Citation Nr: 1320870 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-00 312A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to a total disability rating due to individual unemployability as a result of service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran had active service from February 1969 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested a RO hearing, but withdrew his request for a hearing in October 2010. In April 2011, the Veteran's attorney withdrew from representation of the Veteran in this case. Therefore, he is unrepresented in this matter. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. Virtual VA contains some VA clinic records which are not associated with the paper claims folder. The agency of original jurisdiction (AOJ) has reviewed these records in the May 2013 supplemental statement of the case (SSOC). In June 2011 and January 2013, the Board remanded this case to the AOJ for additional evidentiary development and it now returns for further appellate review. FINDINGS OF FACT 1. The Veteran's in-service treatment for a back injury with muscle spasm resolved without residuals, his currently manifested back disorder is not shown to have been manifested during active service or causally related to an event during active service, and there is no competent or credible evidence of arthritis manifest to a compensable degree within one year of service discharge. 2. The Veteran's service-connected disabilities of diabetes mellitus, right ear hearing loss, and tinnitus do not preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, October 2007 and November 2007 letters, sent prior to the initial unfavorable decision issued in January 2008, advised the Veteran of the evidence and information necessary to substantiate his service connection and TDIU claims, respectively, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letters advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Next, VA has a duty to assist the claimant in the development of the claims. This duty includes assisting the claimant in obtaining service treatment records (STRs) and any outstanding records of identified VA or private medical treatment relevant to the claim, and affording him/her an examination and/or opinion when appropriate. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The AOJ has obtained all available STRs. The Veteran has claimed that certain STRs pertaining to hospital treatment at McCoy Air Force Base (AFB) in 1970-1971 are not associated with the claims folder. In such a situation, VA has a heightened duty to consider the applicability of the benefit of the doubt rule and to assist in the development of a claim. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The National Personnel Records Center (NPRC) has forwarded to VA all available STRs and, in a response dated December 1, 2011, informed the AOJ that a direct search for records at McCoy AFB from December 1970 to December 1971 found no available records. By letter dated May 5, 2012, the AOJ informed the Veteran of the unavailability of records from McCoy AFB and provided him an opportunity to submit any STRs in his possession. Notably, the Veteran's STRs include treatment records for back pain at McCoy AFB. At this point, the Board finds that all reasonable efforts to obtain any additional STRs have been exhausted, and that any further attempts to obtain these records would be futile. As such, the Board finds that VA has complied with its duty to assist the Veteran in obtaining his STRs. 38 C.F.R. § 3.159(c)(2). The AOJ has also obtained all available VA clinic records. The Veteran had initially claimed treatment at the Lake City VA Medical Center (VAMC) beginning in January 1976. An AOJ communication with the Lake City VAMC dated November 14, 2012 (see VA Form 21-0820 dated November 14, 2012) reflects that there are no available VA treatment records other than those which have already been provided. On this same date, the Veteran informed the AOJ that he had not been treated at this facility - only that VA doctors reviewed his records. See also Veteran's statement received in November 2007 (reporting that VA doctors at Lake City VAMC looked over his records but did not examine him). Notably, the record contains a November 1976 VA Compensation and Pension (C&P) examination report conducted by the Lake City VAMC. As such, the Board finds that VA has complied with its duty to assist the Veteran in obtaining VA clinic records as all records identified by the Veteran as being relevant to his appeal have been obtained. Otherwise, the AOJ has obtained all pertinent, identified, and obtainable records. This includes medical and legal documents pertaining to an application for disability benefits with the Social Security Administration (SSA) as well as attempts to obtain treatment records from multiple private physicians. On November 18, 2011, the AOJ informed the Veteran of its inability to obtain records from Dr. H.H. The Veteran has asserted that treatment records from Dr. J.G. are unavailable. See Tallahassee Memorial Family Medicine treatment record dated March 15, 2013. Therefore, the Board finds that VA has satisfied its duty to assist in this regard. VA has also obtained a VA examination with a medical opinion based upon review of the claims folder as deemed necessary to substantiate the service connection claim. The most recent examination report, dated in February 2012, reflects an accurate review of the factual history and includes specific consideration of the Veteran's description of in-service injury not recorded in the STRs. The opinion explains that the Veteran's in-service injuries and symptomatology were transient conditions known to resolve without residuals, which is consistent with findings from a November 1972 service separation examination report. Notably, the Board's June 2011 remand also requested the examiner to consider the significance of the Veteran's report of a motor vehicle accident in service. On review of the record, the Board finds that this was a factual error which the Veteran confirmed to the February 2012 VA examiner. Overall, the Board finds that the examiner has provided a sufficiently reasoned rationale to support the conclusion reached. Specifically, the VA examiner offered reasoned opinions based on interview with the Veteran, a review of the record, and a full examination. Moreover, he cited to the relevant evidence within the claims file and offered clear conclusions with supporting data and reasoned medical explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, the Board finds that the examination report of record is adequate to adjudicate the Veteran's claim for service connection for a back disorder such that no further examination is necessary. With respect to the TDIU claim, the Veteran was provided with a VA examination in July 2012 so as to evaluate the severity of his service-connected diabetes mellitus and its effects on his employability. A December 2010 VA audiology examination evaluated the severity of his service-connected right hearing loss and tinnitus, and described the occupational impairments resulting therefrom. Since these examinations were conducted, the Board does not find an increased severity of symptoms to the extent to suggest that his diabetes mellitus, right ear hearing loss, and tinnitus have affected his employability in a manner not considered by the VA examiners. Thus, the Board finds that VA has no further duty to provide examination on the TDIU claim. In June 2011 and January 2013, the Board remanded this case for additional development. The AOJ has fully complied with the remand directives by conducting exhaustive searches for specified STRs and VA clinic records, assisting the Veteran in obtaining private treatment records, informing the Veteran of specific records which could not be obtained, obtaining adequate VA examinations, readjudicating the claims, and providing the claimant SSOCs. Therefore, no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). For the foregoing reasons, the Board finds that VA has satisfied its duties to inform and assist the claimant at every stage in this case. As such, the Veteran will not be prejudiced by a decision on the merits of these claims. II. Applicable legal criteria The Veteran seeks to establish his entitlement to service connection for a back disorder. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(a). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Arthritis is deemed a chronic disease under 38 C.F.R. § 3.309(a). The Veteran also seeks to establish his entitlement to TDIU benefits. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, that if there is only one such disability, this disability shall be ratable as 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. For TDIU purposes, marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.17. Factors to be considered, however, will include the Veteran's employment history, educational attainment and vocational experience. 38 C.F.R. § 4.16. In this case, the Veteran holds a 20 percent rating for service-connected diabetes mellitus, a 10 percent rating for service-connected tinnitus, and a noncompensable rating for service-connected right ear hearing loss. The Veteran is not service-connected for any other disability. Under VA regulations, his combined 30 percent rating does not meet the schedular criteria to render him eligible for consideration of a TDIU rating under 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.25, TABLE I. However, it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards are required to submit to the Director, Compensation and Pension (C&P) Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. The Court has clarified that, where a claimant does not meet the schedular requirements of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the C&P Director for extra-schedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). An assessment for extra-schedular referral requires consideration of the Veteran's service-connected disability, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Veteran's age and effects of non-service connected disability, however, are not factors for consideration. 38 C.F.R. §§ 3.341(a), 4.19. The issue at hand involves a determination as to whether there are circumstances in this case, apart from the non-service-connected conditions and advancing age, that would justify a total disability rating based on unemployability. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board must determine if there is some service-connected factor outside the norm which places this Veteran in a different position than other Veterans with a 30% combined disability rating. Id. The fact that the Veteran is unemployed or has difficulty obtaining employment is not enough as a schedular rating provides recognition of such. Id. Rather, the Veteran need only be capable of performing the physical and mental acts required by employment. Id. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As STRs are claimed missing, VA has a heightened obligation to consider the applicability of the benefit of the doubt rule and to explain its decision where appropriate. Cromer, 19 Vet. App. at 217-18. However, no service connection presumption, either in favor of the claimant or against VA, arises when there are lost or missing STRs. Id. III. Back Disorder The Veteran had active service from February 1969 to January 1973. On July 11, 1969, he presented to the 813th Medical Group at McCoy AFB with complaint of back pain. He fell on the stairs the previous night. Two separate examinations were significant for clinical findings of pain to the right of the mid back spine, right paravertebral muscle spasm and some tightness in his legs when bending over. The Veteran denied pain in the legs or spinal column. He was given an impression of muscle spasms treated with a prescription of Robaxin, Parafon Forte and heat. There is no further record of treatment for back pain for his remaining 31/2 years of active duty service. On his separation examination in November 1972, the Veteran denied a history of "[r]ecurrent back pain" as well as swollen or painful joints, arthritis/rheumatism /bursitis, lameness and neuritis. With respect to his history of hospital treatment, the Veteran only reported having undergone a circumcision at Moody AFB. Those records are associated with the claims folder. Otherwise, the Veteran discussed with the military examiner his history concerning his blood pressure, blood in urine and circumcision. He denied any other significant medical or surgical history. Examination reflected normal clinical evaluations of the Veteran's spine and lower extremities. The Veteran filed his original service connection claim for a back disorder in July 1976. At that time, he described incurring a back injury during basic training in March 1969 at Lackland AFB. He had post-service treatment in March 1976 which included back surgery. The Veteran underwent VA C&P examination in November 1976. The examiner offered a diagnosis of post-operative lumbar laminectomy with pain on stress and some sensory and motor loss of the right great toe. In a December 1976 rating decision, the AOJ denied the claim on the basis that there was no evidence of a relationship between the Veteran's back injury diagnosed during service and his post-service disc pathology. The Veteran filed an application to reopen his service connection claim for a back disorder in September 2007. In connection with the current appeal, the Veteran has described incurring a back injury while lifting a radio at McCoy AFB in December 1970 or 1970-71. See VA Form 21-4138 received in September 2007. He reports being hospitalized for three days at McCoy AFB, and that he had experienced continual back troubles since service. Id. He has also alleged being placed on bed rest, and having additional treatment for muscle spasms while stationed at Da Nang AFB. See Veteran's statement received in November 2007 and VA C&P examination report dated January 2008. He underwent surgery in 1976 when his left leg became paralyzed, and had two additional back surgeries. Id. He reports being told at separation that he was qualified for disability due to his back disorder. See Veteran's written statement received in March 2008. In October 2010, the Veteran submitted a more extensive description regarding his in-service back injury and symptoms. He described incurring a lifting injury at McCoy AFB in December 1970. He lifted a radio weighing approximately 100 pounds which caused immediate pain to his back. He described initially being taken to sick bay, and then the clinic base the next morning. He was given narcotic medications and light duty for two weeks. After that accident, the Veteran's back improved but not completely as he would experience pain on a regular basis. He had been prescribed Tylenol #3 on a regular basis from sick bay at his duty station. The Veteran recalled describing his back condition on his separation examination, and was informed that he could seek help with VA. He was not sure why the examiner did not record his complaints. After service, the Veteran went to college wherein his life was "entirely sedentary." He started working in December 1975, and experienced major problems when he started to use his back. He was hospitalized in the Spring of 1976 and underwent back surgery. He denied any other back injury other than the December 1970 injury, and he recalled being in "excellent condition" before that injury. The Veteran's medical records contemporaneous in time to service discharge are unavailable. His current records reflect a history of back surgeries in 1976, 1984 and 1990. A private May 2003 magnetic resonance imaging (MRI) scan was interpreted as showing a transitional L5 vertebral body, laminectomies performed on L3-L5, disc narrowing at the L3-4 and L4-5 interspaces, bulbous apophyseal joints resulting in mild central canal stenosis at the L1-2 and L2-3 interspaces, disc bulging at the L2-3 interspace, and foraminal narrowing at L4-5 and L3-4. The Veteran underwent a VA C&P examination in January 2008. At this time, the Veteran described an episode of instant low back pain while lifting a heavy radio in service. He had muscle spasm and was off duty for less than a week. He returned to full duty, but continued to experience back pain. He had a second episode of back pain when attempting to climb into a plane cockpit when he "pulled" his back. For this episode, he was off duty for a day or two. The examiner noted that STRs only documented an episode of back spasm in July 1969 when falling on the stairs, and commented that there was no evidence of a lifting injury. Following examination, the VA examiner provided the following opinion: Opinion: It is less likely as not (less than 50/50 probability) that [V]eterans current lumbar spine disease is caused by or a result of his inservice complaints. Rationale: The only documentation in the service records is of muscle spasm after a fall. Generally muscle spasm is short-lived and easily resolved; it would be very unlikely that this spasm would have been the cause of [V]eterans subs[e]quent disc disease. Veteran reports a lifting injury which could potentially cause disc disease but there is no objective evidence of this in the record. In June 2011, the Board remanded this case based upon a determination that the January 2008 VA examination report was inadequate for rating purposes. In this respect, the Board required a medical opinion which more critically considered the Veteran's report of an undocumented lifting injury in service as a cause of his low back disorder. Notably, the Board inadvertently and incorrectly referred to the Veteran also injuring his back during an inservice motor vehicle accident. On VA C&P examination in February 2012, the Veteran described the onset of his back problems while lifting a radio in 1971-72 at McCoy AFB. He denied any further injuries, including a motor vehicle accident. After discharge, the Veteran attended school and then started working, at which time his back pain became so bad he required surgery. The examiner offered diagnoses of degeneration of the thoracic or lumbar intervertebral discs, lumbosacral spondylosis without myelopathy, and thoracic or lumbosacral neuritis/radiculitis. The examiner also offered the following opinion: Opinion: The [V]eteran's current lower back condition is not caused by or [a] result of military service to include his allegation of lifting injury and motor vehicle accident, or to any other incident during the Veteran's service, to include his documented in-service treatment in November 1969 for complaints of low back pain. Rationale: Based on review of the available medical records, medical literature and clinical experience. VA Form 21-2507 shows Vet was in military from 2/20/1969 to 1/2/1973. Many years after discharge from military service vet reports was told "DDD Lumbosacral region" and in 1984 "DDD Lumbosacral region with right sciatica". Onset of this current lower back condition is 'unknown'; Today vet report[ed] he noticed it after 4-5 years after discharge from military date to 1977-78. On todays exam Vet self reports "under three back surgeries & the current residual right foot drop was told to be nerve damage (consistent with deep peroneal nerve injury a branch of sciatic - most likely residuals of right sciatica seen on todays exam - dates to 1984!). STR shows Veteran was evaluated twice following a fall on 7/10/1969 @ 8 pm Diagnosis "Muscle spasm" on 7/11/1969 FU (follow up) evaluation diagnosis "R paraspinal muscle spasm."; a transient condition which is known to resolve without residuals. On 11/21/72 Separation exam neither the [V]et nor the examining provider mentions: Lower back condition/pain as an ongoing issue and exam is normal. There is no objective evidence of the current claimed lower back condition mentioned in this report onset in military service or shortly (within a year) after discharge from military service. Thus, a nexuses [sic] can't be made. On review of the entirety of the record, the Board finds that the probative evidence establishes that the Veteran's in-service treatment for back injury with muscle spasm resolved without residuals, and that his currently manifested back disorder is not shown to have been manifested during active service or causally related to an event during active service. Additionally, there is no competent or credible evidence of arthritis manifest to a compensable degree within one year of service discharge. At the outset, the Board notes that this claim hinges, in part, upon the Veteran's report of injury and symptoms in service which are undocumented. A significant factor to be considered in evaluating the probative value of a medical opinion is whether it is based on an accurate factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Here, the Veteran's STRs clearly reflect that he was treated for a back injury at McCoy AFB after falling down the stairs in July 1969. His other claimed injuries and treatment are not documented and, thus, the Board must first determine whether his allegations are credible. In his original service connection application in July 1967, the Veteran identified the cause of his back disability as an event which occurred during basic training in March 1969 at Lackland AFB. No other injuries were reported. The Veteran has explicitly stated in written statements received in March 2008 and October 2010 that his back problems did not start until an undocumented back injury in December 1970 or 1970-71 as a result of a lifting injury. Thus, the Veteran's current statements allege that his chronic back problems occurred after the documented July 1969 falling injury. The Veteran primarily alleges the injury which occurred in December 1970 or 1970-71, as a result of a lifting a radio, caused persistent or recurrent back problems. He initially alleged that he was "HOSPITALIZED FOR 3 DAYS" in a September 2007 statement. These assertions are not consistent with the Veteran's own statement on his discharge examination, wherein he only described in-service hospital treatment for a circumcision and he specifically denied recurrent back pain. Furthermore, the statement of hospitalization does not appear to be consistent with his October 2010 description of an initial treatment at sick bay, then being taken to the clinic the next morning, and then being placed on light duty for two weeks. The Veteran has also alleged in an October 2010 statement that, after the injury which occurred in December 1970 or 1970-71, he had been prescribed Tylenol #3 "pretty much constantly after that." Even assuming missing STRs for the lifting injury treatment, the Veteran's STRs otherwise appear complete and there is no reference in his remaining STRs from December 1970 to the date of discharge in January 1973 that the Veteran had been prescribed Tylenol #3 for back pain on a single occasion. Given the type of persistent treatment reported by the Veteran, the Board would expect some STR entries of this nature. This statement is also inconsistent with the separation examination wherein there is no mention of back problems or treatment, and normal clinical findings are provided. Additionally, in the October 2010 statement, the Veteran specifically denied having been treated for a back condition prior to the lifting injury in December 1970 or 1970-71. This recollection is clearly faulty given the documented treatment for back pain in July 1969, which resulted from a falling injury. The Veteran's report of persistent or recurrent back pain following a lifting injury in December 1970 or 1970-71 is also inconsistent with the STRs, which fail to reflect any lay report of back pain from December 1970 to the date of discharge in January 1973. The Veteran asserts that STRs from McCoy AFB regarding this event are missing, but he offers no persuasive rationale as to why the STRs do not contain any reference to back pain after the injury for the remaining two years of active service or why there is no reference to the Tylenol #3 prescriptions which he was prescribed "pretty much constantly after" the December 1970 injury. Moreover, the Veteran's current recollections directly contradict his assertions upon service discharge. The Veteran asserts that he discussed his back pain and VA eligibility with the examiner, but the Veteran himself filled out a report of medical history wherein he specifically denied recurrent back pain. The Veteran offers no persuasive rationale as to why he would deny recurrent back pain but informally discuss back problems with the VA examiner or why he only identified his circumcision surgery as his only hospitalization during service. The Board has carefully reviewed the November 1972 separation examination report. There is a section entitled "NOTES AND SIGNIFICANT OR INTERVAL HISTORY" which clearly reflects that this was not cursory examination. The examiner provided a very detailed description regarding a multitude of potential physical problems in service. This extensive evaluation, when viewed in light of the Veteran's specific denial of recurrent back pain at that examination, his report of only one hospitalization for a circumcision at that examination and the complete lack of STRs supporting a chronic back disorder since December 1970, leads the Board to the conclusion that the Veteran did not have chronic low back problems upon his service discharge as it would have been documented and discussed. See Fed.R.Evid. 803(7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). See generally Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). Finally, the Veteran's statement to the military examiner in November 1972 denying recurrent back pain directly contradicts his current assertions of continuity of back pain. As reflected in the October 2010 statement, the Veteran apparently does not recall the July 1969 back injury from a fall. In light of the above, the Board places greater probative weight on the Veteran's report to the military examiner in 1972, as it was made in the context of seeking an appropriate medical evaluation at the time of the actual events in question as opposed to the current statements attempting to recall events approximately 40 years ago. See Lilly's An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). In sum, the Board finds that the Veteran's current allegations of manifesting persistent or recurrent back pain since a lifting injury in December 1970 or 1970-71 are not credible. To the contrary, the Board finds that the Veteran's denial of recurrent back pain upon service separation to be credible and consistent with the entire evidentiary record. Given the above factual findings, the Board finds that the opinion of the February 2012 VA examiner is most persuasive evidence in this case. This examiner found that, given the normal findings on the November 1972 separation examination and lack of contemporaneous records to service discharge, that there is no objective evidence of that the Veteran's current claimed lower back condition is related to his reported injuries in service. This examiner described the muscle spasm experienced in service as a transient condition which is known to resolve without residuals. This opinion is consistent with the January 2008 VA examiner's explanation that, in general, muscle spasm is short-lived and easily resolved. This opinion is also consistent with the findings from the November 1972 separation examination. The only evidence tending to support a finding that the Veteran manifests a chronic back disability since service is the description of symptomatology by the Veteran himself. Clearly, he is competent to describe outwardly demonstrated and subjectively experienced symptoms. However, as held above, the Board has found that the Veteran's description of chronicity since service is not credible. Additionally, the Board notes that the Veteran is not competent to diagnose the cause of orthopedic and neurologic disabilities as such involves a complex medical question involving an internal physical process and is thus beyond the capability of lay observation. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Overall, the Board finds that the opinion of the February 2012 VA examiner holds significantly greater probative weight than the Veteran's personal opinion and self-diagnosis, as the VA examiner has greater expertise and training than the Veteran in speaking to the causes of orthopedic and neurologic disorders. The Board observes that a March 15, 2013 record from Tallahassee Memorial Family Medicine reflects the examiner's notation that a letter was to be written to VA "to see if we can get the government [to] understand" that the Veteran's chronic back pain started in service. This letter was never submitted. To the extent that the comment can be construed as a nexus opinion, the Board finds that this impression holds little probative weight due to the lack of any stated rationale supporting the impression. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that a medical opinion does not hold probative value when it fails to provide sufficient detail and rationale to allow the Board to make a fully informed evaluation of the disability). In so finding, the Board notes that a herniated disc is not deemed a chronic disease under 38 C.F.R. § 3.309(a). The Veteran's current lumbar spine disability includes degenerative changes which may be deemed a chronic disease as arthritis under 38 C.F.R. § 3.309(a). However, the VA examiner has demonstrated an understanding of the Veteran's back pain descriptions during and after service and has concluded that he does not describe a chronic back disorder which began in service. As there is also no evidence of arthritis becoming manifest to a compensable degree within one year of service discharge, the Veteran's claim cannot be substantiated under 38 C.F.R. § 3.309(a) or 3.309(b). Accordingly, the Board finds that the probative evidence establishes that the Veteran's in-service treatment for back injury with muscle spasm resolved without residuals, and that his currently manifested thoracolumbar spine disorder is not shown to have been manifested during active service or causally related to an event during active service. Furthermore, there is no credible evidence of arthritis manifest to a compensable degree within one year of service discharge. Thus, the Veteran's service connection claim for a back disorder may not be granted. There is no reasonable doubt to be resolved. See 38 U.S.C.A. § 5107(b); Gilbert, supra. IV. TDIU The Veteran has raised a claim of entitlement to TDIU. The record reflects that he worked as a land surveyor from 1976 to November 2007. He had a highest gross earnings of $78,000 per year. He has completed 4 years of college education. The Veteran has described his work as a land surveyor in his later years as "mostly an office job." See Southern Medical Group treatment record dated September 20, 2005 and Dr J.K. treatment record dated October 2005. His duties involved computing and drafting. See Tallahassee Neurological Clinic History Intake Form dated August 2006. The Veteran has repeatedly attributed his unemployability due to his back problems. See, e.g., Private neurosurgery progress report dated October 2007; VA Form 21-8940's (Veteran's Application for Increased Compensation Based on Individual Unemployability) received December 2007 and July 2011; VA examination reports dated January 2008 and February 2012; Veteran's statements received in March and September 2008; and SSA disability determination examination dated February 2008. He has described multiple joint pains of such severity that he can no longer hold a phone to his ear for any length of time. See Veteran's written statement received September 2008. The Veteran has generally denied any symptomatic manifestations of diabetes mellitus. See Private medical records dated September 2005, August 2006, April 2007 and July 2007; VA C&P examination dated January 2008; and SSA disability determination examination dated February 2008. The Veteran did complain of excessive thirst on one occasion. See Private medical record dated February 2008. The Veteran's private and VA clinic records do not reflect any unusual aspects of diabetes mellitus disability or suggest that this disability significantly interferes with his employability. There were VA impressions of diabetic neuropathy and retinopathy in 2011. VA clinic records also show that, in May 2011, the Veteran was physically capable of riding a horse and working on hay equipment. On VA general medical examination in July 2012, the Veteran reported last working for others in the late 1990's due to an inability to climb two flights of stairs or walk distances. He worked for himself thereafter, but he was unable to walk. The Veteran himself felt that his diabetes mellitus had not affected him, although there was the potential for low blood sugar with activity. The VA examiner found that the Veteran's lumbar spine disability precluded him from his previous occupation as a land surveyor and all employment involving walking more than 100 feet or any involving any lifting. The VA examiner also opined that the Veteran's service-connected diabetes mellitus did not preclude sedentary or light duty employment. It was generally noted that patients with diabetes should avoid extreme exertion to preclude hypoglycemia, and that the Veteran would need to take a break if he were to become hyperglycemic. The Veteran's diabetes mellitus did not preclude walking, and the Veteran was deemed capable of maintaining employment at a sedentary or desk job which was not too physically stressful. With respect to service-connected tinnitus and right ear hearing loss, on an April 2010 VA audiology consultation, the Veteran described a bilateral, constant moderate to moderately-severe tinnitus with reduced hearing sensitivity. His audiometric testing was described as showing normal falling to moderately-severe hearing loss. Word recognition scores were described as excellent. The Veteran declined an evaluation for hearing aids. A September 2010 VA clinic record described the Veteran as "[h]earing non-impaired." On his December 2010 C&P audiology examination, the Veteran's primary complaint was bilateral ringing of the ears which caused difficulty understanding speech in most situations. He reported that hearing aids had not been helpful. The Veteran had a word recognition score of 98 percent for the right ear. The record reflects that the Veteran has numerous nonservice-connected disorders, including lumbar disc disease with left lower extremity radiculopathy and right foot drop, obstructive sleep apnea, allergic rhinitis, bilateral carpal tunnel syndrome, bilateral ulnar neuropathy, cervical disc disease and stenosis status post spinal fusion, coronary artery disease (CAD) status post myocardial infarction (MI), anxiety, colonic diverticulosis, essential hypertension and nephrolithiasis, among other disorders. A May 2005 cardiac stress test found that the Veteran had poor functional capacity. The Veteran was prescribed a rolling walker in September 2010 to assist in ambulation. A VA evaluation in December 2010 noted the Veteran to have mild cognitive impairment. A statement from the Veteran's former employer Delta Land Surveyors, received in December 2007, reflected his employment from January 1983 to June 2007. He earned $78,000 for the previous year. The Veteran had worked 8 hours daily for a 40 hour week with duties involving office drafting and computations. The employer described the Veteran as no longer being able to work "due to back disability." Based upon the above, the Board finds that the Veteran's service-connected disabilities of diabetes mellitus, right ear hearing loss, and tinnitus, either singularly or jointly, do not preclude him from securing and following substantially gainful employment. Here, the record shows, and the Veteran concedes, that his nonservice-connected back disability with right foot drop precludes him from obtaining and maintaining substantially gainful employment. In this regard, the Board notes that the Veteran raised the TDIU claim in conjunction with his service connection claim for a back disorder addressed in the decision above. The Veteran has not specifically alleged that his service-connected diabetes mellitus, right ear hearing loss, and tinnitus, either singly or in combination, preclude him from securing and following substantially gainful employment. At his July 2012 VA examination, the Veteran reported that his diabetes mellitus did not interfere with his employability, and the VA examiner specifically found that the Veteran's diabetes mellitus did not preclude a sedentary occupation. The Veteran has reported hearing difficulty due to tinnitus and right ear hearing loss, but examinations show that he maintains a 98 percent word recognition score for the service-connected right ear. The Veteran himself has not reported any unusual aspects of his diabetes mellitus, right ear hearing loss, or tinnitus disabilities. Thus, the credible lay and medical evidence demonstrates that the Veteran's service-connected disabilities do not preclude him from engaging in a sedentary occupation. The Veteran has a college degree and many decades of experience as a land surveyor involving sedentary desk duties such as office tasks, drafting and computations. There is no evidence which suggests that, even when considering his limitations and exacerbations due to his service-connected disabilities, that some factor exists which takes his case outside the realm of the usual so as to render impracticable his 30 percent schedular rating. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unemployable due to his service-connected disabilities. To the extent that the Veteran argues that he is unemployable due to such service-connected disabilities, the Board finds that such allegations are neither persuasive nor supportable when viewed in light of the entire evidentiary record. The Board finds that the clinical findings of VA physicians hold significantly greater probative weight than the Veteran's personal opinion, as these VA examiners have greater expertise and training than the Veteran in speaking to whether a particular disease or disability is productive of unemployability. The benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b). Thus, the Board finds that no basis exists to warrant referral of the claim to the Director, C&P Service for extra-schedular consideration under 38 C.F.R. § 4.16(b). Bowling, 15 Vet. App. 1 (2001). ORDER Service connection for a back disorder is denied. A TDIU is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs