Citation Nr: 1323068 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-37 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a lumbar spine disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from April 1953 to April 1956. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied service connection for a back disorder and declined to reopen a previously denied claim for service connection for a right inguinal hernia disorder. The Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in September 2012. A transcript of the hearing is associated with the claims folder. In a February 2013 decision the Board remanded this matter for further development. Such has been completed and this matter is returned to the Board for further adjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Chronic lumbar spine disability did not have its clinical onset in service and is not otherwise related to active duty; degenerative joint disease of the lumbar spine was not exhibited within the first post service year. CONCLUSION OF LAW A lumbar spine disability was not incurred in or aggravated by active service, and degenerative joint disease of the lumbar spine may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (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) (West 2002); C.F.R. § 3.159(b)(1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the VCAA duty to notify was satisfied by way of a letter dated in January 2009, with corrective letter sent in February 2009, prior to the April 2009 rating that fully addressed all notice elements. The letters informed the Veteran of what evidence was required to substantiate his claims, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was also advised as to how disability ratings and effective dates are assigned. See Dingess, supra. The Board concludes that the duty to notify has been met and will proceed with adjudication of his appeals. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records and VA treatment records have been obtained. The Veteran has indicated that pertinent records from his private physician were destroyed and any attempts to obtain them would be futile. He was afforded an appropriate VA examination in July 2012, and a relevant opinion has been obtained from the examiner. There is no indication that there is any relevant evidence outstanding in the claim. The Board also finds that VA has complied with all assistance provisions of VCAA, to include substantial compliance with the instructions in the February 2013 Board Remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). A request for VAMC records in Chicago, Illinois from April 1956 to 1999 was made, with records obtained that include records dating back to January 1957. Issuance of a May 2013 supplemental statement of case reflecting consideration of VA medical records in the electronic record dated up to February 2013. The Board is satisfied that there was substantial compliance with its remand orders. Id., See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2012, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the September 2012 BVA hearing, the undersigned Veterans Law Judge identified the issue on appeal. Information was also obtained to clarify the Veteran's arguments. He stated in pertinent part about a claimed inservice injury to his back and described receiving medical treatment at the VA Medical Center (VAMC) in Chicago, Illinois, after receiving private treatment including surgery, the records of which he said were destroyed. The appeal was remanded to obtain Chicago VAMC treatment records. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. II. Analysis The Board has reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. The Federal Circuit has held that "[l]ay 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 profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." 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"). If degenerative arthritis becomes 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 these disabilities 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 may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). 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 Veteran contends that service connection is warranted for a lumbar spine disorder. He has alleged both in written lay statements and in his September 2012 Travel Board hearing that he injured his back in service in Korea with the Marines, describing an incident wherein a nearby mortar explosion knocked him down and blew his backpack off his back. He indicated that there was shrapnel lodged in his back which was removed by a field corpsman, who he described in the hearing as Turkish. He described having surgery for a herniated disc a few years after service in the early 1960's by a private doctor who he said found shrapnel in the disc and saved it in formaldehyde. He reported that the doctor died 2 years after doing the surgery and all his records were destroyed. He also reported that during the service he was subjected to a good deal of heavy lifting carrying large ammunition rounds that weighed up to 150 pounds. Service treatment records reveal the Veteran's spine was normal on entrance examination of February 1953 and he denied any history of arthritis ,rheumatism, bone, joint or other deformity or wearing any back brace or support. No specific back injury is recorded in the service treatment records; however a March 1956 sick call record did document that he received heat to the back. A lay statement from a fellow service member received in May 1956 addressed hernia complaints but did acknowledge the Veteran engaging in heavy lifting, as the statement described the Veteran unloading a trunk of brass ammo shells with an attack of his right side reported. VA records from January 1957 document hernia surgery with no findings or complaints significant to the back. The earliest evidence of treatment for back problems is shown in 1998, with VA records low back pain status post herniated disc surgery recorded in August 1998, and X-ray/CT findings showed an impression of degenerative changes with narrowing of the intervertebral discs as well as 1st degree spondylolisthesis. A September 1998 record documented complaints of numbness in the bilateral calf muscles and low back pain radiating down both lower extremities, along with complaints of a stooped posture due to pain. He gave a past medical history of a laminectomy in 1960, with physical examination findings significant for a stooped posture and some decreased muscle strength in the right lower extremity along with decreased sensory findings. He was assessed with low back pain with questionable radicular symptoms. Another September 1998 record that assessed spinal stenosis and sciatica is noted to have described the Veteran as having a 2 year history of low back pain and sciatica. Back problems persisted in 1999 with records from June 1999 showing treatment including with a corset for his lumbar complaints. A July 1999 MRI of the lumbar spine again showed degenerative changes with disc narrowing throughout, with multilevel spinal stenosis. A July 1999 neurosurgery consult diagnosed severe spinal stenosis and indicated decompression surgery might be needed. In August 1999 he underwent lumbar laminectomy for spinal stenosis. Thereafter throughout the remainder of 1999, he was recovering from this surgery. An October 1999 note indicated that his radicular pain had improved in the right leg, but that the sensory loss in the L5 distribution remained unchanged. The impression was status post 2 level lumbar laminectomy, doing well with pain much improved, despite persistent decreased sensation in L5 distribution. A December 1999 MRI showed the residuals from the laminectomy from L2-5 and severe DJD with disc space narrowing. In a June 2004 VA record the Veteran reportedly had a lumbar laminectomy in 1998 and since his surgery had a motor vehicle accident (MVA) during which his back and leg pain returned. The pain started in his back and radiated to the leg, left more than right, with examination revealing decreased sensation in the right lower extremity and MRI and X-rays showing degenerative changes and postoperative changes, as well as canal stenosis at L4-5 and L5-S1 and a reducible L4/5 spondylolsis. He failed conservative treatment and subsequently underwent surgery in at the VA August 2004 where he had an uncomplicated L4, L5 and S1 fusion for a principle diagnosis of lumbar spondylolisthesis. Post surgery he underwent physical therapy and was noted to have had a significant reduction in his bilateral leg pain. He was discharged from the hospital in September 2004 to follow-up further in neurosurgery outpatient clinic. He continued to be assessed with low back pain with neurological deficits, which were chronic complaints per neurosurgery in October 2004. Subsequent to this surgery, VA records include a March 2005 EMG that still showed the presence of bilateral L-5 radiculopathy in L5-S1. In July 2005 he was seen in pain clinic for chronic low back pain and bilateral leg pain with the pain persisting after the August 2004 surgery at a level of 8-10/10. He was using a walker and any activity made the pain worse. Examination was significant for severely restricted motion with only 30 degrees flexion, "minimal" extension and 20 degrees rotation bilaterally, with pain on all motions. He continued with lower extremity weakness and reduced sensation. The assessment was low back pain and bilateral radiculopathy. A December 2005 orthopedic consult confirmed the surgeries in 1999 and 2004 and indicated that he began having hip and knee problems a month and a half after the 2004 surgery. He was noted to need a walker for instability and pain. In April 2006 he was seen in physical medicine and rehab (PM&R) with a several year history of low back pain, with the history of back pain going back "years ago" with 2 back surgeries underwent in 1999 and 2004. He now reported "neuropathy" affecting his bilateral feet and calves and complained he could not feel very well. He reportedly underwent a lumbar laminectomy in 1999 and fusion in 2004. He was assessed with impaired mobility and activities of daily living status with arthritis in multiple areas and impaired sensation. Neurological consult of October 2006 documented continued issues with decreased sensation in both legs and numbness in the hands and feet, with a history that included peripheral neuropathy and DJD of the lumbar spine. A June 2007 record indicated that he had a history of chronic low back pain with lower extremity weakness without recent changes in his symptoms. VA treatment records from 2008 include a November 2008 neurological consult for chief complaints of numbness in the feet, with back pain reported usually at a 3-4/10 increasing to 8/10 at night. He was status post spinal fusion. He was noted to complain of burning and tingling numbness with back pain that started in 2000 after a car accident at the same time. EMG findings from January 2007 were noted to show findings most consistent with lumbosacral root injury that must be interpreted in context with the previous surgical history. The assessment was bilateral lumbosacral radiculopathy versus neuropathy. VA records from 2009 showed continued issues with myelopathy that appeared progressive reported in an April 2009 neurosurgery record, with EMG said to show old nerve root changes in the lumbar spine without neuropathy. In July 2009 he was seen and examined for complaints of numbness and decreased strength in his feet with a history given of such numbness in his right foot since an L4-S1 laminectomy and fusion said to have taken place in the 1970's. Following examination he was assessed with peripheral neuropathy causing pain and numbness of his feet. Other records from July 2009 noted complaints of low back pain radiating into both legs and numbness of both feet with findings including foot weakness and decreased sensation. The assessment was of gait dysfunction most likely multifactorial with lumbar spinal stenosis and multilevel LS radiculopathy. A November 2009 neurology clinic note indicated that his radicular symptoms had improved with Elavil at night and assessed him with lumbar stenosis and multilevel lumbosacral radiculopathy. In September 2011 he was seen chiefly for cervical spine complaints but was noted to have lumbar DJD with questionable neuropathy. Most of this record dealt with symptoms regarding the cervical spine, but did include weakness of his legs with numbness in his feet and hyperesthesia and balance loss. He was noted to deny back pain, but had weakness in his feet and a history of lumbar stenosis and lumbosacral radiculopathy. Examination was significant for decreased sensation in the feet and CT findings were noted to show moderate to severe multi level DJD status post fixation of the lumbar spine. In October 2011 he was followed up for chronic medical conditions, including those involving his lumbar spine status post fusion in August 2004. In a June 2011 neurosurgery record, he expressed concerns about progressive myelopathy, concerned that the sequelae of lumbar fusion was causing declined. He did have a misplaced screw on L at L4, but was asymptomatic from this for years after the surgery. He was now concerned that his declining gait was due to the screw misplacement but his symptoms were not explained by radiculopathy which a screw would cause. EMG consult of December 2011 yielded findings consistent with multilevel cervical and lumbar radiculopathy. In August 2012 a request for second opinion by surgery yielded a diagnosis of progressive myelopathy (weakness of lower extremities) after prior lumbar fusion. A June 2012 CT of the lumbar spine yielded an impression of severe DJD of the lumbosacral spine with findings of the left L4 pedicle screw encroaching on the left lateral recess but stable as compared to October 2009. Disc spaces were narrowed at multiple levels and multilevel laminectomy changes were noted. The report of a July 2012 VA examination noted a history of aching in the lower back and radiating into the bilateral lower extremities with pain and numbness. The Veteran stated his back pain began around 2002 and denied any back injury. However he stated that he performed a lot of heavy lifting while in the service between 1955 and 1956. He gave a history of back fusion surgery in 2004. Physical examination revealed very limited motion of 30 degrees flexion, 5 degrees extension and 15 degrees for the remainder of the motions. He had pain on all motions as well as disturbance of locomotion, and pain on palpation. Sensorimotor examination was unremarkable, with no evidence of radiculopathy noted. Following examination, the examiner gave an opinion that the claimed condition diagnosed as lumbar DJD was less likely than not incurred in or caused by inservice injury, event or illness. The rationale was that review of the claims file did not yield any documentation of a back injury in service. The medical report at the time of his separation did not reference any back complaints or within a proximate time of separation. There was more than 40 years silence without a documentation of a back complaint. The Veteran's personal statement was taken into consideration. However it was this examiner's opinion that the Veteran's back disability and lumbar DJD was less likely than not militarily related due to insufficient documentation. VA treatment records from October 2012 through February 2013 continue to document treatment for back complaints. In October 2012 he was followed for severe lumbar DJD with bilateral foraminal stenosis, status post fusion. A December 2012 spinal cord evaluation classified the Veteran as "tetraplegic" with a history that included lumbar stenosis and of falls noted, with the most recent one this past September. The etiology of his condition was described as involving a progressive loss of dexterity of his hands and gait instability, along with bilateral lower extremity weakness and spasticity. The etiology was due to cervical spondylitic myelopathy, status post cervical laminectomy in 2012. His history of lumbar laminectomy in 1999 and fusion in August 2004 was noted. In January 2013 he was noted to have a past medical history of spinal stenosis of the lumbar region, with impaired sensation throughout the thoracic and lumbar spine. A February 2013 record described him as diagnosed with quadriplegia but walking with a Dolomite walker. Mobility issues were focused on in this record. The Veteran is competent to state that he experienced back pain and/or an injury to his back in the service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nevertheless, the Board must determine the credibility of the appellant's lay statements and testimony regarding such experiences in service. The Veteran's contentions that his current lumbar spine disorder is due to trauma he experienced while he was on active duty are generally not supported by the overall evidence of record. While he is competent to report back trauma from heavy lifting in service and his claim to this effect is credible, as it is supported by other lay evidence from a fellow service member back in 1956, and while he is shown to have received heat treatment to his back in March 1956 it is not credible that he had a back disorder in service that has continued since that time. Regarding the claimed shrapnel injury, this injury is not documented in the service treatment records and the Veteran does not have any medals, commendations or other indicia of combat. Unfortunately the medical evidence from the surgeon who he alleged treated him with removal of shrapnel in his spine shortly after service is not available. Furthermore the reliability and credibility of his history regarding the shrapnel injury are adversely affected by the fact that in the July 2012 VA examination, he denied any specific injury beyond heavy lifting. Thus the Board lends little probative weight to his claims of a shrapnel injury. The VA examination from shortly after service in August 1956 which addressed his hernia complaints related no history of back problems (including injury) and provided no findings of back problems. The only VA treatment records obtained from the late 1950's pertained to hernia surgery in January 1957, with no mention of issues with his back. There are no treatment records reflecting back problems for more than 40 years after service discharge. The records from 1998, which are the earliest records of post service back treatment available, did relate a history of laminectomy in 1960, but did not suggest onset of symptoms dating back to service. They also reflect that his current low back pain was of 2 years duration in September 1998. The Veteran is not a reliable historian and the claim that his lumbar spine disorder had its onset in service and continued since that time is in direct contrast to the medical evidence showing a lack of lumbar spine symptoms following service after apparent treatment for acute back issues in sick call in March 1956. The Veteran's lay contentions are less convincing than the conclusion from the July 2012 VA examination that the Veteran's lumbar spine disorder diagnosed as DJD was less likely than not related to service. The Board finds the opinion by the examiner, an individual with training in the nature and etiology of lumbar spine disability, to be of greater probative value than the Veteran's opinion. The Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that a claims file review, as it pertains to obtaining an overview of a service member's medical history, is not a requirement for private medical opinions. A review of the claims file by a VA examiner, without more, does not automatically render the VA examiner's opinion competent or persuasive since the claims file is a tool to assist in familiarity for the physician with the claims file, and conversely a private medical opinion may not be discounted solely because the opining clinician did not review the claims file as there are other means by which a physician can become aware of critical medical facts, such as a history of treating the service member for an extended period of time and/or reviewing pertinent medical literature. The relevant focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. In this instance, the VA examiner's opinion of July 2012 was not equivocal. That examiner was very specific and direct in the opinion that was provided. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (2012) (when considering application of the benefit- of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). The VA examiner reviewed in detail the pertinent medical records, discussed the salient facts, and provided a complete rationale for all conclusions presented, as noted in the discussion above. Here, a medical expert has fairly considered all the evidence and the opinion may be accepted as an adequate statement of the reasons and bases for a decision when the Board adopts such an opinion. Wray v. Brown, 7 Vet. App. at 493. The Board does, in fact, adopt the opinion provided in July 2012 on which it bases its determination that service connection for lumbar spine disorder is not warranted. In other words, the Board attaches the most significant probative value to the opinion as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the service member. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Thus, the Board finds that the preponderance of the credible, competent evidence is against the appellant's claim for service connection for a lumbar spine disorder. The provisions of 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012) regarding reasonable doubt are not applicable. The claim must be denied. Finally, the Board finds the lapse in time after discharge from service to the showing of the purported disorder to be probative evidence against the appellant's claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim). Additionally, the evidence points to a post service injury in the form of a motor vehicle accident between his surgeries in 1999 and 2004. Therefore, it is the conclusion of the Board that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for a lumbar spine disorder. Based on the foregoing discussion, the Board finds that the Veteran's claim must be denied. While the Veteran has been diagnosed with a lumbar spine disorder, the weight of the evidence is against a finding that low back disability is related to his military service. On these facts, the preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a lumbar spine disorder is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs