Citation Nr: 1312083 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 09-11 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from August 1968 to December 1968. He also had various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) service in the Army Reserves, including 15 days in August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado which, in pertinent part, denied the Veteran's claim of entitlement to service connection for a back disorder. This claim was previously remanded by the Board in November 2011 and December 2012 for further evidentiary development. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in Denver, Colorado in April 2011. A written transcript of this hearing has been prepared and incorporated into the evidence of record. 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. The presumption of soundness applies to the Veteran for his period of active duty from August 1968 to December 1968. 2. The Veteran did not suffer from a back injury or associated symptomatology during his active military service or within one year of his separation from active service. 3. The Veteran does not suffer from a current back disability that manifested during, or as a result of, active military service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a back disorder, to include as due to the permanent aggravation of a preexisting disability, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 5103(a), 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 CONCLUSION Duty to Notify VA has a duty to notify and assist veterans 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 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 556 U.S. 396 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. A letter sent to the Veteran in February 2008 addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service personnel records and a number of active service and Reserves service treatment records, including the Veteran's enlistment and discharge examinations. Attempts were made by VA to obtain additional treatment records, but a Formal Finding on the Unavailability of Service Records for the 7247 Medical Relief Unit from July 1968 to July 1974 was issued in November 2009. Also, the Veteran received a VA medical examination in June 2012, and VA has obtained these records as well as the records of the Veteran's private medical treatment. Copies of the Veteran's Social Security Administration (SSA) records have also been incorporated into the claims file. The Veteran has also reported treatment from the Foothills Chiropractic Health Center since 1993. However, in June 2008, VA was notified that this facility no longer had copies of the Veteran's records. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Board finds there has been substantial compliance with its previous remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) scheduled the Veteran for a medical examination in June 2012 and that an addendum to this examination was obtained in December 2012. Additional records from the Veteran's private chiropractor were also obtained. The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). Facts and Analysis The Veteran contends that he is entitled to service connection for a back disorder. Specifically, the Veteran has asserted that he suffered a childhood injury that resulted in a discrepancy in the length of his legs. As a result of this discrepancy, the rigors of basic training aggravated his condition, resulting in a chronic back disorder. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's current back disability did not manifest during, or as a result of, active military service, nor is it due to the permanent aggravation of a preexisting disability. A Formal Finding on the Unavailability of Service Records for the 7247 Medical Relief Unit from July 1968 to July 1974 was issued in November 2009. However, the Veteran's May 1968 enlistment examination is of record. An evaluation of the Veteran's spine and other musculoskeletal system, as well as the lower extremities, was deemed to be normal at this time. There were no defects or diagnoses noted, aside from difficulty hearing and a scar of the left buttocks. The examiner concluded that the Veteran was qualified for enlistment. In his report of medical history associated with this examination, the Veteran described his health as good. He denied having, or ever having had, recurrent back pain or bone, joint or other deformity. The Veteran's history of having a large stick removed from his buttocks due to an accident was noted. However, it was concluded that there was no disability associated with this. The Veteran underwent a discharge examination in December 1968. Again, an evaluation of the spine and the lower extremities was deemed to be normal at this time. The Veteran's scarring of the left buttocks was again noted, but no other diagnoses or defects were recorded in the examination report. The Veteran also described his health as "excellent" in his report of medical history associated with this examination and he denied having, or ever having had, back trouble of any kind or bone, joint or other deformity. The examiner noted that all items listed existed prior to service and that the Veteran had no sequelae associated with his history. Following his separation from active duty, the Veteran was afforded a periodic examination for the Army Reserves. The Veteran's scarring of the left buttocks was again noted, but an evaluation of the spine and the lower extremities was again deemed to be normal. The Veteran reported his health as "good" in his report of medical history associated with this examination and he again denied having, or ever having had, recurrent back pain or bone, joint or other deformity. The record also reflects a great deal of treatment from a private chiropractor following service. According to a record dated July 2000, the Veteran was seen for an initial examination due to right shoulder and arm pain. There was no mention of current low back pain or past low back pain, but it was noted that the Veteran had not been to a chiropractor since 1996 or 1997. The Veteran did report a history of pain in the right buttocks, however, that radiated into the right thigh. The Veteran reported a history of a helicopter crash in 1968 or 1969 and a sledding accident when he was a child resulting in a stick having to be surgically removed from his right buttocks. It was noted that the Veteran did not walk with an antalgic gait at this time. The Veteran underwent a physical examination for Social Security purposes in November 2001. The Veteran's current problems were noted to be diabetes mellitus and right hip pain. Examination revealed the Veteran to be in no apparent distress with a normal gait. He was also able to get on and off the examining table without difficulty. There was no mention of current symptomatology involving the back or an extended history of symptomatology related to the back. According to a June 2003 record from the Veteran's chiropractor, he was experiencing low back pain and a dull pain in the left leg. It was noted that this had been presently going on for the past three to four months and that it first began some 10 to 15 years earlier. There was no mention of pain related to military service or pain that had existed since the late 1960s. An October 2005 record confirms that the Veteran was continuing to have low back pain. His leg length discrepancy was also noted at this time. According to an August 2008 chiropractic record, the Veteran was experiencing a severe degree of dull pain in his right lower back. It was noted that there was a leg length discrepancy of one-half of an inch, due to either pelvic deficiency, leg length inequality or reactive misalignment. A July 2009 record also notes a leg length discrepancy of one-quarter inch. This was felt to be due to postural compromise. It was also noted that the Veteran injured his low back the previous day when lifting a heavy gate. The record also contains a statement dated March 2008 from a private physician with the initials J.D.C. According to Dr. C, the Veteran had pre-military trauma that resulted in difficulties during basic training due to leg length discrepancy. Dr. C also indicated that this later led to back pain and a diagnosis of scoliosis. Dr. C provided no rationale or discussion in support of this opinion. The Veteran's chiropractor also provided VA with a statement dated May 2011. According to this statement, the Veteran sought periodic care for occasional low back pain, sciatica and neck pain. It was noted that the Veteran had degenerative changes in his lumbar spine that contributed to his pain. The Veteran was afforded a VA examination for his back disability in June 2012. The Veteran reported ongoing low back pain. He indicated that when he was ten years old he was injured in a sledding accident. This resulted in a piece of wood impaling his right buttock which required surgical removal. The Veteran reported that as a result, his right leg grew to be shorter than his left. Examination revealed the right leg to be 90 centimeters (cm) and the left leg to be 90.75 cm. The Veteran subsequently played basketball in college and joined the military at the age of 22. He reported that he began to develop low back pain during basic training while marching and hiking. He left active duty after 4 months and continued with the Army Reserves. The Veteran denied seeking treatment for either back pain or leg length discrepancy during his military service. The Veteran reported that his back pain began to worsen in 1990 and he started seeking treatment from a chiropractor at this time. Examination confirmed that the Veteran was suffering from lumbar spondylosis. However, the examiner concluded that this disability was less likely than not incurred in or caused by military service. The examiner explained that the Veteran described chronic back pain that was routinely treated by a chiropractor with relief of his symptoms. While the Veteran believed this was due to a discrepancy in leg length, a review of the service treatment records failed to identify the finding of a short right leg. There was also no evidence of treatment for back pain during military service - a fact readily admitted to by the Veteran. Lumbar spondylosis was not related to military service as there was no evidence of a nexus relating his current problems to military service. An addendum to the above examination report was prepared in December 2012. The examiner concluded that there was not clear evidence of a disability at the time of enlistment into active duty. The examiner explained that the May 1968 enlistment examination indicated that the Veteran had no present disability. While his prior surgery to have a large stick removed from his buttocks was noted, the examiner concluded that there was "no disability" at the time of enlistment. The Veteran also denied having, or ever having had, recurrent back pain or bone, joint or other deformity in his report of medical history associated with this examination. Therefore, since there was no documentation of any sequelae due to the noted accident, to include back pain or shortened legs, the examiner concluded that it must be assumed that there were no conditions that would prevent the Veteran from beginning his military service. The examiner further opined that it was less likely as not that the Veteran's current back disability had its onset during military service. According to the Veteran's December 1968 discharge examination, there were no significant changes since enlistment. The Veteran also indicated in his report of medical history associated with this examination that he did not have, nor had he ever had, recurrent back pain or bone, joint or other deformity. Another examination of record from December 1972 also reflected no significant difference from the 1968 discharge examination. The preponderance of the evidence of record demonstrates that the Veteran is not entitled to service connection for a back disorder, to include as due to the permanent aggravation of a preexisting disability. The Board will first address the Veteran's assertion that he suffered from a preexisting disability that was permanently aggravated as a result of active military service. For purposes of basic entitlement to service-connection, 38 U.S.C.A. § 1111 provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. In the present case, the Veteran's enlistment examination of May 1968 notes no prior history of a disability involving either the spine or the legs. While the evidence of record reflects that the Veteran suffered an accident as a child requiring surgery to remove a stick from the left buttocks, there is no indication that the Veteran suffered any chronic disability resulting from this as of May 1968. The Veteran routinely denied any history of back pain or bone deformity and the examinations of record make no mention of back pain or leg length discrepancy. In fact, the December 1968 discharge examination specifically notes that the Veteran had no sequelae associated with any preexisting condition. Finally, the VA examiner of record concluded in December 2012 that it must be assumed that there were no conditions at the time of enlistment that would prevent the Veteran from enlisting. The examiner explained that the Veteran denied any history of back pain or bone deformity upon enlistment and the examining physician specifically noted that the Veteran had no disability. As such, the presumption of soundness applies in this case. The preponderance of the evidence of record also demonstrates that the Veteran is not entitled to service connection for a back disorder on a direct basis. The evidence of record demonstrates that the Veteran did not suffer from a back disorder during military service. The record contains no evidence of treatment for a back disability during active duty or duty with the Army Reserves, and the Veteran verified the absence of in-service treatment during his June 2012 VA examination. The Veteran also denied ever having back trouble of any kind during his December 1968 discharge examination. The Veteran again denied ever having had recurrent back pain upon examination in December 1972. As such, the preponderance of the evidence of record demonstrates that the Veteran did not suffer from back symptomatology during active duty. The Veteran has asserted that his back pain has existed since military service. According to his January 2008 notice of disagreement, he developed "severe back pain" while in basic training. While he is certainly competent to testify to symptomatology such as pain, the Board does not find this assertion to be credible. The Veteran himself denied a history of back trouble of any kind upon examination in December 1968. It seems highly unlikely that the Veteran would make such an assertion if he was experiencing "severe" symptomatology within the past four months. He again denied ever having recurrent back pain upon examination in December 1972. The Board finds the Veteran's assertions made around the time of discharge from active duty to be more reliable than his recollections offered nearly 40 years after his discharge from military service. Post-service medical evidence also reflects that the Veteran's current back disability did not manifest during, or as a result of, active military service. As already noted, the Veteran denied a history of recurrent back pain in December 1972. A June 2003 record from the Veteran's chiropractor also reflects that the Veteran's back problems only began some 10 to 15 years earlier. This would be, at the earliest, approximately 1988, or some 20 years after separation from active duty. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. 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); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). In this case, the absence of any mention of back pain for approximately 20 years after separation from active duty tends to suggest that the Veteran has not suffered from chronic symptomatology since military service. During his April 2011 hearing, the Veteran testified to receiving treatment within six months to one year after his separation from active duty. The Board does not find this assertion to be credible. Again, the Veteran denied back trouble in December 1972, greatly calling into question his more recent assertion of treatment for back pain within 6 months to one year of his discharge in December 1968. Furthermore, the Veteran informed the VA examiner in June 2012 that he did not seek treatment with a chiropractor until his symptomatology had worsened in 1990. Finally, the record reflects that the Veteran reported a history of back problems for the past 10 to 15 years upon treatment in June 2003. As such, the evidence of record does not support the more recent assertion of back treatment within six months to one year of separation from active duty. Finally, the VA examiner of record concluded that it was less likely as not that the Veteran's current back disability manifested during, or as a result of, active military service. The examiner noted that there was no record of treatment for the back during military service and that the Veteran confirmed he did not seek treatment. In addition, however, the Veteran himself denied a history of back problems in December 1968 and a history of recurrent back pain in December 1972. The examiner concluded that there was no nexus between the Veteran's current lumbar spondylosis and the problems he had in his military service. The examiner again stressed that the Veteran himself denied a history of back pain in 1968 and 1972 in a December 2012 addendum. As such, the preponderance of the evidence of record demonstrates that the Veteran's current back disorder did not manifest during, or as a result of, active military service. In reaching the above conclusion, the Board has considered the positive opinion of Dr. C dated March 2008. According to Dr. C, the Veteran had difficulties during basic training due to leg length discrepancy that later resulted in back pain and scoliosis. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). Dr. C provided no discussion or rationale in support of his offered opinion. The Court has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). The VA examiner, however, discussed that the Veteran himself denied a history of back pain upon separation from active duty and several years after active duty during an Army Reserves examination. The examiner further noted that there was no evidence of leg length discrepancy upon enlistment or evidence of any chronic disability associated with the Veteran's sledding injury at the time of enlistment. Finally, after examining the Veteran and reviewing the evidence of record, it was determined that there was no nexus between the Veteran's current lumbar spondylosis and military service. As such, the Board finds the opinion of the June and December 2012 VA examiner to be more probative. The Board recognizes that the Veteran believes he is entitled to service connection for a back disability. In a statement received by VA in September 2012, the Veteran asserted that he suffered an injury during childhood that resulted in one leg being shorter than the other. As an initial matter, the Board notes that the record contains no competent evidence relating the Veteran's discrepancy in leg length to this accident. The Veteran's private chiropractor noted that it could be due to a number of factors, including postural compromise. The Veteran has also alleged that boot camp and other military exercises exacerbated this condition and resulted in his current disability. However, the record contains no evidence to demonstrate that the Veteran is competent to link his current spondylosis to exercises performed during military service in the 1960s. When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). As already discussed, the preponderance of the evidence of record does not support the assertion of back pain during military service or medical treatment for back pain within one year of separation from active duty. The Veteran has not submitted any evidence to demonstrate that he is competent to link a current disability to military service, despite the lack of in-service symptomatology or symptomatology for a number of years after separation from active duty. The Veteran also testified in April 2011 that the physician that performed his enlistment examination suggested that he should not be going into service. This statement inherently lacks credibility, however, as the examiner indicated in the report that the Veteran in fact had no disability. The Veteran also reported in March 2008 that this examiner agreed that he had leg length discrepancy and that he should not be in the military due to this fact. Again, however, the Veteran's enlistment examination makes no mention of leg length discrepancy, instead suggesting that the Veteran had no disability and that he was eligible for enlistment. VA also received a statement from an individual purporting to have known the Veteran for 25 years in January 2008. This individual indicated that he had witnessed the Veteran complain of severe back pain and that he walked with a limp the entire time he knew him. However, this would merely suggest that the Veteran had limped since approximately 1983. This does not demonstrate that the Veteran suffers from any current disability that manifested as a result of active military service. The author of this statement also discussed his difficulties with basic training and that the marches would wreak havoc on the body. While the Board is not disputing that basic training is indeed rigorous, the Veteran himself denied back pain upon separation and several years later during his December 1972 Army Reserves examination. As such, this statement fails to provide any evidence to suggest that the Veteran suffers from a current back disability that manifested during, or as a result of, active military service. As a final matter, the Board notes that the Veteran's representative asserted in a March 2013 statement that the Veteran's most recent VA examination was inadequate. Specifically, it was argued that the examiner relied solely on the lack of in-service evidence when formulating a negative etiological opinion, and, that the examiner failed to measure the Veteran's legs to determine whether there was in fact a discrepancy. The Board is not persuaded by this argument. The examiner certainly considered the lack of in-service treatment to be relevant when formulating an opinion. However, the examiner also considered the Veteran's own explicit denial of back symptomatology at the time of discharge from active duty, and the lack of evidence of a back condition during Reserves treatment in December 1972. Finally, the examiner did in fact measure the Veteran's leg length and discuss the discrepancy in length. As such, the Veteran's representative's argument as to why the most recent VA examination is inadequate is not persuasive. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a back disorder must be denied. ORDER Service connection for a back disorder is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs