Citation Nr: 1317982 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-33 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from September 1984 to July 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that inter alia denied the Veteran's request to reopen a previously-denied claim of entitlement to service connection for residuals of contusion to the back. The RO is currently adjudicating the issue of entitlement to service connection for a claimed cervical spine disability. The Board has accordingly characterized the issue on appeal as a low back disability. In March 2011 the Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO; a transcript of the hearing is of record. At the hearing the Veteran submitted additional evidence to the Board in the form of private medical records and opinion, along with a waiver of original RO jurisdiction. The Board has accepted these documents for inclusion into the record on appeal. See 38 C.F.R. § 20.800 (2012). In October 2011 the Board issued a decision that reopened the previously-denied claim of service connection for a low back disability, and remanded the case back to the Originating Agency for development of the merits. The file has now been returned to the Board for further appellate review. The Veteran recently submitted, directly to the Board, a private medical opinion dated in May 2012. In an Informal Hearing Presentation, dated in April 2013 that is associated with Virtual VA, the Veteran's representative waived original RI review of this new evidence on the Veteran's behalf. See 38 C.F.R. § 20.800 (2012). FINDING OF FACT The objective evidence of record shows that the Veteran's low back disorder, characterized as lumbosacral strain, is not etiologically related to any incidents or injurues sustained during his military service. CONCLUSION OF LAW A low back disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA is required to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VA must also notify the claimant that, should service connection be awarded, a disability rating and an effective date for the award of benefits will be assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran was sent a letter in November 2007 advising him of the elements to establish entitlement to service connection, including the disability-rating and effective-date elements, and he had ample opportunity to respond prior to the December 2007 rating decision on appeal. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009 (reversing prior cases law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The record also reflects that service treatment records (STRs), Social Security Administration (SSA) disability records, and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran has been afforded appropriate medical examinations in regard to the service connection claim on appeal. In that regard, the Board remanded the claim for medical examination, which was performed in December 2011; the Board has reviewed the examination report and finds the Originating Agency substantially complied with the requirements articulated in the Board's remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008), citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that in the context of medical examinations/opinions only substantial compliance, not strict compliance, with the terms of the Board's opinion request is necessary). Finally, the Veteran was afforded a hearing before the Board. There are two duties imposed on the person who presides at a hearing: (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked; these duties are not impacted by the Veteran's receipt of a VCAA-compliant notice letter. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010). Here, during the hearing, the presiding VLJ did not explicitly cite the bases for the prior determinations and did not list the elements that are required to substantiate the claim on appeal. However, the Veteran's representative demonstrated actual knowledge of this information and elicited testimony from the Veteran regarding the circumstances of his service and the etiology of the disability on appeal; he also elicited the reasons the Veteran contends service connection is warranted for the disability. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate the claim). Further, during the hearing both the representative and the VLJ elicited testimony from the Veteran regarding any existing outstanding evidence that should be pursued prior to adjudication of the appeal. The Board accordingly finds the Veteran is not prejudiced by any error associated with the hearing. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of this appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield, 499 F.3d 1317. Therefore, the Board finds that duties to notify and assist have been satisfied and will proceed to the merits of the issue on appeal Legal Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d 1313, 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, id. 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 United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) 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). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. 498, 511. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record in a case before VA with respect to benefits under the laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA will give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. However, the benefit-of-the-doubt rule does not apply when the issue is new and material evidence. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Evidence and Analysis The Board has reviewed all the evidence in the record. 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 appellant 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). Service treatment records (STRs) show that in December 1984 the Veteran was treated for low back pain associated with carrying an individual on his back. The clinical impression was low back strain. STRs show that in June 1985 the Veteran was struck by an automobile and had contusions to the right hip and the lower back; X-rays of the hip and spine were negative but there was some limitation of motion due to back pain and the clinical impression was right low back pain (LBP) secondary to contusions. A June 1985 orthopedic consult later that month shows clinical impression of posttraumatic musculoskeletal LBP. A repeat X-ray of the spine in July 1985 was again negative. A treatment note in August 1985 states the Veteran complained of chronic back pain with radiation since the automobile accident in June; the clinical impression was resolving mechanical LBP. STRs show that in September 1985 the Veteran was referred for bone scan due to complaints of persistent LBP since the motor vehicle accident (MVA) in June. It was noted the Veteran had been seen by physical therapy and orthopedic clinics multiple times without objective findings on clinical examination and X-rays. The impression from the bone scan was somewhat increased uptake in the region of the pubis symphysis that could represent residual changes from previous trauma or osteitis pubis. STRs include an orthopedic consult in October 1985 noting the Veteran's complaint of pain but entered an impression of idiopathic subjective LBP out of proportion to physical findings. In December 1985 he complained of chronic LBP, assessed as mechanical LBP, but clinical examination was normal and the Veteran was returned to duty. STRs include an August 1986 treatment note in which the Veteran complained of new back pain due to an injury in the field while sitting in a truck. Clinical examination was normal, and the impression was LBP. STRs include an October 1986 treatment note in which the Veteran complained of back pain associated with a fall while waxing the floor. Clinical examination was normal. The impression was LBP. STRs include a treatment note in November 1986 in which the Veteran complained of LBP with increased frequency of urination, dysuria and nocturia. The clinical impression was mechanical LBP and prostatitis. Subsequent X-ray was normal. Finally, STRs include a separation examination in June 1987. In the self-reported Report of Medical History the Veteran endorsed history of recurrent back pain and a number of other physical complaints. However, the corresponding Report of Medical Examination shows clinical evaluation of the spine and other musculoskeletal systems as "normal." The Veteran was discharged from service in July 1987. In the same month he submitted an initial claim for service connection for LBP. The Veteran had a VA examination in October 1987 in which he described the 1985 MVA in which he had been hit by a truck. Clinical examination of the spine showed no tenderness or spasm and normal range of motion. The examiner noted that X-ray of the lumbosacral spine taken the previous month (September 1987) had shown no skeletal abnormality. The examiner's diagnosis was LBP with no physiologic cause found for the complaint. (A rating decision in February 1988 denied service connection for residuals of an accident causing contusion to the back. The Veteran did not appeal.) A VA outpatient treatment note in April 1996 shows an impression of LBP secondary to trauma. The Veteran had a VA history and physical (H&P) examination in August 1999 in which he complained of LBP since the MVA in 1985. Clinical examination was grossly normal, and the impression was chronic LBP. VA X-ray of the lumbosacral spine in August 1999 showed a normal lumbar spine. The Veteran presented to the VA OPT in October 1999 complaining of LBP with pain down the backs of the legs and numbness in the right thigh. The clinical impression was LBP/sciatica. The Veteran presented to the VA OPT in November 1999 complaining of LBP with occasional numbness down the right lower extremity (RLE). The clinician noted the most recent X-ray and MRI studies had been normal. The clinical impression was LBP with radicular symptoms. The Veteran presented to Dr. G. Pierce Jones in December 1999 complaining of LBP since an injury in service in 1984 while doing a fireman's lift; he also described having been hit by a truck while in service. An in-office X-ray was normal. Dr. Jones ordered an MRI, which was performed by Tallahassee Diagnostic Imaging and showed an impression of mild disc degeneration at L5-S1. Dr. Jones subsequently reviewed the MRI and characterized it as normal, and stated that the basis of the Veteran's problem appeared to be muscular weakness. (The Veteran submitted a request to reopen the previously-denied claim for service connection for a low back disorder in January 2000. The RO issued a rating decision in June 2000 that denied the claim, based on a determination that new and material evidence had not been received to support the claim. The Veteran submitted a notice of disagreement (NOD) but did not file a substantive appeal after the RO issued a statement of the case (SOC). Accordingly, the June 2000 rating decision became final. ) A VA OPT note in December 2000 shows the Veteran complained of chronic LBP, without weakness or numbness in the lower extremities. The clinician noted that MRI in August 1999 had shown mild disc degeneration at L5-S1. The clinical impression was chronic LBP. The Veteran had a VA X-ray of the lumbosacral spine in August 2006 due to clinical history of LBP. The impression from the study was normal lumbar spine examination. The Veteran had a VA orthopedic surgical consult in January 2007 in which he complained of back pain since service. The clinician stated the pain did not sound radicular. Examination, to include X-rays, was grossly normal. The clinical impression was lumbar syndrome (mechanical LBP). The Veteran was discharged from the orthopedic clinic because no follow-up was deemed necessary. The Veteran had a VA MRI of the lumbar spine in June 2007 due to clinical history of LBP and bilateral hip pain. The impression from the study was annular tear at L5-S1 with mild-to-moderate facet hypertrophy contributing to bilateral encroachment of the L5 exiting nerve root. (The Veteran submitted a request to reopen the previously-denied claim in August 2007. The RO denied reopening the claim by a rating decision in December 2007, but the Board subsequently reopened the claim on appeal.) The Veteran had a VA neurosurgery consult in August 2007 in which he complained of pain since being hit by a truck in 1985, with symptoms becoming progressively worse over time. He described current LBP with right-side radiculopathy. Clinical examination was grossly within normal limits; MRI showed degenerative disc at L5-S1 without significant canal or neuroforaminal stenosis. The diagnosis was chronic LBP and RLE pain without evidence of neurosurgical pathology. Because no neurosurgical intervention was indicated the Veteran was discharged from the clinic to pursue physical therapy and main management. A September 2007 letter from Dr. Raymond L. Verrier, a private chiropractor, states that Dr. Verrier was currently treating the Veteran for injuries sustained in an MVA in 1985. Based upon a review of the Veteran's history and his recent statements, Dr. Verrier stated in an opinion "within a reasonable degree of certainty that his injuries are possibly related to the 1985 accident" (quotation marks in the original). MRI of the lumbar spine by Tallahassee Diagnostic Imaging in August 2008 showed an impression of slight canal narrowing at L5-S1 and mild disc degeneration at that level. There was also mild inferior foraminal narrowing at T11-12. The Veteran had a VA MRI of the lumbar spine in March 2009 due to clinical history of LBP and history of herniated disc in the back and numbness in the right leg. The impression was right neural foraminal stenosis at the exit zone and L5-S1 and small-volume central disc protrusion causing no neural compression. The Veteran had a VA pain clinic consult in May 2009 for chronic neck pain and LBP. In regard to the low back, the Veteran reported his pain had been present since the MVA in 1985. Clinical examination of the spine was grossly normal. The clinical diagnosis was constant LBP status post MVA in 1985. The Veteran presented to private chiropractor Dr. James Casanova in August 2009 complaining of low back pain, reportedly continuous since he was hit by a truck in 1985. Dr. Casanova's diagnosis was lumbar disc displacement and segmental dysfunction; based on the history and examination findings Dr. Casanova's prognosis was that the Veteran would likely have continued complaints of LBP as he had in the past due to the injury sustained in 1985. The Veteran was examined in December 2010 by Dr. Stephen Allen, a private orthopedic surgeon who reviewed the Veteran's STRS and VA treatment records as provided by the Veteran. The Veteran reported having injured his back in service in December 1984 while performing a fireman's lift during physical training. In June 1985 the Veteran was hit by a truck, with subsequent pain. The Veteran described his current symptoms and treatment. Dr. Allen performed a clinical examination and noted observations in detail. In relevant part, Dr. Allen diagnosed lumbar spondylosis, L5-S1 disc bulge with annular tear and foramina narrowing and compression fractures of T12 and L1 (both compression fractures noted as chronic healed). Dr. Allen stated that many if not all of the changes noted on examination could be related to the slip-and-fall and MVA; they could also be related to general aging conditions. There is no way to absolutely prove a cause-and-effect relationship one way or the other, but there is probable association. The simple history of a healthy 19-year old suffering injuries and complaining of back pain since the injuries would suggest the injuries in about 1985 were the cause of the conditions. Dr. Allen noted the Veteran had continued to intermittently complain of pain and receive treatment since 1985. The Veteran's spouse submitted a letter dated in March 2011 in which she described the Veteran's current impairment of function due to generalized pain. The Veteran testified before the Board in March 2011 that his first in-service injury occurred while he was doing physical training in 1984; he slipped on wet grass while performing a fireman's carry. He had a second injury in 1985 when he was hit by a truck as he was walking on a sidewalk. After the injury he was hospitalized overnight and was placed on light duty status for several weeks. After discharge from service he did not seek treatment until 1999 because he was not aware of his entitlement to treatment by VA. The Veteran's spouse testified that she met the Veteran shortly after his discharge from service and noticed he had back problems at that time. The Veteran had a VA medical examination in December 2011, performed by a physician who reviewed the claims file. The Veteran described back injuries in service incurred while performing a fireman's carry, while buffing a floor and as due to being hit by a truck. The Veteran stated that during service he never recovered and always had back pain, which continued after discharge from service although he did not actually seek medical attention until 1999. The examiner performed a clinical examination and noted observations in detail. The examiner diagnosed degenerative disc disease (DDD) of the lumbar spine and lumbar strain. The examiner stated an opinion that the Veteran's claimed low back disorder is less likely than not caused by or a result of active service. As rationale, the examiner stated the Veteran was shown to have complained of LBP during service, but as shown by an orthopedic treatment note in August 1985 the Veteran's complaints were out of proportion to clinical findings. Also, STRs show the Veteran was playing softball and sliding into base in 1986. The Veteran's back was normal in the VA examination in October 1987, and there is no evidence of chronic back problem thereafter until the Veteran was seen by Dr. Jones in 1999 (the examiner noted Dr. Jones was not convinced the Veteran's complaints were all "organic"). The examiner also noted the Veteran had worked as a correctional officer from 1988 to 2000, during which period he was able to qualify annually in physical training. The examiner stated that the lack of a chronic back problem during the period 1987-1999, along with review of the treatment record during and after service, does not support a chronic low back problem stemming from active duty. In May 2012 Dr. Allen submitted an addendum to his December 2010 examination report cited above. Dr. Allen stated that his assertion of a "probable association" was intended to convey that it is at least 51 percent likely that the Veteran's military injuries led to his present complaints. Dr. Allen further stated that there is no way to either prove or disprove this opinion. The Veteran was injured in service and has subsequently suffered with pain and physical deterioration. Prior to the injury the Veteran had no complaints, and since the injury he has had constant complaints. Thus, the association goes to demonstrate a direct cause-and-effect relationship; the three military injuries have led to constant complaint of pain and hastened deterioration of the back. Review of the file shows the Veteran has been diagnosed with a chronic low back disorder (DDD of the lumbar spine and lumbar strain). Thus, the first element of service connection - medical evidence of a disability - is met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). In this case, the Veteran's STRs demonstrate that he had several back injuries in service, and the question before the Board is whether the Veteran's claimed chronic low back disorder is etiologically related to such injuries. Where an opinion is used to link the current disability to a cause during service, a competent opinion of a medical professional is required. Caluza, 7 Vet. App. 498. The file in this case contains conflicting medical opinions. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Generally supportive of service connection are the September 2007 letter from Dr. Verrier stating that "within a reasonable degree of certainty that his injuries are possibly related to the 1985 accident" and the August 2009 treatment note by Dr. Casanova referring to continued complaints of LBP due to the injury sustained in 1985. The Board finds that neither of these opinions is adequate. The statement by Dr. Verrier that the injuries are "possibly" related to the in-service accident is speculative, and medical opinions expressed in speculative language do not provide the degree of certainty required for medical nexus evidence. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain v. West, 11 Vet. App. 124, 127-28 (1998). The statement of relationship by Dr. Casanova is a bare conclusion, which is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Further, neither of these opinions meet any of the three criteria for probative value cited in Nieves-Rodriguez. However, there are two other conflicting medical opinions of record in the form of the opinion of Dr. Allen (letter in December 2010 with addendum in May 2012) and the opinion of the VA examiner in December 2011, both of which meet all three criteria cited in Nieves-Rodriguez . in that both physicians demonstrably reviewed the complete file and both provided fully-articulated (although conflicting) opinions supported by reasoned analyses. For the reasons cited below, the Board finds the opinion of the VA examiner to be the more probative of the two. Careful review of Dr. Allen's opinion shows his rationale is conclusory - the Veteran had an injury in service and has had continual complaints thereafter, so his current disorder must be related to those injuries absent evidence to the contrary. While Dr. Allen cited to the existence of the injuries in service, he did not address the contemporaneous evidence of the severity of those injuries, as the VA examiner did; Dr. Allen also did not address the absence of medical evidence between service and 1999 of any chronic back disorder, as the VA examiner did. Because the VA examiner's opinion more fully considers and addresses the totality of the Veteran's symptoms from service until the present, the Board finds that opinion to be the more probative of the two in regard to the issue on appeal. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza, 7 Vet. App. 498. Accordingly, in addition to the medical evidence cited above the Board has considered the lay evidence offered by the Veteran in the form of his testimony before the Board (and that of his spouse), his correspondence to VA and his statements to various VA and non-VA medical providers and examiners. The Board must consider the purpose for which lay evidence is offered. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran's lay evidence is essentially intended to demonstrate that he has had continuous/recurrent pain since service. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that evidence of continuity of symptoms is only for consideration in regard to disorders recognized as "chronic" under 38 C.F.R. § 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran does not have a low back disorder that is recognized as chronic under 38 C.F.R. § 3.309(a); accordingly, while the Veteran's account of continuous symptoms since service is competent and credible, it is not a sufficient basis for granting service connection in the face of probative medical opinion to the contrary. In sum, based on the evidence and analysis above, the Board finds the Veteran does not have a current low back disorder that was incurred in or aggravated by service. Accordingly, the criteria for service connection are not met and the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to service connection for a low back disorder is denied. ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs