr. Carson, moreover, states in a February 2003 statement that the Veteran was his patient since 1984. Very regrettably, there is no available evidence from any private doctor who treated the Veteran prior to Dr. Carson's treatment in 1984. Dr. Carson issued multiple opinions regarding the etiology of the Veteran's various conditions. In February 2003, Dr. Carson opines as follows: "[The Veteran] has been my patient since 1984. He's been treated for migraine headaches throughout that time....He is also treated for hypertension and his headaches are associated with rise in blood pressure." In July 2003, Dr. Carson stated as follows: "This note is intended to further explain my note of February 10, 2003 on VA Form 21-4138. The reference to [the Veteran's] headaches being 'associated with rise in blood pressure' should be clarified. What the statement is intended to convey is that his blood pressure goes up when gets a headache, not that his blood pressure causes headaches." In November 2005, Dr. Carson opined as follows: I have reviewed the Service Medical Records supplied to me by [the Veteran]. I understand that he was discharged sometime in 1979. He suffers from chronic headaches, chronic right shoulder pain, and chronic back pain, all having their onset while he was in the military and therefore allegedly service related. Service Medical Records show that in April and July of 1974 he was treated for frontoparietal headaches. At that time, he gave a 3-4 year history of these headaches....It would appear that these headaches had their onset while in military service and therefore it is at least as likely as not that these headaches are related to the military service.... Service Medical Records show that he was treated on three occasions and had physical therapy for a right shoulder injury that occurred around July if 1974 when he fell down some stairs. I would think that this condition had its onset in and is due to that specific incident while in military service. Service Medical records show that he was treated on three occasions for back pain that occurred after a shoveling incident in March of 1978. I would think that this condition had its onset in, and is due to that specific incident while in military service. The Veteran was afforded VA examinations for his claimed conditions in January 2006. The examiner also detailed the Veteran's in-service treatment, complaints and injuries for each condition, but also noted the Veteran's post-service occupation for the past 25 years in the maintenance department for Southwestern Steel and Wire Company. In regard to the Veteran's headaches, the examiner diagnosed the Veteran with migraine headaches opining as follows: On review of this Veteran's service medical records, there was noted treatment for headaches starting in 1974. Veteran was seen on several occasions with headaches, but these were normally associated with another condition, such as sore throat. In the opinion of this examiner, Veteran's current complaints of migraine headaches would not be at least as likely as not related to the headaches that he had suffered while in the military. The symptoms of the headaches in the military are markedly different than the symptoms of which the veteran is currently complaining....the history showed that he had complaints of headaches "for approximately three - four years." This was in 1974, which would mean Veteran's headaches had started long before his military career. ... Therefore, in conclusion, Veteran's current complaints of migraine headaches as described above would not be at least as likely as not related to the headaches that he had prior to and going into the service. The medical record does reflect a development of migraine headaches occurring in the 1980s. This does not appear to be a worsening of the headaches that he had prior to and going into the service, but the development of migraine headaches which did not occur until some time after having left the service. As to the Veteran's low back condition, the examiner diagnosed the veteran with chronic low back strain opining as follows: Review of [the Veteran's] service medical records do show that he complained of back problems as described above, but these appear only as listed above apparently associated with one instance of a muscle strain, and there appears to be no evidence of a chronic ongoing back problem while in the service based on the medical record. Veteran has been seen for back pain since his time in the military, but given his long civilian career working the maintenance department for Southwestern Steel and Wire Company, in the opinion of this examiner, veteran's current complaints of back pain and back strain would not be at least as likely as not related to this instance of back pain in the military as described above. In regard to the Veteran's right shoulder condition, the VA examiner diagnosed the veteran with right shoulder strain opining as follows: Veteran's service medical records show that he had complaints of pain to his shoulder on July 7, 1976 when he fell down some stairs. He was also seen [two other times]....Veteran's service medical records appears to have had two separate incidences of minor strain injury tied to his right shoulder, which appears to have been episodic and related to specific minor traumas as described in the medical record. In the opinion of this examiner, these do not appear to constitute an ongoing chronic medical problem and would not appear to be at least as likely as not responsible for any continuing ongoing right shoulder pain/strain symptoms that this veteran is currently experiencing. The Board, in a July 2007 Board decision denied the Veteran's claims finding the most persuasive medical evidence against the Veteran's claims. The Board noted that the service treatment records confirm the Veteran's complaints of headaches as well as some injury or some trauma resulting in multiple complaints and treatments for his right shoulder and low back. On separation, however, the Veteran was not found to have any chronic disabilities related to his complaints and treatment for headaches, low back and right shoulder. The Board also noted that while the claim was complicated by differing medical opinions, the Board did not find the favorable opinions from Dr. Carson to be persuasive, as his statements left out important facts and, therefore, may have been based on incomplete or inaccurate factual premises. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding a medical opinion based on incorrect factual premise is not probative). For example, Dr. Carson did not reconcile the fact that VA outpatient treatment records and private treatment records have related the Veteran's headaches to other non-service-connected disabilities, such as depression, hypertension and vision problems. Dr. Carson also did not address whether the Veteran's post-service years working in a laborious career relate to the Veteran's low back and right shoulder disabilities, both of which were diagnosed years after service. The Veteran's supervisor wrote a statement detailing the Veteran's physical demands at his job and the fact that the Veteran has worked with the company for years and has a vast knowledge of the equipment. The Veteran's supervisor further explained the Veteran physically pushes himself to complete his long shifts. In short, there is evidence that the Veteran's long-standing post-service occupation includes significant physical demands and is clearly relevant to the Veteran's low back and right shoulder disability claims, which were not diagnosed until years after his military service. Dr. Carson's failure to address or reconcile the Veteran's post-service occupation with his nexus opinion further cut against the persuasiveness of the medical evidence. In contrast, the Board denied the Veteran's claim primarily based on January 2006 VA examinations. Those examiners did thoroughly review the claims folder, to include Dr. Carson's statements, and found the Veteran's current disabilities not likely related to in-service complaints and treatment. The U.S. Court of Appeals for Veterans Claims in granting the November 2008 Joint Motion to Remand, found the Board did not adequately explain why Dr. Carson's statements were not persuasive, especially in light of the Veteran's statements indicating continuity of symptomatology under 38 C.F.R. § 3.303(b) since service and the Board's determination that the statements were both competent and credible. The Board notes that the Joint Motion predated the more recent holding by the Federal Circuit in Walker v. Shinseki, --- F.3d ----, 2013 WL 628429 *5 (Fed. Cir. February 21, 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). It is now clear that only the Veteran's arthritis in the back can be awarded service connection on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b), as the other diagnosed disabilities, including migraine headaches, bursitis, muscle strain and sclerosis are not considered chronic conditions under 38 C.F.R. § 3.309(a). Nonetheless, the Veteran can still be awarded service connection for his claimed disabilities by establishing that they were incurred coincident with service or aggravated therein (pursuant to 38 C.F.R. § 3.303(a)) or by establishing that any post-service diseases are otherwise related to service (pursuant to 38 C.F.R. § 3.303(d)). The Veteran, in support of his claim, further provided an additional private opinion from Dr. Winfield dated November 2009. Dr. Winfield noted that he had reviewed relevant medical records and conducted a clinical interview of the Veteran. It was noted that Dr. Winfield found the Veteran to be credible and competent to report his symptoms and medical history. The Veteran reportedly denied any history of migraine-like headaches prior to service. He stated that his history of debilitating headaches began three years after entering the service. The headaches occurred one to two times per month and lasted between an hour to three days. The pain was on the left side and involved blurred vision, sensitivity to bright lights and loud noises, which Dr. Winfield determined to be classic migraine headaches symptoms. The Veteran stated that he complained about these headaches to the medics and was typically prescribed aspirin and bedrest, and that these headaches had continued since their onset in service. Dr. Winfield acknowledged that there was some contradicting evidence in the records concerning the onset of headaches but that based on the Veteran's history it was his opinion that it was at least as likely as not that his currently diagnosed headaches had their onset while the Veteran was in service. With respect to the low back disability, the Veteran denied any history of back problems prior to service. The Veteran stated that his low back problems started after one particular incident shoveling in service and that he sought treatment at a clinic and took a few days off as a result of the back pain. The Veteran indicated that the low back pain had continued to progress since that shoveling incident in service and that he also had developed associated pain radiating down his left leg. Dr. Winfield noted that one back injury can set in motion a progressive degenerative process so he did not discredit the Veteran's account based on the fact that there was only one triggering incident for his back disability. It was thus Dr. Winfield's opinion that it was at least as likely as not that the Veteran's currently diagnosed low back disability had its onset while on active duty and/or was caused by his activities while in service, specifically the shoveling incident. Regarding the shoulder disability, the Veteran denied any history of shoulder problems prior to service. He reportedly suffered shoulder pain following a fall down some stairs in 1976. He also reported that he was seen for this shoulder injury in service and was told he had bursitis and was placed on light duty for several weeks with a sling. Despite light duty, the Veteran indicated that he only had slight improvement and continued with intermittent pain in the front and top of his right shoulder. He reported that his intermittent shoulder pain had continued and progressed since its inception in service to the point where he could not lift his shoulder past horizontal, indicating a frozen shoulder. Dr. Winfield commented that a fall down stairs requiring several weeks of immobilization was certainly sufficient to cause a rotator cuff injury that would lead to long-term progressive pain and disability such that the Veteran now suffered. Based on his review of the records and clinical interview, it was Dr. Winfield's opinion that it was at least as likely as not that the Veteran's right shoulder disability had its onset in service and/or was caused by his activities while in service, specifically the incident in which he fell down the stairs. In light of the Court's order and the newly obtained private medical opinion from Dr. Winfield, the Board determined that a new VA examination was necessary to obtain a medical opinion considering and reconciling all conflicting medical evidence and opinions. In April 2010 the Veteran underwent a VA joints examination. The examiner noted that the claims file was reviewed and that the Veteran fell down some steps in service and suffered injury to his right shoulder. He had x-rays and was treated for bursitis. The course since onset was intermittent with remissions. X-ray examination showed no focal osseous abnormality detected about the right shoulder. The diagnosis was right shoulder strain. Examination of the spine shows the Veteran had degenerative joint disease of the lumbar spine. He claimed that his spine initially began hurting while using a shovel in service. The course since onset had been intermittent with remissions. X-ray examination showed degenerative changes in the lumbar spine. An etiology opinion was not provided. An April 2010 VA neurology examination report noted the Veteran reported "stress related" headaches in service that had become progressively worse. The current diagnosis was headaches. No etiology opinion was provided. The Veteran underwent another VA examination in May 2012. It was noted that the Veteran had right shoulder strain. He reportedly had fallen down steps while at Fort Sill and was told he had bursitis and given a sling for comfort. Examination of the spine also showed a diagnosis of degenerative joint disease of the lumbar spine. The Veteran had been reportedly digging with a shovel and noted pain in the spine while in service. Regarding headaches, the diagnosis was migraine headaches. The Veteran reported stress-related headaches in service. The headaches had continued two times a week but the Veteran was able to work in maintenance from 1979 to 2010. In addressing whether these disabilities were related to the Veteran's military service, the examiner found that the claimed conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale concerning the headaches was that the headaches according to the claims file did not begin in service, nor were they caused by some event or experience in service. With respect to the back, the service records revealed low back pain in December 1978 that was diagnosed as muscle strain. The examiner determined that the Veteran's current low back pain was most likely due to age and the fact that he did maintenance work up until two years prior. With respect to the right shoulder, the examiner determined that there was no documented injury to the shoulder in the claims file and that x-rays remained to show no evidence of traumatic degenerative joint disease. Given the above inaccuracies regarding in-service complaints of headaches and injury to the right shoulder, a supplementary opinion was provided in October 2012 regarding the headaches and right shoulder disabilities. The examiner noted that the Veteran was seen in the military on a few occasions for his headaches disorder and right shoulder strain. He denied any injuries to the head or right shoulder. He did have complaints of headaches and right shoulder discomfort post military and these appeared to be activity-related. The Veteran's current headaches and right shoulder discomfort did not appear to be related to the military but due to his current post-military vocation and activity level. The Veteran's headaches also could be brought on by his ongoing hypertension and visual problems. The examiner believed that the Veteran would continue to have headaches and right shoulder strain depending on his activity level. The examiner further determined that it was less likely than not that the Veteran's current headaches and right shoulder discomfort were related to the military, but based on his current activity level and environmental stressors. Additional supplementary opinions regarding the headaches and back were provided in December 2012. With respect to the headaches the examiner noted that he had reviewed the Veteran's claims file and previous VA examination. He concluded that the Veteran's chronic headache disorder was not result of the military; nor was it aggravated beyond its natural progression by the military. The Veteran did have a headache disorder before, during, and after the military and the examiner believed that this would continue to be a problem as part of his environment and current vocation. Regarding the back, the examiner reviewed the claims file and previous VA examination and found that the Veteran did have a muscle strain of his low back region in December 1978, but that this had not caused his age-related degenerative changes as described on x-rays performed in May 2012. The examiner believed that the Veteran's age of 58, his weight of 207 pounds, and his post-military vocation had caused his age-related arthritis of the spine. Another addendum opinion regarding the shoulder was provided in January 2013. The examiner noted that the Veteran had a right shoulder strain in 1974 which was cleared without sequelae. At that time he had fallen down some steps at Fort Sill and was given a sling for comfort. He was diagnosed with bursitis. Again this condition improved and resolved. The Veteran's x-rays in May 2012 were within normal limits. In addressing this claim, initially, it is noted that while the Veteran was shown to have complaints of headaches prior to service, and the VA examiner provided an opinion in December 2012 that the Veteran had a headaches disorder prior to service, as examination of the head was found to be normal on clinical evaluation at entry into service in January 1973 with no mention of any headaches disorder, the Veteran is presumed sound at entry into service with respect to headaches. There also is no clear and unmistakable evidence of a pre-existing headache disability to rebut the presumption of soundness at entry into service. The Veteran's complaints of headaches three to four years prior in 1974 do not establish clear and unmistakable evidence of a headaches disorder prior to service, as he does not have the ability to render a medical diagnosis. The statement from the VA examiner in December 2012 that the Veteran had a headaches disorder prior to service also does not establish by clear and unmistakable evidence that there was a pre-existing headaches disorder, because there is no medical evidence of such a diagnosis contemporaneous to the Veteran's time prior to or during service. The only evidence is the Veteran's complaints in service that he had headaches prior to service, which does not meet the standard of clear and unmistakable evidence of a pre-existing disability. As the Veteran is considered sound at entry into service, the relevant issue is whether the Veteran's migraine headaches were incurred in service. 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 migraine headaches, right shoulder disorder, and back disorder are not related to any event in service. The Board acknowledges that the Veteran is competent to report that he has continued to experience headaches, shoulder pain, and back pain since his military service. 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 is also competent to report that he had headaches in service and suffered injury to his right shoulder and back in service. 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 is within the Veteran's realm of personal knowledge whether he had headaches in service and suffered injury to his right shoulder and back in service, and has continued to experience headaches and pain in the shoulder and back since service. The Veteran's service treatment records are internally consistent as they document complaints of headaches, as well as injury to the right shoulder and back and complaints of pain in service. However, the Board finds that the Veteran's statements are not credible with respect to the onset and continuity of his headaches, back, and shoulder symptoms. He has stated that he has continued to experience headaches, shoulder and back pain since service; however, he did not describe any headaches, back, or shoulder pain at discharge from service and he also did not describe any headaches, back or shoulder pain on examination in 1979 when he filed claims for tuberculosis and residuals of pneumonia. Therefore, with respect to the onset of experiencing headaches, back pain, and right shoulder pain, the probative value of the Veteran's lay assertions is diminished and the Board cannot rely on his statements. Even if the Veteran's statements regarding the onset of the headaches, back pain, and right shoulder pain were credible, it does not follow that any present migraine headaches, and disabilities of the back and shoulder are necessarily related to any demonstrated continuous symptomatology. While the Veteran is competent to state that he has suffered from symptomatology in his head, back, and shoulder since service, he is not competent to determine the underlying cause of the symptoms, i.e., migraine headaches, bursitis/tendonitis, arthritis, etc. The Veteran contends that his current migraine headaches, back disorder, and right shoulder disorder are related to his back and shoulder injuries and headaches in service; however, competent medical evidence or opinion is required 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 event or injury and any current disability because, as a lay person, he is 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 migraine headaches, back disorder, and right shoulder disorder are merely speculation as to a possible cause as he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to medical causation. Additionally, as the Veteran's first finding of arthritis in the lumbar spine was in 2003, approximately 24 years after discharge from service, service connection on a presumptive basis is not warranted. See 38 C.F.R. §§ 3.307, 3.309. The Board also finds it significant that VA examiners in January 2006, December 2012, and January 2013 found that after reviewing the claims file and pertinent medical history that the Veteran's migraine headaches and back and shoulder disabilities were not related to complaints of headaches and injuries to the shoulder and back in military service, but rather more likely due to the Veteran's post-service occupation and other factors such as his age and other health conditions. Regarding the back disorder, the January 2006 examiner noted that the Veteran had one instance of back strain in service and went on to work for 25 years in maintenance at Southern Steel and Wire Company. The examiner also noted that he only had a few instances of right shoulder pain in service and that these did not appear to constitute a chronic ongoing medical problem to explain his continuing right shoulder pain/strain symptoms the Veteran is currently experiencing. With respect to the headaches, the January 2006 examiner determined that the headaches described by the Veteran in service were more like tension headaches and were not a continuation of the migraine type headaches that were first diagnosed after service in the 1980s Another VA examiner provided an opinion in December 2012 that the Veteran's back disability was related to his age, weight, and post-military occupation. The examiner also attributed the Veteran's headaches to his environment and current vocation. Regarding the right shoulder bursitis in service, the examiner determined that this disorder resolved in service and recent x-rays of the right shoulder were within normal limits. The probative value of the VA examiners' opinion are high as the examiners were fully informed of the Veteran's medical history, provided a fully articulated rationale, and the opinions were supported by reasoned analyses. See Nieves-Rodriguez v. Peake, 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."). The Veteran submitted multiple lay statements in 2003 regarding observing the Veteran having headaches, shoulder pain, and back pain during and after service. While these statements have been considered, for the conditions of the shoulder, back, and headaches (other than arthritis in the back), service connection cannot be granted on the basis of continued symptomatology under 38 C.F.R. § 3.303(b). The most probative medical evidence also does not establish entitlement to service connection for the right shoulder, back, and migraine headaches on a direct basis under 38 C.F.R. § 3.303(a). The Board has determined that there is no probative evidence of in-service incurrence of disorders of the back, shoulder, and headaches and that the most probative post-service medical evidence also does not establish a relationship between the Veteran's present disabilities and service. In addition, the most probative medical evidence does not establish a chronic lumbar spine disability that first manifested in service, even considering the lay evidence of continuity of symptomatology under 38 C.F.R. § 3.303(b), because as noted above, the Veteran is not competent to attribute his continued symptoms in the back to a diagnosis of arthritis. He also has submitted inconsistent statements regarding the onset of his back pain. The record shows favorable medical opinions from Dr. Carson and Dr. Winfield. However, Dr. Carson did not address whether the Veteran's post-service years working in a laborious career relate to the Veteran's low back and right shoulder disabilities, both of which were diagnosed years after service. Dr. Carson's failure to address or reconcile the Veteran's post-service occupation with his nexus opinion further cut against the persuasiveness of the medical evidence. For example, in regard to the Veteran's migraine headaches, Dr. Carson notes the Veteran self-reported a history of headaches of 3 to 4 years in 1974, but concludes that his headaches had their onset in service. The Veteran actually entered the military in January 1973 and, therefore, the Veteran's reported history would suggest his headaches had their onset prior to the military. The Veteran's complete in-service medical records also indicate that his headaches were always associated with something else, such as an inaccurate eyeglass prescription in January 1973, a sore throat in 1974 or an upper respiratory infection in December 1975. The Veteran's complete post-service medical records indicate the first diagnosis of migraine headaches in 1985, many years after service. Finally, treatments for his headaches, as Dr. Carson alludes to, have been associated with other conditions throughout the years such as hypertension and depression. Indeed there are private hospitalization records from 1990, 1992 and 1994 indicating extensive treatment for depression and severe headaches. Such factors were not considered or discussed by Dr. Carson in rendering his opinion regarding the etiology of the Veteran's current migraine headaches. In regard to the Veteran's low back and right shoulder conditions, Dr. Carson indicates the Veteran's back and right shoulder complaints, but he did not discuss the Veteran's separation examination, which listed no orthopedic abnormalities, or his post-service medical records (including a 1979 VA examination soon after separation), which indicate no further treatment or diagnosis of any low back problems until 1993, over ten years after service and no further treatment or diagnosis of any right shoulder problem until 2001, over twenty years after service. Dr. Carson did not discuss the Veteran's post-service occupation in the maintenance department for Southwestern Steel and Wire Company for the past 25 years. Dr. Carson's opinions are based on incomplete information, and indeed in some instances inaccurate information, and therefore, are not persuasive. Similar to Dr. Carson, Dr. Winfield fails to discuss and reconcile the relevant facts and circumstances that cut against the Veteran's claims and, instead, focused solely on facts favorable to the Veteran. For example, Dr. Winfield discusses the Veteran's in-service treatment for headaches, low back pain and right shoulder pain, but fails to reconcile the fact that the Veteran was not actually diagnosed with chronic disabilities until years after service. Dr. Winfield does not discuss or reconcile VA and private medical treatment records associating the Veteran's migraine headaches with disabilities unrelated to his military service, to include depression, hypertension and vision problems. Dr. Winfield also does not address the Veteran's laborious post-service occupation, which is clearly related to the Veteran's low back and right shoulder claims. The Board finds the VA examiners' opinions more probative and persuasive because of the thoroughness of the factual discussion and the rationales. The conclusions are based on specific clinical tests and findings, and a complete review of the claims file. In short, the evidence is not evenly balanced because the negative evidence is more probative and more thorough on the issues of whether migraine headaches, low back conditions, and right shoulder conditions are related to any incident of 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 migraine headaches, right shoulder disorder, or back disorder had their onset during active service or are 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 migraine headaches, right shoulder disorder, and a back disorder are not met and the Veteran's claims 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 claims, that doctrine is not applicable. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). ORDER Entitlement to service connection for migraine headaches is denied. Entitlement to service connection for a low back condition is denied. Entitlement to service connection for a right shoulder condition is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs