Citation Nr: 1319290 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 07-09 339 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of a back injury, including as secondary to multiple sclerosis. 2. Entitlement to service connection for multiple sclerosis (MS). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from October 1970 to June 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the St. Petersburg RO. The case was remanded in May 2009, October 2009, September 2011, and December 2012 for additional development. In August 2009, the Veteran testified during a hearing at the RO before the undersigned; a transcript of this hearing is associated with the claims file. FINDINGS OF FACT 1. Multiple sclerosis did not have its onset during service or manifest to a compensable degree within seven years of the Veteran's separation from service, and is not related to disease, injury, or event of service origin. 2. A low back disorder did not have its onset during service, was not shown to be manifested within the first post-service year, and is not related to disease, injury, or event of service origin or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for MS are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a low back disability, to include as secondary to a service-connected disability have not been met. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). Letters dated in April 2005, October 2005, and March 2006 informed the Veteran of all the elements required by 38 C.F.R. § 3.159(b), as stated above. In this regard, the RO notified the Veteran and his representative of the information and evidence needed to substantiate the Veteran's claims. The Veteran was told what evidence was needed to establish service connection and informed of the disability rating and effective date elements of his claims. Although the Veteran's assertions included the theory of secondary service connection for the claimed back disorder, he was not provided notice of the evidence needed to establish service connection on this basis. He was not prejudiced by this omission since he claimed his low back disorder was secondary to MS and, in the decision below, service connection for MS is denied. Therefore, no benefit would flow to the Veteran and unnecessary delay would result if the Board remanded the matter for additional notice. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran). He additionally had a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). According to 38 C.F.R. § 3.103(c)(2) (2012), it is the responsibility of the presiding hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be advantageous to his position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are twofold. First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. Here, the VLJ identified the issue on appeal and during the course of the hearing engaged in a discussion of evidence that would be relevant to the appeal. Moreover, the Veteran did not raise any new issues pertaining to the claim during the course of his hearing. See Bryant, 23 Vet. App. at 497-98. Thus, the Board finds that the presiding judge's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim and to suggest the submission of evidence when such evidence is missing or has been overlooked has been satisfied. See id. at 496-97. The Veteran has not alleged there was any deficiency in the conducting of his Board hearing related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Even assuming there was such a deficiency, the Board finds that it did not prejudice his claim. In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication the appellant had any additional information to submit. Given the development of the Veteran's claim by the RO and the Board in the May 2009, October 2009, September 2011, and December 2012 remands, any deficiency in the August 2009 Travel Board hearing was non-prejudicial. See id. Regarding the duty to assist, service treatment records are associated with his claims file and VA has obtained all pertinent records that could be obtained. The RO also arranged for VA examinations and opinions that are adequate. Barr v. Nicholson, 21. Vet. App. 303 (2007). All development as directed by the Board in the prior remand reflects substantial compliance. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claims. See Soyini, supra; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to prevail on the issue of service connection, there must be competent and credible evidence of three things: (1) a current disability; (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Moreover, where a veteran who served continuously for ninety (90) days or more during a period of war develops certain chronic conditions, such as arthritis to a degree of 10 percent or more within one year from separation from service and MS within 7 years, such diseases may be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). But if chronicity of disease or injury in service is not shown, or if it is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). These second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service; (2) symptoms of that condition continued after service; and, (3) the current condition is related to those continuing symptoms. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, recently held that continuity of symptomatology only can be used to establish this required linkage between the current condition and service if the condition is one of those explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis and multiple sclerosis are among the conditions listed in this VA regulation as chronic. Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is generally, but not always, required to associate the claimed condition with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). Therefore, service connection may be established either by showing direct service incurrence or aggravation, or by using applicable presumptions, if available, or by showing the condition claimed is secondarily related to service, again, meaning either caused or permanently worsened by a service-connected disability. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is "credible", or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible). Only if the evidence is both competent and credible does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). On the other hand, laypersons equally have been found not competent in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A. Multiple Sclerosis The Veteran contends that multiple sclerosis first manifested in service shortly after he received vaccination shots. He also asserts he had several symptoms manifest during service that went undiagnosed. The Veteran testified that he was first diagnosed with multiple sclerosis in 1980, but that he first received treatment after an initial vaccination in boot camp. He added that no one could diagnosis it and that they did not know what he had until his number VI nerve became loose. He also stated that two days after he was vaccinated in service his temperature elevated to a high level, but nothing was done. The Veteran testified that in January 1971 his symptoms were the same and consisted of dizziness and an intermittent high temperature. He also stated that Dr. Johnson indicated there was a nexus between service and multiple sclerosis. He began seeking treatment for his back multiple sclerosis within 30 days of his service discharge. See August 2009 hearing testimony. The Veteran's service treatment records include a pre-induction December 1969 medical history report that is negative for complaints associated with MS; the physical examination was also normal. In December 1970, he had complaints of headaches, neck stiffness, cough, sore throat, and nasal drainage. He had temperatures of 102.2, 101.2, and 105 degrees. The diagnosis was an upper respiratory infection and his symptoms responded well to treatment. He was discharged with 3 days of light duty. A January 1971 service treatment record indicates the Veteran's temperature was 101.4 degrees and the impression was URI (upper respiratory infection). Several days later his temperature was down to 100 degrees, but he still had symptoms of tender lymph nodes and a cough. In March 1971, the Veteran complained of stomach pain, insomnia, being bloated, and having a burning sensation in the abdomen. He also reported vomiting. The impression was peptic ulcer disease and rule out gastrointestinal bleed. An April 1971 service treatment records indicates the Veteran had personal problems and the impression was agitated depression and/or situational reaction. He was also seen for cold symptoms and his temperature was 99 degrees; the impression was possible strep throat. A May 1971 service treatment record notes the Veteran's complaints of recurrent dizziness. A June 1971 record indicates the Veteran had numerous complaints of dizziness, sharp chest pain, arm numbness, "etc, etc". The impression was psychoneurotic depression with psycho physiologic symptoms. His June 1971 separation examination is negative except for the psychiatric evaluation, which was abnormal. A June 1971 letter dated just prior to separation from service (6/22) states that the Veteran was seen in March 1971 for nausea, vomiting, epigastric distress, and that since then there have been multiple occasions in which he was seen for other complaints such as chest pain, anxiety, and dizziness with fainting. Several physical examinations were unremarkable and laboratory tests and x-rays were also normal. It was noted that in May 1971 he was diagnosed with situational reaction in an emotionally immature personality by a psychiatrist; he was discharged at the discretion of his command. The physician also noted that on the discharge examination the Veteran complained of persistent, but not worsening dizziness and stated that he "fainted" several times during the past month; the spells only lasted a few seconds. The physician suspected that these may have been psychosomatic complaints, but he believed the Veteran should see a neurologist to rule out a seizure disorder. The Veteran preferred to see his physician as a civilian rather than remain in the military long enough to be evaluated. Post-service medical records date back to 1998 and show the Veteran reported a medical history that included a diagnosis of multiple sclerosis, which he stated was diagnosed in 1981 and was secondary to paralysis. See the May 1998 treatment record. In September 2000, he reported having multiple sclerosis since 1980 that was asymptomatic. An October 2004 examination report from the Department of Human Services shows the Veteran reported having multiple sclerosis that was in remission. A March 2007 MRI of the brain contains an impression of bilateral cerebral white matter with a few poorly marginated patch areas of increased T2 weighted signal which were greatest within the pericallosal periventricular regions and probably represented demylenating lesions from reported multiple sclerosis. The findings were consistent with the given history of multiple sclerosis. A May 2007 VA treatment record notes the Veteran's complaints of decreased eyesight, occasional vertigo, generalized weakness, and "heavy chest". An MRI of the brain revealed "patchy brain white matter changes and a mid-thoracic hyperintense lesion". The impression was that the Veteran had asymmetry of deep tendon reflexes with a history of ocular nerve palsy and MRI evidence of brain and mid-thoracic lesions. The neurologist stated that a diagnosis of probable MS was inadequate and noted that the Veteran was essentially stable for 27 years and did not require treatment. A May 2009 VA neurology consult notes the Veteran's complaints of tiredness, dizziness, poor balance, general weakness, diffuse body aches, and blurred visions. Treatment record contain an impression of questionable multiple sclerosis, not confirmed by MRI or evoked potential; his symptoms were vague. The examination and systemic work-up were unremarkable. A spinal tap was advised but the Veteran refused. In the electronic records, an August 2010 VA neurology note shows the Veteran provided a history of spinal meningitis and a back injury in 1970. He also reported having a "bulging" right eye in 1980 and that he was told he had nerve VI palsy and a diagnosis of multiple sclerosis. The impression was that the Veteran had asymmetry of DTR's with a history of ocular nerve palsy and MRI evidence of brain and mid-thoracic lesions, reported as consistent with multiple sclerosis. The neurologist found the diagnosis of probable multiple sclerosis was appropriate. A February 2011 VA treatment record of a neurologist notes the Veteran had a history of meningitis while on active duty and that he subsequently developed visual symptoms associated with ocular nerve palsy and MRI evidence of "patchy brain white matter changes and a mid-thoracic hyperintense lesion measuring 3mm x 3 mm x 8 mm" on a private study. A brain MRI at the VA facility showed findings that were interpreted as indicative of multiple sclerosis. Most recent symptoms included periods of fatigability and spacticity that often improved after several days. The impression was that the Veteran had symptoms and findings that were at least as likely as not connected to his initial presentation in 1970 while on active duty. On February 2013 VA examination, the Veteran's claim file was reviewed and pertinent aspects of his medical history were noted to include the history reported by the Veteran. The examiner confirmed the Veteran's diagnosis of MS. The examiner opined that the Veteran's MS was less likely as not caused by or a result of dizziness, or injury in service. The rationale was that his service treatment records showed he was treated for frequent dizziness and atypical chest pain, and left arm numbness, and the diagnosis was psychosomatic disorders with anxiety. There was also no evidence of meningitis noted in service and he was never hospitalized in service for MS or any other disorder. The physician noted that the symptoms of MS developed only in 1980 with a history of a sudden onset of "bulging of the R eye" with no prior history of the same in the service medical records. In the present case, the record indicates the Veteran has a current diagnosis of multiple sclerosis that appears to be in remission, but there is no evidence that links the disorder to service. While the Veteran asserts his symptoms started in service after he contracted meningitis or was given vaccinations in boot camp and that no treatment providers could figure out these early manifestations were associated with MS, this theory is not supported by the evidence. The Veteran did report various complaints in service, but medical professionals attributed his symptoms to other disorders. To the extent that the Veteran contends there is a connection between MS and meningitis he had in service, there is nothing in his service records that shows he was treated for or had a history of meningitis. Generally, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence such as actual treatment records (STRs, etc.). See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Symptoms, not treatment for them, are the essence of any evidence of continuity of symptomatology. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). However, also in Buchanan, the Federal Circuit Court recognized that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). Nevertheless, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Here, the Board finds the Veteran's statements that attribute his in-service symptoms to MS lack credibility. A review of his immunization health record shows that he did not have any unusual reactions following immunizations in October 1970, November 1970, December 1970, or January 1971. The evidence also shows his various in-service symptoms were attributed to upper respiratory infections and even diagnosed psychosomatic and psychoneurotic disorder with psycho physiologic symptoms. The Veteran's unsubstantiated lay opinion of a correlation between his in-service symptoms and current MS is less probative than the diagnoses in his service treatment records. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The Board also finds that the statements regarding meningitis also lack credibility. Although the Veteran reported receiving treatment in service, this is not reflected in his service treatment records. Moreover, his medical history report on separation did not make any reference to meningitis. Thus, in this instance, the absence of evidence is more probative since it is very likely that a diagnosis of meningitis would be mentioned somewhere in his records due to the serious nature of the disorder and his reported quarantine. In support of the Veteran's claim is a February 2011 opinion offered by a VA neurologist. The opinion, which was based partially on the Veteran's reports of having meningitis in service with the subsequent development of symptoms, was that the Veteran's symptoms and findings were at least as likely as not connected to the initial presentation in 1970 while on active duty. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well- reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The neurologist's opinion lacks sufficient probative value to grant the claim due to several deficiencies. Here, the physician relied solely on the Veteran's reported history. While this in and of itself is permissible when the history reported by the Veteran is accurate, it is not so when the information provided is inaccurate. As stated, the Veteran's assertions of in-service symptoms are not credible. Even so, the physician did not have a complete picture of the Veteran's medical history without knowledge of what was present in the service treatment records, particularly since it differed from what the Veteran reported. A medical opinion is afforded substantial weight when it is factually accurate, fully articulated, has sound reasoning for the conclusion; it is not just the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The physician also did not provide a rationale or establish a basis for the opinion offered. Thus, the Board is left with insufficient detail and rationale to make a fully informed decision regarding the issue of whether the Veteran's disability is related to his service; therefore, the opinion lacks probative weight to grant the claim. See Stefl, v. Nicholson, 21 Vet. App. 120, 123 (2007). In contrast, the VA examiner provided an opinion against the claim in February 2013 that took into account the Veteran's contentions, the service treatment records, and post-service medical records. Furthermore, the opinion offered was clearly articulated, factually accurate, and supported by the evidence. Therefore, it is afforded a high probative value. As for the Veteran's testimony that he had continuing symptoms following service and that he first sought treatment following separation from service, the Board does not dispute this since he is competent to report his symptoms. However, since, as stated, his symptoms were attributed to other disorders in service, a continuation of these symptoms after service does not establish that they were related to the claimed disability. Despite the Veteran's belief that MS was first manifested in service, MS is not the type of "simple" condition that is readily amenable to just lay comment regarding either its diagnosis or etiology. The Veteran consistently reported throughout the appeal that MS was first diagnosed in early the 1980s and medical records dating back to 1998 show a similar history reported by the Veteran. Therefore, there is a 9 or 10 year difference between when the disorder was first diagnosed and when the Veteran separated from service. Regulations provide a presumption of service connection for MS as a chronic disease when it is manifested to a compensable degree with 7 years from the date of separation from service. Since the Veteran's MS was diagnosed after the presumptive period ended, the provision of 38 C.F.R. §§ 3.307, 3.309 do not apply. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for MS. Consequently, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. B. Low Back Disorder In November 2005, the Veteran indicated he was struck in the spine while his unit was quarantined for spinal meningitis and that he received treatment from February to March 1971. In August 2009, he testified that it was a significant problem. A November 2007 statement introduced the theory that his claimed back disability was secondary to multiple sclerosis. The Veteran's service treatment records include his pre-induction service examination in December 1969, which shows he reported having had a fractured pelvis in 1961 and back trouble, but he did not have any back treatment in years. The associated medical examination report was negative for any low back findings or diagnosis. The remaining service treatment records, including the separation examination and medical history reports, are negative for any complaints, findings, or diagnosis of a back problem. His post-service medical records date back to 1998 and include a medical history provided by the Veteran, which makes no mention of a current back problem or a prior low back injury. See treatment records dated in May and August 1998. The earliest complaints of a back problem were noted in August 1998 in which the Veteran had tenderness in the musculature of T6-T7; the assessment was muscle spasm. In September 2000 he again reported a medical history that included multiple medical problems, but there was no reported history of a low back disorder. It is not shown until January 2001 that the Veteran reported a history of back pain, but this was noted as possible injury in 1998. X-rays of the lumbosacral spine revealed mild degenerative disc disease and moderate degenerative facet joint disease. In July 2001, he reported having a back injury in 1996. A July 2002 treatment record shows the Veteran was injured while being hand cuffed and he had multiple complaints that included mid-back pain. An October 2004 examination report from the Department of Human Services shows the Veteran reported being unable to work due, in part, to low back pain. A November 2004 record notes history of a low back disc problem. A February 2005 examination from the Department of Human Services shows the Veteran reported having an initial back injury in 1971 in the Army and then a subsequent motor vehicle accident in December 1995 in which his back was injured. He also reported that while in prison in July 2002 his back was injured during a restraint incident. An undated letter from the Veteran's aunt states he was injured approximately 3 months into Boot camp. She recalled that he told her a man with a rifle who was marching behind him fainted and that the butt of the rifle hit her nephew (the Veteran) in his back. He and his unit were quarantined shortly after that for spinal meningitis. She believed that no medical attention or poor medical care was provided for servicemen at that time. To her knowledge he always had back problems since then, and she recalled him having no back problems prior to service. An April 2005 private treatment record indicates the Veteran hit his face on a glass panel. An examination of the thoracic spine revealed degenerative joint and disc disease and lumbar degenerative joint disease. No fracture was seen. A physical therapy note the following month contains a diagnosis of lumbar and thoracic strain. A worker's compensation injury report dated that same month shows the examining physician listed lumbar and thoracic strain as work related medical diagnoses. Another April 2005 physician's report shows the Veteran reported that he was hit in the back many years ago by the butt of a gun while in the military and that he had had problems since that time and that he had a disability claim pending for that injury. X-rays of the thoracic spine revealed chronic changes with loss of height of T6 through T8 with arthritic changes; the lumbar spine was negative. He received ongoing treatment through August 2005. An October 2005 record again notes a slip and fall accident at work with mid and low back pain. The assessment was thoracolumbar strain. A March 2007 MRI of the spine revealed a mild accentuation of lumbar lordotic curvature, degenerative anteriolisthesis, associated moderate acquired central spinal stenosis, normal signal intensity and appearance of the distal thoracic spinal cord and conus medullaris, and a medial left renal cortical cyst. As for the thoracic spine, the impression was left midthoracic spinal cord intramedullary hyperintense lesion without pathologic enhancement. The findings are consistent with the given history of multiple sclerosis. Differential diagnosis includes infectious and inflammatory diseases. It was less likely sequel of previous trauma. Paracentral T6-7 disc herniation. Associated mild cord mass effect but no cord displacement. Mid thoracic spine degenerative disc disease and associated subligamentous disc protrusions and diffuse posterior annular disc bulges. An October 2007 VA treatment record contains an assessment of spinal DJD and he was noted to have mild left thoracic lumbar scoliosis. A June 2008 VA treatment record indicates the Veteran had a long history of low back pain with flare-ups after a motor vehicle accident in 1995. In August 2009, the Veteran testified that in January he was marching behind a man who passed out and hit the Veteran between the shoulder blades with the butt of his rifle; the Veteran ended up in the sick bay. He asserted that the upper back condition caused the lower back condition. He no longer had any documents supporting the back injury in service, but he indicated those records could be a part of a file with the Social Security Administration (SSA) as he had applied for benefits in 1980 and 2005. A January 2010 notice from SSA shows they did not have any medical records for the Veteran. An August 2010 VA neurology note shows the Veteran provided a history of spinal meningitis and a back injury in 1970. He also had additional significant medical history of a slip and fall incident in April 2005. A June 2011 MRI of the lumbar spine revealed severe facet arthropathy at L4-L5 encroaching upon the dorsal thecal sac with grade I degenerative spondylolisthesis. A February 2012 record shows the Veteran reported having chronic low back pain that started shortly after an injury in boot camp when he was hit in the back with a rifle. The neurologist stated that the onset of symptoms suggested a correlation with his service related injury. On February 2013 VA examination, the claims file was reviewed and pertinent aspects of the Veteran's medical history were noted to include the history reported by the Veteran. The examiner opined that the low back disability was less likely as not caused by or a result of an injury in service. The physician's rationale was that the Veteran had a low back injury prior to service and the service treatment records and separation examination did not show any complaints regarding the Veteran's back. The examiner added that there was no evidence of a low back problem after active duty until the Veteran was in a motor vehicle accident in 1995 and then had another injury (slip and fall) in 2005. Post-service documents establish the presence of a current back disorder. See records dated in April 2005, March 2007, October 2007, and February 2013. Thus, the initial question is whether his back disorder is related to active service. Although the Veteran's service treatment records contain no documented evidence of an in-service injury, he described being hit in the back by the butt of a rifle during the early part of his service. His aunt also recalled he told her about the incident and that he did not received medical treatment for the injury. As the alleged injury is lay-observable, the Board nonetheless accepts as competent the Veteran's assertion that, he was hit in the back with a rifle. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board does not, however, find this assertion credible. The Veteran has been inconsistent when discussing the onset of his low back problems and injuries. The record shows the Veteran did not report having a back injury in service until just prior to filing his claim in March 2005. Service treatment records did not contain any in-service complaints, findings, or diagnosis of a low back problem. Treatment records in 1999 and 2000 show that the Veteran's reported medical history did not include mention of an in-service back injury. In January 2001, he reported a possible injury in 1998, which incidently is when he is first shown to have back complaints. In July 2001, he reported having in a back injury in 1996. Therefore, while he had several opportunities to report his in-service back injury, the Veteran did not do so until February 2005. Due to these inconsistencies and probable bias in the timing of his assertions of an in-service injury, the Veteran lacks credibility as to the onset of his low back problems. As to the etiology of the claimed low back disorder, a February 2012 opinion from a VA neurologist indicates the onset of the Veteran's low back symptoms correlated with his in-service injury. This opinion, while favorable to the Veteran, lacks probative value because it is based on a medical history provided by the Veteran that the Board finds to lack credibility. Thus, the physician had an inaccurate, if not incomplete factual predicate upon which to base the opinion. The neurologist also did not appear to have a complete picture of the Veteran's medical history since there was no apparent knowledge of post-service back injuries. Specifically, the injury in the mid 1990s that involved a motor vehicle accident, a 2002 restraint injury that resulted in mid back pain, and 2005 work related injury. Most notably, the physician did not provide a rationale to support the opinion. For these reasons the opinion lacks probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, v. Nicholson, 21 Vet. App. 120, 123 (2007); Miller v. West, 11 Vet. App. 345, 348 (1998); Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). In contrast, the opinion offered by the February 2013 VA examination against the claim is highly probative because it was based on an examination of the Veteran, the examiner had a complete picture of the medical history, and provided a rationale that was consistent with the evidence. It is also noteworthy that the earliest documented evidence of low back complaints was in 1998, which was decades after the Veteran separated from service. The absence of any intervening complaints or findings related to this disability for a lengthy period after service, while not dispositive, is a factor weighing against the claim. See Maxson v. West, 230 F.3d 1330, 1333 (Fed. Cir. 2000), [it was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints]. Regulations provide a presumption of service connection for arthritis as a chronic disease when it is manifested to a compensable degree with 1 year from the date of separation from service. Here, the Veteran separated from service in 1971 and arthritis of the lumbosacral spine was diagnosed in January 2001. Since the Veteran's arthritis was diagnosed well after the presumptive period ended, the provisions of 38 C.F.R. §§ 3.307, 3.309 do not apply. Since the Veteran also alleged his back disorder is secondary to his MS, consideration of this theory of entitlement is also necessary. Generally, there are three requirements for establishing entitlement to service connection on this alleged secondary basis. There must be: (1) medical evidence confirming the Veteran has the claimed disability; (2) a service-connected disability; and (3) competent and credible evidence of a causation or aggravation correlation between the disability being claimed and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Because service connection has not been established for MS, the claim of service connection for a back disorder as secondary to the MS lacks legal merit and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for MS. Consequently, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Service connection for residuals of a back injury is denied. Service connection for MS is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs