Citation Nr: 1311953 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 08-28 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for residuals of syphilis, including an orthopedic joint disorder. 2. Entitlement to service connection for a lumbar spine (low back) disorder. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1976. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran was scheduled to testify at a hearing at the RO in April 2011 before a local Decision Review (DRO), the Veteran failed to report for the hearing. He did not provide good-cause explanation for his absence or request to reschedule the hearing. The Board since has twice remanded these claims for further development, initially in June 2011 and again in July 2012. FINDINGS OF FACT 1. The Veteran's current osteoarthritis conditions are not etiologically related to his military service, including to the syphilis he contracted during his service. 2. His low back disorder, including specifically the degenerative disc disease (DDD) affecting his lumbar spine, also is unrelated to his service. CONCLUSIONS OF LAW 1. The Veteran does not have current disability, including osteoarthritis of his joints, on account of syphilis incurred or aggravated during his military service or because of disease or injury that may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A low back disorder also was not incurred in or aggravated by his service and may not be presumed to have been. Id. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate the claim, including apprising him of (2) the information and evidence VA will obtain and assist him in obtaining (3) of the information and evidence he is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). See also Quartucciov. Principi, 16 Vet. App. 183, 187 (2002). Ideally, this notice also should inform him that a "downstream" disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim for service connection. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). As well, ideally, the notice should be provided prior to initially adjudicating the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). However, both the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) and the U. S. Court of Appeals for Veterans Claims (Court/CAVC) have clarified that, even if VCAA notice is not provided before initially adjudicating a claim or, if provided, was inadequate or incomplete, this timing error in the provision of this notice can be rectified ("cured") by providing the required notice and then readjudicating the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis, and, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing this occurrence of this error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Here, prior to the initial adjudication of the Veteran's claims, so in the preferred sequence, a letter dated in September 2006 was sent to him in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). He was notified of the evidence that was needed to substantiate his claims, of the information and evidence that VA would obtain, of the information and evidence he was expected to provide, and that VA would assist him in obtaining evidence, but that it was his ultimate responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini, 18 Vet. App. at 120-21. He was also notified of the criteria for establishing a "downstream" disability rating and effective date, in the event his underlying claims for service connection were granted. See Dingess. Therefore, he has received all required notice concerning his claims. B. Duty to Assist VA additionally has a duty to assist the Veteran in fully developing the facts and evidence concerning his claims, including by providing him a VA examination for a medical opinion if necessary to decide his claims. To this end, his service treatment records (STRs), private treatment records, Social Security Administration (SSA) records, and lay statements were obtained and associated with the claims file for consideration. Pursuant to the Board's June 2011 remand, VA attempted to obtain additional STRs he had identified as potentially relevant, specifically, records from the Ayers Kaserne Medical Clinic for the treatment of syphilis from April to May 1976. A September 2011 memorandum, however, indicates that a search for these records yielded no results, and that further attempts to obtain them would be futile. The Board is mindful that, in a case such as this, where STRs and service personnel records (SPRs) may be unavailable, there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (declining to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). The Veteran also was afforded VA examinations in developing his claims, and a VA medical nexus opinion resultantly was obtained regarding the etiologies of his alleged disabilities and their potential relationship with his military service. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case and the opinion are adequate as they are collectively predicated on a review of the claims file, contain a description of the history of the disabilities at issue, document and consider the relevant medical facts and principles, and provide opinions regarding the etiology of the Veteran's claimed disabilities. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding these claims has been met. Finally, because VA obtained an opinion in August 2012 that discussed previously unaddressed medical evidence from service, the directives of the Board's July 2012 remand have been satisfied. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. He has not made the Board aware of any additional evidence needing to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection A. Applicable Law In order to establish entitlement to service connection for a claimed disability, the facts must demonstrate that a disease or an injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease wasincurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree, meaning to at least 10-percent disabling, within one year of separation from service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For a showing of chronic disease in service, or within a presumptive period per § 3.307, there is required 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Direct service connection therefore requires competent and credible evidence showing: (1) the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The evaluation of evidence generally involves a three-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 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether the evidence is also credible). The third step of this 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. 38 C.F.R. § 3.159. 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). 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). Conversely, laypersons also have been found not competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning 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 the Secretary's duty to seek a medical opinion on the issue). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). 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 at 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"). B. Residuals of Syphilis There is no disputing the Veteran has osteoarthritis of multiple joints. His private treatment records reflect diagnoses of osteoarthritis in the spine, right hip and left shoulder, and a September 2011 VA examination noted bilateral bony knee infarcts. Consequently, the determinative issue instead is whether these disabilities are related or attributable to his military service, as he is alleging, or date back to his service or to the one-year presumptive period following the conclusion of his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). His STRs show that, in April 1976, he was seen for large ulcerated lesions on his penis; it was noted that a rapid plasma regain (RPR), a test for syphilis, was questionably positive. The diagnostic assessment was possible Lues (syphilis). A Fluorescent Treponemal Antibody Absorption (FTA-ABS) test was reactive in April 1976. A report of his May 1976 separation medical examination shows his upper extremities, feet, lower extremities and other musculoskeletal areas were all clinically normal. An RPR card test was negative, and syphilis was not diagnosed. However, a laboratory blood test slip reflects that a sample was also collected on the same day the separation examination was performed; RPR was positive and FTA-ABS was noted to be reactive in June 1976, so the following month. On the May 1976 separation examination report, he wrote that to the best of his knowledge he was in good health. In a May 1976 dental health questionnaire, he denied treatment for syphilis. In June 1976 he had bilateral inguinal adenopathy of questionable etiology. In an August 1976 statement of medical condition, he stated that to the best of his knowledge, since his last separation examination, there had been no change in his medical condition. His military service ended that same month. In a July 2008 statement, he reiterated that he was definitely treated for syphilis during his active duty service, while stationed in Germany. He said he was treated for two or three months and regularly went on sick call for treatment. During that time, his hair fell out and he had sores as a result of the syphilis. An April 2007 VA examiner indicated the claims file was reviewed and opined that the Veteran's lumbar back condition was at least as likely as not (50/50 probability) caused by or the result of residual secondary syphilis. The examiner indicated that the Veteran was diagnosed with secondary syphilis and back pain around the same time. The back pain was diagnosed initially and then the Veteran returned to sick call for increased pain and was subsequently diagnosed with secondary syphilis. The rationale for the opinion was "clinical experience, service records, private medical records." In contrast, the September 2011 VA examiner gave the opinion that the Veteran had primary syphilis, which was appropriately diagnosed and treated, and that the use of antibiotics in a timely fashion is considered curative and prevents residuals. He based his opinion partly on the Veteran's negative RPR test at his separation medical examination, which he said confirmed successful treatment. Although the examiner stated that the lab tests results in service were reviewed, he did not specifically discuss the positive June 1976 FTA-ABS test. However, in an August 2012 addendum opinion, the examiner reiterated that the Veteran's treatment in service was curative as evidenced by the resolution of his primary sores and the lack of secondary syphilis conditions. There is a "lag" on the labs which explains why the FTA-ABS was still positive in June 1976. Labs are immune-based. They do not reflect actual infection, but the immune response to infection. It takes time for this response to clear up, sometimes up to years after treatment. He also noted that the Veteran was diagnosed with osteoarthritis, which is not the same as infectious arthritis. According to this examiner, the Veteran's osteoarthritis had resulted from aging and his post-service occupations; his osteoarthritis was not a residual of syphilis. This VA examiner also cited to medical literature supporting his conclusions. Based on this evidence, the Board finds that service connection for residuals of syphilis is not warranted. Although the Veteran is diagnosed with arthritis of multiple joints, the overall weight of the evidence is against a finding that this arthritis was incurred in or is otherwise related to his military service. The evidence addressing the etiology of the Veteran's current disabilities includes medical opinions. According to the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. In this case, the April 2007 VA examiner associated the Veteran's low back condition with syphilis in service. This was based on the fact that the Veteran was diagnosed with low back pain and syphilis at about the same time in service. In contrast, the September 2011 examiner gave a negative opinion, explaining that osteoarthritis is not the same thing as infectious arthritis and not a residual of syphilis, and that the Veteran's syphilis was adequately treated in service such that the arthritis or osteoarthritis he now has is not a result or consequence. The Board finds this latter opinion unfavorable to the claim to be more probative, as it provides a more detailed explanation of the conclusion reached, including references to the laboratory findings in service, and supports that conclusion with citations to relevant medical literature. The April 2007 opinion is based solely on the temporal proximity of the Veteran's low back and syphilis complaints. Therefore, the overall weight of the competent and credible medical evidence is against a finding that the Veteran's current multiple-joint arthritis (osteoarthritis) is etiologically related to his military service, including especially to the syphilis he contracted during his service. While the Board has considered his statements made in support of his claim, he has not demonstrated the necessary knowledge or expertise to offer a competent opinion relating his current arthritis to syphilis. See again 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). Finally, aside from his low back, the Veteran has not suggested that he has experienced continuous joint pain since service. Therefore, service connection based on a theory of continuity of symptomatology is unwarranted. His assertions regarding his low back will be discussed below. C. Low Back Disability The Veteran filed a separate claim for service connection for a low back disability. As noted above, private treatment records reflect diagnoses of osteoarthritis, i.e., degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbar spine. Therefore, the pertinent question is again whether these disabilities are related or attributable to his military service or date back to his service. His STRs show he was treated for low back pain on several occasions while in service. He complained of low back pain in January and February 1974. He could not recall any specific low back injury. This was determined to be musculoskeletal in nature, and he was assigned light duty for 48 hours. In December 1974, he complained of a back injury after wrestling. He again complained of low back pain in April 1975. In December 1975, he was treated for low back pain after lifting weights. However, a May 1976 separation examination was normal, and he later reiterated there was no change in his medical condition as of August 1976. Private treatment records dated in November 1999 show he complained of a just one-week history of low back pain, so not dating back to his military service. He was diagnosed with lumbar spine osteoarthritis in February 2000. Records dated in May 2002 show he reported low back pain from heavy lifting at work, so at his civilian job. In July 2002, he reported a work-related back injury in February 1998, and records reflect a diagnosis of congenital stenosis. In March 2003, he reported a history of low back pain dating back to 1999 while he was working, so again in relation to his civilian job, not military service. He had a VA examination in April 2007. The examiner reviewed the claims file and noted the Veteran's treatment for low back pain in service. He diagnosed the Veteran with DDD and related the condition to syphilis in service, as discussed above. In a July 2008 statement, the Veteran reported that a workman's compensation claim for a back injury had been denied because the injury was old. An additional VA examination was performed in September 2011. The examiner reviewed the claims file and noted the Veteran's history of low back pain in service. The Veteran also reported that he did not have any significant trauma after service, but had engaged in very physical occupations. It was in the early 2000's that his back pain had progressed to the point that he had sought treatment for it and was diagnosed with DDD. Following a then current examination, he was diagnosed with DDD with radiculopathy. But the examiner concluded this condition was less likely than not related to the Veteran's military service, so including the back pain experienced in service. He surmised the Veteran had limited episodes of back pain in service. The etiologies of them were sprains and muscle strains. He always recovered and returned to his duties. There is no indication of degenerative disease in service, and his separation examination did not reveal any chronic symptoms consistent with degenerative disease. His post-service employment was always of a physical nature, and his disc disease was diagnosed more than 25 years after service. According to this VA examiner, the condition was most likely due instead to simple aging and the occupations the Veteran had had since service. Based on this evidence, the Board finds that service connection is not warranted for a low back disability. Although the Veteran is diagnosed with DDD, the overall weight of the evidence is against a finding that this condition was incurred in or is otherwise related to his service. The September 2011 VA examiner concluded that the Veteran's condition now experienced was unrelated to the complaints of back pain he had while in service. This opinion was based on a review of the claims file, a history provided by the Veteran, and a physical examination. There is no competent and credible medical opinion refuting this VA examiner's unfavorable conclusion regarding this claim or otherwise suggesting the Veteran's present condition is related to his military service or dates back to his service. The Board has again considered his lay statements made in support of his claim. However, he has not demonstrated the necessary knowledge or expertise to render an opinion on the etiology of a condition such as DDD. To the extent that he has asserted continuous symptoms associated with a low back condition, he is competent to report in-service and post-service continuity of symptoms. "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records). But see, too, Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that, for non-combat Veterans providing non-medical related testimony regarding an event during service, or whether the event is not alleged to have occurred in combat, Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements). To reiterate, when considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Kahana cautioned that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence. See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) This notion of continuity of symptomatology, however, only applies when the condition now claimed was noted during service. Moreover, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent." Id. (citations omitted). Thus, in adjudicating this claim, the Board must also assess the Veteran's credibility, not just competency. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In doing so, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to him. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). See also Pond v. West, 12 Vet. App. 341 (1999) and Cartwright v. Derwinski, 2Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). While the Board acknowledges the Veteran is competent to provide evidence of his own experiences, his separation examination reflects normal findings. Moreover, his post-service private evaluation and treatment records contain numerous references to his low back pain arising long after the conclusion of his military service, in February 1998 or thereabouts and because of a work-related injury; he had complaints of ongoing back pain beginning in 1999. See Struck v. Brown, 9 Vet. App. 145 (1996) (discussing how contemporaneous medical findings may be given more probative weight than contrary evidence offered years later, long after the fact). See also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later). These facts weigh heavily against any claim he now makes that he has had problems with his low back ever since service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for the pertinent chronic disability for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder). The Board therefore, in the appropriate circumstance, may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). The Board is not holding that corroboration is required. Rather, the Board finds his assertions to be less credible than the contemporaneous records - including the several times in years past when he, himself, reported only relatively recent onset of his low back pain and attributed it to something other than his military service, namely, to events that had occurred well since the conclusion of his service, including at his civilian job. Those prior times when he attributed his then current low back pain and associated disability to something besides his military service have a lot of probative weight since statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). The lack of evidence of relevant treatment during the years preceding those confessions bears on the credibility of the evidence of continuity, just cannot be the exclusive reason for finding lay evidence not credible. As such, the Board finds that the most probative evidence is against the claim, not instead supportive of it or even in relative balance (equipoise). When this occurs, the claim must be denied. 38 C.F.R. § 3.102. ORDER The claim of entitlement to service connection for residuals of syphilis, including an orthopedic joint disorder, is denied. The claim of entitlement to service connection for a lumbar spine or low back disability also is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs