Citation Nr: 1318549 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 05-23 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right leg disability to include but not limited to a right knee condition. 2. Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from September 1986 to October 1992. These matters are before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2004 of a Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In June 2006, the Veteran did not appear at a hearing before the Board. Without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). In September 2007, the Board remanded the matters to the RO for additional record development and for a VA examination. In December 2009, although the record development was completed, the Board remanded the issues to afford the Veteran a VA examination and to obtain medical opinions as to whether there was a connection between the Veteran's disabilities and service. A VA examination occurred in January 2011. After review of the report, the Board finds the VA examination report in compliance with 38 C.F.R. § 3.159(c) (4), that is, sufficient competent medical evidence to make a fully informed decision on the claim. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that in the rating decision in October 2004, the RO denied the claim for a nonservice-connected pension. In his notice of disagreement received in December 2004, the Veteran indicated his disagreement regarding the nonservice-connected pension. In April 2010, the Veteran expressed his intent to withdraw the claim regarding the nonservice-connected pension. 38 C.F.R. § 20.204. The Board therefore does not have jurisdiction of the claim and the claim is not addressed in this decision. The Board has reviewed both the Veteran's physical claims files and his Virtual VA file so as to insure a total review of the evidence. FINDINGS OF FACT 1. A right leg disability to include degenerative joint disease of the right knee was not affirmatively shown to have been present during service; a right leg disability to include degenerative joint disease of the right knee as a chronic disease was not manifested to a compensable degree within one year from the date of separation from service; a right leg disability to include degenerative joint disease of the right knee, first diagnosed after service beyond the one year presumptive period for degenerative joint disease as a chronic disease, is unrelated to an injury, disease, or event in service. 2. A low back disability of the lumbar spine, to include degenerative disease, was not affirmatively shown to have been present in service; a low back disability of the lumbar spine, to include degenerative disease, was not manifest to a compensable degree within one year of separation from service; a low back disability of the lumbar, to include degenerative disease, was first documented after service beyond the one-year presumptive period for a low back disability of the lumbar spine as a chronic disease; a low back disability of the lumbar spine, to include degenerative disease, is unrelated to an injury or disease or event in service. CONCLUSION OF LAW 1. A right leg disability to include degenerative joint disease of the right knee was not incurred in or aggravated by active service, and a right leg disability to include degenerative joint disease as a chronic disease may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A low back disability of the lumbar spine was not incurred in or aggravated by active service and service connection for a low back disability of the lumbar spine may not be presumed to have been so incurred or aggravated based on the one year presumption for a chronic disease. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- and post- adjudication VCAA notice by letters, dated in July 2004 and May 2006. The notice included the type of evidence needed to substantiate the underlying claims of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the considerations for assignment of an effective date and a disability rating, in the event of award of the benefit sought. As such, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Further VCAA notice is not required. To the extent that the VCAA notice was not completed until after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). The timing defect was cured by content-complying VCAA notice after which the claims were readjudicated as evidenced by the supplemental statements of the case, dated in November 2009, April 2010, and April 2012. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.) Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, VA records, records from private medical caregivers, and afforded the Veteran a VA examination in January 2011 The report of the January 2011 VA examination included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, and provided an opinion on the relationship of the disabilities to service supported by a rationale. Therefore, the Board concludes that the VA examination is adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran failed to report, without notice of good cause, for a 2006 hearing before a Veterans Law Judge. Thus, VA has been unable to obtain potentially favorable evidence. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. General Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, known as the "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b). The Federal Circuit recently held, however, that continuity of symptomatology under 3.303(b) applies only to chronic diseases listed in § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). There is evidence in the file that the Veteran suffers from degenerative joint disease of the lumbar spine and right knee. Degenerative joint disease is listed as arthritis as a disease under § 3.309 as a chronic disease, and therefore the provisions of § 3.303(b) do apply. For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for degenerative joint disease (arthritis), if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The showing of a chronic disease in service requires a combination of manifestations 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 after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the evidence does not establish that the Veteran served in combat, the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Preliminary Matters As a preliminary matter, the Board addresses evidence in the file suggesting that the Veteran was in a motor vehicle accident in 1982, which is before he entered service. The residuals from any pre-service motor vehicle accident were not noted on the entrance examination for service except possibly for a right shoulder disability, and the Veteran was otherwise presumed to have been in sound condition upon entry to service regarding his back or the right knee. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The standard for rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that the Veteran's disability both preexisted service and was not aggravated by service. 38 C.F.R. § 3.304(b). There is no clear and unmistakable evidence that any residuals of a 1982 motor vehicle accident affected the lumbar spine or the right knee at the time of entrance to service. Therefore, the presumption of soundness is not rebutted and the Board will consider the Veteran's claim as one of direct incurrence, rather than one based on aggravation of a pre-existing condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Board also recognizes that the Veteran has provided lay evidence of his symptoms, their onset, and the continuing presence of symptoms thereafter. The preliminary issue now addressed by the Board is the opinions expressed by the Veteran as to what disabilities he has and their relationship to service. Competency of evidence is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). 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. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. As a lay person, the Veteran is competent to describe symptoms, which he is able to perceive through the use of his senses. 38 C.F.R. § 3.159 (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.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses). Further, the Veteran's statements and testimony are admissible and are to be considered as evidence of continuity. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept in determining whether lay evidence may be considered, in other words, whether the evidence is admissible). The Board thus finds that the Veteran is competent to describe his symptoms in service, their onset, and the continuing presence and nature of symptoms. The Veteran is competent to describe symptoms both during service, and since service. Although the Veteran is competent to describe his symptoms of the lower back and the right knee, unless degenerative joint disease is a condition under case law that have been found to be capable of lay observation, the determination as to the presence or diagnosis of such a complex disability therefore is medical in nature and competent medical evidence is required to substantiate the claim. Savage, 10 Vet. App. at 498 (on the question of whether there is a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Degenerative joint disease is not a condition under case law that has been found to be capable of lay observation. See Jandreau, 492 F.3d at 1377 (explaining in a footnote, sometimes a 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); see also Barr, 21 Vet. App at 309 (varicose veins were subject to non-expert diagnosis due to the readily observable defining characteristics of the condition). Furthermore, the diagnosis of degenerative joint disease cannot be made by the Veteran as a lay person based on mere personal observation. That is, perceived symptoms of the lower back or the right knee may be experienced by any lay person, but the actual medical diagnosis of the cause for such symptoms is not competent unless provided by a doctor trained in the medical field. As demonstrated by this case, the diagnosis depends upon interpretation of history and symptoms, and clinical and diagnostic tests, such as X-rays and laboratory tests, which requires medical knowledge. No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis. Therefore, the Veteran's assertion or opinion that he has a right knee or lumbar spine disability, or more generally, that when he was hit by an automobile in service lead to the current degenerative changes in the right knee and lumbar spine is essentially no more than the opinion of a layman. It is not competent medical evidence of a diagnosis by a medical professional. The Veteran's discussion of his symptoms over the years certainly is important; however, the Veteran's opinion as to the cause of his symptoms cannot outweigh the opinion of a medical professional. Service Connection for the Right Knee The service treatment records reveal that at the entrance examination in April 1986, the Veteran did not give a history of back or knee trouble and his health was excellent. The physical examination was normal. In December 1988, the Veteran sought treatment after he got into an altercation and either fell or was pushed into the street where he was hit by a car. He was treated for facial abrasions, concussion, a left forearm laceration, and a fracture of a partial denture. X-rays of the skull, cervical spine, and left forearm were normal. There were findings of a few lacerations to the right ankle. There was no indication of complaints, symptoms, diagnosis, X-rays, or treatment of the right knee or the lower back/lumbar spine area. In November 1990, the Veteran was treated for a right leg contusion. No tenderness or other signs and symptoms were noted. In April 1991, the Veteran sought treatment for his right knee and stated he experienced pain after stretching. There had been swelling, but it was not present when he first sought treatment. There also were no signs of effusion, or tenderness and the Veteran had full range of motion. Squatting, however, caused discomfort. There also was no sign of catching, locking, or giving way. An X-ray of the right knee demonstrated it was within normal limits. The diagnosis was anterior pain secondary to synovial inflammation versus a possible lateral meniscus tear. He was placed on temporary physical profile for one month. At his separation examination in August 1992, the Veteran stated his present health was good but he had right knee troubles at times. The physical examination was normal. In May 2004, an X-ray of the knees demonstrated mild degenerative changes bilaterally. The Veteran complained of bilateral knee pain with crepitus. The noise from the crepitus was worse on the right. The pain was constant, but spiked at night. There had not been any recent trauma. The knee was stable to varus and valgus stress and the Lachman's test and drawer test were negative. In July 2004, the Veteran complained of pain in the upper back, lower back, right knee, and right ankle. The right knee was tender to palpitation. The medical provider noted that it lead to a very specific diagnosis of pain secondary to a car accident "in the past" and also a history of the Veteran being hit by a car, which the provider believes might explain part of his symptoms. The provider did not record the dates of the two incidents or whether the conclusion expressed related only to the back or the right knee, or both. The physician also noted the physical examination did not correlate with the symptoms. In September 2004, the Veteran was provided a VA examination and reported he was hit by a car approximately 15 years earlier. Both knees have caused him pain and swelling over the previous 15 years but it is not clear if the Veteran attributed those symptoms to the motor vehicle accident. Instead, the Veteran noted the symptoms were related to activity and he denied any specific injury. As to the examination, the examiner noted the Veteran was not cooperative and accused the examiner of playing tricks. There was no swelling, tenderness, redness, warmth, or crepitus. As to range of motion testing, the examiner again noted the Veteran was not cooperative, complaining of pain and did not allow the examiner to do repetitive testing, The Veteran could ambulate fairly well and without an assistive device but refused to allow the examiner test whether the Veteran could ambulate in tandem. The examiner observed that the Veteran could get on and off the examination table and up from a supine position without problems, but felt low back pain. X-rays of the knees demonstrated mild degenerative changes and the diagnosis was degenerative joint disease for both knees. The examiner did not provide an opinion of etiology concerning the degenerative joint disease for either knee. In March 2007, the Veteran made a complaint of a history of arthritis in the knees bilaterally but there was no known trauma. Pain was worse at night and bothered him climbing or descending stairs. He recalled fluid was removed from a knee one or two years earlier, but could not recall which knee. He did report a motor vehicle accident which resulted in a skin graft to the right shoulder, a torn rotator cuff, fracture clavicle, and punctured lung. In May 2007, the Veteran made complaints to a private provider that he had very heavy arthritis in both knees that flared with weather and at night. Activity helped but he experienced discomfort at the end of the evening if he had been on his feet all day. The evaluator noted the Veteran had served in the military by stating "[r]emember he did serve in the military." It is not clear to the Board if this statement is an opinion by the evaluator that the Veteran's knee problems were related to service. On examination, the Veteran had mild crepitus with passive range of motion. The Homan's sign was negative and there was no swelling or tenderness to palpitation. The diagnosis was to rule out polycythemia and arthritis. X-rays in June 2007 demonstrated normal knees and moderate osteoarthritis in the anterior aspect of L4-L5. He complained of pain to both knees and the back but there was no known trauma. The note also states he was involved in a motor vehicle accident in the 1980s and had some experience in the military with residual joint pain. There was no joint line tenderness bilaterally, but mild crepitus on the right. The straight leg test was normal and his gait tandem was without limping. The diagnosis was polycythemia and joint pain in the lower back and in the knees bilaterally. In July 2007, he complained of back pain and right knee pain to private medical providers, who noted that it was hard to assess the knee but did not find any crepitus, swelling, deformity, or effusion. There was mild joint line pain to palpitation. The diagnosis was back pain and right knee pain. That same month, the Veteran began physical therapy, which appeared to help as noted in subsequent physical therapy notes. The range of motion for the knees bilaterally was within normal limits. In October 2007, the Veteran complained of bilateral knee pain with the right knee worse than the left. He had pain with squatting, walking more than 10-15 minutes, or using stairs. There were no symptoms of giveway, locking, or intermittent swelling. The active range of motion for the right knee was from 0 degrees to 120 degrees and the left knee ranged from zero degrees to 140 degrees. There was no laxity, although non-specific tenderness was noted in various parts of the right knee. There was no tenderness to the left knee. He could squat to 60 degrees before he had complaints of pain. The evaluator believed the pain to patellofemoral in nature and had been present for years. In April 2009, VA received records from the Social Security Administration concerning the Veteran's application for benefits. It included a mental health assessment occurring in September 2003. The psychiatrist noted that as for physical problems, the Veteran stated he has difficulties with his knees and back which he has had for five years (or approximately 1998). He also stated he was hospitalized in 1982 as a result of a motor vehicle accident. The evaluator also noted the Veteran kept checking to see if the evaluator believed the Veteran's statements and tried to get the evaluator instead of the Veteran to make responses. The Veteran feigned either not hearing or understanding the questions. The evaluator found the Veteran to be histrionic, quite manipulative, and not cooperative. He was theatrical in his appearance and demeanor. In the physical evaluation for Social Security in October 2003, the lumbar spine range of motion was slightly decreased, but the evaluator noted that as the Veteran left the examination, his gait remarkably improved and the Veteran seemed to exaggerate his symptoms at the examination. In a July 2009 VA examination, the Veteran complained of both low back pain radiating into the right leg and pain around the right knee. He stated the pain was 2-3/10. There were no assistive devices. The Veteran believed his activities of daily living and his ability to work were limited, i.e., he could not work as normal in different facets of work. Repetition caused additional pain but no additional loss of motion. He mentioned the incident in service and that the car hit his right leg and he also lost consciousness, waking up in the hospital. On physical examination, the alignment of the right knee was normal. There was no deformity, swelling, tenderness, effusion, spasm, or atrophy. Sensation for the right knee was normal. There was no instability and the McMurray, drawer, and Lachman's test were all negative. The Veteran had a range of motion from zero degrees to 140 degrees with a complaint of pain at the end of motion. The tone of the quadriceps muscle was good. X-rays revealed mild degenerative changes. The diagnosis was mild degenerative changes in the right knee. The examiner concluded that the right knee disability was as likely as not due to military service relying upon complaints of the right knee in service and treatment notes in May and September 2004. The VA examiner also stated the right leg was normal. In a VA examination in January 2011, the examiner detailed his observations of the service treatment records including the incident where the Veteran was hit by a car but the notes do not mention the right knee. The Veteran is not sure when his right knee started to bother him but expressed the belief that it must have happened when he was hit by the car in Germany. In 2003, he really noticed the pain and was diagnosed with arthritis. The Veteran asserted that he experienced instability, giving way, pain, stiffness, weakness and decreased speed in his range of motion. He did not have incoordination, dislocation, or subluxation. He experiences flares that are severe twice a week and last for hours. They occur when he moves wrong or does something he should not have done. The Veteran asserted he does not do anything except sit and walk to his refrigerator. The examiner noted that the Veteran took short, slow steps in the examining room holding onto the wall or furniture but afterwards, walked down the hallway with just an occasional limp and use of the hand rail. He also jumped off the side of the examination table to answer a cell phone call without evidence of pain or problems. The Veteran on examination had a small callus medially on the big toe of each foot. There was no crepitus, clicks/snaps, mass, grind, instability, patellar abnormality, or meniscus abnormality. Range of motion for the right knee was 0 to 118 degrees and the left knee was 0 to 131 degrees. There was no objective evidence of pain and no additional limitations following repetition. The X-rays demonstrated no significant degenerative changes. The diagnosis was mild degenerative changes in the right knee. The examiner believed it had a mild affect on chores, exercise, sports, and recreation without any affect in the other aspects of the Veteran's activities of daily living. In the opinion of the VA examiner, it was less likely than not that the degenerative changes of the right knee were related to service. He based his opinion upon the lack of complaints of the right knee after he was hit by a car in service, a negative X-ray of the knee in 1991, and there was no evidence of any symptoms until 2003, eleven years after discharge. As previously stated the Veteran is competent to describe symptoms of a right knee condition, and the Veteran's statements concerning continuity, if credible, are ultimately competent evidence, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (lay evidence is potentially competent to support presence of disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records, but the Board retains the discretion to make a credibility determination and otherwise weigh the evidence submitted, including the lay evidence). In this case, to the extent that the Veteran asserts continuity of symptoms since service, the Veteran is not credible. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). In this instance, the Veteran sought treatment once for his right knee in April 1991. He was placed on profile for a month and no further complaints or treatment of the right knee was noted. At the separation examination, he reported right knee pain at times but the physical examination of the right knee was normal. The next time the Veteran sought treatment was in 2003, when he complained of bilateral knee pain. Here, the lapse of time from separation in 1992 to the first notation of complaints or treatment of the right knee weighs against the Veteran's assertions of continuous symptoms such as pain. The Board is not stating that the Veteran's testimony must be corroborated by contemporaneous medical records, see Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (lack of records does not, in and of itself, render lay testimony not credible). Instead, the evidence of continuity fails not because of the lack of medical documentation; rather the Board finds that the assertions of continuity are not credible because they are contradicted by objective evidence of record, and are inconsistent in nature. While there is evidence that the Veteran sought medical treatment in service, he has given conflicting evidence regarding the onset of symptomatology including at times later than service. He has also denied any trauma or trauma that occurred in service. For instance, in May 2004, he denied recent trauma, but did not raise any past history including service. In July 2004, he apparently reported both the pre-service motor vehicle accident and the in-service incident in December 1988. As noted earlier, however, the Veteran did not report injury to the right knee when treated in December 1988. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder). In March 2007, he complained of bilateral knee pain due to arthritis, but denied any prior trauma that involved the right knee. In 2003, when applying for benefits from the Social Security Administration, the Veteran reported the pre-service motor vehicle accident, but not the 1988 motor vehicle incident. In the VA examination in January 2011, the Veteran was not sure when his right knee started to bother him, only he believed the December 1998 incident had to be the cause, which, as noted above, is an expression of an incompetent lay opinion. In sum, the Veteran has not been consistent as to what caused his symptoms and when the symptoms began. Finally, the Board's determination on the credibility of the Veteran is informed by the statements by examiners regarding the Veteran's credibility as to the severity of his disabilities. He has been described as manipulative and not cooperative in September 2004 and the mental health evaluation for Social Security Administration benefits. He has also been observed acting one way in the examination room, but acted in a different, better way after the examination such as at the September 2004 and January 2011 VA examinations or the October 2003 evaluation for Social Security Administration benefits. If the evidence suggests that the Veteran was not candid concerning the presence and severity of symptoms then that casts doubt in other areas such as his statements on the onset of symptoms. Thus, for the foregoing reasons, the Board has determined that while the Veteran is competent to provide lay evidence concerning the onset of his right knee symptoms, the Veteran is not as credible in this regard as such assertions are contradicted by the documented medical evidence that the onset of symptomatology occurred after service, and are inconsistent in nature. The Board has therefore assigned little weight to the Veteran's assertions of continuity of symptoms since service. In the absence of demonstration of continuity of symptomatology, or a competent nexus opinion, the initial demonstration of current disability years after service is too remote from service to be reasonably related to service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (It was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints.); see also Shaw v. Principi, 3 Vet. App. 365 (1992) (a Veteran's delay in asserting a claim can constitute negative evidence, which weighs against the claim). The Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). As for the Veteran describing a contemporaneous medical diagnosis and symptoms described by the Veteran that later support a diagnosis by a medical professional, the Veteran has not stated that a physician told him that his current disabilities are caused by or related to the motor vehicle incident in 1988. As the Veteran's lay evidence is not credible evidence on the questions of either a diagnosis or causation, applying 38 C.F.R. § 3.303(b) and (d), the Board looks to the medical evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. There is competent medical evidence in favor of and against the claim, consisting of the opinions of VA examiners in July 2009 and January 2011. Both are qualified by education, training, or experience to diagnosis a medical condition and to offer an opinion on causation. With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008). The competent medical evidence in favor of the claim consists of the VA examiner in July 2009, who found that there was a connection between service and the Veteran's current knee disability. The examiner concluded that the right knee disability was as likely as not due to military service relying upon complaints of the right knee in service and treatment notes in May and September 2004. The Board notes, however, that the examiner provided a diagnosis of mild degenerative changes of the right knee, as well as a diagnosis of normal right leg. This contradiction is especially problematic because the Veteran's service treatment records include complaints about the right knee in particular and the right leg in general. It is also unclear whether the VA examiner actually reviewed the Veteran's service treatment records. The examiner notes that there were complaints of right leg and low back pain in the claims file containing the service treatment records, but does not specifically state that these complaints were found in the service treatment records. Instead, the examiner only identifies post-service medical evidence that was reviewed. The report also appears to be based on inaccurate inservice medical history. A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). For example, the report provides an apparently positive nexus opinion regarding the Veteran's right leg. However, this opinion is based on an incorrect medical history. Contrary to the examination report, as noted, the Veteran's service treatment records do not show any injury to his right leg above the ankles when he was hit by a car in 1988. The ankle injury consisted only of lacerations. In light of the foregoing, the Board finds the July 2009 VA examiner did not apply a valid medical analysis to the significant facts and assigns it little probative value. The Board must now consider and weight this evidence against the contrary opinion of the VA examiner in January 2011. Turning to the competent negative medical evidence before the Board, the Board notes the unfavorable medical opinion of the VA examiner in July 2011 is well reasoned, detailed, provide a rationale that is consistent with other evidence of record, and included reviews of the claims file and the Veteran's symptoms. The examiner noted, for instance, what treatment was provided in December 1998 and the lack of any complaints or treatment to the right knee or back. The examiner also took into account all of the medical evidence of record. He set forth an accurate historical history with medical details taken from the Veteran's claims file, which renders it especially probative. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Being based on a complete review of the record, these opinions also implicitly take into account the Veteran's own assertions, but the examiner has determined the Veteran's assertions do not establish a relationship to service. The Board therefore finds that the opinion of the July 2011 VA examiner as persuasive evidence against the claim for service connection for the right knee. As the VA examiner applied medical analysis to the significant facts of the case to reach the conclusion expressed in their opinions, the Board also finds the evidence competent and credible and highly probative on the material issues of fact, pertaining to the diagnosis and cause of a current disability of the right knee or the relationship to service, which opposes, rather than supports, the claim. Accordingly, the weight of the medical evidence is against an association or link between any current disabilities of the right knee and service, including the documented injury caused by an automobile in December 1988. The preponderance of the evidence is against the claim of service connection on the applicable theories of service connection, and the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Service Connection for the Lumbar Spine In December 1988, the Veteran sought treatment after he got into an altercation and either fell or was pushed into the street where he was hit by a car. He was treated for facial abrasions, concussion, a left forearm laceration, and a fracture of a partial denture. X-rays of the skull and cervical spine were normal. There were a few findings of lacerations to the right ankle. There was no indication of complaints, symptoms, diagnosis, or treatment of the lower back/lumbar spine area. At his separation examination in August 1992, the Veteran stated his present health was good but stated he had occasional back pain. The examiner noted the Veteran occasional experienced brief pain when lifting. The physical examination was normal. In May 2004, an X-ray on the lumbar spine revealed mild degenerative changes. The Veteran described his pain as "severe" and across his entire lower back. There was no radiation but the Veteran thought he had spasms. He was not sure. The pain had been present for several years now and exacerbated with heavy lifting. There was mild to moderate paravertebral tenderness throughout the lower back and full range of motion at the waist. The Veteran had a normal gait. In July 2004, the Veteran complained of pain in the upper back, lower back, right knee, and right ankle. The medical provider noted that it lead to a very specific diagnosis of pain secondary to a car accident "in the past" and also a history of the Veteran being hit by a car, which the provider believes might explain part of his symptoms. The provider did not record the dates of the two incidents or whether the idea expressed related only to the back or the right knee, or both. In September 2004, the Veteran was provided a VA examination and reported he was hit by a car approximately 15 years earlier. He asserted that this injured his lower back and since that time, he had low back pain off and on. The pain progressed and now was constant in the last 2-3 years. He reported that the pain sometimes radiated into the lower extremities. The pain was 10/10 and increased with activity. He could not perform frequent bending, sitting, or standing longer than a half hour, and he could not walk more than a half mile. He could climb one flight of stairs. He was told he had degenerative joint disease. The Veteran on examination stood erect and did not use any assistive devices. He had minimal tenderness over the lumbosacral area and a minimal paraspinous muscle spasm. The Veteran was not cooperative for testing lumbosacral movement, but the examiner recorded flexion to 40 degrees, extension to 5 degrees, bilateral lateral flexion for 20 degrees and the rotational flexion could not be recorded. The Veteran stated he had pain at the end of the movement. The Veteran would not cooperate with the straight leg raise. The Lasegue sign was negative. X-rays demonstrated degenerative changes to the lumbar spine as well as spina bifida occulta at L5, and levoconvex rotoscoliosis. The diagnosis was degenerative joint disease of the lumbar spine, spina bifida occulta at L5, and levoconvex rotoscoliosis. No opinion of etiology concerning those disabilities was rendered The examiner noted the Veteran was not cooperative and accused the examiner of playing tricks. The Veteran could also ambulate fairly well and without an assistive device but refused to allow the examiner test whether the Veteran could ambulate in tandem. The examiner observed that the Veteran could get on and off the examination table and up from a supine position without problems. In March 2007, the Veteran made a complaint of a history of arthritis in the knees bilaterally but there were no complaints about the back nor was there any known trauma. He reported a motor vehicle accident which resulted in a skin graft to the right shoulder, a torn rotator cuff, fracture clavicle, and punctured lung. Nothing in the history of the note suggests that the back was involved. Private X-rays in June 2007 demonstrated normal knees and moderate osteoarthritis in the anterior aspect of L4-L5. A medical note that same month stated the Veteran had musculoskeletal pain in the back. He had no known trauma but the history included a motor vehicle accident in the 1980s and "some experience in the military." The straight leg test was normal and he had a tandem gait without a limp. In June 2007, X-rays of the lumbar spine revealed mild osteoarthritis. In July 2007, the Veteran complained of back pain without any alleviating or aggravating factors. The straight leg test was low key and hard for the evaluator to assess. The diagnosis was back pain. Another note by a physical therapist stated the Veteran has significant arthritis in the lower back. In September 2008, the Veteran complained of back, knee, and shoulder pain. In January 2009, the Veteran was diagnosed with joint pain of the low back, and the knees bilaterally. He described the pain as aching. In April 2009, VA received records from the Social Security Administration concerning the Veteran's application for benefits. It included a mental health assessment occurring in September 2003. The psychiatrist noted that as for physical problems, the Veteran stated he has difficulties with his knees and back which he has had for five years. He also stated he was hospitalized in 1982 as a result of a motor vehicle accident. The evaluator also noted the Veteran kept checking to see if the evaluator believed the Veteran's statements and kept trying to get the evaluator instead of the Veteran to make responses. The Veteran feigned either not hearing or understanding the questions. The evaluator found the Veteran to histrionic, quite manipulative, and not cooperative. He was theatrical in his appearance and demeanor. In the physical evaluation for Social Security in October 2003, the lumbar spine range of motion was slightly decreased, but the evaluator noted that as the Veteran left the examination, his gait remarkably improved and the Veteran seemed to exaggerate his symptoms at the examination. In a July 2009 VA examination, the Veteran complained of both low back pain radiating into the right leg and pain around the right knee. He stated the pain was 2-3/10. There were no assistive devices. The Veteran believed his activities of daily living and his ability to work were limited, i.e., he could not work as normal in different facets of work. Repetition caused additional pain but no additional loss of motion. He mentioned the incident in service and that the car hit his right leg and he also lost consciousness, waking up in the hospital. The Veteran had no history of excruciating back pain during the last twelve months, and there was no radiation of pain. On examination, there was normal lumbar lordosis, good muscle tone and there was no spasm, scoliosis, or kyphosis. He was mildly tender in the lumbosacral area. Flexion was to 55 degrees and extension to 15 degrees with pain at the end of the motion. Right and left lateral flexion was 20- degrees and rotation 20 degrees, both with pain. There were no neurological deficiencies. The diagnosis was degenerative changes of the right knee. He expressed the opinion the lumbar spine disability was related to service. He states he relied upon certain treatment in service, but the dates listed relate to the leg, not the back. He made a similar conclusion regarding the right knee, but also stated the right leg was normal. In a VA examination in January 2011, the examiner detailed his observations of the service treatment records including the incident where the Veteran was hit by a car but the contemporaneous treatment notes do not mention the back. No other service treatment records demonstrated treatment for a back condition. The Veteran thinks he injured his back then, but he is not sure. He also stated he fell once in 1992 playing basketball and hurt his back, but did not see anyone. He first sought treatment for his back in 2003. The pain is constant in both legs. There is no numbness or tingling. He has episodes of severe pain weekly but could not estimate how long the episodes lasted. They occur if he sits the wrong way or with reaching. The only other symptom the Veteran attributed to his back related to leg weakness and unsteadyiness, but he has not fallen. He did state he experienced fatigue, decreased motion, stiffness, weakness, and spasm. He has a cane, but rarely used it. On examination, the Veteran was able to perform repeated walking and the examiner did not observe any spasms, atrophy, guarding, tenderness to palpitation, or weakness. The forward flexion was to 68 degrees and extension to 48 degrees. The left lateral flexion was 15 degrees and the right lateral flexion was to 25 degrees. The left rotational flexion was to 30 degrees and the right rotational flexion was to 25 degrees. There was objective evidence of pain but no additional limitations with repetitive motion. X-rays demonstrated marginal osteophytes. The examiner noted that the Veteran took short, slow steps in the examining room holding onto the wall or furniture but afterwards, walked down the hallway with just an occasional limp and use of the hand rail. The Veteran also made a lot of moaning, sighing, and grimacing, but when asked what bothered him, he stated nothing hurt. The examiner observed the Veteran bending forward to pick an object off the floor without any objective evidence pain. Because of this, the examiner concluded the range of motion testing was not valid. In addition, he noted that the Veteran's cell phone rang and the Veteran jumped off the examination table to answer the phone call without evidence of pain or other problems. The examiner concluded that the Veteran's back disorder was less likely than not related to service. There was no treatment in service and he noted that while the Veteran indicated back pain, the doctor added it occurred only with lifting weight. The physical examination was normal and there was no evidence of any ongoing condition of the lower back. There was no further evidence of a back disorder until approximately 11 years after discharge when the Veteran reported back symptoms for about two years. For the same reasons expressed earlier regarding the claim for service connection for a right knee disability, the Board finds the Veteran, although competent to testify when his back symptoms began, to the extent that the Veteran asserts continuity, he is not credible regarding his evidence that the symptoms began in service after being hit by an automobile in December 1988 or as a result of a subsequent fall playing basketball. As the Board concludes that the Veteran's statements of symptomatology in service and after are not credible, they have little probative value. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (credibility can be impeached by a showing of inconsistency with other evidence of record). Further, as with the right knee, it was not until 2003 or 2004 that the Veteran began seeking treatment of his back. The Board is not stating that the Veteran's testimony must be corroborated by contemporaneous medical records, see Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (lack of records does not, in and of itself, render lay testimony not credible). Instead, the evidence of continuity fails not because of the lack of medical documentation; rather the assertions of continuity are not credible because they are contradicted by objective medical evidence of record, are inconsistent in nature. Thus, the Board recognizes that documentation of an injury is not required, Buchanan, supra, but rather, the Board has weighed the negative evidence of the treating medical records and subsequent treating records against the Veteran's statements that injury to the back in service has caused him problems since separation to the present. The Veteran's post-service medical records are negative for complaints, symptoms, treatment, findings, or diagnoses for more than a decade following separation. The Veteran has provided inconsistent statements as to the onset of back pain. He has also been described as manipulative by a physician when examined in pursuit of SSA disability benefits. For the reasons expressed, continuity of symptomatology has not been established, either by the clinical record or by the statements of the Veteran. The Board notes that, in the absence of demonstration of continuity of symptomatology, or a competent nexus opinion, the initial demonstration of current disability years after service is too remote from service to be reasonably related to service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (It was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints.); see also Shaw v. Principi, 3 Vet. App. 365 (1992) (a Veteran's delay in asserting a claim can constitute negative evidence, which weighs against the claim). The Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here, the lapse of time from separation in 1992 to the first notation of complaints or treatment of the back outweighs against the Veteran's less than credible assertions of continuous back symptoms such as pain. As the Veteran's lay evidence is not credible evidence on the questions of either a diagnosis or causation, applying 38 C.F.R. § 3.303(b) and (d), the Board looks to the medical evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. There is competent medical evidence in favor of and against the claim, consisting of the opinions of VA examiners in July 2009 and January 2011. Both are qualified by education, training, or experience to diagnosis a medical condition and to offer an opinion on causation. With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008). The competent medical evidence in favor of the claim consists of the VA examiner in July 2009, who found that there was a connection between service and the Veteran's current back disability. This is the same examiner who conducted a VA examination of the right knee, but as noted earlier, the Board placed less weight on his conclusions that the right knee disability was as likely as not due to military service. For the same reasons noted above, the Board has placed less weight upon the July 2009 VA examiner's conclusions regarding the low back disability and service. In addition, the Board notes that he refers to complaints in service of the right knee, not the back as a basis for his opinions. Similarly, the report provides that there was "documentation of low back pain" in the Veteran's service treatment records. However, the sole reference to back pain in the Veteran's service treatment records is a complaint of back pain when lifting, as set forth in his August 1992 medical history. The service treatment records are negative for treatment or findings of back pain as a chronic condition. In light of the foregoing, the Board finds the July 2009 VA examiner did not apply a valid medical analysis to the significant facts and assigns it little probative value. Turning to the competent negative medical evidence before the Board, the Board notes the unfavorable medical opinion of the VA examiner in January 2011 is well reasoned, detailed, provide a rationale that is consistent the evidence of record, and included reviews of the claims file and the Veteran's symptoms. The examiner noted, for instance, what treatment was provided in December 1988 and the lack of any complaints to the right knee or back. The examiner also took into account all of the medical evidence of record. He set forth an accurate historical history with medical details taken from the Veteran's claims file, which renders it especially probative. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The Board therefore finds that the opinion of the January 2011 VA examiner as persuasive evidence against the claim for service connection for the right knee. As the January 2011 VA examiner applied medical analysis to the significant facts of the case to reach the conclusion expressed in the opinions, the Board also finds the evidence competent and credible and highly probative on the material issues of fact, pertaining to the diagnosis and cause of a current disability of the lower back and the relationship to service, which opposes, rather than supports, the claim. Accordingly, the weight of the medical evidence is against an association or link between any current disabilities of the lower back and service, including the documented injury caused by an automobile in December 1988. The preponderance of the evidence is against the claim of service connection on the applicable theories of service connection, and the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a right leg disability to include but not limited to a right knee condition, is denied. Entitlement to service connection for a lumbar spine disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs