Citation Nr: 1316846 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-09 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a low back disorder. WITNESSES AT HEARING ON APPEAL The appellant-Veteran and his daughter ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active military service from July 1943 to February 1946. He engaged in combat in the Asiatic-Pacific Theater of Operations during World War II. Service connection is currently in effect for a depressive disorder, rated as 70-percent disabling since 2008; tinnitus, rated as 10-percent disabling since 1997; and bilateral hearing loss, also rated as 10-percent disabling but since 2009. A combined disability rating of 80 percent has been in effect since September 14, 2009. This appeal to the Board of Veterans' Appeals (Board/BVA) is from January 2006, March 2007, September 2008, and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the January 2006 rating decision, the RO declined to reopen the Veteran's claim for service connection for a low back disorder on the grounds that there was not new and material evidence. He subsequently expressed disagreement with that decision in a July 2006 statement and submitted evidence in July and October 2006, including a July 2006 MRI report of ongoing treatment for low back pain. Thus, his statement precluded the January 2006 rating decision from becoming final and binding. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 30.201, 20.302 (a) (2012). See also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) and Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Later, in March 2007, the RO again considered and denied the petition to reopen the claim. However, the Veteran again expressed disagreement with that decision in February 2008. That statement thus precluded the March 2007 decision from becoming final and binding. 38 C.F.R. §§ 19.26, 20.201, 20.302 (2012). In yet another rating decision in September 2008, the RO once again considered and denied the petition to reopen the claim, again concluding there was not the required new and material evidence. In response, the Veteran submitted a timely notice of disagreement (NOD) in October 2008 and also submitted private treatment records pertaining to his ankle and back pain dating between August 2007 and July 2008. Also, he and his daughter, C. S., testified in a hearing at the RO in September 2009 before a local decision review officer (DRO). Based on this evidence, the RO reconsidered the Veteran's claim, and, in the July 2010 rating decision, reopened the claim, but then proceeded to deny the claim on its underlying merits. In an August 2012 decision, the Board made its own threshold preliminary determination that there was new and material evidence sufficient to reopen this claim. Although the RO already had reopened the claim, the Board still needed to make this threshold preliminary determination of whether there was the required new and material evidence, before proceeding further, because this initial determination affected the Board's jurisdiction to adjudicate the claim on its underlying merits. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). But after reopening the claim, rather than immediately readjudicating the claim on its underlying merits, the Board instead then proceeded to remand the claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. The requested development has been accomplished to the extent possible, and the claim is again before the Board since the RO/AMC continued to deny it. Please also note this claim has been advanced on the Board's docket in accordance with the provisions of 38 C.F.R. § 20.900 (c) (2012). 38 U.S.C.A. § 7107 (a)(2) (2012). FINDING OF FACT The Veteran's current low back disorder is not shown to have incepted during his military service, or within one year of his discharge from service, and is not shown to be otherwise related or attributable to his service. CONCLUSION OF LAW The Veteran's low back disorder was not incurred in or aggravated by his service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)), defines VA's duties to notify and assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and any medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the VCAA 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. Those elements are: (1) Veteran status; (2) existence of a current disability; (3) a connection between the Veteran's service and the disability; but also the "downstream" (4) degree of disability, i.e., disability rating; and (5) effective date. See Dingess/Hartmann v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, VCAA notice should precede the initial adjudication of the claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason VCAA notice was not provided prior to initially adjudicating a claim, or, if provided, the notice was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim -- including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the claimant, not VA, bears the burden of proof of not only establishing there is a VCAA notice error but also, above and beyond that, of showing the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Connolly v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VCAA letters have been sent on periodic occasions during the several years of the appeal, most recently in October 2012. The Veteran was asked to provide information regarding any private physicians or hospitals from when or from where he receives treatment. He was also asked for information about any treatment received from VA. He was told that VA had requested all available VA treatment records dated prior to August 1991 at the VA medical facilities associated with the VA Medical Center in San Juan. He was informed that records from that facility from November 17, 2011, to the present had been obtained. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised him of his and VA's respective responsibilities in obtaining the supporting evidence. The Veteran was also provided a hearing in September 2009 before a local DRO at the San Juan RO. During the course of the proceeding the Veteran presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 4088 (2010), the Court held that 38 C.F.R. § 3.103 (c)(2) requires that the hearing officer chairing a hearing fulfill two duties to comply with this VA regulation: (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position. Here, during the hearing, the Veteran testified concerning medical care he had sought for his back problem during the years immediately following his discharge from service. More recently, the Board remanded this claim to further develop it, and that development since has been accomplished to the extent possible. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conducting of the hearing by the DRO in San Juan. The hearing focused on the elements necessary to substantiate the claim. Consistent with Bryant, the presiding DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and the Board as a result may proceed to adjudicate this claim based on the current record. The Board remanded the claim in December 2012 for the additional development mentioned. The claims file was again reviewed by the physician who had performed the examination of the Veteran in June 2010 for an addendum opinion. The Veteran's history, as well as subsequent findings to properly decide the claim, has been set forth in the examination reports. In obtaining this additional medical comment in January 2013, along with the review of additional records, the Board is satisfied there has been compliance with the directives of the remand. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive, and the Board itself commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", even if not "exact", compliance with a remand directive). In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate his claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that the "VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (observing circumstances when a remand, especially another remand, would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran). Pertinent Legal Criteria Service connection is granted for disability resulting from a disease contracted or an injury sustained in the line of duty during active military service or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing entitlement to service connection on a direct-incurrence basis requires competent and credible evidence showing: (1) the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain diseases, including arthritis, are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year following separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). But if chronicity of disease or injury in service is not shown, or if it is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service; (2) symptoms of that condition continued after service; and, (3) the current condition is related to those continuing symptoms. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, recently held that continuity of symptomatology only can be used to establish this required linkage between the current condition and service if the condition is one of those explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is generally, although, as mentioned, not always, required to associate the claimed condition with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). So service connection may be established either by showing direct service incurrence or aggravation, or by using applicable presumptions, if available, or by showing the condition claimed is secondarily related to service, again, meaning either caused or permanently worsened by a service-connected disability. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is "credible", or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible). Only if the evidence is both competent and credible does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). On the other hand, laypersons equally have been found not competent in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis The only reference in the Veteran's service treatment records (STRs) to his back is on one occasion in April 1945 when he received a vaccination shot for typhoid fever. A couple of days later, he had complaints that included fever, chills, pain in the chest and back and a productive cough. The diagnostic impression, however, was that he was only having an adverse reaction to that vaccination. The remainder of his STRs do not make any reference whatsoever to problems or impairment involving his back, either in the way of relevant subjective complaints or objective clinical findings such as a pertinent diagnosis. At the time of his separation examination in February 1946, it was indicated on clinical examination that there were no musculoskeletal defects, so presumably including as concerning his low back. He additionally indicated that he did not have any wound, injury, or disease that was disabling. His initial application for disability benefits that was received in February 1947, so a year later, only referred to a problem with his eyes, not also with his back or low back. In December 1947, he was hospitalized for inflammation of the middle third of his left leg following a mosquito bite. He responded to treatment and was discharged several days later in December 1947. It was indicated that was the only time he had received physical treatment since his discharge from service. No mention of any back problem was made, either expressly or implicitly. In September 1948 he was hospitalized for an unrelated disorder. Again, no mention was made of any back problems. Other post-service medical evidence includes the report of a VA general medical examination he more recently had in December 1996. Complaints included pain involving his hips. He said it had begun while loading bullets into canons while stationed in Trinidad and Tobago during service. He denied having any low back pain, in particular. Objective findings on examination of his musculoskeletal system included 70 degrees of lumbar flexion of the lumbar spine with notation of difficulty squatting. But a diagnosis of a back disorder was not made. Additional post-service evidence includes the report of a CT scan of the lumbosacral spine done at a private facility in February 1997. Impressions included spinal canal stenosis at the L4/L5 and L5-S1 muscles; degenerative disc disease with vacuum phenomena at the L5-S1 level; and diffuse facet joint degenerative changes. An X-ray taken at a private facility in March 1998 showed severe narrowing of the intervertebral space of the L5-S1 muscle on the basis of severe degenerative disc disease. The findings were suggestive of associated muscle spasm. There were also mild spondylotic changes of the lumbar spine. The report contained no mention of the history of the Veteran's back problems, including especially in terms of whether they dated back to his military service. The medical evidence thereafter shows ongoing treatment and evaluation for multiple lumbar spine disabilities. The Veteran had a VA spine examination for compensation purposes in June 2010. The claims file was reviewed by the examiner. The Veteran stated that his duties while in service required lifting of heavy ammunition to load canons. The examiner indicated that he was asked to examine the Veteran and, following the examination and review of the claims folder, provide an opinion as to whether any current lumbar spine disability was related to the Veteran's active service. The examiner noted that the Veteran reported that he began seeking treatment for his low back pain during 1948. The Veteran denied having been evaluated for back pain during his military service, which instead had ended in February 1946. Following examination, diagnoses were made of lumbar degenerative joint disease, degenerative disc disease, and lumbar facet degenerative disc disease, lumbar spinal stenosis, and right L4 and S1 radiculopathy. Regarding etiology, the examining physician observed the Veteran had no evidence of complaints of back problems during his service. The examiner also stated "there is no evidence of any evaluation by health care practitioner in the first several years after separation from the military service. [The Veteran's] separation examination reports no musculoskeletal defects and no neurological defects until more than 20 years after his separation from the military." That physician who had examined the Veteran in June 2010 again reviewed the claims file in December 2012, following and as a result of the Board remanding this claim, for the purpose of providing further comment on the determinative issue of the etiology of the Veteran's low back disability. The physician was asked to consider the Veteran's lay statements and hearing testimony that he began having low back pain in 1948 or thereabouts, shortly after separating from service and claiming the pain had continued ever since (i.e., continuity of symptomatology). Upon this further review, this physician pointed out that during the June 2010 examination the Veteran had attributed his then current back pain to lifting heavy ammunition in service. But the physician recalled that the Veteran did not say he had started with back pain at that time and had continued with pain after that. Rather, the physician indicated the Veteran had stated he began with back pain some two years after service when he sought treatment in 1948. The physician reiterated that he found no evidence of any complaint of back pain, symptoms or treatment for back problems in the records concerning the Veteran's service or in the first years after his separation from service. With regards to the allegation that the Veteran had sought treatment in 1948 for back pain, the physician said there was no evidence of that treatment in the records. He noted the allegation did not come in 1948, but actually came many years later, long after the fact. He stated the Veteran's claim of back pain or treatment was not accompanied by evidence showing the condition was possibly related to his service. The physician said "there is no evidence of a nexus or link between any service injury or disease and the current disability. The current back condition was diagnosed more than 50 years after separation from the military service, and although heavy lifting (such as that done when lifting heavy ammunition) can be a cause of degenerative disc disease it will usually be preceded by low back pain during and in the days after the inciting incident. This patient has no record of any back complaints during his military career, upon separation or even in the first years after separation as can be seen by the absence of any records showing complaints of treatment of back pain or a back condition." The physician went on to say that the Veteran's various back problems, including lumbar degenerative disc disease and lumbar joint disease, "are at least as likely as not due to his natural process of aging and not by his military service...." In weighing the evidence of record, the Board concludes the preponderance of the evidence is against service connection for a low back disability. The Board finds that the most probative evidence shows the Veteran's low back disability was not present during service, or even during the one-year presumptive period following his discharge from service, and the record on appeal contains no probative evidence otherwise relating or attributing his current low back disability to his service. Indeed, to the contrary, the VA compensation examiner charged with making this necessary determination ultimately concluded it more likely the current disability is the result of simple aging (getting older over time). The evidence of record confirms the Veteran has significant low back disability, as evidenced by his several diagnoses. But there has not been the required attribution of this disability to any disease, injury or event during his military service that ended many years, in fact decades, ago. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). He believes his current low back disability is the result of lifting heavy ammunition while serving on a gun crew during World War II in the Caribbean. He does not attribute his back problems to any combat action he was involved in during service. He instead blames the back disorder on problems lifting heavy ammunition while stationed at Trinidad-Tobago. Accordingly, the provisions of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) are inapplicable. But even if they applied, they would only at most lessen his burden of establishing the occurrence of relevant injury in service, not also that his current disability is a consequence. 38 U.S.C.A. § 1154(b) and the implementing VA regulation, 38 C.F.R. § 3.304(d), require that a Veteran have actually participated in combat with the enemy, meaning participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and do not apply if he only instead served in a general "combat area" or "combat zone" but did not himself engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). And while it is true he engaged in combat elsewhere, namely, in the Asiatic-Pacific Theater of Operations during World War II, that is not where he alleges he did the heavy lifting that eventually caused his current low back disability. In cases where a Veteran asserts entitlement to service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence to establish the occurrence of the claimed disease, injury or event in service. If the Veteran engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of his service. Id. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so too is the disability due to the combat injury in service. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). But to establish entitlement to service connection, there still must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Board is required to apply the sections 1154(b) and 3.304(d) presumption to whether the claimed injury occurred, as well as the separate issue of whether the Veteran suffered the claimed ensuing disability while on active duty. However, a Veteran would then still have to show that the disability he incurred in service was a chronic condition that persisted in the years following active duty to in turn establish that the injury in service resulted in permanent disability. See generally Reeves. Whether any etiological relationship exists between the activity in service of lifting heavy ammunition and eventually developing a low back disability of the type shown in this case, which was first documented after discharge from service, is a complex medical matter that is not readily amenable to mere lay comment. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 13312, 1336 (Fed. Cir. 2006). And the Board finds the opinion of the VA examiner in 2010 who reiterated his opinion in 2012 that current back problems are unrelated to the Veteran's service to be most probative on this determinative issue of causation. This examiner is a trained health care professional. He had access to the entire claims file, including the Veteran's STRs and the Veteran's personal assertions. While the Veteran more recently has complained that he has had back problems ever since service, the medical records for several years following his discharge from service do not support this notion, in fact, directly contradict it since they show he was seen on more than one occasion, albeit for unrelated reasons, but nonetheless at no time did he ever make any mention or reference to any then existing problems with his back, certainly none that had persisted since his service. So his lay testimony concerning this is undermined and not credible because he has given an inconsistent medical history regarding this disability. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong reason to tell the truth in order to receive proper care). It is reasonable to expect that, had he in fact been experiencing problems with his back during those many intervening years, as he now claims, it stands to reason he would have made some mention of this during the times of the various medical visits in the first several years following his discharge from service. He clearly did not, however, not until much later when attempting to support the notion that he has experienced continuous symptoms since service in connection with this current claim. And while the Board cannot discount his lay testimony concerning this merely out of hand, it is permissible for the Board to consider factors that might affect the credibility of his lay testimony, including his inherent bias and investment in the favorable outcome of this appeal. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence). In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records. The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that, for non-combat Veterans providing non-medical related lay testimony regarding an event during service (or where, as here, the claimed injury is not alleged to have occurred in combat), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements. The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board therefore may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following the conclusion of his service during which there was no clinical documentation of the claimed disorder). The Federal Circuit Court has cautioned that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). Still, ultimately, the Board must consider all of the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). Therefore, here, because the Veteran lacks credibility, his statements and testimony have diminished probative value - including insofar as purporting to show he has experienced continuity of symptomatology since his service. The Board assigns greater probative value to the objective evidence of record, which does not show the presence of a chronic or permanent low back disability at any time during his service or for years after its conclusion, and which to the contrary disassociates all current low back disability from his service. The VA physician who expressed the negative opinion in 2010 again reviewed the claim file in 2012 and reiterated his opinion that the current low back problems are less likely than not related to the Veteran's active military service - including the heavy lifting he says he did in service. The Board therefore finds that the preponderance of the evidence is against this claim. And as the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule is not for application, and the claim resultantly must be denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER The claim of entitlement to service connection for a low back disorder is denied. ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs