Citation Nr: 1310944 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 03-36 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a low back disability, to include arthritis. 2. Entitlement to service connection for a low back disability, to include arthritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from September 1952 to June 1957. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which in pertinent part found that new and material evidence adequate to reopen a claim for service connection for residuals of an industrial accident with minimal lumbar strain (also claimed as a back condition to include arthritis) had not been submitted. In October 2006, the Board remanded the request to reopen the claim for additional development. In an August 2009 decision, the Board found that new and material evidence had not been submitted. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2011, the Court issued a Memorandum Decision vacating and remanding that portion of the Board's August 2009 decision which found that new and material evidence had not been submitted. In May 2012, the Board remanded this claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for development, consistent with the Memorandum Decision. After completing the additional development, the AMC continued to deny the claim (as reflected in a January 2013 supplemental statement of the case (SSOC)), and returned this matter to the Board. The AMC reopened and addressed the claim for service connection on the merits. Regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received, the matters on appeal have been characterized as reflected on the title page. The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that has been considered by the AMC in the most recent SSOC. Therefore, the Board's consideration of this evidence will not result in prejudice to the Veteran. In March 2007, the Veteran filed a claim for service connection for pes planus. A claim for service connection for bilateral pes planus was previously denied in the October 2006 Board decision. In March 2007, the Veteran filed a motion for reconsideration of the October 2006 Board decision. In June 2007, the Board denied the Veteran's motion under 38 U.S.C.A. §§ 7103, 7104 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 20.1000, 20.1001 (2012). A July 2007 letter from the RO incorrectly advised the Veteran that his claim for service connection for bilateral pes planus was currently on appeal. A request to reopen a claim for service connection for bilateral pes planus was raised in March 2007; however, this claim has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this matter, and it is REFERRED to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. In a March 1992 decision, the Board found that new and material evidence had not been submitted sufficient to reopen a claim for service connection for a low back disability. 3. Evidence associated with the claims file since the March 1992 Board decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disability and raises a reasonable possibility of substantiating the claim. 4. The Veteran's lumbar spine osteoarthritis first manifested more than one year after separation from service and his current low back disability is not attributable to service. CONCLUSIONS OF LAW 1. The March 1992 Board decision, finding that new and material evidence had not been submitted sufficient to reopen a claim for service connection for a low back disability, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. As pertinent evidence received since the March 1992 Board decision is new and material, the criteria for reopening the claim for service connection for low back disability , to include arthritis, are met. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for the establishment of service connection for a low back disability, to include arthritis, are not met or approximated. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given the favorable disposition of the request to reopen the claim, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. The provisions of the VCAA, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court have been fulfilled. The Veteran's request to reopen his claim was received in November 2001. The Veteran was provided notice of what evidence was required to substantiate his claim for service connection and of his and VA's respective duties for obtaining evidence in correspondence dated in January 2002, March 2007, and February 2008. After issuance of this notice, the claim was reviewed and SSOCs were issued in June 2009 and January 2013. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court found that the VCAA notice requirements applied to all elements of a claim. Notice as to this matter was provided in March 2009 and in the March 2007 and February 2008 letters. The Veteran has been made aware of the information and evidence necessary to substantiate his claim for service connection and has been provided opportunities to submit such evidence. A review of the claims file and Virtual VA e-folder shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim during the course of this appeal. His VA and private treatment records have been obtained and associated with his claims file. The Veteran was also provided with a VA examination to evaluate his claimed low back disability in April 2009. This VA examination report includes a medical opinion addressing the etiology of the Veteran's current low back disability and includes a basis for the examiner's opinion. Thus, the examination report is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). In the November 2011 Memorandum Decision, the Court observed that the record contained a VA Form 21-4142, Authorization and Consent to Release Information to VA, completed by the Veteran in October 2003. That form authorized VA to attempt to obtain records from the Humana Health Group in Miami, Florida specifically related to treatment of the Veteran's back condition. While VA had submitted a request for treatment records from the Humana Health Group, the Court stated that "the record contains no indication that (1) records were received from that organization, (2) a response indicating that no records available was received, or (3) VA made a determination regarding the unavailability of those records and notified [the Veteran] in accordance with 38 U.S.C. § 5103A(b)(2)." See Memorandum Decision, at pages 5-6. Because the Veteran stated that the missing records are related to his back disability, the Court found that they are "undoubtedly relevant, and VA's failure to obtain them or properly notify [the Veteran] of their unavailability cannot be harmless error." Id. at 6. In light of the Memorandum Decision, the case was remanded in May 2012 to inform the Veteran that the October 2003 authorization and release form to obtain medical records from the Humana Health Group in Miami, Florida was expired and to request that he provide a new VA Form 21-4142 so that VA could obtain his records. The Board also noted that, following the November 2011 Memorandum Decision, the Veteran submitted additional evidence directly to the Board and requested that his case be remanded to the AOJ for review of this evidence. The Board instructed in May 2012 that, in readjudicating the Veteran's claim, any SSOC was to set forth the evidence considered, to include the private medical evidence submitted by the Veteran to the Board in March 2012. In June 2012, the AMC advised the Veteran that the October 2003 authorization and release form (VA Form 21-4142) to obtain medical records from the Humana Health Group in Miami, Florida had expired. The AMC indicated that a new VA Form 21-4142 was required for VA to obtain his treatment records from Humana Health Group. A VA Form 21-4142 was included with the June 2012 correspondence. The Veteran has not subsequently returned a new VA Form 21-4142 to enable VA to obtain treatment records from Humana Health Group. VA is only obligated to obtain records that are adequately identified and for which necessary releases have been received. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Additionally, while VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one- way street. Wamhoff v. Brown, 8 Vet. App. 517 (1996); Zarycki v. Brown, 6 Vet. App. 91 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1991). Further under the law specific as to the duty to assist, a claimant has a responsibility to present and support a claim for benefits under laws administered by VA. 38 U.S.C.A. § 5107(a). As the Veteran has not provided a new release for treatment records from Humana Health Group, it is not possible for VA to obtain these records and no further action in this regard is warranted. While treatment records from Humana Health Group were not obtained on remand, the AMC specifically considered the medical evidence submitted directly to the Board in March 2012 in its readjudication of the claim. Thus, there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Similarly, a June 2010 VA treatment record reflects that, during a prior visit, the Veteran had been noted to be taking multiple medications in duplicate from his primary care physician, Dr. K. These private treatment records are not currently of record. Significantly, however, in the June 2012 letter, the AMC specifically advised the Veteran that, if he had received medical treatment from any private physicians or hospitals and he wanted VA to obtain these treatment records, he should complete a VA Form 21-4142. However, the Veteran has not submitted a release form to allow VA to obtain additional private treatment records, to include records from Dr. K. Thus, no further action in this regard is warranted. The January 2013 SSOC indicates that the AMC considered VA treatment records from April 1998 to January 2013. The most recent VA treatment records currently available for the Board's review are dated in July 2012. While the AMC indicated review of VA treatment records dated to January 2013, VA treatment records obtained on remand have been associated with the Virtual VA e-folder. While these records are dated to July 2012, the AMC's reference to records dated to January 2013 indicates that current VA treatment records had been considered. The Board has reviewed and considered the current VA treatment records contained in the Virtual VA e-folder in its adjudication of the claim. Moreover, the AMC's indication that it had reviewed treatment records from April 1998 appears to be a typographical error as, in its discussion of the reasons and bases for its decision, the AMC stated that it had reviewed new additional electronic VA treatment records dated since April 2007 and, as indicated above, the record includes VA treatment records from October 1998 to July 2012. For all the above reasons, remand to obtain additional VA treatment records is not warranted. The claims file reflects that the Veteran testified during a Board hearing regarding his prior request to reopen a claim for service connection for a low back disability in September 1991. A transcript of this hearing is not currently available for the Board's review. In the October 2006 decision and remand, the Board noted that a complete copy of the September 1991 hearing transcript was not associated with the claims file, and referred this matter to the RO, indicating that the RO should ensure that a copy of the Board hearing transcript was associated with the claims file. March 2007 and February 2009 deferred rating decisions reflect that rating was deferred as a copy of the September 1991 Board hearing was to be associated with the claims file. A copy of the Board hearing transcript was requested in March 2009; however, it was not subsequently associated with the claims file or Virtual VA e-folder. While the hearing transcript is not available, the assertions of the Veteran and his representative made during that hearing are documented in the March 1992 Board decision; specifically, the Veteran's assertion that his current back disability had its onset in service and his description of three back injuries purportedly sustained during service. As the assertions made during the September 1991 hearing are recorded in the March 1992 Board decision, which is of record and has been considered in the current adjudication of the appeal, a further remand is not necessary. The Veteran has not identified any additional, relevant evidence that has not been requested or obtained. The Veteran has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim. The Merits of the Claims The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of the inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is 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 include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). See also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429, at *1 (Fed. Cir. Feb. 21, 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, 2013 WL 628429, at *7 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker, 2013 WL 628429, at *6. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and the "nexus" requirement of the three-element test must be met. Id. Service connection can also be granted for certain chronic diseases, including arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service. Such diseases shall be presumed to have been incurred in service even though there is no evidence of disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In April 1966, the Veteran filed a claim for service connection for a back condition. In a November 1966 rating decision, the RO denied the claim, noting that the Veteran had been seen for complaints of low backache during service, and current VA examination revealed a back disability, specifically, lumbosacral strain; however, the RO determined that the low backache for which the Veteran was seen in service was acute and transitory and unrelated to his presently diagnosed lumbosacral strain. In July 1989, the Veteran filed a request to reopen his claim for service connection. The request was denied in August 1990. The Veteran perfected an appeal of this denial. In a March 1992 decision, the Board found that new and material evidence had not been submitted and there was no basis to reopen the claim for service connection for a back disability. The Veteran appealed the March 1992 Board decision to the Court; however, the appeal was dismissed in December 1992 as the Veteran had filed written notice of a desire to withdraw his appeal. The Veteran did not seek reconsideration of the March 1992 Board decision, and no other exception to finality applies. Thus, that decision is final as to the evidence then of record. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. The Veteran sought to reopen his previously denied claim for service connection for a low back disability in November 2001. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim is the March 1992 Board decision and for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Court has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA must not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead must examine and determine if it could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. The evidence of record at the time of the March 1992 Board decision included the Veteran's service treatment records. These records reflect a March 1953 complaint of a low back ache for two weeks. In June 1954 the Veteran complained of a tired feeling in his low back. However, clinical evaluation of the spine was normal on separation examination in April 1957. The Board observes that as a general matter, such a pre-discharge examination is highly probative in this matter, because it was generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). On VA examination in December 1959, the Veteran reported having back trouble in service when he had kidney trouble, but denied much trouble at the time of examination. On VA examination in September 1966, he described low back pain and disability with spreading arthralgias for many years. However, he also reported that he did heavy work in construction and described transient pains from time to time depending on how much strain he was under. X-ray study of the lumbosacral spine revealed no significant radiographic abnormalities. The diagnosis was chronic mild lumbosacral strain. Private treatment records reflect that, in February 1963, the Veteran presented with complaints of pain in the lower back for two weeks. In March 1965, the Veteran presented to the emergency department of a private hospital with complaints including low back pain following a motor vehicle accident. In April 1965, he again complained of back pain; reporting that this pain started at work two weeks earlier. A March 1973 letter from the Veteran's physician, Dr. L.A.M., indicates that the Veteran described being involved in a motor vehicle accident in August 1972 - specifically indicating that he then sustained injuries to his back. The physician noted that the Veteran's past history was significant in that six years earlier he had been involved in a motor vehicle accident in which he sustained injuries to his low back, from which he had made a complete recovery. The Veteran's current complaints included aching in his neck and back. X-ray study of the lumbar spine was within normal limits. The pertinent impression was lumbar sprain. A May 1973 document from another physician, Dr. J.S.G., reflects that the Veteran sustained an injury to his back while working in April 1973. Specifically, he fell and hit his left ankle and leg and twisted his back. He was diagnosed with a lumbar sprain. Records from the Veteran's private physician, Dr. M.G.D., dated from April to September 1973 reflect complaints regarding and treatment for low back pain. In April 1973, the physician noted that the Veteran had been seen weeks earlier for a back sprain - again as a result of an automobile accident, prior to which time, he had not had any trouble. The physician noted that the Veteran's back pain had been improving and he was essentially asymptomatic until his fall at work. In June 1973, Dr. M.G.D. reported that the Veteran gave a history of only one previous accident, in August 1972, after which time he had been making progress and was essentially asymptomatic up until the time of his accident at work. The Veteran was afforded another VA examination in January 1974, and gave a history of being treated for low back pain during service, with a history of several falls, including in January 1955, in 1956, and while working in April 1973. He was diagnosed with residuals of an industrial accident in April 1973, with minimal lumbar strain. A November 1973 X-ray study of the lumbar spine did not reveal "anything of major significance." A May 1974 X-ray study revealed a normal lumbar spine. A lumbar myelogram performed on that date was also normal. In October 1984, the Veteran presented to the emergency department of a private hospital with a complaint of low back pain following a motor vehicle accident. In an April 1985 letter, the Veteran's private physician, Dr. W.L.B., wrote that the Veteran had been seen for complaints of pain in multiple areas, including the back. The Veteran reported being involved in a motor vehicle accident in October 1984, and the physician commented that, while the Veteran had injured his back at work some years earlier, he had recovered from that injury and resumed doing construction work. The impression was probable lumbar disc syndrome, L5/S1. A 1985 private treatment record reports that X-ray studies of the lumbosacral spine revealed mild degenerative changes with osteophyte formation, but no significant disc space narrowing. In a June 1987 statement, the Veteran alleged that in December 1956, he fell ten feet and injured his back, neck, and knee - requiring hospitalization for two weeks. In March 1992, the Board found that new and material evidence had not been submitted sufficient to reopen a claim for service connection for a back disability. The Board noted that the Veteran had asserted during his September 1991 hearing that his current back disability had its onset in service. The Board noted that while the Veteran described three back injuries sustained during service, the contemporaneously recorded medical evidence, (specifically, service treatment records) noted only occasional complaints of back discomfort with no recorded findings of actual disability. The Board also noted that a 1957 separation examination found no abnormalities of the spine or musculoskeletal system, to be more persuasive than the Veteran's testimony. The Board additionally noted that VA examinations performed in December 1959 and September 1966 documented no objective abnormality of the back. The Board then concluded that the evidence presented in support of the Veteran's request to reopen his claim was essentially cumulative of other evidence previously of record, which supported the November 1966 rating decision that the Veteran's back complaints noted during service were of an acute nature and were unrelated to a subsequent back disability first shown after discharge from service. Evidence associated with the claims file since the March 1992 Board decision includes VA treatment records dated from October 1998 to July 2012. These records reflect that, during treatment in June 2007, the Veteran complained of low back pain for 50 years due to several falls while in service. The physical therapist noted that the Veteran presented with complaints of chronic, intermittent low back pain for more than 50 years. Presumed credible under the law solely for the purpose of determining whether new and material evidence has been submitted, this June 2007 treatment record includes the Veteran's report of a continuity of symptomatology of low back pain since service. The Veteran is competent to report a continuity of symptomatology regarding his back pain since service. Charles v. Principi, 16 Vet. App. 370 (2002). Justus, 3 Vet. App. at 512-513. This report of a continuity of symptomatology suggests a link between the Veteran's current complaints regarding the low back and service. See Duenas v. Principi, 18 Vet. App. 512 (2004). While the March 1992 Board decision reflects that the Veteran had presented testimony in September 1991 indicating that his back disability had its onset in service, the record presently before the Board does not indicate that he had specifically reported a continuity of symptomatology. Thus, the June 2007 report of a continuity of symptomatology of low back pain since service is new. This evidence is also material in that it specifically relates to unestablished fact necessary to substantiate the claim for service connection, that is, a relationship between a current low back disability and service. Considering the Court's holding in Shade, the Board finds that this evidence raises a reasonable possibility of substantiating the claim for service connection for a low back disability. Thus, this claim must be reopened. Therefore, as new and material evidence has been received, the claim for service connection for a back disability is reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Service Connection Turning to the merits of the reopened claim for service connection, as noted above, the Veteran asserts that his current low back disability is related to service, to include injuries incurred during that time. Considering the pertinent evidence of record in light of the law, the Board finds that the preponderance of the evidence is against the claim and service connection for a low back disability, to include arthritis, is not warranted. As noted above, service treatment records document complaints regarding low back pain in March 1953 and June 1954; however, clinical evaluation of the spine was normal on separation examination in April 1957. Post-service VA and private treatment records reflect complaints regarding and treatment for low back pain, with findings of lumbar sprain, lumbar disc syndrome, spine osteoarthritis, degenerative disc disease, and spondylolisthesis. A June 1990 X-ray study of the lumbosacral spine revealed no osseous or significant articular abnormalities. A February 1991 X-ray study revealed no fracture or dislocation and no osteoarthritis. An August 1996 X-ray study showed no acute osteoarticular process demonstrated radiographically. An August 1999 X-ray study revealed degenerative changes of the facet joints at the level of L4-L5 and L5-S1. A November 2001 X-ray study revealed minimal degenerative changes. A June 2005 X-ray study revealed mild spondylolisthesis of L5 over L4 associated with mild degenerative disc disease and early spondylosis at L3 and L4. A May 2012 X-ray study revealed L4-L5 spondylolisthesis and L2-L3 degenerative disc disease. The Veteran was afforded a VA examination to evaluate his claimed low back disability in April 2009. He gave a history of a chronic low back condition. He stated that he suffered a fall in which he injured his low back during service. He indicated that his symptoms resolved and he then had an episodic course with periods of exacerbation after falls or increased training activities. The examiner noted that service treatment records documented low back complaints with no diagnosis or positive physical examination findings. She further noted that the Veteran had post-service treatment for the low back five years after discharge from service. X-ray study of the lumbosacral spine revealed an essentially normal lumbar spine with minimal hypertrophic changes. The VA examiner's diagnosis was lumbar spondylosis. She opined that this condition, along with bilateral knee osteoarthritis, bilateral peroneal/posterior tibial tendonosis, and right shoulder rotator cuff tendonosis, were less likely as not (less than 50/50 probability) caused by or a result of in-service conditions. In providing a rationale for her opinion, the examiner stated that the Veteran's current conditions were most likely primary processes which were age-related. She stated that the service treatment records lack of significant physical examination findings, lack of historical evidence of a high energy injury, mild degenerative changes on diagnostic studies, and lack of lower extremity deformities suggested against a post traumatic process and supported a primary process which was a consequence of the Veteran's genetic predisposition, age, and post-service vocation as a construction worker. Recent medical evidence reflects that the Veteran has a current low back disability, as evidenced by the findings of lumbar spondylosis, spondylolisthesis, degenerative disc disease, and osteoarthritis. Thus, the first element of the service connection claim is satisfied. Service treatment records document complaints regarding and treatment for back pain during service. The Veteran has also reported, as he is competent to do, injuring his low back during falls in service. See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). The Board finds the report of in-service injuries to be credible. Service connection for degenerative changes in the lumbar spine, to include osteoarthritis, based on chronicity or continuity of symptomatology is for consideration, as arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a). As indicated above, a June 2007 VA treatment record includes the Veteran's report of a continuity of symptomatology of low back pain since service. That report of a continuity of symptomatology was presumed credible for purposes of reopening the claim for service connection. See Justus, 3 Vet. App. at 512-513. However, this presumption only applies when making the determination as to whether the evidence in question is new and material. It does not apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim. Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on its merits. See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). Significantly, an April 1973 treatment record from the Veteran's physician, Dr. M.G.D., notes that the Veteran had not had any back trouble prior to a back sprain incurred in an automobile accident a few weeks earlier. In June 1973, the same physician reported that the Veteran gave a history of only one previous accident involving his back, in August 1972, after which time he had been essentially asymptomatic until an April 1973 work accident. During VA treatment in February 2009, the Veteran reported that his back had hurt for 30 years. This evidence reflects that the Veteran has made inconsistent statements regarding a continuity of symptomatology of low back pain since service. Thus, his June 2007 report of continuity of symptomatology is not deemed credible. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). Service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) is, therefore, not warranted. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). The relationship between the current low back disability and service, however, must be established by evidence of a nexus. See Walker, 2013 WL 628429, at *6. The April 2009 VA examiner opined that it was less likely as not that the Veteran's current low back disability, lumbar spondylosis, was caused by or a result of in-service conditions. This opinion is dispositive of the question of whether the Veteran's current low back disability is related to service, as the examiner's opinion was based on a review of the claims file, a physical examination, and consideration of the Veteran's reported in-service falls and periods of exacerbation with increased training activities. The examiner explained the basis for her opinion, including the fact that service treatment records lacked significant physical examination findings; there was a lack of historical evidence of a high energy injury; there were only mild degenerative changes on diagnostic studies; and there was a lack of lower extremity deformities. She stated that this suggested against a post traumatic process and supported a primary process which was a consequence of the Veteran's genetic predisposition, age, and post-service vocation as a construction worker. She attributed the Veteran's current condition to primary processes which were age-related. The VA examiner's opinion regarding a relationship between the Veteran's current low back disability and service is highly probative. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The record does reflect that, during a December 2005 VA psychology consult, the Veteran reported that he injured his back in a fall during service. He reported suffering back pain for more than forty years related to a fall while in the Army. During another psychology consult from the following month the Veteran reported experiencing four to five head injuries from 1954 to 1956. He denied losing consciousness with these head traumas, but reported residual effects including low back pain. The June 2007 VA treatment record discussed above includes the Veteran's complaint of low back pain for 50 years due to several falls while in the military. To the extent that these records indicate that the Veteran's current back pain is related to, or is a residual of, injuries suffered during service, review of these treatment records reflects that the healthcare providers were merely transcribing history provided by the Veteran. As such, the inclusion of the Veteran's reported history in the treatment records does not constitute competent evidence of the required nexus between a current low back disability and service. See Leshore v. Brown, 8 Vet App. 406, 409 (a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional). Thus, the only competent, probative (persuasive) opinion on the question of whether the Veteran's current low back disability is related to service weighs against the claim for service connection. The Veteran has not presented or identified any existing, contrary medical opinion that, in fact, supports the claim for service connection. Additionally, there is no evidence that the Veteran has arthritis of the lumbar spine which manifested itself to a compensable degree within one year of his separation from military service. Rather, a September 1966 X-ray study of the lumbosacral spine revealed no significant radiographic abnormalities; a March 1973 X-ray study of the lumbar spine was within normal limits; a November 1973 X-ray study of the lumbar spine did not reveal "anything of major significance"; and a May 1974 X-ray study revealed a normal lumbar spine. The first mention of X-ray evidence of degenerative changes in the lumbar spine is a 1985 private treatment record reporting that X-ray studies of the lumbosacral spine revealed mild degenerative changes with osteophyte formation. Despite this 1985 note, a February 1991 X-ray study of the lumbosacral spine revealed no fracture or dislocation and no osteoarthritis. Subsequent X-ray studies, however, do reflect degenerative changes in the lumbar spine. In any event, the fact remains that there is simply no evidence of arthritis in the lumbar spine manifested to a compensable degree within one year of the Veteran's separation from service. Thus, service connection is not warranted on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In addition to the medical evidence, the Board has considered the Veteran's contention that he has a current low back disability related to service. Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions, such as concerning a form of cancer. See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (discussing this axiom in a claim for rheumatic fever); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). The Veteran does not have or claim to have any specialized knowledge in the field of medicine. The Board therefore finds that the etiology of his current low back disability is beyond his competence. Moreover, the question of etiology of this condition is complex in nature. Therefore, to the extent he has asserted that he has a low back disability, to include arthritis, related to service, the Board finds such assertions to be of little probative value, especially in relation to the April 2009 VA examiner's opinion, as the Veteran is not competent to opine on this complex medical question. His contentions regarding etiology of his current low back disability are outweighed by the medical evidence of record, specifically the opinion of the April 2009 VA examiner. The preponderance of the evidence is against the claim and service connection will be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. CONTINUED ON NEXT PAGE ORDER New and material evidence having been received; the issue of entitlement to service connection for a low back disability, to include arthritis, is reopened. Service connection for a low back disability, to include arthritis, is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs