Citation Nr: 1316709 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-38 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for a right upper extremity disorder. 2. Whether new and material evidence has been received to reopen service connection for a back disorder and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active duty service from June 1988 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied reopening of service connection for a right upper extremity disorder and a back disorder. The Board has not only reviewed the Veteran's physical claims file, but also the file on Virtual VA, to ensure a total review of the available evidence. The Board observes that in a February 2011 statement, while the Veteran wrote that she would like to appear before the Board, this does not appear to be a request for a Board hearing because she also indicated that she had nothing to add to her claim. This statement is also interpreted in the context of the Veteran's VA Form 9, which reflects that she did not want a Board hearing. Additionally, an October 2009 statement by the representative clearly expressed that the Veteran had indicated to him that she does not desire a Board hearing. Other submissions by the representative, such as in December 2010 and May 2013, do not reflect a hearing request, instead indicating waiver of further RO review and a desire to proceed to adjudication before the Board. For these reasons, there is no pending hearing request. The issues of entitlement to an increased disability rating for service-connected retropatellar syndrome of the knees and entitlement to a total disability rating based on individual unemployability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A May 1991 rating decision denied service connection for a right upper extremity disorder on the basis that there was no evidence of record showing that the Veteran's right upper extremity disorder was related to service. 2. No additional evidence which raises a reasonable possibility of substantiating the claim for service connection of a right upper extremity disorder has been received since May 1991. 3. The May 1991 rating decision denied service connection for a back disorder on the basis that there was no evidence of record showing that the Veteran had a back disorder related to service. 4. Additional evidence which raises a reasonable possibility of substantiating the claim for service connection of a back disorder has been received since May 1991. 5. The Veteran did not engage in combat with the enemy during service. 6. The Veteran sustained a back strain injury and was treated for complaints of back pain in February 1989. 7. The Veteran did not experience chronic symptoms of a back disorder during service. 8. The Veteran did not experience continuous symptoms of a back disorder after service. 9. Arthritis of the back did not manifest within one year of separation from service. 10. The post-service symptoms diagnosed as lumbar strain and degenerative disc disease at L5-S1 are not related to service. CONCLUSIONS OF LAW 1. The May 1991 rating decision to deny service connection for right upper extremity disorder became final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has not been received to reopen service connection for a right upper extremity disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The May 1991 rating decision to deny service connection for a back disorder became final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 4. New and material evidence has been received to reopen service connection for a back disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 5. The criteria for service connection for a back disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 addition, in Kent v. Nicholson, 20 Vet. App. 1, 11-12 (2006), the CAVC held that, in the context of an application for reopening, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. The CAVC elaborated that VA is required, in response to an application to reopen, to look at the bases for the denial in the prior decision and send a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The Veteran was provided notice in October 2008 regarding the date (in May 1991) and bases of the previous denial of the claim for service connection for a right upper extremity disorder and a back disorder (no relationship of current right shoulder disability to service trapezious muscle strain; no residuals of in-service back strain). The Veteran was also informed of the appropriate definitions of new and material evidence and of the evidence needed to substantiate the underlying claim; therefore, the October 2008 letter provided the new and material evidence notice required by the Kent decision. The letter also informed her of her and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of private and VA post-service treatment, as well as the Veteran's own statements in support of her claims. The Veteran was examined by VA in connection with her right upper extremity and back disorder claims in 2009. The Board has reviewed the examination report, and finds that it is adequate for the purpose of deciding the issues before the Board; the examination report contains all the relevant findings, including history of injury and symptoms, clinical examination finding, diagnosis, and an etiology opinion for the disability found. With regard to the petition to reopen service connection for a right upper extremity disorder and a back disorder, the February 2009 VA examiner offered an opinion as to etiology of the diagnosed disabilities, and supported the opinions with a rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). In addition, the Veteran has not alleged that the examination is inadequate to decide the current claims, so it is presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria to Reopen Service Connection In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured since the last final disallowance of the claim is "new and material." Under the applicable version of 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The CAVC has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). Analysis of Reopening Service Connection for a Right Upper Extremity Disorder The Veteran's claim for service connection for a right upper extremity disorder was denied in a May 1991 rating decision on the basis that there was no evidence indicating that a current right upper extremity disorder was causally or etiologically related to military service. The RO acknowledged that the Veteran was treated for complaints of a right trapezious strain during service, from March 1989 through November 1990, and that she reported a history of right shoulder and scapula pain at the March 1991 VA examination. The RO noted that the March 1991 VA examination showed that she had scapulothoracic syndrome, with occasional symptoms, but without evidence of abnormality. The RO also found that there was no residual disability of the Veteran's in-service right trapezious strain. The Veteran was notified of the May 1991 decision via a letter dated in June 1991. She did not submit a notice of disagreement, and no evidence was received within the year following that letter such that the provisions of 38 C.F.R. § 3.156(b) would apply; therefore, the May 1991 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In September 2008, the Veteran filed an application to reopen service connection for a right upper extremity disorder. Generally, it is appropriate for the Board to consider the claim as a request to reopen the previously denied claim rather than an original claim. Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008). Since the RO's May 1991 decision, the Veteran has submitted additional evidence in support of her petition to reopen. In several statements, the Veteran asserts that her right upper extremity disorder is related to service, as she was treated for a right trapezious strain in service. Likewise, statements from the Veteran, her husband, and co-workers, dated in 2008 and 2009, reiterate the Veteran's complaints of ongoing right shoulder pain since her service. The Veteran was provided a VA examination in February 2009 and VA and private treatment records have been submitted. The medical evidence added to the record since May 1991 is new because it had not previously been submitted; however, it is not material because the evidence could not reasonably substantiate the claim were it to be reopened as the evidence does not have any tendency to relate the current right upper extremity disorder to service. To the contrary, the February 2009 VA examination report indicates that the Veteran's current right upper extremity disorder had its onset within the prior five years. The VA examiner opined that the Veteran's in-service right trapezious strain, and post-service scapulothoracic syndrome, with normal clinical evaluation and x-rays through 2005 are not likely related to the Veteran's current chronic rotator cuff strain with acromioclavicular arthritis. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (noting that evidence that is unfavorable to a claimant is not new and material). Additionally, VA treatment records and statements from the Veteran, her husband, and co-workers show that the Veteran has right shoulder pain, but otherwise contain no information relevant to the claim. Thus, the evidence of record does not tend to demonstrate that the Veteran's current right upper extremity disorder is causally or etiologically related to her military service, or to the events therein. The Veteran's statements reiterate her previous contentions made for service connection and, thus, constitute cumulative evidence or contentions rather than evidence. The Veteran's current claim involving a right upper extremity disorder is grounded upon the same factual bases as her prior claim, which was previously denied by the RO in a May 1991 decision. The Board has considered the Veteran's statements asserting a nexus between her service and her current right upper extremity disorder on the basis that she was treated for complaints of right shoulder pain in service; however, lay assertions of medical status do not constitute competent evidence for these purposes. While the Veteran is competent to report experiencing right shoulder pain while in service or at any time, she is not competent to diagnosis a current disability related to such complaints. See Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (lay person competent to testify to pain and visible flatness of his feet). As such, the Veteran's own statements concerning her claim are cumulative of those that were before the RO in May 1991. In conclusion, the additional evidence received since the May 1991 rating decision, considered in conjunction with the record as a whole, does not raise a reasonable possibility of substantiating the claim for service connection for a right upper extremity disorder. The treatment records and statements are essentially redundant of evidence of record at the May 1991 rating decision, and do not have any tendency to show that the Veteran's current right upper extremity disorder is related to her service, nor do these records otherwise verify the circumstances of her service. See Hickson v. West, 11 Vet. App. 374, 378 (1998); Spalding v. Brown, 10 Vet. App. 6, 11 (1996). Additionally, some of the evidence additional evidence even is unfavorable to a finding of nexus of a right upper extremity disorder to service, so does not constitute new and material evidence. See Villalobos, 3 Vet. App. 450. For these reasons, the Board finds that new and material evidence to reopen service connection for a right upper extremity disorder has not been received subsequent to the last final RO decision in May 1991 (that was issued in June 1991). In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Analysis of Reopening Service Connection for a Back Disorder The Veteran's claim for service connection for a back disorder was denied in a May 1991 rating decision on the basis that there was no evidence indicating that the Veteran had current back disorder that could be causally or etiologically related to her military service. The RO acknowledged that the Veteran was treated for complaints of a back pain during service, in February 1989, and that she reported a history of back pain at the March 1991 VA examination. The RO noted that the VA examination showed that she had a history of back pain, treated, without current symptoms or disability. The Veteran was notified of the May 1991 decision via a letter dated in June 1991. She did not submit a notice of disagreement, and no evidence was received within the year following that letter such that the provisions of 38 C.F.R. § 3.156(b) would apply; therefore, the May 1991 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In September 2008, the Veteran filed an application to reopen service connection for a back disorder. Since the RO's May 1991 decision, the Veteran has submitted additional evidence in support of her petition to reopen service connection for a back disorder. In several statements, the Veteran asserts that her back disorder is related to service, as she was treated for back pain in service. Likewise, statements from the Veteran, her husband, and co-workers, dated in 2008 and 2009, reiterate the Veteran's complaints of ongoing back pain since service. The Veteran was provided a VA examination in February 2009 and VA treatment records have been submitted. The medical evidence added to the record since May 1991 is new because it had not previously been submitted; additionally, it is material because the evidence could reasonably substantiate the claim were it to be reopened as the evidence indicates that the Veteran has a current back disability. In particular, the February 2009 VA examination report indicates that the Veteran has been diagnosed with chronic lumbar strain with degenerative disc disease at L5-S1 and prior lumbar disc surgery. For purposes of establishing whether new and material evidence has been received, the credibility of the evidence, and not its weight, is to be presumed. See Justus, 3 Vet. App. at 513. Because the Veteran's statements regarding in-service and post-service back symptoms, treatment, and diagnosis, as well as the testimony of her friends and family, are not shown to be inherently false, they are presumed credible for the limited purpose of reopening the claim. Such lay evidence is not competent on the element of current disability of the back; however, lay persons are competent to relate a contemporaneous diagnosis of low back disorder. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Significantly, the February 2009 VA examination provides a recent diagnosis, not previously of record, of a current back disability. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (where the Federal Circuit Court noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim). Given this, and particularly in view of the Court's holding in Shade, the Board finds that the contentions by the Veteran, as well as by her family, represent evidence of back pain since service, as well as the recent diagnosis of a lumbar spine disorder, are sufficient to reopen the previously denied claim. As such, the additional evidence, considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the claim for service connection for a back disability. In conclusion, the Board finds that new and material evidence has been received to reopen service connection for a back disorder. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Service Connection for a Back Disorder It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran has been diagnosed with a "chronic disease" of arthritis listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the claim of service connection for a back disorder. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has been diagnosed with degenerative disc disease of the lumbar spine, which the Board acknowledges is not considered a chronic disease of arthritis, but that the VA examiner also indicated that the Veteran had been diagnosed with osteoarthritis of the lumbar spine. Arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to that disability. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Lay assertions 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 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau, 492 F.3d 1372 and 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). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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"). The Veteran contends that her current back disability is due her active military service. The Veteran alleges that she fell several times while aboard ship during service and injured her back. In this Veteran's case, the evidence does not show, nor does the Veteran allege, that she engaged in combat with the enemy during active service. For this reason, 38 U.S.C.A. § 1154(b) is not applicable in this case. The evidence does show that the Veteran sustained an in-service injury of back strain during service in February 1989, but symptoms of a back disorder were not chronic in service and were not continuous after service. Service treatment records show treatment for complaints of back pain in February 1989 that was diagnosed as a strain, but shows no other back injury, complaints, findings, or treatment from February 1989 to service separation in January 1991. Although the Veteran first filed a claim for service connection for a back disorder at service discharge, she did not make any additional assertions of a back disorder related to service in the intervening years after leaving service. The evidence shows that the Veteran's current back disorder first manifested many years after service. The evidence that shows no continuous symptoms since service separation includes the Veteran's private treatment records from Microsurgery and Brain Research Institute that show that the Veteran reported experiencing onset of back and leg pain in November 1997, without apparent injury. A letter from L.M.L., D.O., dated February 2009, indicates that he treated the Veteran for complaints of back pain beginning in 2008. The Veteran's initial complaints regarding her back, in April 1998, approximately seven years after service separation, are afforded probative weight. Such statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. In April 1998, the Veteran did not make any allegations of in-service back complaints or injury; she reported sudden onset back pain without a history of injury in November 1997. At the VA compensation examination in February 2009, the Veteran contended that her back symptoms began in service; however, the report reflects that she did not report a history of a back injury in service. The other evidence of record, which includes the Veteran's own post-service histories made for treatment purposes, and includes an absence of complaints or treatment for several years after service, is inconsistent with, and outweighs, the February 2009 report of history to the VA examiner, which the Veteran made for VA compensation purposes rather than for treatment. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). With regard to the statements of the Veteran attesting that she had a history of back symptoms since her service, the Board finds that these recent assertions of the Veteran made for compensation purposes are not credible because the recent assertions are inconsistent with, and outweighed by, the evidence showing an absence of complaints or treatment for her back after service, the Veteran's own histories made for treatment purposes prior to filing her 2008 petition to reopen her claim for VA compensation, and the Veteran's own reported histories when seeking treatment in the intervening years. See Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). Prior to the 2008 claim for benefits, it is significant that the Veteran did not make any assertions of a chronic back injury or symptoms in service or continuous symptoms since service, and she did not assert a link between her service and her symptoms or assert an in-service onset at that time. Such evidence weighs against findings of chronic symptoms of a back disorder in service or continuous symptoms since service. The evidence also shows that arthritis did not manifest within one year of service, including to a compensable degree within one year of service. According to VA treatment records, the onset of degenerative disc disease was in 2006, over 15 years after service discharge, and that the Veteran did not at that time allege the arthritis was related to service. Maxson, 230 F.3d 1330 (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The available VA and private treatment records indicate that, upon seeking treatment in 1998 and 2006, the Veteran did not report a history of in-service injury or onset of a back disorder or related symptoms during service. For this reason, the service connection for arthritis as a presumptive disease may not be presumed. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Additionally, the competent evidence of record weighs against a relationship between the Veteran's current back disorder and military service. The February 2009 VA examiner opined that the Veteran's current degenerative changes and degenerative disc disease at L5-S1 are not related to the treatment for back pain in service. Such opinion was based on a thorough review of the record, accurate factual assumptions that include recognition of the in-service injury and treatment, and consistent with the findings that the symptoms of back disorder were not chronic in service or continuous since service. For these reasons, the Board finds that the lay and medical evidence that is of record weighs against the claim for service connection for a back disorder. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER The appeal to reopen service connection for a right upper extremity disorder is denied. New and material evidence having been received, the appeal to reopen service connection for back disorder is granted. Service connection for a back disorder is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs