Citation Nr: 1317683 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 12-12 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for an upper back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from August 1955 to August 1959. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran's claim for service connection for a back disability was previously denied by the Board in a November 2011 decision, addressed as a "low back" claim. The Board noted in that decision that the Veteran contended that he did not mean to file a claim for his low back disability, and instead sought service connection for an upper back disability. The Board referred the claim of entitlement to service connection for an upper back disability to the AOJ. The claims file contains a March 2012 "rating decision" which includes the evidence portion of a rating decision only. A review of the same rating decision on Virtual VA is equally blank. The evidence listed in the March 2012 "rating decision" addresses the Veteran's upper back disability claim. A contemporaneous March 2012 Statement of the Case addresses the upper back disability claim without the benefit of the Veteran providing a notice of disagreement with the (mostly blank) March 2012 "rating decision." It appears the RO, perhaps on initiative based upon the Veteran's appeal of his low back disability claim, assumed he wished to appeal any denial of an upper back disability claim as well. While the Veteran was provided a copy of the March 2012 Statement of the Case, he did not file a timely substantive appeal. However, the Board has considered the case of Percy v. Shinseki, 23 Vet. App. 37 (2009), wherein the United States Court of Appeals for Veterans Claims (Court) found that 38 U.S.C.A. § 7105 was not intended to foreclose the Board's exercise of jurisdiction over a matter in which a substantive appeal was untimely. Consequently, because the 60-day filing period is not jurisdictional, VA may waive any issue of timeliness in the filing of the substantive appeal, either explicitly or implicitly, and is not required to close an appeal for failure to file a timely substantive appeal. The Court in Percy also went on to determine that any issue concerning the timely filing of the substantive appeal in that particular case was waived by VA, due to the fact that VA treated the Veteran's appeal as if it were timely perfected. Likewise, in this case, the Veteran was issued a supplemental statement of the case (SSOC) in October 2012 and was scheduled for a Board hearing with regard to the issue in November 2012. Therefore, the Board will construe the claim as being properly appealed and before the Board for adjudication. The Veteran and his spouse appeared and testified at a personal hearing in November 2012 before the undersigned Veterans Law Judge sitting in Lincoln, Nebraska. A transcript of the hearing is contained in the record. Additionally, the Veteran testified at another Board hearing in March 2011, and at a formal RO hearing in June 2010. Transcripts of these hearings are also of record. This appeal was previously before the Board in January 2013. The Board remanded the claim so that treatment records could be requested and the Veteran could be scheduled for a VA examination. The case has been returned to the Board for further appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The weight of the competent and credible evidence of record does not support a finding that a relationship exists between the Veteran's currently diagnosed thoracic spine disability and his military service. CONCLUSION OF LAW The Veteran's thoracic spine disability was not incurred or aggravated by his active duty military service, and it may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has given consideration to The Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See id. at 486. Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In the instant case, January 2012 correspondence notified the Veteran of information and evidence necessary to substantiate his upper back claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The letter also included notice regarding the degree of disability and effective date. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran's service treatment records are unavailable, and are believed to have been lost in a fire at the NPRC in St. Louis, Missouri, in 1973. The United States Court of Appeals for Veteran's Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA treatment records and private treatment records are available in the claims file and through Virtual VA. The Veteran was afforded VA examinations in October 2009, July 2010 and February 2013. The examiners reviewed the Veteran's claim file, past medical history, recorded his current complaints, conducted an appropriate evaluation, and rendered an appropriate opinion consistent with the remainder of the evidence of record. While the October 2009 and July 2010 VA examinations did not singularly focus on the upper back, and did not include x-rays of the upper back, the February 2013 VA examination specifically addressed the Veteran's upper back complaints and included x-rays. The Board, therefore, concludes that the February 2013 VA examination report is adequate for the purpose of rendering a decision on the current appeals. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Veteran and his wife provided testimony regarding his claim in March 2011 and November 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issue on appeal during the hearing and specifically discussed the basis of the prior determination, and the element of the claim that was lacking to substantiate the claims for benefits. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Laws and Regulations The Veteran contends that he has an "upper back" disability that is related to his active duty military service. Service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such diseases are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a). The United States Court of Appeals for Veterans Claims has stated that a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail on a claim for benefits. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) recently held that lay evidence, when competent, can establish a nexus between the Veteran's disability and an in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Id. at 1316. Instead, under 38 U.S.C.A. §§ 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (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, 1377 (footnote omitted). For example, a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer. Id. at 1377 , n.4. Factual Background and Analysis The Board has reviewed all the evidence in the Veteran's claims 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 the Veteran or obtained on his behalf be discussed in 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). In April 2009, the Veteran filed a formal claim for several conditions, including a "lower back condition," and "left leg and left foot drop secondary to back." The RO attempted to obtain the Veteran's service treatment records from the National Personnel Records Center (NPRC) in April 2009. In May 2009, the NPRC responded that his records were destroyed in the fire of 1973. As noted above, the Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In July 2009, the RO denied the Veteran's claim of entitlement to service connection for a low back disability. In August 2009, the Veteran provided a statement regarding an in-service injury to his spine. He stated that he worked in the motor pool at Puntzi Lake Radar site, and part of his service included preparing the maintenance facilities for inspection. The preparation of the maintenance facilities including washing the floor of the motor pool with solvent and water, which caused it to become "dangerously slick." He reported that "on one such occasion, [his] feet went out from under [him] and [he] came down on a jack stand, striking [his] lower back." After the injury, he could not rise to his feet for "approximately 15 minutes." He was subsequently transferred by stretcher and ambulance to the aid station, and then to his bunk. He was unable to stand until the third day, and at that point could not stand up straight. He was placed on limited duties, and he was sent to "Rockville, Indiana, for the remainder of [his] Air Force enlistment of eleven months." He reported that "during the next fifty years, [he has] experienced ongoing back pain." He stated that he attempted to seek treatment for his back at a VA hospital in Gainesville, Florida, but that as his injuries were not "combat-related" he was turned away. He reported that he does not know when his back will give out, and that when he bends over it sometimes feels as though "someone just shoved an ice pick into [his] lower spine" and that it can take him up to four days to be able to walk unaided after his back gives out. The Veteran was afforded a VA spine examination in October 2009. He reported he underwent spinal surgery in 1991. He also reported he suffered two injuries to his spine, one during active duty and one in 1991. He reported his back pain was in his "low back." He was noted to have kyphosis upon evaluation. X-rays of his lumbar spine revealed mild multilevel degenerative spondylosis. He was assessed with mechanical low back strain. The examiner indicated that the Veteran should be seen by an orthopedic surgeon, who "may be able to separate" the impact of his in-service fall from his post-service fall and surgery. The Veteran was then afforded a VA bones examination, also in October 2009. The examiner noted the Veteran's history of an in-service fall, and his striking his spine on a jack on a slippery floor. The Veteran stated that "his back has bothered him ever since this time, and he describe[d]...pain along his low back." Following service, he worked several jobs in construction and maintenance, and eventually found employment as a security guard. During his employment as a security guard, he reported having an "injury on the job site resulting in a herniated disk of his low back that he underwent a partial diskectomy." He described low pain across his back and lower sacrum, lower than the site of his previous surgical incision that radiates down bilateral lower extremities cause pain, numbness and weakness. The examiner noted that the Veteran was consistent in reporting his in-service injury, but that it since he suffered a fall and injury requiring surgery in 1991, it was "tough to say what his symptoms were like or the condition of his low back were from 1957 until 1991." The examiner noted that the Veteran "probably had some degenerative arthritis at [the time of the diskectomy] and the diskectomy might have increased the degenerative process." The examiner noted that he could not opine as to the condition of the Veteran's spine from 1957 until his second injury in 1991 without resort to mere speculation because there was no medical documentation prior to the 1991 injury. The examiner told the Veteran that if he had any treatment records from prior to 1991, they would be beneficial. The claims file contains a statement from the Veteran's stepson and wife, both received in October 2009. The stepson noted that he met the Veteran in 1974, and that he watched the Veteran "go from a man that loved to work with and tinker on old cars and trucks to a man that can barely bend over let alone crawl under a car anymore." His wife reported they have been married for almost 36 years (since 1973) and that the Veteran went from back pain approximately three to four days a week, to daily pain which has affected his ability to climb stairs, get into a car, walk, sit, stand, and drive a car. The Board attempted to obtain Social Security Administration (SSA) records regarding the Veteran's disability benefits. A January 2009 response indicated the SSA disability folder was destroyed. The earliest treatment records in the claims file are from Dr. W.G.P., from 1994. The first treatment record is from August 1994, and the Veteran reported that he had numbness of his lower extremities following an injury in December 1993 when he fell "when a threshold came off" and his back and left leg. He stated he saw a "worker's compensation doctor" who treated him with physical therapy. "He denie[d] any low back pain prior to his injury of December 1993." In October 1994, Dr. W.G.P. reported that an MRI of the Veteran's spine revealed a large herniated disc at L4-5, and surgery was scheduled at the Veteran's request. Records note that he underwent a laminectomy diskectomy at L4-5 at Baptist Medical Center in October 1994. He returned to work by January 1995, but continued to have back pain, and trouble standing for long periods. By February 1995, Dr. W.G.P. suggested the Veteran is capable of sedentary employment, but that employment with standing for long periods aggravates his back. By July 1995, Dr. W.G.P. found that even sedentary employment would be difficult for the Veteran as he would was unable to sit for any length of time or walk distances due to back pain. The Veteran only supplied treatment records from Dr. W.G.P. from August 1994 to August 1995. A VA treatment record from December 2009 includes a statement from the Veteran that he has had "lower back pain" since he was in the service and that it is now worsening. In June 2010, the Veteran provided a statement that his claim for service connection was for an "upper back" disability, and not a low back disability. In June 2010, the Veteran and his wife testified at a Decision Review Officer hearing. He described his in-service injury as occurring in the shop due to a slippery floor. He stated he was in the middle of cleaning a section of the floor, when he suddenly slipped and fell, striking a "short stand" on the floor. He described a "short stand" as a floor stand to hold cars up that was roughly a foot to a foot and a quarter high. He stated he struck the "almost upper center" of his back. The fall knocked the wind out of him, and he had to be taken out of the shop on a stretcher. He was not taken to a hospital, and he was not given a spine x-ray. He reported spending a week in his bunk after the injury. After service he worked for his father welding metal together at a body shop. He stated that some days he would go to put his socks on and it would feel as though someone stuck an ice pick in his back. He stated that he never knew when his back would flare-up and that he could go three to four months without a problem, and at one point went a couple years between back pain flare-ups. He stated he attempted to see a doctor at the Gainesville, Florida VA hospital but was turned away. He was asked if he ever sought treatment for his back outside of the VA, and he reported he sought treatment after his second spine injury in 1993. He then clarified that he injured his "upper back" in service, and injured his low back in 1993. He stated the jack struck him between the shoulder blades. In July 2010, a VA physician reviewed the claims file and provided an opinion. The examiner noted that the October 2009 VA examiner addressed the Veteran's in-service injury as occurring in his low back in roughly the same place as his post-service injury. The examiner also noted that he had reviewed the June 2010 hearing transcript regarding the Veteran's description of his in-service accident injuring his upper back, between his shoulder blades. The examiner noted that there were no treatment notes regarding upper back symptoms, and that the records from 1994 to 1995 for his lumbar spine injury did not include any complaints of upper back symptoms. The examiner also noted that the Veteran specifically described that the injury to his spine in service was in his low back. The examiner found that there was no new evidence since the 2009 VA examination upon which to relate a back injury to service. The examiner noted that all the records in the claims file at that point included complaints of low back pain, and that only in the June 2010 hearing did the Veteran complain of upper back pain. In August 2010, the Veteran substantively appealed his claim for "service connection for residuals of low back injury," and requested a hearing before a Board member. A VA treatment record from February 2011, included a complaint of intermittent upper back pain, which the Veteran indicated was from and old service connected injury. He related that it was "probably poorly documented." In March 2011, the Veteran and his wife testified before the undersigned. He testified that he sought treatment for his back condition at a VA hospital in Gainesville, Florida in the 1980s. He reported that the VA hospital staff asked him if his injury was due to combat, and when he indicated it was not, they did not treat him. He again repeated his story of injuring his back during a slip and fall onto a jack stand. He stated he was struck "smack in the middle of the back between my shoulder blades." He reported he served out the remainder of his time on bed rest, as he only had four days until it was time for him to leave. He then had a friend load his car with his possessions and he drove home to his parents. He stated that his low back injury in 1993 was "totally separate" from his upper back injury in service. He stated he did not seek treatment for his upper back injury from 1959 until 1981, when he was turned away at the Gainesville, Florida VA hospital. After he was turned away in 1981, he did not seek treatment for his upper back again until he sought treatment with the VA in 2009. In November 2011, the Veteran complained to VA physicians of upper back pain, with onset during active duty after he fell on a slick floor. He stated his upper back pain made it difficult for him to stand, lift, pull, or push anything. He stated he had never had treatment for his upper back pain. On evaluation, he had tenderness to the right paravertebral T6 area, with no tenderness to other areas of the thoracic spine. He reported that position change and activities that use the upper back strength are painful. He carried his shoulders high. In November 2011, the Board denied the Veteran's claim of entitlement to service connection for residuals of a low back injury, noting in the findings of fact that the Veteran had stated on multiple occasions that it was his upper back, rather than his low back, that was injured during service. In November 2012, the Veteran and his wife testified before the undersigned in another Board hearing. The testimony provided is similar to the testimony he provide in 2011. He stated he fell on a slippery floor and struck a jack stand, which "hit [him] pretty much in the shoulder blades and it knocked the wind out of [him]." He stated his injury occurred with about two weeks left before his term stationed at Hudson Lake, British Columbia was over. They allowed him to stay on bedrest for the rest of his term. His roommate then loaded his car, and he drove to Indiana. He reported he had three weeks to recover before he was to report to his next station. He was then stationed in Illinois, but indicated the base had little activity and he was able to rest during his remaining 11 months in service. He then worked as a welder in his father's auto body repair shop, where he could sit down most of the day, which "was the big key in [him] getting along in the world." He stated that his upper back pain has remained since his in-service injury, and has worsened with time. He stated physicians have told him that "his injuries are consisted with" his story of his injury. When asked to further describe the location of his injury, the Veteran indicated it was "pretty much on top of my right shoulder blade." He stated he rarely had neck problems, but that his pain was "right over the shoulder blades." His wife testified that he suffered from upper back problems during the entire 38 years she had known him. In January 2013, the Board remanded the Veteran's upper back claim so that he could be afforded a VA examination which specifically addressed his upper back as the 2009 and 2010 VA examinations focused on his low back disability, and did not include x-rays of his upper back. In February 2013, the Veteran was afforded a VA examination in conjunction with his upper back disability claim. The examination included x-rays which revealed moderate kyphosis which has progressed mildly since 2009. The x-ray showed that most of the disc interspaces were fused at the thoracic level due to diffuse idiopathic skeletal hyperostosis. He had no "frank compression fractures." The Veteran reported that he had upper and lower back problems, and that he fell and struck a jack stand in service 50 years prior. He was "not sure where it hit me." He believes he was hit on his right shoulder blade because that is "what gets to hurting first." The initial pain from the "fall lasted for a couple weeks," but the "pain never went away." He reported that his upper back injury was never treated, and that he has not sought treatment for his upper back/shoulder symptoms at other clinics. When describing the location of his current pain, he noted it was in the mid thoracic region, a little more on the right side. After reviewing the claims file, the examiner opined that the Veteran's upper back disability was "less likely than not etiologically related to service, to include the slip and fall injury described by the Veteran." The examiner explained that the Veteran indicated his current pain is in his thoracic/mid-back, with his pain greater on the left side and middle, whereas he described striking his right shoulder blade during his in-service injury. The examiner noted that the Veteran has significant kyphosis in the area where he complains of aching. The examiner also noted that prior medical records contained complaints of low back pain only. "Thus, in [the examiner's] opinion, the evidence suggests the Veteran injured his back in service, but it is less likely than not the current pain in his mid back is related to his injury in service, rather, the pain he describes is more likely due to the thoracic kyphosis." The examiner noted kyphosis is often an age-related curving of the spine. Kyphosis can be caused by arthritis, fractures, injury or slipping of one vertebra forward on another. The examiner noted that the Veteran reported he did not think he struck his spine in the fall. The Board notes the x-ray does not show any fractures. Based on the evidence, the examiner found that the "evidence suggested his kyphosis was age-related degenerative process." In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Veteran has repeated a nearly identical story regarding a slip and fall injury in service. Due to his continuity, the Board finds his description of the accident to be credible. The Veteran is also competent to describe the location of pain he suffered as a result of this fall. Here, the Board cannot find the Veteran credible. The Board acknowledges that the injury happened 50 years ago and so it may be difficult for the Veteran to remember all the details of his injury. However, while the Veteran remembers the kind of jack he struck and can describe the actual slip and fall, he has provided different accounts of where he struck his back. Initially, he indicated he struck his low back, and indeed, initially filed a claim for a low back disability. Later, he stated that he was mistaken when he wrote "lower back condition," and that he meant to file a claim for entitlement to service connection for an upper back condition. His description of where the jack struck him in his upper back has also varied. He described it striking him in the middle of his back between his shoulder blades, above his shoulder blades, and in his right shoulder blade. As the Veteran has been unable to consistently state where he was injured in service, the Board affords less probative weight to the Veteran's lay statements that he has had ongoing low and upper back pain since service. The Veteran's wife has indicated that he has suffered from back pain since 1973 when she met him. The Veteran's stepson has indicated the Veteran was able to be active with his hobbies when he first met him in 1974, but that his spine health had deteriorated considerably since then. There are limited treatment records regarding the Veteran's currently claimed upper back disability. Treatment records for his lumbar spine injury in 1993 do not include complaints of upper back pain, although they do include complaints of knee and wrist pain. He additionally stated that he did not have low back pain prior to his 1993 injury, and did not relate a prior history of thoracic back pain. Based on the Veteran's initial complaints of low back pain since an injury to his low back in service, and then his subsequent statements that he injured his upper back in service, the July 2010 VA examiner found that the Veteran did not have an upper back disability that was related to his active service. The February 2013 VA examination included x-rays which revealed that the Veteran does have an upper back disability-thoracic kyphosis. The examiner found that the Veteran's kyphosis was likely due to age-related degenerative changes, and less likely a result of his in-service slip and fall. The examiner again noted that the Veteran's current complaints of thoracic pain did not correspond to his description to the VA examiner of falling and striking his right shoulder blade. The Veteran, during the examination, stated that he was not sure where he was injured during the fall in service. As the Veteran has been unable to consistently describe the location of his in-service injury, the Board does not find that his statements of continuity of symptomatology are credible. Again, the Board finds that the Veteran's story of slipping and falling in service is credible. Indeed his description of bedrest right after the injury has also been consistent, although the length of bedrest has varied in description from a few days to a couple weeks. Additionally, the Veteran has consistently reported he was able to drive from British Columbia to Indiana within a few weeks of in injury, and he was able to complete his remaining 11 months of service in Illinois after a month of resting his back. He did not seek treatment after his discharge from service for more than 20 years, during which time he described working in manual labor. After being treated poorly at the Gainesville, Florida VA hospital, the Veteran did not seek treatment, VA or private, for his upper back until after he corrected his service connection claim from a low back injury to an upper back injury (2010). This "evidence of a prolonged period without medical complaint," along with other factors such as the Veteran's inconsistent statements regarding the location of his injury, and initial application for, and statements of, continuity of low back pain symptomatology all weigh against the Veteran's claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board affords more probative weight to the opinions of the 2010 and 2013 VA examiners than to the inconsistent statements lay statements contained in the record. Given that the Veteran has been unable to consistently recall where he was injured during his fall in service, his ability to complete service, his lack of treatment for his upper back for 50 years, and the 2013 VA examiner's diagnosis of age-related kyphosis, the Board finds that entitlement to service connection for an upper back disorder is not warranted. In light of the foregoing, the preponderance of the evidence is against the claim of service connection for an an upper back disorder, there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER Entitlement to service connection for an upper back disorder is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs