Citation Nr: 1313223 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 06-06 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from February 1965 until August 1968 and from October 1973 until December 1976. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2004 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board previously considered this appeal in November 2012 and remanded the claim for further development. The RO/AMC completed the requested development, but continued to deny the benefits sought. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the case was properly returned to the Board for appellate review. The Board notes that although the Veteran appeared to raise a claim for the low back disability secondary to his service-connected chondromalacia of the bilateral knees in his initial claim and the Veteran's representative included this theory in his March 2006 statement, the Veteran specifically clarified in his substantive appeal that he actually meant to report that his "knees buckled because of [his] back." Similarly, during the July 2012 Board hearing the Veteran provided sworn testimony that the back caused the knee condition. Accordingly, the Board finds the record does not raise the issue of entitlement to service connection on a secondary basis and this theory will not be discussed in the decision below. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (noting that the Board is obligated to consider direct and secondary service connection if raised by the record when a Veteran raised a basic issue of service connection). FINDINGS OF FACT 1. A chronic low back disability was not manifested during service and arthritis was not manifest within one year thereafter; low back disability is not related to service. 2. In service low back strain was acute and resolved. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112. 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. In cases, such as the present case, where some of the claimant's service records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist the claimant in developing facts pertinent to his claim in a case where service records are presumed destroyed includes the obligation to search for alternative medical records and alternative sources of evidence to substantiate the claim. Dixon v. Derwinski, 3 Vet. App. 261 (1992); Moore v. Derwinski, 1 Vet. App. 401 (1991). In the present case, letters sent to the Veteran in August 2004, December 2012, February 2013 fully addressed all notice elements required by Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was not notified of the criteria used to assign the disability rating and effective date as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the RO did not advise the Veteran of such information, because the claim is being denied, no disability ratings or effective dates will be assigned. The Board also notes the Veteran has had representation throughout the duration of the appeal. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). Thus, the Board finds the Veteran meaningfully participated in the adjudication of his claim such that the essential fairness of the adjudication was not affected. As outlined in the February 2013 formal finding of unavailability, the RO has done everything reasonably possible to locate the service hospital records and otherwise associate alternate source documents with the claims files upon learning the service records were unavailable. The Veteran was notified of the unavailability of the service hospital records in a February 2013 letter. This letter advised the Veteran that he could submit alternative source documents, including statements from military medical personnel and buddy certificates, in support of his claim. The Veteran did not identify any other alternate sources that should be searched to obtain these records, nor did he provide alternate source documents concerning his hospitalization at Oakland Naval Hospital in March 1968. As such, the RO has satisfied the heightened duties of Dixon v. Derwinski, 3 Vet. App. 261 (1992). VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the record includes the Veteran's service treatment records, VA outpatient treatment records, private medical records, lay statements and the report of a VA examination. Additionally, the Veteran provided testimony at a July 2012 Board hearing. The presiding Veterans Law Judge clearly set forth the issue to be discussed, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information as to the dates and locations of treatment when appropriate. In fact, the presiding Veterans Law Judge suggested the Veteran attempt to contact insurance companies for any records concerning treatment and also held the file open so the Veteran could submit a statement from his treating physician, or any other doctor, that linked his current back pain to service. As such, the Board finds that VA fully complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Board notes that the Veteran reported treatment with several different private physicians and at several different hospitals over the years and not all of these records are available. The Veteran testified that he attempted to obtain these records from his hometown doctor and they were unavailable. Similarly, the Veteran's spouse indicated in August 2012 that they contacted the insurance companies and were informed that insurance records were not kept longer than 7 years. An October 2005 memorandum from Mercy Health Partners indicated that state law only required the hospital keep records for 10 years and although some records older than 10 years were retained, they were unable to locate the requested records. A handwritten note on this memo indicated they tried to get old records from a doctor but the doctor retired and moved out of state. The handwritten note also indicated the medical records were destroyed by a flood. Significantly, several records from Mercy Hospital during the period from 1970-1990 were already associated with the claims file. While the Veteran testified that he currently treated with private physicians, the Board remanded the claim in November 2012 and specifically requested the RO assist the Veteran in obtaining these records. Although the RO sent the Veteran a letter in December 2012 requesting he complete an authorization for release of records from Dr. G. and Dr. D, the Veteran did not respond. It has been held in this regard that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also 38 C.F.R. § 3.159(c)(1)(i), (c)(1)(ii)(explaining that the claimant must cooperate fully with VA's reasonable efforts to obtain non-Federal records, including authorizing the release of existing records if necessary). The Board notes that during the December 2012 VA examination the Veteran reported he was in receipt of disability benefits from the Social Security Administration (SSA). This record indicates, however, that SSA benefits were granted based upon the Veteran's multiple sclerosis. VA's duty to assist extends to obtaining relevant records from the SSA. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159(c) (2). "Relevant" records are defined as records that relate to the injury for which the claimant is seeking benefits and that have a reasonable possibility of helping to substantiate the Veteran's claim. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). Furthermore, the Board notes the Veteran has not argued his SSA record would be relevant to the claim for a low back disability. See Golz, 590 F.3d at 1321 (VA is required only to obtain SSA records when they may be relevant to the claim). As such, the full SSA records would not be of any assistance with the claim. Finally, the Board finds that the December 2012 VA examination that provided an opinion as to the etiology of the low back disability is adequate. The examiner considered the Veteran's subjective history and complaints and performed a thorough physical examination providing all necessary findings to evaluate the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). As will be discussed in detail below although the examiner based his opinion in part upon the lack of medical treatment, that is not the only basis for the negative opinion and, further, the Board in this decision finds the Veteran's history of continuous treatment to be not credible. Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the absence of service medical records to provide a negative opinion when the Board specifically assumed that the Veteran sustained an injury during service); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006)("[R]eliance on a Veteran's statement renders a medical report incredible only if the Board rejects the statements of the Veteran"). Accordingly, the examination is adequate. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claims. 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). Law and Analysis The Veteran seeks service connection for a back disability and argues that his current disability is related to the treatment he received for his back during service. Having carefully considered the claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal will be denied. As explained above, this is a case where some of the service hospital records are unavailable. Under such circumstances, there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. Instead, there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Generally, to prove service connection, the record must contain evidence concerning: (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 a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), such as arthritis. See Dorland's Illustrated Medical Dictionary 531 (30th ed. 2003) (defining degenerative joint disease as osteoarthritis). Service connection may be awarded if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed n §3.309(a)."). If, however, a chronic disease is noted during service but is either not chronic or the diagnosis could be questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336. In the present case, the December 2012 VA examination concluded with a diagnosis of lumbosacral strain and lumbosacral degenerative disc disease. There was also a report of arthritis, which is an enumerated chronic disease within the meaning of 38 U.S.C.A. § 1101. As such, the Veteran has a current disability. The remaining questions are whether there is evidence of an inservice occurrence of an injury or disease and competent evidence of a nexus between the current disability and the inservice disease or injury. The Veteran had two distinct periods of service. Service treatment records during the Veteran's first period of service reflect the Veteran was seen in May 1968 for a sore back and reported a history of an auto accident on May 4 with a history of an older injury to the back. The note indicated the Veteran was previously admitted to Oakland Naval Hospital in March 1968. The impression was lumbosacral strain. As discussed above, the underlying hospital records from March 1968 are not available. No further treatment during the first period of service was noted. The service treatment records do not include an entrance examination prior to the second period of service. Significantly, however, the Veteran denied a history of recurrent back pain on the October 1973 report of medical history. Additionally, a November 1973 note indicated that the Veteran was examined and found physically qualified for transfer. The Court has held that the presumption of soundness applies even when the record of a Veteran's entrance examination has been lost or destroyed while in VA custody. Quirin v. Shinseki, 22 Vet. App. 390, 397, n. 5 (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997)). Accordingly, although the Veteran had prior treatment for his back, he is presumed sound upon his entry into service in October 1973. In light of the denial of symptoms in October 1973, the finding that the Veteran was physically qualified in November 1973 and the December 2012 VA examiner's conclusion that the March-May 1968 low back strain was a temporary condition, the Board also does not find there is clear and unmistakable evidence of a preexisting disability. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (explaining that when a Veteran is presumed sound, the burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable"). Because the presumption of soundness has not been rebutted, the claim becomes one of service connection. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). During the second period of service, the Veteran was seen for complaints of back pain and spasms in February 1974. The impression at that time was lumbosacral strain. In December 1974, the Veteran was seen for pain of the back and right hip and reported an injury the day before when he fell from a ladder. An x-ray of the spine on that date was negative and the impression was low back strain. The November 1975 reenlistment examination found the spine was normal. The Veteran eventually was discharged from service in November 1976 based upon a physical evaluation board that found the Veteran had chondromalacia of the patella of both knees. The final element is competent evidence of a nexus between the current low back disability and the treatment during either period of service. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In this regard, the Veteran was afforded a VA examination in December 2012 to assess the nature and etiology of any currently diagnosed low back disability. The examiner considered the subjective history of the Veteran's back going out in 1967 and subsequent injury following a rear-end collision in 1969 while the Veteran was a civilian. The Veteran indicated workup was negative and he was diagnosed with a lumbar sprain. The Veteran indicated he reinjured his back in 1976 and was placed on limited duty. He reported that about 4-5 months after this, he fell off a ladder and his back began to hurt again. After service the Veteran reported intermittent back symptoms and he was ultimately diagnosed with herniated discs of the back in 1997. He reported treatment with a primary care physician and indicated he treated with medication. The examiner conducted a clinical examination and indicated imaging studies confirmed a diagnosis of arthritis and explained a July 2004 magnetic resonance imaging test (MRI) indicated mild L4-5 and L5-S1 degenerative disc disease without central or foraminal stenosis. After reviewing the record and considering the results of the examination, the examiner concluded that it was less likely than not that the back condition was incurred in or caused by the claimed inservice injury event or illness. The examiner explained that the Veteran was seen and diagnosed with lumbosacral strain in 1968 and 1974. The examiner indicated these were temporary conditions that were treated and since healed without residuals and a subsequent reenlistment examination in November 1975 was normal. X-rays of the back and hip were also normal in December 1974. There was nothing in the evidence of record relating to any back condition form the time of discharge in 1976 until 2004. A primary care treatment note in June 2004 showed a diagnosis of lumbar degenerative disc disease with history of 2 herniated discs treated with physical therapy and epidural injections and there was no documentation of lumbar degenerative disc disease prior to July 2004. As such, the examiner concluded it was less likely than not the degenerative disc disease was due to events in military service and more likely due to events unrelated to military service, to include age-related degenerative changes, based on a lack of objective evidence to support the Veteran's contention with no current evidence of chronic low back condition that first manifested during military service and a lack of chronicity of care for the low back condition since service. VA outpatient treatment records and private treatment records reflect complaints and treatment for low back pain; however, none of these records suggests the current low back disability is related to the injury in active service. Although a June 2004 VA records reported the Veteran injured his back on board a navy ship, this was mentioned in the subjective history. That physician concluded that the Veteran was having a flare-up of degenerative disc disease but did not provide an opinion as to the etiology of the condition. During an August 2004 VA neurology visit the Veteran continued to complain of back pain. The physician noted that the thoracic MRI reflected epidural lipomatosis and indicated it was unclear whether those could be causing any of the symptoms. The attending neurologist agreed with the assessment and further noted that epidural lipomatosis could be the consequence of longstanding steroid use. An August 2005 VA outpatient note the physician indicated the Veteran had psychiatric issues that could play a role in some of his symptoms. The Veteran also provided testimony at a Board hearing. He testified that he treated with his primary care physician from 1976 until 1978. He indicated he was prescribed medication, physical therapy, and traction and he was treated at Mercy Hospital in the 1970s. The representative explained that the private physician indicated that the records had been destroyed and Mercy Hospital indicated they no longer had records from that date and time. The next primary care physician who treated the Veteran in 1983 and 1984 also did not have records prior to 1997. The representative argued that there was an MRI in the records that indicated the Veteran had a lumbar protrusion disc problem. He explained he would try to attempt to obtain records from others in the medical community that knew the Veteran was being treated for the conditions. The Veteran testified that the injury to his back occurred during service and he had no other injury. He testified he was medically discharged because of his knees but testified that his back was also a problem. He explained he could hardly straighten his knees out from the fall and his back bothered him and radiated down the leg. He explained that his primary care physician treated his back and prescribed tranquilizers and muscle relaxers, but pain medication that did not help so he was hospitalized and put in traction and physical therapy. He explained this was at Mariemont Hospital and explained he also received therapy at Bethesda North Hospital. He explained that Mariemont hospital closed and another hospital opened and he attempted to obtain records from the new hospital but was not successful. The Veteran's spouse testified that she married the Veteran in 1971 and she knew he had back problems during military service. She explained he would come home and collapse and reported that steps were difficult. She related that she rubbed his back and put warm compresses on it. She explained after his discharge he was treated by the hometown doctor and treated with traction and physical therapy. She explained she recalled this because she was pregnant with their daughter and recalled the difficulty she had with the going and comings and arrangement for hospitalization and pregnancy. She reported he continued to see the private doctor through 1983 or 1984 and subsequently was seen by a different private physician who also treated him for lumbar spine. The Veteran testified that he currently treated with a private physician Dr. D. The Veteran testified that he did not initially file a claim for his back as he was not the one filing the claim for his knees, he was only told to sign the forms. The Veteran provided an August 2012 statement of his mother in support of his claim. She related that she worked at Mercy Hospital in 1978 while her son was hospitalized and treated with traction there. It is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993)(observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)(holding that credibility can be impeached generally by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character). It has also been observed that the Board has the "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board finds the most probative evidence concerning the etiology of low back disability is the December 2012 VA examination. The examiner reviewed the claims file, examined the Veteran and provided a detailed and thorough rationale to support his opinion. To the extent the examiner relied upon the absence of medical treatment, as will be discussed in detail below, the Board finds the Veteran, his spouse and his mother are not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical evidence may go to the credibility and weight of the Veteran's lay testimony, the lack of such evidence does not, in and of itself, render the lay testimony incredible); Coburn, 19 Vet. App. at 432 (2006)("[R]eliance on a Veteran's statement renders a medical report incredible only if the Board rejects the statements of the Veteran"). As such, the Board concludes the examination was based on an accurate factual predicate. As noted above, the examiner concluded that the current back disability was less likely than not related to the injury in service and was likely due to age. To the extent to which the Veteran attempted to provide an etiological opinion, he is not competent to do so in this particular case. Determining the etiology of a low back disability is a complicated medical question involving interpretation of radiological studies and knowledge of the different symptoms and clinical presentation of several types of back disorders. The Veteran has not demonstrated he has the knowledge, education or training to provide an opinion in such a complicated matter and therefore his opinion as to the etiology of his degenerative disc disease is not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). As the Veteran has a diagnosis of arthritis which is one of the listed chronic diseases, the Board carefully considered whether service connection was warranted under 38 C.F.R. § 3.303(b) or on a presumptive basis. As explained by the Court in Walker, there are two ways to establish service connection for a chronic disease. In this case, the Veteran was not diagnosed with arthritis during service; rather he was provided diagnoses of lumbar strain. Furthermore, he did not have characteristic manifestations of the disease process (arthritis) during service and arthritis was not noted during service. Rather, X-ray examinations were negative for pathology. As such, it cannot be said that the chronic disease (arthritis) was established and not subject to legitimate question during service. Furthermore, there is no evidence reflecting arthritis to a compensable degree within one year of the Veteran's separation from service. Accordingly, in order to establish service connection the Veteran must demonstrate a continuity of symptomatology. In this regard, the Veteran and his spouse testified that the Veteran continuously sought medical care for his low back. In support of this, the Veteran submitted a statement of his mother indicating she recalled the Veteran being treated with traction in 1978. The Veteran, his spouse and his mother are competent to report the presence of symptoms and frequency of treatment. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board does not find the report of continuous symptoms to be credible. Although, a printout of treatment dates from Mercy Hospital confirms the Veteran was hospitalized 9 times in 1986, 1987 and 1988, and not all of the underlying medical records from Mercy hospital are available, the records that are available reflect treatment for gastritis in September 1987 and September 1988, hemorrhoids in January 1988, and chest pain in March 1988. Furthermore, the Board finds that the evidence of record contradicts the Veteran's assertions of continuous care and hospital treatment. For example, the November 1975 reenlistment examination during service concluded the spine was normal. An April 1977 hospital record from Mercy Hospital notes a prior hospitalization in 1972 for chondromylasia the past two-three years and indicated treatment with traction. This suggests the traction was prescribed for the knees, not the low back. During a June 1977 VA examination for compensation purposes for the knees, the Veteran did not discuss the back and no diagnosis related to the back was rendered. Similarly, a May 2004 VA record noted a history of cervical disc and fusion in 1990 and recurrent neck surgery in 2002. Significantly, this record does not reflect any prior history or hospital treatment for the low back. Additionally, to the extent the Veteran, his spouse and mother provided testimony and statements suggesting continuous care, all of them have an interest in the outcome of the claim. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (holding that credibility can be impeached generally by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character); Pond v. West, 12 Vet. App. 341, 345 (1999) (although Board must take into consideration the Appellant's statements, it may consider whether self-interest may be a factor in making such statements). Here, there is basis to argue the spouse and mother's interest in obtaining a favorable decision on the Veteran's claim, and, this consideration, when collectively viewed with the negative clinical evidence and lack of rationale for the opinions tends to disfavor the claim. Regardless, we again report that arthritis was not noted during service and there is no proof that there were characteristic manifestations of the arthritic disease process during service. 38 C.F.R. § 3.303(b). In sum, the first indication of any form of complaint or treatment for the thoracolumbar spine is an October 1990 private hospital record that noted some tenderness to palpation at T7. In other words, there is a gap of nearly 14 years between the Veteran's discharge from service and the first treatment for his back. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, there is not silence alone. Rather, the November 1975 examination disclosed that the spine was normal. Furthermore, when he applied for compensation in 1977, he referenced the knees, but not the back. One would expect that if he had ongoing disability of the knees and back he would have claimed both at that time. As the Court has noted the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded. See, Buczinski v. Shinseki, 24 Vet. App. 211 (2011). While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted. The Board has also considered the benefit of the doubt rule in this case, but as there is no reliable evidence of a nexus or evidence of continuous symptoms as to arthritis, the preponderance of the evidence is against the claim. As the evidence is not in equipoise, there is no basis to apply the benefit of the doubt rule. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for a low back disability is denied. ORDER Service connection for a low back disability is denied. ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs