Citation Nr: 1309473 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 07-13 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for bladder tumors, to include as due to exposure to herbicides or as secondary to service-connected prostate cancer. 2. Entitlement to service connection for bladder and bowel incontinence, including as secondary to service-connected prostate cancer. 3. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from July 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which reopened and denied service connection for a low back disorder, as well as denying service connection for bladder tumors; a skin disorder involving the hands, feet and groin; and incontinence of the bowel and bladder. The Veteran disagreed with the denial of service connection for all claimed conditions. By rating decision issued in April 2007, service connection for hydrosis of the hands was granted, which the Veteran was advised was a complete grant of the benefit sought on appeal. The Veteran did not disagree with that decision, nor did he indicate he disagreed that this decision satisfied his claim in its entirety. Consequently, the Board finds that there is no longer any issue remaining on appeal relating to the Veteran's claim for service connection for a skin disorder. The Board also notes that, in a May 2006 rating decision, the RO granted service connection for prostate cancer evaluated as 100 percent disabling effective November 28, 2005. The Veteran disagreed with the assigned effective date and this issue was included in the April 2007 Statement of the Case along with the Veteran's claims on appeal for service connection for bladder tumors, incontinence of the bowel and bladder and a low back disorder. Thus, the Veteran's April 2007 VA Form 9 perfected appeals of these four issues. The Veteran's claims were previously before the Board in July 2011 at which time it reopened and remanded the Veteran's claim for a low back disorder and denied an earlier effective date for the grant of service connection for prostate cancer. In addition, it remanded the claims for service connection for bladder tumors and bowel and bladder incontinence for additional development. The Board finds that the requested development (obtaining additional VA treatment records and a VA genitourinary examination) have been substantially completed. Consequently, the Board can proceed with adjudicating the Veteran's claims without prejudice to him. The Veteran appeared and testified at a hearing held before a hearing officer at the RO in October 2006. A copy of the transcript of this hearing has been associated with the claims file. In addition, the Veteran appeared and testified at a Board video conference hearing held before the undersigned Veterans Law Judge in April 2011. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). FINDINGS OF FACT 1. The Veteran's bladder tumor was diagnosed in December 1999 and resected in January 2000, approximately six years prior to him filing his claim for service connection in November 2005, and the medical evidence of record fails to demonstrate that he has any recurrence of bladder tumors or that he has any residual disability resulting from the 1999 bladder tumor or its resection. 2. The evidence of record fails to demonstrate that the Veteran has either incontinence of either the bladder or the bowel. 3. The Veteran's constipation is not related to service, but rather is secondary to the use of narcotics for nonservice-connected disabilities. 4. The Veteran's currently diagnosed degenerative lumbar spine disease (shown on X-ray in March 2007 to be lumbar spondylosis, degenerative disc disease worse at L5-S1 level, and spondylolisthesis at L4 on L5) is not related to any injury, disease or other event during his active military service. CONCLUSIONS OF LAW 1. Service connection for bladder tumors is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 2. Service connection for bladder and/or bowel incontinence (to include constipation) is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 3. A low back disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Requirements VA's duties to notify and assist claimants in substantiating a claim for VA benefits are described in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present case, notice was provided to the Veteran in April and May of 2006, prior to the initial AOJ decision on his claims. Additional notice was provided to the Veteran in October 2006 and March 2007. The Board finds that the notices provided fully comply with VA's duty to notify. Likewise, the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. He was told it was his responsibility to support the claims with appropriate evidence and has been given the regulations applicable to VA's duty to notify and assist. Indeed, the Veteran submitted evidence in connection with his claims indicating his actual knowledge of the need to provide evidence to support his claims. Thus the Board finds that the purposes behind VA's notice requirement has been satisfied, and VA has satisfied its "duty to notify" the Veteran, and any error in this regard is harmless. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and attainable evidence, and VA has notified the Veteran of any evidence that could not be obtained. Neither the Veteran nor his representative has identified any additional documentary evidence that would support the Veteran's claims that have not been attained. VA, therefore, has made every reasonable effort to obtain all records relevant to the Veteran's claims. 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. The Veteran was afforded VA examinations on his claims in November 2006 and August 2011. The Board also notes that a VA orthopedic examination was conducted in August 1969 in relation to a previous claim for a low back disorder and the report is in the claims file. The Board notes that the reports of the November 2006 and August 2011 examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Laws and Regulations Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Walker. A second way to establish direct service connection is set forth in § 3.303(b). In Walker, the Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted. Id. Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1133 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). Thus, service connection on a secondary basis may be granted under one of two conditions. The first is when the disorder is proximately due to or the result of a disorder of service origin. In that case, all symptomatology resulting from the secondary disorder will be considered in rating the disability. The second is when a service-connected disability aggravates a nonservice-connected disability. In those cases, VA may only consider the degree of disability over and above the degree of disability prior to the aggravation. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). III. Service Connection for Bladder Tumors The Board notes that the Veteran initially claimed that his bladder tumors were due to exposure to Agent Orange while in Vietnam. Later, he claimed bladder tumors were also considered as secondary to his service-connected prostate cancer. Notwithstanding the alleged causes of the Veteran's claimed bladder tumors, the Board finds that, at the time the Veteran filed his claim for service connection in November 2005 and at anytime thereafter, the Veteran did not have a disability that was subject to service connection. The medical evidence demonstrates that the Veteran was diagnosed in December 1999 to have a bladder tumor and underwent a transurethral resection in January 2000. Pathological study of the tumor indicated it was benign. Subsequent medical evidence fails to demonstrate that the Veteran has had any recurrence of any bladder tumors or that he has had any permanent residuals resulting from the bladder tumor diagnosed in December 1999 or its resection. In fact, at two VA examinations conducted in November 2006 and August 2011, the Veteran denied having any residuals, including no recurrence of the hematuria he was having at the time he was diagnosed to have the bladder tumor. Both examiners reviewed the evidence of record, as well as the Veteran's statements as to his history, and concluded that there has been no evidence of recurrence of bladder tumors. Furthermore, the August 2011 VA examiner stated that the Veteran currently has no residuals of treatment. Service connection requires medical evidence of a current disability. The requirement for a current disability is satisfied when the claimant has a disability at the time a claim for service connection is filed or during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In the present case, the Veteran's bladder tumor was diagnosed and resected almost six years before he filed his claim for service connection. As the evidence fails to show a recurrence of bladder tumors at the time he filed his claim for service connection in November 2005 or at anytime thereafter, the requirement of a current disability is not met as to bladder tumors. Furthermore, as the evidence fails to demonstrate that the Veteran had any residuals from the bladder tumor diagnosed in 1999 and/or treatment for it at the time he filed his claim for service connection in November 2005 or at anytime thereafter, the requirement for a current disability is not meet as to residuals of bladder tumor, status post resection. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, service connection for bladder tumors or residuals of a bladder tumor, status post resection, is denied because the medical evidence fails to establish the Veteran has a current disability for which service connection may be granted. III. Service Connection for Incontinence of Bowel and Bladder In November 2005, the Veteran claimed service connection for "incontinence of bladder and bowel." He did not indicate the basis of his claim. On its own, the RO considered his claim not only on a direct basis but also as secondary to his service-connected prostate cancer. Notwithstanding the Veteran's claim, the Board finds that, at the time he filed his claim for service connection, the Veteran did not have a disability that was subject to service connection. With regard to incontinence of the bowel, the Board notes that the Veteran denied at both hearings and both VA examinations of having incontinence. Rather he has stated his problem is actually constipation. The only complaint of possible bowel incontinence seen in the medical records is in a January 2003 VA radiation therapy note. During a telephone conference, the Veteran expressed anxiety about a change in his bowels with the need for repeated wiping to clean himself off. It was noted that he had a colonoscopy scheduled, although there is no note in the VA treatment records that this was conducted. There is also no further note of such problems. Rather, the Veteran was seen for complaints of constipation in June 2006 at the VA emergency room. The treatment note indicates that his constipation was secondary to chronic narcotic use, which the Veteran used for hip pain rather than prostate cancer. At his October 2006 RO hearing, the Veteran also testified that he had problems with constipation for a long time prior to his prostate cancer. In contrast, at his April 2011 Board hearing, the Veteran related his bowel problems to his prostate cancer. His testimony as to what exactly his problems are with his bowels, however, is notably unclear presumably due to his schizophrenia. Furthermore, at the VA examinations in November 2006 and August 2011, the Veteran denied having any problems with incontinence of the bowel. Rather he stated he has chronic constipation, especially since using narcotics for his left hip pain. At the November 2006 VA examination, he also stated that his usual bowel habits tended toward constipation even before the use of medication. At the August 2011 VA examination, he stated he has not had problems with fecal incontinence for many years; rather, he stated that he has more problems with constipation and has required laxatives to achieve bowel movements. The assessment by both examiners was that there was no evidence of bowel incontinence. As for the Veteran's claim of bladder incontinence, there are no records demonstrating such condition. A June 2000 VA treatment note demonstrates the Veteran denied any urinary or bladder problems. A July 2007 VA treatment note shows the Veteran denied any difficulty with urination. Finally, an August 2011 VA treatment note shows the Veteran had no complaints of bladder incontinence. In fact, the only VA treatment note indicating any urinary symptoms is an April 2007 hematology/oncology fellow note for follow up of the Veteran's prostate cancer, which states that he has "some symptoms of obstructive uropathy with dribbling." At the VA examination conducted in November 2006, the Veteran denied having any urinary or bladder incontinence. The examiner stated there was no evidence for clinical urinary incontinence. At the August 2011 VA examination, the Veteran stated that he currently voids approximately every four hours during the day and is up two to three times each night to void. Because of his mobility issues requiring use of a wheelchair and not related to his urinary status, he occasionally finds it difficult to get to a bathroom in a timely fashion and, for this reason, carries a container to void in if he is not able to get to a bathroom promptly. He reported he does experience some urgency, but related he does not wear any absorbent pads or appliance regarding his urinary status. The Veteran denied any recurrent urinary tract infections, renal colic, bladder stones or acute nephritis. The examiner's assessment was that there was no evidence for clinical urinary incontinence. Service connection requires medical evidence of a current disability. The requirement for a current disability is satisfied when the claimant has a disability at the time a claim for service connection is filed or during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In the present case, the evidence clearly demonstrates, as well has the Veteran denied multiple times, that he has had incontinence of either the bowel or bladder, especially since he filed his claim in November 2005. Consequently, the requirements for a current disability in the form of incontinence of the bowel and bladder have not been met. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, service connection for incontinence of the bowel and bladder is denied because the medical evidence fails to establish the Veteran has a current disability for which service connection may be granted. In so much as the Veteran's claim for bowel incontinence should be read generally for any bowel problem and the evidence demonstrates the Veteran's consistent report of constipation, the Board finds that the preponderance of the evidence is against finding that the Veteran's constipation is related either to his military service or is secondary to any service-connected disability. The Veteran's service treatment records are silent for any complaints of or treatment for constipation. In addition, treatment for constipation is not seen in the post-service medical treatment records more than 30 years after service. More significantly, the medical evidence indicates that the Veteran's constipation is most likely related to his chronic use of narcotics. (See June 2006 VA treatment note.) Consequently, the evidence of record fails to demonstrate that the Veteran's constipation had its onset in service or that it is otherwise related to service. Furthermore, despite the Veteran's testimony at the October 2006 hearing that appears to indicate he is claiming he has had problems with constipation since service, the Board notes that constipation is not one of the enumerated chronic diseases listed in 38 C.F.R. § 3.309(a) and, thus, although he appears to claim a continuity since service, service connection based upon chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) is not for consideration in the present case. See Walker. Thus the preponderance of the evidence is against finding that service connection is warranted on a direct basis. Rather the medical evidence shows that the Veteran's constipation is related to the chronic use of narcotics, which the Veteran acknowledged at the November 2006 VA examination. The Board notes that the medical evidence shows that the Veteran has been taking narcotics for many years due to pain caused by his low back disorder and avascular necrosis of the bilateral hips. The Veteran is not service-connected for these conditions. Consequently, the Board finds that the evidence fails to demonstrate that the Veteran's constipation is proximately due to, the result of or has been aggravated by a service-connected disability and the preponderance of the evidence is against finding that service connection is warranted on a secondary basis. For the foregoing reasons, the Board finds that service connection is not warranted for incontinence of the bowel and bladder as the medical evidence fails to demonstrate a current disability for which service connection may be established. Furthermore, the Board finds that service connection is not warranted for constipation on either a direct or secondary basis. In rendering this decision, the Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against the claim. Consequently, the Veteran's claim must be denied. IV. Service Connection for a Low Back Disorder The Veteran's low back disorder was diagnosed by the November 2006 VA examiner as degenerative lumbar spine disease based upon X-rays that he noted showed disc and arthritic disease. X-rays taken in March 2007 demonstrate lumbar spondylosis and degenerative disc disease worse at the L5-S1 level, as well as a grade I spondylolisthesis of the L4 on L5, noted to be likely due to pars defect. Consequently, the Board finds that the evidence is sufficient to establish the presence of a current disability subject to service connection. The Board notes that the service treatment records are silent for complaints of or treatment for low back pain or any injury to the low back despite what the Veteran has stated. In contrast, the Veteran has provided multiple statements as to his having injured his low back in service. The first report was on his initial application for benefits filed in July 1969 at which time he reported a "back condition treated in Fort Benning, GA." Two additional statements were made in 1969 in support of his first claim for service connection for a low back disorder. At a VA orthopedic examination conducted in August 1969, the Veteran reported that he "fell on a bamboo tree in 1968 while serving in Vietnam, and sustained injury to his back. The patient was placed on temporary profile for back injury however, hospitalization was not indicated and no treatment was administered." In contrast, in a December 1969 statement in support of claim, the Veteran related that "I injured my back while in training, Ft. Benning, Georgia, in 1968 and was treated at the base hospital." During the present appeal, the Veteran has not submitted any written statements but he testified at two hearings held in October 2006 and April 2011. At the October 2006 hearing, when asked by his representative how he injured his back, the Veteran testified that "I was carrying claymore mines and a lot of equipment, food, and climbing up and down the _____ and things. I started having back problems, but I was scared for my life so I didn't stress too much about it at the time. There were times I had to get help from other members of my unit to help me." (See October 2006 RO hearing transcript, p. 1.) The Veteran later testified that he was treated at the 22nd Surgical Hospital in Ben Hua. Later in the hearing he agreed with the hearing officer's assessment that his testimony was that his back condition started in service from carrying packs, equipment and supplies. At the April 2011 Board hearing, the Veteran testified that he hurt his back overseas "when them bombs be hitting, bouncing off the floor, the ground and falling on them rocks and things, that's how I hurt my back." (See Board hearing transcript, p. 4.) The following testimony was then given. "Q: Okay. So you're saying when you were in Vietnam is when you originally hurt your back, is that correct. A. Yes, yes ma'am. Q. - and you landed back down on our back. A. Yes ma'am. Q. And I believe you had explained to me before that there were rocks and things of that nature for which you fell on? A. Yes. Q. And did you receive treatment after this incident? A. Yes.... Q. ... When you were treated in Vietnam, was that at or on the military base? A. Yes, it was 22nd surgical hospital in Da Nang, I thing I went to Da Nang from there because of they met - medivac'd to Da Nang .... Q. Now when you were medivac'd, was that because of your back injury? A. Well that was because I had bleeding in the head, I had some burns - Q. That's okay, you don't have to - just go ahead and explain. A. Oh, okay. From the little kit went in there, get a little kit and held it to me and I got burns here on my chest from that. Q. Okay. So you were originally evacuated to the hospital - A. In Da Nang. Q. - for the burns and stuff that you - A. Yes. Q. - but you also complained at that time about your back, is that correct? A. Yes. Q. And did they treat you? A. Yes they did, they gave me - I know the name of the pills, white, big old white pills. Q. Motrin? A. Motrin. Q. And that's what they treated you for your back? A. They gave me Motrin's and they gave me some other little out round pill but that, I only had seven pills and they had given them to me in the hospital in Da Nang, that but they stopped giving me that. They said it would be contagious, you know - Q. That's okay. A. - for me to use. Q. Did they tell you at the time they were treating you for your back, did they say anything particular was wrong with your back or did you have a strain or - A. Yeah, when I fell on that - the big rocks, I was up in (inaudible) tree when the air strike come down and go back up. Well he drops that explosive and that explosive just go and the sound of it just knock you up off the ground. I mean you scared, you don't know - Q. Okay, so they say you strained your back at that time? A. Well the hit, they got, fell on them rocks, I don't know what happened." (See Board hearing transcript, pp. 4-7.) After considering all this evidence, the Board does not find the Veteran's testimony to be credible. The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan, 451 F.3d at 1337 ("the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."). See also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, and consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). This would include weighing the contemporary medical evidence against lay statements. Initially the Board notes that essentially every statement by the Veteran of how he injured his back is substantially different from any other statement. Only his statement on his initial claim for benefits in July 1969 and the December 1969 report of treatment at Fort Benning, Georgia are consistent. However, he has also reported injuring his back falling on a bamboo tree in Vietnam, injuring it from simply doing his basic work duties while in Vietnam, and, injuring his back falling out of a tree and onto some rocks during bombing of his base in Vietnam in which he also sustained a bleed in his brain and burns to his chest from what sounds like a defibrillator. Of course, there are no official service records corroborating any of these stories. The Board notes that, in 1969, the RO attempted to get records from Fort Benning but was unsuccessful. Furthermore, although the service treatment records do show the Veteran was treated at the 22nd Surgical Hospital (which the Board notes was actually in Phu Bai at the time he was in Vietnam, not Ben Hua or Da Nang as indicated by the Veteran at the October 2006 and April 2011 hearings, respectively), such hospitalization was for neuropsychiatric evaluation rather than physical injuries incurred from a bombing as described by the Veteran. The Board notes there are only superficial similarities between the four stories. In three of them, the injury was incurred during the Veteran's service in Vietnam; however, that is inconsistent with his statement that said the injury was incurred at Fort Benning, Georgia. In two of the reports, the Veteran was treated at the 22nd Surgical Hospital, although as previously indicated, the Veteran's report of the location was different in each statement and actually incorrect overall. Finally, the first report that he fell on a bamboo tree and his last report that he fell out of a tree may sound somewhat consistent until you realize that it does not make sense as to how the Veteran could be up in a bamboo tree. Of course, his falling on a bamboo tree also does not make much sense. In fact, overall, reading the Veteran's statements and testimony as a whole, the Board finds that the Veteran does not make much sense. The Board finds that the Veteran's statement at the April 2011 hearing that, "Well the hit, they got, fell on them rocks, I don't know what happened" essentially demonstrates his inability to provide sensible statements and give a clear history understandable to the Board. This is further demonstrated in subsequent testimony at the April 2011 hearing as to when the Veteran first sought treatment and where such treatment was obtained. The Veteran could not seem to make clear when he first obtained treatment for his back. Furthermore, he kept going between whether such treatment was at the Hines VA Medical Center in Illinois or the Loma Linda VA Medical Center in California. The Board notes that VA treatment records from 1969 do demonstrate the Veteran was treated at the Hines VA Medical Center; however, this treatment was for the Veteran's psychiatric disability, not for any back disorder as the Veteran testified. Furthermore, his statements at the April 2011 hearing as to receiving VA treatment for his low back disorder right after service is inconsistent with his testimony at the October 2006 hearing at which he testified he first received treatment in 1975 from a private chiropractor for his low back pain. Consequently, given the significant inconsistencies among the Veteran's own reports of how he injured his low back in service along with the lack of corroborating contemporaneous evidence (and even evidence directly opposing his reports), the Board has no choice but to find the Veteran's reports of an injury to his low back in service to be not credible. The Board cannot decide to simply pick one report over any other report because there is nothing to make any one report any more reliable than any other report. Thus, the Board finds that the Veteran's reports of an in-service injury to his low back lack probative value to establish that an in-service injury to his low back was incurred that may be related to the current low back disorder. Furthermore, with regard to the Veteran's apparent testimony at the two hearings of having continuous low back pain since his service, the Board finds that the overwhelming evidence is against finding that there was a continuity of a low back disorder since service. Initially, the Board notes that, as set forth by the Federal Circuit in the Walker case, the Veteran must have a chronic disease enumerated in 38 C.F.R. § 3.309(a) in order to establish service connection based upon chronicity and continuity of symptomatology under § 3.303(b). The Board notes that the November 2006 VA examiner reported that X-rays demonstrated arthritic disease and that the March 2007 X-rays demonstrated spondylosis. Thus, the Board finds that the current medical evidence shows the Veteran has osteoarthritis of the lumbar spine, which is an enumerated chronic disease in § 3.309(a). Thus, for that condition only, service connection may be established based on chronicity in service with a continuity of symptomatology unless an intercurrent cause is shown. However, the Board notes that degenerative disc disease and spondylolisthesis are not listed as chronic diseases in § 3.309(a) and, therefore, are not subject to consideration of service connection under § 3.303(b). In the present case, the service treatment records are silent for complaints of or treatment for low back pain or any diagnosis of osteoarthritis of the lumbar spine. Furthermore, at the time of his separation examination in June 1969, the Veteran denied any history of back pain and no lumbar spine abnormality was found on examination. Consequently, the Board finds that the service treatment records fail to demonstrate chronicity of osteoarthritis of the lumbar spine during the Veteran's period of active service. Thus, there must be a showing of continuity of symptomatology of osteoarthritis of the lumbar spine for service connection to be established pursuant to § 3.303(b). As for continuity of symptomatology, except for the Veteran's testimony stating he has had back pain since service, his own statements as well as the medical evidence fails to demonstrate that he had osteoarthritis of the lumbar spine since service. Immediately after his discharge from active service, the Veteran filed a claim for a back condition. He underwent VA examination in August 1969. Despite his report of an injury in service, the examiner found that the examination of the Veteran's back was normal. More significantly, X-rays taken at that time of the lumbar spine showed there was no evidence of subluxation; the vertebral bodies, the disc space and posterior parts were all normal; and there were no degenerative changes noted. Furthermore, subsequent post-service medical evidence fails to demonstrate any treatment for or even complaints of low back pain or any diagnosis of osteoarthritis of the lumbar spine. The first complaints of low back pain seen in the post-service VA treatment records (the Board notes there are no private records available) are not seen until January 18, 1982, at which time the Veteran was seen with reports of increasing low back pain for three months that he related to an injury when he fell at a shopping center. X-rays were noted to show no evidence of fracture or subluxation (a January 22, 1982 follow up note indicates the X-rays were negative for arthritis). The assessment was chronic back pain. VA treatment records prior to this back to October 1969 fail to show any complaints of, treatment for or even a reported history of low back pain despite the fact that they note the Veteran reporting other medical issues such as headaches and foot problems. The Board notes that most of these treatment records show treatment for the Veteran's psychiatric disability and for significant dental problems. VA treatment records subsequent to January 18, 1982, show the Veteran's continued complaints of low back pain from that point on. At an April 1982 Orthopedic consultation, the Veteran denied any injury precipitating his low back pain. At a neurology consultation in February 1983, he complained of back pain with radiation down the left lower extremity for one year. It was noted that there were no known precipitating events. Hence, not only does the medical evidence immediately following the Veteran's discharge from active service fail to show he had any low back disorder, especially osteoarthritis of the lumbar spine, but the subsequent VA treatment records fail to demonstrate that he had any problems with his low back until January 1982 when he reported that he fell at a shopping center. He did not report at that time having low back pain prior to this injury. Subsequently, he even denied having any injury precipitating his low back pain. Furthermore, at the February 1983 neurology consultation, he reported only a one year history of low back pain, consistent with an onset of his low back pain in January 1982. Based upon this evidence, the Board finds that a continuity of symptomatology is not established. The Board acknowledges that, at the October 2006 hearing, the Veteran admitted to the slip and fall injury at the shopping center but testified that it only increased his previously existing low back pain. Rather he testified that he had had problems with his back since service and had treatment starting as early as 1975. The fact that he filed a claim for service connection for a back condition immediately after service would tend to lend credence to the Veteran's statement that he had back pain at that time. Even so, the available evidence fails to demonstrate that the Veteran had osteoarthritis of the lumbar spine since service. X-rays of the lumbar spine in August 1968 and January 1982 were negative for any evidence of degenerative or arthritic changes. The first evidence of arthritis of the lumbar spine is X-rays taken in conjunction with the November 2006 VA examination. Consequently, the Board finds that the preponderance of the evidence is against finding that the Veteran's current lumbar spondylosis (i.e., osteoarthritis) had its onset in service or for many years after service and thus chronicity in service and a continuity of symptomatology are not established and service connection is not warranted under 38 C.F.R. § 3.303(b) for lumbar spondylosis. Further the Board notes that service connection is not warranted under the general provisions for service connection set forth in 38 C.F.R. § 3.303(a). The VA examiner who conducted the November 2006 VA examination responded to the request for a medical nexus opinion between the Veteran's current low back disorder (that he diagnosed as degenerative lumbar spine disease) and service by stating that there is "no firm evidence for relationship of current problem to active military service." The Board acknowledges that this medical opinion is not stated in the "as likely as not" preferred language nor did the examiner provide a rationale for his opinion. After considering his opinion in relation to the entire examination report and the medical evidence of record, however, the Board finds that his medical opinion is consistent with the evidence of record. As previously stated, the service treatment records are silent for any low back disorder, VA examination in August 1969 was negative for finding a current low back disorder, and VA treatment records fail to demonstrate any low back disorder until January 1982 and thereafter (which show no report of a prior history of low back pain or problems prior to the injury reported at that time). The Board further notes that there is no other medical evidence of record relating the Veteran's current low back disorder to his military service. The Veteran has not submitted any medical opinion in support of his claim relating his current low back disorder to his military service. Rather the only evidence relating the Veteran's current low back disorder to service is his own testimony. The Board acknowledges that the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge (i.e., experiencing back pain and other symptoms during or after service). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The presence or cause of lumbar spondylosis, degenerative disc disease and spondylolisthesis, however, is a determination "medical in nature" and not capable of lay observation. A layperson is generally not deemed competent to opine on a matter that requires medical knowledge, such as the question of whether a chronic disability is currently present or a determination of etiology. 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 has not indicated he has any medical education, training or experience in order to provide competent medical evidence by his statements alone. Therefore, the Board finds that the Veteran's lay opinion that his current low back disorder was caused by service is not competent and, therefore, not probative to establish a nexus between his current low back disorder and his military service. Finally, the Board notes that there is no evidence to establish that the Veteran's lumbar spondylosis (i.e., osteoarthritis of the lumbar spine) manifested to a compensable degree within one year after his discharge from service. Rather the evidence demonstrates there was no evidence of osteoarthritis of the lumbar spine for many years after service as X-rays taken in August 1969 and January 1982 were negative for such degenerative changes. Consequently, service connection cannot be presumed under 38 C.F.R. §§ 3.307(a) and 3.309(a). In conclusion, after considering all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection for a back disorder is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bladder tumors, to include as due to exposure to herbicides or as secondary to service-connected prostate cancer, is denied. Entitlement to service connection for bladder and bowel incontinence, including as secondary to service-connected prostate cancer, is denied. Entitlement to service connection for a low back disorder is denied. ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs