Citation Nr: 1315931 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 06-23 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a neck disorder and a back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant, his grandmother, his grandfather ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active military service from May 1991 to February 1993. He was initially discharged with a character of discharge which did not allow eligibility for compensation benefits. In 2004, his discharge was upgraded to a general discharge. This appeal initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a hearing before the Board in Washington, DC, in 2006. In March 2007, the Board Remanded the appeal. The Veterans Law Judge who conducted the 2006 hearing was no longer employed by the Board when the claim returned to the Board following development on Remand. In December 2011, the Veteran testified before the undersigned at Videoconference Board hearing. In July 2012, the Board requested and obtained an opinion from a medical expert via the Veterans Health Administration (VHA), which has been associated with the record. The Veteran submitted additional evidence pertinent to the appeal. VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a SSOC unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2012). The appellant provided a written waiver of review by the agency of original jurisdiction. Appellate review may proceed. FINDINGS OF FACT 1. The Veteran has one diagnosed current neck disorder, cervical strain, was not diagnosed during the Veteran's service, has not been chronic since the Veteran's 1993 service discharge, and is not related to or due to any incident of his service. 2. The preponderance of the evidence establishes that arthritis of the lumbar spine was not diagnosed or suspected in service, was not diagnosed within an applicable presumptive period, was not chronically manifested following the Veteran's service discharge, and does not result from the Veteran's service. CONCLUSION OF LAW The criteria for service connection for a cervical spine (neck) disorder or for a lumbar spine disorder are not met, nor may service connection be presumed. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the claim on the merits, the Board will consider whether VA has met its duties to assist the Veteran. VA's duties to the claimant VA has a duty to notify regarding the evidence required to substantiate a claim and a duty to assist claimants to develop the evidence to substantiate a claim for VA benefits, as required by the Veterans Claims Assistance Act (VCAA) of 2000. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Duty to Notify Under the VCAA, VA has a duty to 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). The claimant is also entitled to notice of the criteria for assigning a disability rating and for assigning an effective date for an increased rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran was notified by a letter issued in July 2004 of the criteria for service connection. In April 2007, the Veteran was advised of the criteria for assigning a disability rating and for assigning an effective date for an increased rating. Dingess, supra. Following that notice, the Veteran's appeal was readjudicated. During the hearing before the Board, the Veterans Law Judge discussed with the Veteran the fact that there was no medical opinion of record linking a current back or neck disorder to the Veteran's service. Transcript (Tr.), December 2011 Videoconference hearing, pages (pp.) 8-10. The Veteran thereafter submitted a January 2013 private medical opinion. The content of the hearing transcript establishes that the Board's duties to fully explain the issues and suggest the submission of evidence that may have been overlooked have been met. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). If any notice deficiency remained following the Veteran's hearing, that deficiency was addressed in the post-hearing communications to the Veteran. If there was any defect in the timing or content of notice to the Veteran, such defect has been cured by the multiple later notices and readjudications. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009). Duty to Assist Next, VA has a duty to assist the Veteran in the development of a 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. In this case, the Veteran has indicated that records of in-service hospital treatment are missing. VA has made numerous attempts to obtain additional service treatment records, including a request for a search for separately-filed hospital records from the facility in Naples, Italy, where the Veteran reported he was treated for back pain in service. No records were located. Records dated in 1994 and 1995 were requested from the private facility identified by the Veteran as having provided treatment for back pain proximate to his 1993 service discharge. Records from that facility dating from 2001, but no earlier, were located. The Veteran was unable to identify some providers who treated him prior to 2001 with enough specificity to allow VA to request the records, for example, the Veteran was unable to provide contact information for a "Dr. Stiggers." Other providers, for example, Phillips Medical Center, stated that its inactive records were destroyed after five years. Other identified private records were obtained. VA treatment records were obtained. The Veteran has been afforded VA examination. In July 2012, the Board requested an opinion from a medical expert via the Veterans Health Administration (VHA). A VHA opinion was provided by the requested specialist, and that opinion has been associated with the record and provided to the Veteran. The Veteran's representative has responded to that opinion. At his December 2011 Videoconference hearing before the Board, the Veteran testified that MRI (magnetic resonance imaging) examination of his back had been conducted a few days earlier. The Veteran indicated he would submit those records, but no November 2011 or December 2011 radiologic examination reports are associated with the claims files or the electronic (virtual) record available to the Board on appeal. During the 9 years of the pendency of this claim, the claim has been Remanded for development (in 2007) and to afforded the Veteran another hearing before the Board (in 2011). The Veteran has been afforded numerous opportunities to identify records which might substantiate his claim, and VA has made numerous attempts on his behalf to obtain all identified records. The Veteran has testified twice before the Board in his own behalf, including in December 2011, following the October 2011 Board Remand. The Board is satisfied there was substantial compliance with all remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 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). Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not 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). Claim for service connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. In a recent decision, the Court of Appeals for the Federal Circuit (Federal Circuit) has clarified the interpretation of the methods of establishing service connection under 38 C.F.R. § 3.303. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The criteria for service connection under § 3.303(a) are satisfied, according to the Federal Circuit, when a three-element test is met. The evidence must establish (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (the so-called "nexus" requirement). Subsection (a) also refers to "each disabling condition...for which [a Veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Id. If a Veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the Veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the Veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Id. The second way to establish service connection set forth in § 3.303(b) is restricted to chronic diseases defined as such by VA regulation. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and the Veteran's service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. Under 38 U.S.C.A. § 1101, arthritis of the spine is defined as a chronic disease. Cervical strain is not defined as a chronic disease. Thus, arthritis of the lumbar spine, but not cervical spine strain, may be presumed to have been incurred in service, if manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a); 1131, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may also be established for arthritis of the spine if there is proven continuity of symptomatology. Service connection may also be granted when a claimed disability is found to be proximately due to or the result of (secondary to) a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this case, the Veteran does not contend that either a neck disorder or a back disorder is secondary to or proximately caused by or aggravated by his only service-connected disability, a psychosis. Therefore, further discussion of provisions for service connection on a secondary basis is not necessary. The type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible). Facts and analysis Service treatment records reflect that the Veteran was treated for lower, middle, and upper back pain, from May 1992 to December 1992. In September 1992, he reported back pain for the prior five days. The pain radiated slightly anteriorly. The impression was muscular pain. On October 28, 1992, he complained of lower back pain for the prior month, noting that he was seen in September but it had not improved. He noted that the pain was in his mid-back, and that he experienced a popping sensation when lifting heavy objects as part of his duty. He was diagnosed with a muscle sprain, mid-back. In November 1992, he reported that his pain was still bad at night. The assigned diagnosis was "back pain." During evaluation in December 1992, the Veteran reported a history of back pain, but no disabling condition was noted. Mobility was within normal limits on all planes, with no pain on movement. Strength was 5/5 with no pain on resisted motion. There was no tenderness with palpation. The provider stated that the examination was "unremarkable," and the provider was unable to connect the Veteran's symptoms of back pain to any objective finding. The Veteran was referred to physical therapy, and thereafter was referred to Psychiatry for evaluation. At the time of separation examination in January 1993, no diagnosis of a musculoskeletal disorder was assigned. The Veteran reported back pain in the portion of the medical history he completed, and the January 1993 report of medical history noted the Veteran's complaints of recurrent back pain, not currently disabling (NCD). Post-service, the earliest records associated with the claims file are the private records of a December 2001 hospitalization for treatment of a psychiatric disorder. The summary states that the admission was the Veteran's first psychiatric hospitalization. The Veteran provided a brief medical history, including a report of his knee injury during football in high school, but there is no notation that the Veteran reported back pain or a history of recurrent back pain. The summary noted a history of moderate asthma and use of inhalers. The Veteran reported that he worked for a family business in music for several years, returned to college in 1998, realized he could not play football at that level, became depressed, began using cocaine, and became homeless. The Veteran reported that he was working fulltime for Radio Shack. Records from NOVA Behavioral Health dated from July 2003 through April 2004 and a June 2004 statement from NOVA Behavioral Health reflect that the Veteran was treated for a psychiatric disorder. No treatment record from NOVA indicates that the Veteran reported a history of, complaints of, or treatment of a back or neck disorder, nor does the June 2004 statement provide information about any disorder other than a psychiatric disorder. The report of a September 2005 VA psychiatric examination reflects that the Veteran reported having a lump and a "twitch" in his neck. The examination report includes notations regarding the Veteran's employment and education post-service, and his general medical problems, (asthma, knee injury), but there is no notation that the Veteran reported a history of, complaints of, or treatment of a back or neck disorder. Two lengthy (10-page) evaluations completed by Community Services of Stark County in August 2005 and in July 2006 summarize the Veteran's treatment from 2003 to 2006 and the findings in 2005. The August 2005 evaluation discloses that the Veteran had no limitation of activities of daily living except that he was unable to hold a job due to his mental illness. His medical history includes a notation that the Veteran had undergone knee surgery, and he reported chronic neck pain that he attributed to his psychiatric disorders. In December 2005, he reported that he was having neck and back swelling, which was relieved by taking his Seroquel. In March 2006, he reported that he did not have any neck pain or swelling. During the September 2008 VA examination of the Veteran's neck, back and spine, the examiner noted the Veteran's reports of back pain in 1992, with no injury or trauma. The examiner noted the Veteran's current report that his back pain was related to his psychiatric medication. The Veteran stated during the examination that back pain was well-controlled when he took his psychiatric medication. During flare-ups, there was no radiation of pain, and he did not require assistive devices. X-ray images identified a normal cervical spine and arthritis of the lumbar spine at L3-4. The examiner assigned diagnoses of cervical and lumbar strain. He opined that it was not likely that the Veteran's diagnosed disorders were related to service, and were instead a naturally-occurring phenomenon. However, the examiner did not explain what was meant by the opinion that the diagnosed lumbar and cervical spine strain were "a naturally-occurring phenomenon." No opinion as to the etiology or date of onset of lumbar spine arthritis was provided. In January 2013, the Veteran's private physician, JHM, DO, provided an opinion which states, in full: I am currently treating [the Veteran] for cervical thoracic and lumbar sprains. I believe with a significant degree of medical certainty that his pain is due to aggravation of degenerative disc disease in these areas. It is likely, from records presented to me, that this reflects chronic pain relating back to injuries received while in the military dating back to his first presentation of symptoms on 11 Dec 92. His work then entailed repeated and rapid lifting, even overhead, of heavy material while unloading helicopters. As mentioned this decision can be made with a reasonable degree of medical certainty. Following receipt of this opinion, the Board requested an expert medical opinion. A VHA reviewer, SVM, MD, provided the following opinion in February 2013: In my opinion with the evidence that was provided to me I think it is less likely that his current cervical and lumbar spinal disorder originated during his active duty. There is a history of recurrent back pain during his stay in military (sic). There is no evidence during that period to say that he had Degenerative Disc Disease. Degenerative disc disease is a diagnosis that is made based on imaging studies like Xrays or MRI. There are no imaging studies during that period or a medical opinion saying that he might be suffering from Degenerative Disc Disease. Additionally as mentioned there are no medical records till (sic) 2008 that show follow (sic) of his back problems. He also mentions that he does not get these symptoms if he is on his psychiatric medications. That is atypical of Degenerative Disc Disease. Degenerative Disk Disease is a condition that affects most adults. The exact cause is not known, but aging, genetic predisposition, environmental factors, obesity, lack of exercise, occupation, smoking, etc. can play a role. Unless there is clear evidence in the form of imaging studies showing degenerated discs, a medical opinion, and continued followup for the condition, I cannot associate this condition with his stay in the military with any certainty. Analysis There are three medical opinions of record, one rendered by a private provider, two rendered by VA examiners. One opinion is favorable to the Veteran; two opinions are unfavorable to the Veteran. The determination as to whether the preponderance of the evidence is favorable or unfavorable to the Veteran rests on evaluation of the relative weight and persuasive value of the private opinion as compared to the two VA opinions. 1. Claim for service connection for a cervical (neck) disorder As noted above, the VA opinion rendered in September 2008 states that cervical strain was "not likely" related to the Veteran's service, and further stated that the Veteran's diagnosed disorders were a "naturally-occurring" phenomenon. This rationale as to the etiology of cervical strain is difficult to interpret. The Board finds that the explanation for the unfavorable opinion is incomplete. The opinion does not indicate when the current disability due to cervical strain had its onset. The opinion is incomplete, reducing its probative value and evidentiary weight. As part of the VA examination, radiologic examination of the Veteran's cervical spine was conducted. That radiologic examination was interpreted as showing that there was no degenerative disease of the Veteran's cervical spine in 2008. The report of this radiologic examination is highly persuasive evidence that the Veteran did not incur arthritis of the cervical spine during service and that arthritis of the cervical spine was not chronic after the Veteran's 1993 service discharge, since it was not present in September 2008. There is no objective evidence of arthritis of the cervical spine, as there is no radiologic or other diagnostic or objective examination of the cervical spine prior to or following the September 2008 x-rays, which show no degenerative changes of the cervical spine. As noted in the discussion of the facts, the Veteran was hospitalized for treatment of a psychiatric disorder in 2001. If the Veteran complained of neck pain during that in-patient psychiatric treatment, there is no record of such complaint. The Veteran held gainful employment, at Radio Shack, for several years. The Veteran reported that he attempted to play football again. He did not report that neck pain prevented him from playing football. It is not plausible that the Veteran would have attempted to play football post-service if he were experiencing neck pain. It is not plausible that he would have held the types of employment he did without either reporting neck pain or seeking treatment for neck pain. It is not plausible that he would have been experiencing neck pain from 1993 to 2001 without reporting neck pain, even though he was hospitalized for treatment of a psychiatric disorder. The facts considered as a whole are inconsistent with the Veteran's current report of chronic post-service neck pain. VA treatment notes dated in 2005 and 2006 specifically reflect that the Veteran reported that he had neck pain, that he attributed his neck pain to his psychiatric disorder, and reported that his neck pain and swelling was relieved by taking Seroquel. The Board notes that Seroquel is defined as a trademark name for a medication, quetiapine, which affects the neurotransmitters in the brain and is used to treat schizophrenia and other psychotic disorders. Dorland's Illustrated Medical Dictionary 1591, 1723 (31st ed. 2007). The fact that no treating VA provider conducted or recommended diagnostic evaluation of the Veteran's cervical spine implies clinical judgment that radiologic examination of the cervical spine was not required. Thus, in the context of the VA treatment of other disorders, the absence of clinical diagnosis of a cervical spine disorder and absence of reports of or referrals for diagnostic evaluation of the cervical spine are, in fact, unfavorable to the Veteran's claim. The Board notes that the January 2013 private opinion implies that the provider believes a diagnosis of degenerative disc disease in the cervical spine can be assigned. However, the physician did not state the basis of that opinion. In particular, the physician who provided the January 2013 opinion did not state that he conducted radiologic examination of the cervical spine, and did not reference review of the report of any specific radiologic examination of the Veteran's cervical spine. The favorable opinion does not reference any objective confirmation that degenerative disease of the cervical spine is present, and does not explain the basis of the opinion that cervical spine arthritis is related to the Veteran's military service even though no arthritis was shown on examination in 2008, some 15 years after the conclusion of the Veteran's military service. The favorable January 2013 opinion indicated that the Veteran's current chronic pain "likely . . . reflects chronic pain relating back to injuries received while in the military." The provider did not explain this opinion, other than to state that the first presentation of symptoms was in December 1992 and that the Veteran's work at that time entailed repeated and heavy lifting. However, the opinion links the current pain to aggravation of degenerative disc disease, without explaining the basis for determining that degenerative disc disease is present in the cervical spine. Since there is no objective radiologic confirmation of degenerative disk disease of the cervical spine of record prior to the January 2013 opinion, and no objective basis for assignment of the diagnosis is discussed or referenced in the January 2013 opinion, there is no objective evidence which supports the January 2013 private opinion. The Board finds the January 2013 private opinion to be of little probative weight or evidentiary value. The February 2013 opinion states that it is less than likely that a current cervical spine disorder originated during the Veteran's active duty. The reviewer explained that this opinion was based, in part, on the fact that medical records show no follow-up until 2008, when VA examination was conducted. The Board finds that this rationale is the most specific and objective explanation of record for an opinion as to the relationship between the Veteran's service and the current cervical spine disorder. The probative value and weight of this opinion is greater than the probative value and weight of the January 2013 opinion, which is not supported by any objective evidence of record. The evidence establishes that no cervical spine disorder was diagnosed, either cervical strain or cervical arthritis, during the Veteran's service. No diagnosis of cervical spine strain was diagnosed after the Veteran's 1993 service discharge until 2008. No diagnosis of cervical spine arthritis has been objectively confirmed on radiologic examination at any time since the Veteran's service, although a clinical diagnosis of aggravation of cervical spine degenerative disc disease was assigned in January 2013. The preponderance of the weight and persuasive evidence is against a finding that a chronic cervical spine disorder, to include cervical spine arthritis, was present during the Veteran's service or within one year following the Veteran's service, or that a current cervical spine strain was incurred in or as a result of the Veteran's service. The Veteran's representative argues that the notation in the February 2013 opinion regarding the Veteran's recurrent back pain in service and the statement that occupation can play a role in the development of DDD show that the reviewer gave too little weight to the Veteran's in-service lay complaints in determining that, absent imaging studies, the in-service complaints of pain did not serve to connect the current DDD to the Veteran's service. As explained above, the February 2013 opinion that no diagnosis of arthritis of the cervical spine is appropriate in this case, because there is no objective radiologic examination confirming such diagnosis, prior to or during the pendency of this claim. The record is against a finding that the Veteran reported chronic neck pain following his service, and the Veteran's current contention that he had chronic neck pain after service is not enough, without supporting objective evidence, to outweigh the unfavorable medical opinions, since cervical strain in not defined by VA as a chronic disorder. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.303, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, cervical strain is not a disorder which is readily observable by a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The clinical evidence establishes that the clinical providers did not assign a diagnosis of cervical strain for the Veteran's complaints of neck pain during his service or prior to the submission of the 2004 claim, more than 10 years after the Veteran's service discharge. The January 2013 private opinion did not account for the lapse of time between the Veteran's service and the post-service diagnosis of cervical strain. The Board does not agree that the favorable January 2013 opinion is more persuasive than the February 2013 opinion. The Board does not agree that the statement in the February 2013 that occupation can affect development of DDD contradicts the reviewer's conclusion that the Veteran does not have a neck disorder related to his service, since there is no objective confirmation of DDD in the record. The preponderance of the evidence is against the Veteran's claim for service connection for a cervical spine disorder, to include cervical strain or cervical arthritis. 2. Claim for service connection for a lumbar disorder The VA examiner who provided the 2008 unfavorable opinion noted the Veteran's statements that his back pain was relieved by use of Seroquel, which, as noted above, acts on neurotransmitters in the brain. In the February 2013 opinion, the VA reviewer noted that the Veteran's description of his symptoms of back pain as controlled by that medication was "atypical" of degenerative disease. In contrast, the private provider who rendered the January 2013 opinion did not address the Veteran's lay statements regarding the relationship between his back pain and use of medication to treat his psychosis. The Veteran's statements regarding the medications he uses to control his back pain are documented in the record by several VA providers. The lack of reference to or explanation of these statements decreases the persuasive value of the favorable January 2013 opinion. The examiner who conducted 2008 VA psychiatric examination discussed the Veteran's post-service attempt to play football and the Veteran's post-service employment in retail sales. The examiner who provided the 2008 opinion that the Veteran's lumbar arthritis was unrelated to the Veteran's service discussed the objective findings on physical examination, including the fact that the Veteran had range of flexion of the lumbar spine to 90 degrees, had no muscle spasm, or tenderness, had flare-ups only when he was "off his psych medications," reported no incapacitating episodes, used no assistive devices, and did not have pain on motion or decreased motion with repetitions of motion. In contrast, the private provider included no physical assessment, or reference to physical assessment, in the favorable opinion. This decreases both the probative value and the weight of the January 2013 opinion, since there is no indication that the physician who rendered the opinion assessed the Veteran. The examiner who provided the unfavorable February 2013 opinion noted that there was no diagnosis of a chronic lumbar disorder in service, and no record that the Veteran sought treatment of back pain until 2008. The private provider who rendered the favorable opinion did not explain the 15-year gap in medical treatment for a lumbar disorder. The Veteran testified that he was taken from his ship to a hospital in Naples, Italy, so that his back pain could be treated. Tr. pp. 2-4. This testimony is not consistent with the service treatment records, which reflect that December 1992 examination of the Veteran's back was "unremarkable," and that the Veteran's symptoms of back pain could not be associated with objective findings. Rather, the service treatment records reflect that the Veteran was referred for psychiatric evaluation. The VA examiners who rendered the unfavorable VA opinions concluded that the Veteran did not manifest a chronic back disorder in service, even though he complained of recurrent pain. The favorable opinion did not explain or discuss the unfavorable service treatment records. The Board has considered the Veteran's December 2011 testimony that he served as a supply technician, and that his back was either injured as a result of heavy lifting, or while performing "vertical replenishments," in which helicopters provided supplies to submarines. The Veteran is competent to describe what occurred during service, and to testify that he experienced pain during service. However, lumbar strain is not a disorder which is readily observable by a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The service treatment records provide competent medical evidence that the Veteran's complaints of back pain were not linked to objective findings, and that the medical providers determined that no back disorder was present in December 1992 or thereafter prior to the Veteran's February 1993 service discharge. Lumbar strain is not a disorder which is defined by VA as chronic, so the Veteran's unsupported lay statements that he has experienced chronic back pain are not sufficient to link a current diagnosis of lumbar strain to the Veteran's service. While the Veteran is competent to testify that he believes he was injured in service, and that he experienced a popping sound in his back during service, he is not competent to testify that such experience is linked to a current degenerative disorder of the lumbar spine. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In any event, as discussed further below, the unfavorable VA medical opinions which state that it is less than likely that a current lumbar disorder is linked to the Veteran's service outweigh the favorable evidence provided by the Veteran's testimony and the January 2013 medical opinion. The Veteran's representative argues, in an April 2013 Informal Hearing Presentation, that the February 2013 unfavorable opinion is inaccurate because it fails to consider the January 2013 favorable medical opinion. In particular, the Veteran's representative noted that the VA reviewer concluded that, "in the absence of imaging studies" during the Veteran's service showing degenerative disease or a medical opinion saying [the Veteran] might be suffering from degenerative disease, no current back disorder can be associated with the Veteran's service with any certainty. The Veteran's representative argues that the VA reviewer should have considered the January 2013 favorable medical opinion as a medical opinion sufficient to link the Veteran's degenerative disease of the spine to the Veteran's service. The Board does not agree that the January 2013 favorable medical opinion is a medical opinion which satisfies the VA reviewer's requirement that there be imaging studies or a medical opinion saying that the Veteran might be suffering from a degenerative disease of the spine. Rather, the VA reviewer specified that imaging studies or a medical opinion "during that period," meaning, during the Veteran's service, would associate a current lumbar disorder to the Veteran's service. The VA's reviewer's opinion, fairly read, establishes that the opinion was based on the evidence during service, following service prior to the submission of the 2004, and following the 2004 claim which underlies this appeal. The VA reviewer discussed the service treatment records, noting both the history of recurrent back pain in service and the lack of imaging studies or a medical opinion "during that period" saying that the Veteran might have a degenerative disorder of the spine. Additionally, the reviewer opined, there were no medical records prior to 2008 showing follow-up of back problems. Finally, the reviewer summarized his review of the current medical records and 2008 VA examination, reflecting the Veteran's lay statements that the Veteran "does not get [back pain] if he is on his psychiatric medications." The VA reviewer, in effect, points out in the February 2013 unfavorable opinion that the favorable January 2013 lacks reference to the service treatment records, fails to reference any post-service medical evidence favorable to the Veteran prior to 2008, and does not reference objective current evaluation. The Board interprets the VA reviewer's statement that he "cannot associate" the Veteran's claimed disorders with the Veteran's military service "with any certainty" as an opinion that the January 2013 favorable medical opinion from Dr. M is not based on the facts of this case and is not medically sound. The Board finds the unfavorable February 2013 medical opinion to be the most probative and persuasive evidence of record. This opinion places the preponderance of the evidence against a finding that the Veteran has a current lumbar disorder which was manifested during or incurred during or results from the Veteran's service. The claim must be denied. ORDER The appeal for service connection for a neck or back disorder is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs