Citation Nr: 1319620 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-18 899A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active service from April 1994 to July 1994 and from June 2004 to October 2005. He had additional service in the United States Army Reserves. This matter comes before the Board of Veterans Appeals (Board) from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran and his wife testified before the undersigned Veterans Law Judge at the RO in June 2011. A transcript of the hearing has been associated with the record. In a January 2012 decision, the Board remanded this issue for additional development. In an Informal Hearing Presentation, the Veteran's accredited representative characterized the issue on appeal as being a claim of entitlement to service connection for "lumbosacral or cervical strain." The Board notes, however, that the issue perfected for appeal as been consistently characterized as being for disability involving the low back, or lumbar spine, and not as seeking service connection for cervical spine disability. Furthermore, the record reflects that service connection has already been established for cervical strain. Therefore, the Board finds that the representative's phrasing was merely in error, and that there is no need to consider or refer a claim of service connection for cervical strain, as such an award has already been granted. The issues of entitlement to service connection for depression as secondary to service-connected posttraumatic stress disorder (PTSD) and entitlement to a total disability rating based on individual unemployability (TDIU) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT A low back disability is not shown to be etiologically related to a disease, injury, or event in service, nor is it shown to have manifested within 1 year of discharge from service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by active service, and may not be presumed to have been incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). In this appeal, the RO provided notice to the Veteran in a February 2007 letter prior to the date of the issuance of the appealed July 2007 rating decision. The February 2007 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. Additionally, he was afforded a VA examination in February 2009. Per the January 2012 Board remand instructions, the VA examiner who conducted the February 2009 VA examination also provided a VA medical opinion in February 2012. While the Board notes the Veteran's contentions regarding the adequacy of the February 2012 VA opinion, the VA examiner specifically addressed the inadequacies of his previous VA examination. The Board also finds that the February 2012 opinion is thorough and based on a full review of the record and, taken in combination with the results of his earlier physical examination and the subsequent opinion in February 2009, provides an adequate basis on which review the Veteran's claim for service connection for his low back. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Active military, naval, or air service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 C.F.R. § 3.6(a). If certain diseases, such as arthritis, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection on a presumptive basis is not available where the service performed is ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. at 476-78 (1991). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis The Veteran seeks service connection for a low back disability. He maintains that he was struck by a gun turret during training in July 1995, and that the injury resulted in his current back disability. He has also argued that his more recent duty in Iraq contributed to his claimed back disability. Specifically, at his June 2011 hearing he and his wife testified that his back complaints had increased on his return from Iraq. The Veteran's service treatment records for his first period of service are negative for complaints or treatments related to a low back disability. In July 1995, the Veteran was admitted to a private hospital for a low back injury while on Reserves with the National Guard. He was struck in the right flank area with a gun turret and knocked to the ground. He had pain to mild degree in his elbow and low back area. He had no head injuries, cervical, thoracic or lumbar spine tenderness. X-rays of the lumbar spine were negative for evidence of a fracture. The physician did note that the Veteran had a "fairly significant blow proximate to the lumbar spine". The diagnosis was contusions and abrasions. A September 1997 private treatment note indicated that the Veteran strained his low back while working as a logger while bumping logs and using a chain saw. The Veteran reported previously being injured while in the Reserves where he was hit by a tank and thrown in the air. He noted that x-rays of the lumbar spine showed no abnormalities. His back pain resolved. He did experience intermittent back pain in the past. On examination, his back revealed no abnormalities to inspection. The diagnosis was a lumbar back strain. The Veteran was also to check his bed to see if this could be causing his chronic back pain. From his second period of active service, service treatment records demonstrate that his July 2004 Report of Medical Examination was negative for complaints or treatments related to a low back disability. His March 2004, May 2004 and September 2004 pre-deployment health questionnaires were negative for complaints or diagnoses related to a low back disability. The Veteran described his health as "excellent". In March 2005 the Veteran was involved in explosion from an improvised explosive device (IED) while serving in Iraq. He presented with complaints of a neck strain. There was noticeable bruising of the neck and shoulders. The diagnosis was a cervical strain. In August 2006, the Veteran established primary care at the Boise, Idaho VA Medical Center (VAMC) since being medically discharged from the National Guard in October 2005. He presented with complaints of right knee and bilateral elbow joint pains. It was noted that there were no complaints related to back pain. A February 2007 post- deployment health questionnaire was negative for complaints or diagnoses related to a low back disability. In November 2008, the Veteran presented to the VAMC with complaints of pain in his multiple joints including both shoulders, knees and back. It was noted that he was working a roofer which was physically demanding. The Veteran underwent a VA examination in February 2009. The examiner noted that the Veteran's injury where he was struck in the back by a turret. The examiner also noted that emergency room notes documented only right flank contusions as there were no injuries to the lumbar spine or left side, which was the side that the Veteran was now claiming radiation of pain. The Veteran also reported that he received a blast from an IED in April 2005 which resulted in a sore neck, headache and nausea. X-rays revealed L5 spondylosis without anterior slippage and mild diffuse loss of disc height throughout the lumbar segments. The examiner concluded that the current degenerative joint disease of the lumbar spine was not related to service, specifically to the incident in July 1995. The examiner noted that according to the Emergency Room report after the incident which the Veteran claimed caused the problem, the Veteran did not have any pain whatsoever on the lumbar spine. His entire history consisted of a right flank contusion and there was absolutely no way to link this incident to his present symptoms. The examiner also noted that a previous rating decision indicated that the Veteran injured his back during a logging accident in 1997. The Veteran denied this, but there was no evidence that the July 1995 military incident caused any of the symptoms that the Veteran was currently experiencing. Per the January 2013 Board remand instructions, the VA examiner who conducted the February 2009 VA examination provided a VA medical opinion in February 2012. The examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that he was not disputing the report of the incident with the turret as he also considered the two Buddy letters and the testimony of the Veteran's wife at the Board hearing. However, the examiner considered the Emergency Room note and the medical documentation after the turret incident as the single most credible evidence. The examiner noted that Emergency Room physicians and trauma surgeons are trained to thoroughly evaluate any possible injury. In this case, after the turret incident, the Veteran was taken to St. Alphonsus Hospital in Boise which was a level II trauma hospital, the highest rating available in the Boise area. The examiner opined that it could be presumed that if there was an injury, it was not likely to be overlooked. The examiner also noted that the Veteran arrived on a backboard, which would create the need for additional evaluation prior to releasing him from spinal precautions. The diagnosis in the Emergency Room was a RIGHT flank contusion and there was no lumbar spine tenderness. The Veteran was noted to ambulate well in the Emergency Room and the x-rays showed good alignment of the lumbar spine with unremarkable disc spaces. The examiner noted that while a soft tissue injury (ligament) could be missed on x-ray, the most telling factor in the Emergency Room examination was that the Veteran was ambulating normally after being brought in on a backboard as muscle/ligament injuries would have gone into spasm by then. Additionally, the examiner indicated that there was no indication of any medical care sought for the Veteran's back in the immediate period after the Emergency Room visit. An injury leading to the chronicity claimed by the Veteran certainly would have sent the Veteran for frequent symptomatic follow-up. However, the next records the examiner reviewed were from 1997 after the logging incident described in the hearing. The examiner noted that while Veteran and his wife are competent to claim that his back pain was chronic after the turret incident, to a large degree that is a matter of opinion. Without medical records to back up chronicity, it can reasonably be assumed that symptoms were not significant in the interim until Veteran sought care after hurting his back while using the chainsaw at the logging location. The records from September 1997 mention that the Veteran rested for one day after the turret incident and his back pain resolved and the examiner indicated that a serious back injury would not behave so simply. The Veteran's examination on September 1997 revealed full range of motion of his lumbar spine and his straight-leg-raising was normal. Therefore, as of September 1997, there was nothing to indicate that the Veteran suffered any type of lumbar injury that had failed to resolve. The Veteran then entered the service in 2004, and this would not have been possible with any significant back injury with residuals. In fact, in September 2004 the Veteran filled out a questionnaire in which he described his health as excellent and denied any medical problems whatsoever. In July 2003 he completed a medical history form in which he denied any recurrent back pain or any back problem. While he was hit with an IED while in service which resulted in complaints of neck pain, there was no mention of back pain. In an April 2005 post-deployment health assessment dated he also denied any back pain during deployment. In the latter part of 2005, there was ample documentation of a right knee problem, indicating that the Veteran was willing to seek medical care for what he felt necessary but there was absolutely no mention of any low back problem whatsoever. The examiner indicated that given the light duty necessitated for his right knee, it would be highly unlikely that (once his knee became an issue) the Veteran was exposed to any activity that could injure his back. Additionally, the post separation (2005) medical visits mainly dealt with neck and knee issues, with bilateral elbow epicondylitis being mentioned as due to pulling chains at work. The examiner also noted that by the one-year mark post discharge, the only time the Veteran was seen in physical therapy was for his right knee, and there was no mention whatsoever of his back. The Veteran was also was seen in the Emergency Room at St. Elizabeth's in April 2007 for low back pain for 2 days after he bent over to pick something up. His pain was noted to be on the left side and he was diagnosed with a lumbar strain. The examiner concluded that when taking into account the buddy statements, the Veteran's wife's comments at the hearing and the Veteran's military service from 2004-2005, there was no evidence that any event that occurred in any of his military service periods caused or aggravated any permanent back condition. Having carefully reviewed the record, the Board concludes that service connection is not warranted for the claimed low back disability. With regard to establishing service connection for arthritis of the low back on a presumptive basis under 38 U.S.C.A. §1112, the Board notes that there is no medical evidence of record indicating that the Veteran had a diagnosis of degenerative joint disease of the lumbar spine to a compensable degree within one year of discharge from either periods of his active duty. Notably, the February 2012 VA examiner noted that the Veteran was initially diagnosed with degenerative joint disease of the lumbar spine on VA examination in February 2009. Additionally, an August 2006 treatment report indicated that the Veteran presented with complaints of right knee and bilateral elbow joint pains but it was also noted that there were no complaints related to back pain. Thus, onset of arthritis of the lumbar spine is not demonstrated at any time within the Veteran's first year following his separation from service; therefore service-connection for degenerative joint disease of the lumbar spine may not be presumed under the provisions of 38 C.F.R. § 3.307 and § 3.309(a). With regard to establishing service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). There is a current diagnosis of degenerative joint disease of the lumbar spine, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board notes that the Veteran's service treatment records from his first period of service are negative for complaints or treatments related to a low back disability. However, as noted above, in July 1995, the Veteran was admitted to a private hospital for a low back injury while on Reserves with the National Guard when he was struck in the right flank area with a gun turret and knocked to the ground. The service treatment records for his first period of service however, were negative for any or diagnoses of any chronic low back disability as the low back complaints were medically addressed in service, and appear to have been of an acute and transitory nature. While treatment in July 1995 noted pain to mild degree in his elbow and low back area and the treating physician noted that the Veteran had a "fairly significant blow proximate to the lumbar spine", the Board notes that that pain is not analogous to disability. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that pain alone without a diagnosed or identifiable underlying malady or condition. Significantly, x-rays of the lumbar spine taken after the injury in were negative for evidence of a fracture. Moreover, in February 2009 and his medical opinion in February 2012, the VA examiner determined that while he did not doubt that the incident with the Veteran being struck by a turret took place, the Veteran's entire clinical record from this incident consisted of a right flank contusion and there was no way to link this incident to his present low back symptoms. The examiner noted that the Emergency Room note and the medical documentation after after the turret incident were the most credible evidence as to the nature and extent of any injuries at that time. Additionally, later treatment records in September 1997 noted that his back pain had resolved and an examination of his back revealed no abnormalities. The February 2012 VA examiner also noted that there was no indication of any medical care sought for the Veteran's back in the immediate period after the Emergency Room visit. The examiner noted the Veteran's report of ongoing symptoms, but determined that the lack of follow-up treatment would suggest that any symptoms were not significant. The examiner also took note of the Veteran's return to active duty in 2004 without report of any back problems at the time. From his second period of active service, the examiner discussed that the Veteran was involved in explosion from an IED while serving in Iraq, but that he presented with complaints of a neck strain and was given a diagnosis of cervical strain. Additionally, the examiner also considered the nature of medical treatment received throughout 2005, which consisted primarily of knee and neck issues, and the fact that a lumbar spine disability was not diagnosed until approximately two years after separation. Given this history, the examiner concluded that it was unlikely that his current back problems were related to an injury in service. To the extent that the Veteran, his wife and other individuals of record are asserting that he experienced a back injury in 1997 and continuing symptoms thereafter, the Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, the Board finds it significant that the Veteran completed pre-deployment health questionnaires in March 2004, May 2004 and September 2004 that were negative for complaints or diagnoses related to a low back disability as the Veteran described his health as "excellent". Similar denials are also contained in an August 2006 VAMC treatment note which reflected complaints of right knee and bilateral elbow joint pains but no complaints related to back pain. Additionally, a February 2007 post-deployment health questionnaire was negative for complaints or diagnoses related to a low back disability. The Board again notes that the fact that these same documents do reflect complaints of right knee and elbow strongly suggests that had the Veteran been experiencing chronic problems in his low back, he would not have remained silent and would not have specifically denied experiencing symptoms such as low back pain. The Board finds that the Veteran's contemporaneous denials of symptoms such as low back pain at separation distinguish the facts in this case from those in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the United States Court of Appeals for the Federal Circuit determined that the Board erred in finding that service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. Here, rather than relying on a complete absence of complaints, the Board is relying on the fact that the Veteran is documented as having specifically denied a history of low back on several occasions during service and immediately after service. As noted, this is in stark contrast to the fact that the Veteran at that time did report numerous other chronic problems, including knee and elbow pain. Under such circumstances, the Board finds that the current assertions by the Veteran, his wife, and other individuals of record of having a continuity of symptomatology since injuring his back in 1997 are not credible. As the Veteran was not diagnosed with a low back disability until many years after service and there was a significant period between his periods of service and his post-service complaints where the medical record was silent for complaints of a low back disability, the Board concludes that the weight of the evidence is against a finding of continuity of symptomatology since service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). In weighing the Veteran's credibility as to the events that occurred in service, the Board has also considered the potential applicability of 38 U.S.C.A. § 1154(b) (West 2002), which provides that a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. However, such a presumption would not be applicable to the Veteran's 1997 injury as it was not sustained in combat. Furthermore, although it has been noted that the Veteran was injured in an explosion from an IED in Iraq, it has not been directly contended that such explosion resulted in injury to the low back. Rather, during his personal hearing, the Veteran noted that he injured his neck in that explosion, but he then merely referred to having experienced problems with his back during his second period. He did not directly testify that he sustained an injury to his low back in that explosion. Given the general nature of his assertions that he experienced back problems during his period of service from 2004 to 2005, the Board finds that the presumption afforded under 38 U.S.C.A. § 1154(b) also do not apply to those statements. Having found that there is no credible evidence of a continuity of symptomatology since service, the Board now must address whether the Veteran's low back disability is otherwise shown to have been caused by or aggravated by service. However, the Board finds that the weight of the evidence is against a finding that the Veteran's current low back disability is etiologically related to the Veteran's military service. As noted above the, the Veteran's treatment records from both periods of service are negative for evidence of a chronic low back disability. Moreover, there is no competent evidence or opinion even suggesting that there exists a medical nexus between a current back disability and the Veteran's military service. In fact, the only medical opinion addressing the etiology of the back disability weighs against the claim. As indicated above, in February 2009 and February 2012 opinions, the VA examiner opined that the Veteran's back disability was less likely than not caused or aggravated by the Veteran's claimed in-service injury, event or illness. None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented or identified any such existing medical evidence or opinion. The Board also notes that the Veteran contends that his back injury incurred in the gun turret accident in 1995 was aggravated by his second period of service. Additionally, the record demonstrates that the Veteran strained his low back while working as a logger in September 1997 prior to his second period of active duty. In essence, the Veteran claims in part that he had a preexisting back injury that was aggravated by his second period of active duty. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted at entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition upon entry into service under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d. 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). Regarding whether a back disability preexisted the Veteran's second period of active service, the February 2012 VA examiner noted that the Veteran's examination on September 1997 revealed full range of motion of his lumbar spine and his straight-leg-raising was normal. As a result, the examiner opined that as of September 1997, there was nothing to indicate that the Veteran suffered any type of lumbar injury that had failed to resolve. The examiner also noted how the Veteran completed questionnaires in July 2003 and September 2004 which denied any recurrent back pain or any back problem as the Veteran described his health as excellent. The examiner also opined that it would not have been possible for the Veteran to enter the service in 2004 with any significant back injury with residuals. As such, there is no indication that the Veteran had any chronic low back disability that preexisted his second period of service. Therefore, the presumption of soundness is not rebutted and the claim becomes one for service connection. See Wagner, supra. As addressed above, the Board has determined that the Veteran is not entitled to service connection on a presumptive or direct basis as the preponderance of the evidence demonstrates that the Veteran's current low back disability is not related to his service. In this regard, the VA examiner considered the record in detail, including the nature and circumstances of his period of active duty from 2004 to 2005, and concluded that it was unlikely that his current back disability was related to service. To the extent that the Veteran his wife and his friends contend that a medical relationship exists between his current claimed low back disability and service, the Board again acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran's claimed low back disability to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his current degenerative joint disease of the lumbar spine and service. As such, the Board ascribes far more weight to the conclusions of the VA examiner who concluded that the Veteran's current low back disability was not incurred in or aggravated by service. See Jandreau, 492 F.3d at 1377. In sum, the Board finds that service connection for a low back disability must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs