Citation Nr: 1315836 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 04-13 752 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for arthritis of multiple joints, to include as secondary to service connected residuals of a right ankle disability. 2. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected residuals of a right ankle disability. REPRESENTATION Appellant (the Veteran) is represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from July 1957 to July 1960. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2002 rating decision of the RO in Roanoke, Virginia. In June 2006, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge, seated at the RO. A transcript of the hearing is associated with the claims file. The Veteran also testified at RO hearings in April 1997 and May 2004. The Board remanded the appeal in December 2007, August 2009, and May 2011, for additional development, including to afford the Veteran VA examinations and to obtain opinions as to the etiology of his claimed disabilities. In July 2012, the Board again remanded the appeal for corrective action regarding the previous remands. The appeal has since been returned to the Board for further appellate action. In May 2011, the Board also remanded the issues of entitlement to service connection for a bilateral hip disability, a right knee disability, a cervical spine disability, and residuals of a coccyx injury. In a March 2012 rating decision, service connection was granted for a cervical spine disability with arthritis, a right knee disability with arthritis, a right hip disability with arthritis, a left hip disability with arthritis, and residuals of a coccyx injury with arthritis. As the benefits sought have been granted with respect to those appeals, there remain no questions of law or fact in dispute as to service connection for those conditions and the issues are no longer before the Board. 38 U.S.C.A. § 7105(a) (West 2002). In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. Arthritis is listed among the diseases for which the presumption of service connection for certain chronic diseases, and the provisions regarding chronicity in service and continuity of symptomatology after service must be considered. 3. The joints identified by the Veteran as being affected by multi-joint arthritis that are not already service connected include the lumbar spine, hands, left knee, and left ankle. 4. The Veteran was treated for back pain, a left hand injury, and a left ankle injury in service; there was no injury or disease in service regarding the left knee. 5. Symptoms of a disability of the lumbar spine, to include arthritis and scoliosis, or arthritis of the hands, left knee, and left ankle, were not chronic in service. 6. Arthritis of the lumbar spine, hands, left knee, and left ankle did not become manifest within a year of service separation. 7. Symptoms of a disability of the lumbar spine, to include arthritis and scoliosis, or arthritis of the hands, left knee, and left ankle, have not been continuous since service separation. 8. A disability of the lumbar spine, to include arthritis and scoliosis, and arthritis of the hands, left knee, and left ankle, are not etiologically related to service. 9. A disability of the lumbar spine, to include arthritis and scoliosis, and arthritis of the hands, left knee, and left ankle, are not etiologically related to any service-connected disability and were not permanently worsened beyond their normal course by any service-connected disability. CONCLUSIONS OF LAW 1. Arthritis of multiple joints was not incurred in service; arthritis is not presumed to have been incurred in service; neither arthritis in the joints nor aggravation thereof is proximately due to or a result of any service-connected disability. 38 U.S.C.A. §§ 337, 1101, 1112, 1113, 1131, 1153, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 3.310 (2012). 2. A lumbar spine disability, to include arthritis and scoliosis, was not incurred in service; arthritis is not presumed to have been incurred in service; neither a lumbar spine disability nor aggravation thereof is proximately due to or a result of any service-connected disability. 38 U.S.C.A. §§ 337, 1101, 1112, 1113, 1131, 1153, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Remand Compliance As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, as they relate to these claims, the December 2007, August 2009, May 2011, and July 2012 remands were essentially in pursuit of an adequate VA examination and opinion. The Board finds that the Board's July 2012 remand resulted in substantial compliance with its instructions. The RO sent a letter to the Veteran requesting that he specifically identify the joints or location of the joints that he believes are arthritic due to service and scheduled the Veteran for a VA examination to address whether the claimed disabilities were related to service, related to a service-connected disability, or aggravated by a service-connected disability. The Board notes that the Veteran did not respond to the RO's July 2012 letter requesting information regarding his arthritic joints; and, while the Veteran appeared for the scheduled August 2012 examination, he refused to be examined, telling the clinician, "what's the point." Nevertheless, the VA clinician provided the requested opinions based on review of the claims file, and provided a list of the joints claimed as being arthritic, based on claims file review. Under the circumstances, and for reasons discussed in the next section, the Board finds that the RO substantially complied with its remand instructions, and there is no necessity of further development. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (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. In this case, the Veteran submitted his initial claim for service connection for arthritis of multiple joints and for a lumbar spine disability in April 1997, well prior to enactment of the VCAA. The claim was denied in July 1999 on the basis that the claims were not well grounded. The Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7(b)(1), (2) (2000) includes the provision that, if a denial or dismissal of an issue became final from July 14, 1999, to November 9, 2000, and the issue was denied because the claim was not well grounded, VA must, upon request of the claimant or upon the motion of VA, readjudicate certain finally decided claims "as if the denial or dismissal had not been made." The Veteran was sent a letter in May 2002 which advised him of the information and evidence necessary to substantiate his claims for service connection. A March 2006 letter advised him as to how disability ratings and effective dates were assigned in the event of a successful claim seeking service connection. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). While the March 2006 letter was sent to the Veteran after the initial adjudication of the claim in July 2002, the claim has been subsequently readjudicated. Additional letters were sent in April 2008, June 2011, and July 2012. Accordingly, to the extent of any error in the timing of this notice, there is no prejudice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In short, VA has complied with its duty to notify the Veteran in this case. When conducting a hearing, a VA hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2012). The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the hearing, the Veterans Law Judge verified with the Veteran that all available private and VA treatment records had been obtained, and the unavailability of certain records pertaining to other issues was discussed. The Veteran's symptomatology was discussed in detail, and testimony concerning his level of impairment was elicited. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. VA has made reasonable efforts to obtain relevant records and evidence regarding these claims. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's written assertions and personal hearing testimony. In addition, the Veteran was afforded VA examinations to address the etiology of the Veteran's claimed arthritis and lumbar spine disability in October 2001, July 2008, and February 2010. Those examinations were adequate to determine the nature and manifestations of the Veteran's claimed arthritis of multiple joints and lumbar spine disability. The multiple remands by the Board were primarily related to issues with the opinions rendered in those examinations. While the Veteran appeared for an examination in August 2012, he refused to be examined. The CAVC has held that VA's duty to assist a veteran in developing the facts and evidence pertinent to his claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). The Veteran's refusal to cooperate with VA in permitting the requested examination leaves the Board with the definite impression that there is no reasonable possibility that further attempts at development would be fruitful. Nevertheless, the Board finds that the August 2012 opinions were adequate because each was provided by a medical professional based on an acknowledged review of the claims file. The resulting opinions address the pertinent evidence in the claims file and are accompanied by rationales that are consistent with the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The Board acknowledges that a portion of the requested opinion - regarding causation and/or aggravation of the claimed disabilities by the service-connected right ankle arthritis - could not be provided without resort to speculation. The Board is cognizant that, before it can rely on an examiner's conclusion that an etiology opinion is not possible, the examiner must adequately explain the basis for such a conclusion, or the basis must otherwise be apparent in the Board's review of the evidence. Cf. 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"). The examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. See Wallin v. West, 11 Vet. App. 509, 514 (1998). The phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Furthermore, the examiner should clearly identify precisely what facts cannot be determined. For example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Finally, VA must ensure that any medical opinion, including one that states no conclusion can be reached is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves, supra. When the record leaves this issue in doubt, it is the Board's duty to remand for further development. See Jones (cited above). In this case, the August 2012 VA clinician provided an explanation for her inability to provide a non-speculative opinion. She found that the asserted right ankle arthritis was not present even prior to the Veteran's right lower extremity amputation for peripheral artery disease in 2009. She identified July 2008 X-rays as normal, without evidence of arthritis. As she concluded that there was no right ankle arthritis, notwithstanding the grant of service connection for right ankle arthritis, she could not logically provide an opinion regarding causation or aggravation by the arthritis she found to be absent. As such, the Board concludes that the August 2012 VA clinician provided sufficient reasoning for her inability to provide the requested opinions regarding asserted causation or aggravation by service-connected right ankle arthritis and there is no necessity for further remand for additional explanation. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The CAVC has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection may also be established the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App.439, 448 (1995). Certain specific conditions are considered chronic diseases under VA Law. These include the following: Anemia, primary; Arteriosclerosis; Arthritis; Atrophy, progressive muscular; Brain hemorrhage; Brain thrombosis; Bronchiectasis; Calculi of the kidney, bladder, or gallbladder; Cardiovascular-renal disease, including hypertension. (This term applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1-year period will be given the same benefit of service connection as any of the chronic diseases listed); Cirrhosis of the liver; Coccidioidomycosis; Diabetes mellitus; Encephalitis lethargica residuals; Endocarditis. (This term covers all forms of valvular heart disease); Endocrinopathies; Epilepsies; Hansen's disease; Hodgkin's disease; Leukemia; Lupus erythematosus, systemic; Myasthenia gravis; Myelitis; Myocarditis; Nephritis; Other organic diseases of the nervous system; Osteitis deformans (Paget's disease); Osteomalacia; Palsy, bulbar; Paralysis agitans; Psychoses; Purpura idiopathic, hemorrhagic; Raynaud's disease; Sarcoidosis; Scleroderma; Sclerosis, amyotrophic lateral; Sclerosis, multiple; Syringomyelia; Thromboangiitis obliterans (Buerger's disease); Tuberculosis, active; Tumors, malignant, or of the brain or spinal cord or peripheral nerves; Ulcers, peptic (gastric or duodenal)(A proper diagnosis of gastric or duodenal ulcer (peptic ulcer) is to be considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; in short, where the preponderance of evidence indicates gastric or duodenal ulcer (peptic ulcer). Whenever possible, of course, laboratory findings should be used in corroboration of the clinical data. 38 C.F.R. § 3.309(a). Where one of the above enumerated chronic diseases is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and any of the chronic diseases listed above becomes manifest to a degree of 10 percent within 1 year from date of termination of such service (for Hansen's disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years), 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, 1113; 38 C.F.R. §§ 3.307, 3.309. In rendering a decision on appeal 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 for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372(Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336(Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The CAVC has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303(2007); Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. Sept. 14, 2009). Analysis The Veteran is seeking service connection for multi-joint arthritis and for a lumbar spine disability, to include arthritis and scoliosis. Although the Veteran did not respond to a letter requesting details as to the joints affected by multi-joint arthritis, a review of the claims file reveals the following. During a May 2004 hearing before a Decision Review Officer (DRO) at the RO, the Veteran testified that the specific joints that he believed to be arthritic were both knees, the right hip, and the small of his back. His representative stated on the record that a VA physician had stated in a February 1966 letter, that the Veteran had degenerative joint disease of his lower back, both knees and both shoulders. When asked what joints he believed were arthritic due to service, the Veteran testified that "degenerative arthritis sort of spreads . . . and it goes, . . . all over your body actually." In January 2007 correspondence, the Veteran reported arthritis of the right ankle, hip, and back due to a fall during service. He also reported that "arthritis is now in my hands, neck, and shoulders." In a February 2010 examination report and a January 2011 nexus opinion, complaints were identified regarding arthritis in the shoulders, hips, left knee and left ankle. The Board notes that service connection is already in effect for a cervical spine disorder, including arthritis, as well as for arthritis of the right and left shoulder, coccyx, left hip, and right hip. Notably, in a March 2012 rating decision, the RO granted service connection for a coccyx injury and assigned Diagnostic Code 5237, which rates on the basis of lumbosacral or cervical strain. Thus, he is already being compensated on the basis of impairment of the lumbosacral spine. Nevertheless, he is entitled to a decision regarding a specific disability of the lumbar spine. While service connection was previously granted for arthritis of the right knee and right ankle, the Veteran underwent a below-the-knee amputation on July 1, 2009 due to complications of peripheral vascular disease. On July 23, 2009, a right above-the-knee amputation was performed. Nevertheless, service connection is in effect for arthritis of the right knee and ankle during a portion of the period on appeal. The Board notes that there is no diagnosis of rheumatoid or inflammatory arthritis, or any disability affecting multiple joints, such as fibromyalgia. The Veteran does not assert that there has been any such diagnosis. Accordingly, the Board will address the specific nonservice-connected joints identified by the Veteran in his correspondence with VA, in his hearing testimony, and in his discussions with clinicians. What remains for consideration according to the Veteran's assertions are the left knee and ankle, lumbar spine, and hands. The Veteran maintains that the claimed arthritis of these joints is either directly a result of the in-service injury during which he fractured his right ankle, or, alternatively secondarily due to the right ankle disability or a service-connected head injury. The Board also notes that arthritis is listed under 38 C.F.R. § 3.309(a), therefore the presumption of service connection and the provisions regarding chronicity and continuity of symptomatology must be addressed. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to arthritis, the Veteran has also been diagnosed with scoliosis of the spine. Scoliosis is not a chronic disease listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.309(b) does not apply. See Walker, supra. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that arthritis of the hands, left ankle, and left knee, and a lumbar spine disability, to include arthritis and scoliosis, are not related to service and are not related to any service-connected disability. Service treatment records reveal that, on September 16, 1957, the Veteran complained of a backache. There was no diagnosis. On April 14, 1959, the Veteran was treated after he caught his left hand in a hitch. X-rays of the left hand taken that same day were negative. On January 21, 1960, the Veteran was treated for a sprain of the left ankle. The Veteran asserts that his lumbar spine was injured in the same incident in which he injured his service-connected right ankle. At an April 1995 VA examination, the Veteran reported that, in the winter of 1957, he fell on the ice, fractured his right ankle, twisted his right knee and hurt his tailbone (coccyx). He reported that his back was "all swelled up" but there was nothing they could do. On the VA Form 9 in August 1996, the Veteran reported that his feet slipped out from under him; he landed on his foot, twisting the knee and breaking the ankle; and, as his heel came up under his tail bone, breaking it. The doctors told him there was nothing that could be done about the tail bone. At the RO hearing in April 1997, the Veteran testified that he fell on the ice and that his tailbone landed on top of his right foot. He testified that the doctors told him that there was nothing they could do about his back and tailbone. He testified that the doctors X-rayed his tailbone and said it was cracked and bruised. A February 15, 1958 record reveals that the Veteran turned his right ankle the previous day. Examination revealed swelling and tenderness over the lateral malleolus of the right ankle. The initial impression was a sprain; however, later X-rays revealed a probable fracture. A cast was applied the same day, and was removed on March 27, 1958. Notably, the treatment records do not mention a fall resulting from the injury, and do not mention any injury of the coccyx, for which the Veteran has been service-connected as related to this injury, nor do they mention complaints of low back pain or swelling, left knee or ankle pain, or hand pain. While the Veteran is competent to describe his injuries, and it is certainly possible that the Veteran might not have reported all of his pains to the examiners at the time, the Veteran's current assertion goes beyond this. He asserts that there were objective symptoms noted at the time of the injury regarding swelling of the low back. These findings were not reported on the examination report at the time. Unlike the situation where a treatment report is missing from the record, whereas here, the Veteran asserts objective symptomatology resulting from an injury, and comment from treating physicians at the time, where there is an examination report of record reflecting that injury, and where the report does not mention the objective symptomatology, the Board favors the accuracy of the report over the Veteran's distant recollections. As will be discussed in more detail below, the current account of having sustained a back injury in the 1958 incident does not appear in the record until the current claim. The Board is not only cognizant of the potential for memories to fade and change over time, but of the possible self interest which any veteran has in promoting a claim for monetary benefits. The Board may properly consider the personal interest a claimant has in his or her own case, but the Board is not free to ignore his assertion as to any matter upon which he is competent to offer an opinion. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). There is no question that the Veteran is competent to relate events as he remembers them. Thus, his competency is not at issue with regard to recounting the events of service. Rather, it is the accuracy of the Veteran's recent account which the Board finds is lacking. Simply put, the in-service treatment report is more convincing than the Veteran's later statements made in support of a claim for monetary benefits. The Veteran was given an examination at service separation in May 1960, at which time his spine, upper extremities, and lower extremities were found to be clinically normal. He was assigned physical profile (PULHES) values of P-1, U-1, and L-1. PULHES is the six categories into which a physical profile is divided. The P stands for physical capacity or stamina; the U for upper extremities; the L for lower extremities; the H for hearing and ear; the E for eyes; and the S stands for psychiatric. The number 1 indicates that an individual possesses a high level of medical fitness and, consequently, is medically fit for any military assignment. Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). Thus, the Veteran's spine, upper extremities, and lower extremities were found to be clinically normal, and his upper extremities, and lower extremities were found to have a high level of medical fitness. To the extent of injuries to the back, left hand and left ankle in service, there were no resulting disabilities at service separation. The Veteran did not mention any such disability to the examiner, and the examiner did not find any such disability on clinical examination. Accordingly, the Board finds that symptoms of the lumbar spine, hands, left knee, and left ankle were not chronic in service. Turning to continuity of symptomatology, the Board finds that symptoms of a disability of the lumbar spine, hands, left knee, and left ankle have not been continuous since service separation. The first post-service treatment comes in the context of the current claims, some 35 years after service separation. As noted above, service treatment records from this incident do not reveal any complaint or treatment regarding the coccyx or low back. X-rays showed degenerative joint disease and disc narrowing of the lumbar spine. The examiner interpreted X-rays of the ankles as showing mild osteoarthritic changes. The examiner diagnosed moderate scoliosis to the right in the lumbar and to the left in the thoracic region. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)). The Veteran and his wife have attested to his being continuously affected by pain in the back and left lower extremity. In a letter from the Veteran's wife in April 1997, she attested to having known the Veteran since 1957, and that he has complained of back pain his entire adult life. These current assertions as to continuous symptoms are not consistent with the evidence. Notably, the Veteran filed a claim for service connection shortly after service separation in July 1961, but did not mention a back disorder of any kind, or arthritis of the hands, left knee, or left ankle. He only mentioned a concussion, headaches, and an eye condition. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a claimant takes action regarding multiple claims shortly after service separation, it is reasonable to expect that he is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure where he believed himself entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting of symptoms, than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for arthritis of the hands, left knee, and left ankle, and for a lumbar spine disability, when viewed in the context of his action regarding other claims, is strongly indicative of the lack of symptomatology at that time. Further underscoring the Board's finding that symptoms of a lumbar spine disability, a hand disability, a left knee disability, and a left ankle disability were not continuous after service, the Veteran was afforded a VA examination in September 1961. While the examination was nominally for evaluation of the Veteran's other claimed conditions, it included a musculoskeletal examination, which revealed normal findings for the spine, upper extremities, and lower extremities. This is not a silent record. The Veteran was examined shortly after service, and the currently claimed disabilities were not present. A letter from an acquaintance of the Veteran in November 1995 notes that he met the Veteran in 1992, at which time he was capable of climbing in and out of his equipment and operating the equipment with a competitive capability to other individuals doing the same type of work, but his capabilities had decreased in the last 3 years. While this account is not specific as to disabilities, it does not suggest any earlier onset of disability than is indicated by the time of the initial claim. Based on this evidence, the Board finds that the Veteran's current assertions, and those of his wife, as to continuous symptoms regarding the lumbar spine, hands, left knee, and left ankle are not accurate. Moreover, the September 1961 examination came more than one year after service separation and revealed no manifestation of arthritis of the lumbar spine, hands, left knee, or left ankle. In addition, the August 2012 VA clinician opined that it is less likely than not (less than 50 percent probability) that the arthritis manifested within one year of separation from active service. Accordingly, the presumptions regarding service connection for arthritis are not applicable. Moreover, the August 2012 VA clinician found that there is no supporting evidence for current arthritis of the hands. While the clinician found arthritis of the right shoulder, and bilateral knees, as noted above, these are already service-connected disabilities. The Board agrees that there is no clinical finding of arthritis of either hand. The Veteran believes that he has arthritis of the hands. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), and his assertion that he has pain in his hands is competent evidence, identifying arthritis is not a matter that is capable of lay observation, but requires medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Accordingly, the Board finds that a fundamental element of service connection, a current disability, is absent regarding the claimed arthritis of the hands. The CAVC has held that the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, Congress has specifically limited entitlement to service-connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. Hence, where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For the remaining issues of service connection for disability of the lumbar spine and arthritis of the left knee and ankle, the Board turns to the question of nexus. The August 2012 clinician opined that arthritis of multiple joints is less likely than not (less than 50 percent probability) to have begun during active service. The clinician also opined that it is less likely than not (less than 50 percent probability) that arthritis was caused by his service-connected traumatic brain injury (previously described as residuals of head injury termed traumatic encephalopathy). Her rationale was that there is no supporting evidence for arthritis pre-, intra- or post- induction active service or within one year of separation form active service. There is no supporting evidence for arthritis referenced in the service treatment record of February 1958 during the observation for concussion, mild. There is also no medical literature to support such a claimed condition. Finally, she opined that it is less likely than not that arthritis was chronically worsened beyond its natural progression by his service-connected traumatic brain injury. The rationale was that there is no supporting evidence for arthritis pre-, intra- or post- induction active service or within one year of separation from active service; and, that the medical literature does not support such an etiology. Regarding causation or aggravation of the claimed disabilities as a result of the service-connected right ankle disability, the clinician stated that she could not provide an opinion without resort to speculation because she found that there was no arthritis of the right ankle. In support of this finding, the clinician identified X-rays in July 2008 as showing no arthritis in either ankle. The Board acknowledges that, although service connection was originally denied for a right ankle disability based on a finding of no current residuals of the in-service right ankle fracture, it was subsequently granted in April 2002, and this was based on an April 1995 X-ray finding of mild osteoarthritic changes in both ankles. However, the August 2012 VA clinician is correct that a July 2008 X-ray of both ankles reveals completely normal findings. The Veteran subsequently underwent an amputation of his right leg due to peripheral artery disease associated with hypertension. Nevertheless, the clinician acknowledged that the right ankle was present during a portion of the claim period. While the clinician did not specifically refute the April 1995 results in her opinion, she is presumed competent to interpret the medical evidence. Notwithstanding the fact that service connection was ultimately granted for arthritis of the right ankle, it is the opinion of the VA clinician in August 2012 that there was in fact no right ankle arthritis reflected in her review of the clinical evidence, and the Board finds her conclusion to be reasonable based on the evidence, and not in conflict with any other medical opinion. The Board also notes that there has been no assertion on the Veteran's part, and no suggestion in the record that the Veteran's arthritis of multiple joints or lumbar spine disability is/are related to his service-connected right lower extremity amputation. Regarding scoliosis, the August 2012 VA clinician found it less likely than not (less than 50 percent probability) that the Veteran's scoliosis had onset during or was caused by his active service. Her rationale was that there is no supporting evidence for scoliosis pre-, intra- or post- induction active service or within one year of separation form active service, and there is no supporting evidence for scoliosis until the July 2008 X-ray. Regarding the asserted causation or aggravation by the service-connected brain injury, the clinician found it less likely as not that the scoliosis was caused or aggravated by the service-connected brain injury. She reasoned that the medical literature does not support such causation or aggravation. Regarding causation or aggravation by the service-connected right ankle arthritis, the clinician found that it less likely as not that the scoliosis was caused or aggravated by the service-connected right ankle arthritis. She reasoned that the medical literature does not support such causation and the July 2008 X-ray does not show arthritis of the right ankle. A July 2011 opinion of a VA clinician was that multi-joint arthritis (except for the lumbar spine) was inconclusive. The clinician noted that the opinion involves some speculation on the part of the clinician, because it is common to see degenerative arthritis or osteoarthritis in veteran's in this age group. However, given the instructions in the remand, it is certainly possible that the post-traumatic arthritis is in part secondary to changes in gait or compensatory movements resulting from his fall or head trauma as listed above. Similarly inconclusive was the April 1995 VA examiner, who noted that it was difficult to decide if his spinal condition was due to his extensive arthritis or if it is related in some way to his injuries of many years ago. The CAVC has repeatedly and consistently rejected medical opinions raising only a possibility of medical nexus as being insufficient to establish nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2000); Beausoleil v. Brown, 8 Vet. App. 459 (1996) (general and inconclusive statement about the possibility of a link between current disability and service injury is insufficient); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In essence, a medical opinion that is not conclusively stated, but asserts only the possibility of a relationship, is not probative evidence, or evidence that tends to prove the question at hand. The July 2011 clinician found that the Veteran's lumbar spine disability was not related to service. She reasoned that the Veteran had reported on the February 2010 examination that his low back condition started in 1966 when he picked up a welding machine in the snow. The February 2010 report reveals the Veteran's account, as noted by the July 2011 clinician, and that he was put in traction at St. Luke's hospital in Cedar Rapids for 1 week. He has had intermittent pain since that time. At the time of the February 2010 examination, the VA clinician (same as in July 2011) could not provide an opinion. She noted that there are so many conflicting statements and reports included in the file and per the testimony of the Veteran and his witnesses that it is impossible to determine whether the Veteran's conditions were caused by his service-connected injuries, were aggravated by his service connected disabilities, or had their onset during the active service or within the one-year presumptive period for arthritis. Furthermore, the Veteran is now status post a right above the knee amputation, so he cannot be evaluated for a right knee disorder. Finally, a review of the medical history of his service-connected right ankle injury was performed; however, since he no longer has a right ankle, examination of residuals due to the injury was not possible. The Veteran reported to the July 2008 VA examiner that he was told of a curvature to spine about six years after leaving the military. The examiner opined that scoliosis of the lumbar spine was not caused by or a result of service, was not secondary to the in-service head injury, and was not secondary to the right ankle fracture. The rationale was that the cause of scoliosis is unknown. Review of the literature reveals most causes of adult scoliosis are idiopathic (unknown). Trauma, such as that from the head, isn't a risk factor for developing scoliosis nor is a past possible fractured ankle. Head trauma, especially to the level that produced this Veteran's mild concussion, isn't related to the lumbar spine as well. Osteoporosis, disc degeneration, a spinal compression fracture, or a combination of these problems can contribute to the development of adult scoliosis. The Veteran does have some radiographic evidence of degenerative changes to the lumbar spine, however it would be mere speculation to say this is the primary cause of the scoliosis considering 80 percent of causes for scoliosis are unknown. Therefore it was the examiner's opinion that this Veteran's current scoliosis is not related to military service, or secondary to head injury or right ankle fracture. The July 2008 VA examiner also opined that arthritis is not caused by or a result of military service, and is not due to in-service head injury, or right ankle fracture. The rationale was that the left ankle was normal and the degenerative changes to his left knee was more likely to be from aging and not military service. There is no relationship between the degenerative changes in his knee and spine and the mild concussion he sustained while in the military. Therefore, it was the examiner's opinion that the claim of arthritis is not related to military service, in-service head injury, or of a right ankle fracture. In summation of the evidence regarding nexus, there is no conclusive opinion linking current scoliosis or arthritis of the lumbar spine, left knee, or left ankle to service or to the service-connected head injury or right ankle arthritis. The conclusively stated opinion evidence weighs decidedly against these asserted causes, as well as against asserted aggravation. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the etiology of arthritis and scoliosis falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, the Veteran's opinion is not competent evidence regarding nexus. As the Board has found that there is no arthritis of the hands, and that arthritis of the lumbar spine, left knee, and left ankle are not related to service or to any service-connected disability, and as scoliosis is not related to service or any service-connected disability, service connection for the claimed issues is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for arthritis in multiple joints is denied. Service connection for a lumbar spine disability is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs