Citation Nr: 1324359 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 09-46 824A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a low back disorder with radiating pain into the left leg. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from January 1964 to January 1968. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As support for his claim, the Veteran testified at a hearing at the RO in February 2012 before the undersigned Veterans Law Judge of the Board (Travel Board hearing). Since, however, the claim required further development before being decided on appeal, in May 2012 the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC. All requested additional development of this claim since has been completed, including obtaining a medical nexus opinion regarding the likelihood that any disability currently affecting the Veteran's low back and the radiating pain into his left leg is the result of his military service, and especially an injury he alleges that he sustained while in service. But after considering this additional evidence obtained on remand, the AMC issued a supplemental statement of the case (SSOC) in November 2012 continuing to deny this claim. The Veteran subsequently submitted additional medical evidence (evaluation and treatment records from Sutter Tracy Community Hospital), so even since that SSOC, but the rater or Decision Review Officer (DRO) who had prepared that SSOC considered these additional records and determined they did not change the outcome of the claim. The claim therefore is again before the Board. FINDING OF FACT The most probative (competent and credible) medical and other evidence of record indicates the Veteran's current low back disorder and the associated radiating pain into his left leg is unrelated to his military service, including especially to his purported injury from lifting a missile cone. CONCLUSION OF LAW The Veteran's low back disorder is not due to disease or injury incurred in or aggravated by his active military service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of (1) the information and medical or lay evidence not of record that is necessary to substantiate the claim, including apprising them of (2) the information and evidence VA will obtain and of (3) the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). See also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)), eliminating the so-called "fourth" requirement that VA also request that he submitted all relevant evidence in his personal possession). These VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; but also the "downstream" (4) degree of disability, i.e., disability rating; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, this notice should be provided prior to initially adjudicating the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But even if it was not, or if provided the notice was inadequate or incomplete, this timing error in the provision of the notice may be rectified ("cured") by providing all necessary notice and then readjudicating the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran still given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran bears this burden of proof of not only establishing error, but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Here, VA satisfied its duty-to-notify obligation by issuing a pre-adjudication notice letter in December 2008, so in the preferred sequence since provided before initially adjudicating the claim in the January 2009 rating decision at issue in this appeal. The letter advised the Veteran of the evidence required to substantiate his claim and of his and VA's respective responsibilities in obtaining this supporting evidence. The letter also provided the required notice regarding the "downstream" disability rating and effective date elements of this service-connection claim. Dingess, 19 Vet. App. at 473. The VCAA further provides that VA has a duty to assist the Veteran in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes assistance in obtaining pertinent medical records, as well as the provision of an examination when necessary to make a decision on the claim. Id. The claims file contains service treatment records (STRs), VA outpatient treatment records, private medical records, as well as the report of the VA compensation examination the Veteran had in June 2012 as a result of the Board remanding this claim. The examination was adequate because it was based on a comprehensive evaluation, including the appropriate diagnostic testing, and involved consideration of his pertinent medical history, particularly as indicated by the evidence in his claims file and from interviewing him personally. The examiner also provided the necessary opinions concerning whether the Veteran has this claimed condition and whether it is related or attributable to his military service or dates back to his service, and as importantly discussed the underlying medical rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (requiring that VA ensure the adequacy of a VA examination and opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's relevant medical history and examinations and also describes the disability in sufficient detail so the Board's evaluation of the disability is a fully informed one). Because, as requested, the AMC obtained this necessary medical nexus opinion on remand, and since all outstanding evaluation and treatment records also were obtained, there was compliance with these remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes on the Board a concomitant duty to ensure compliance with the terms of the remand); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran as mentioned also had a hearing at the RO in February 2012 before the undersigned Veterans Law Judge (VLJ) of the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are twofold. First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. During the hearing, the presiding VLJ reminded the Veteran of the pertinent issue on appeal - his claimed entitlement to service connection for a low back disorder accompanied by radiating pain into his left leg - and of how VA determines whether a claimed disability is related to military service, i.e., service connected. He did not raise any new issues pertaining to this claim during the course of the hearing. See Bryant, 23 Vet. App. at 497-98. Thus, the Board finds that the hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim and to suggest the submission of evidence when such evidence is missing or has been overlooked has been satisfied. See id. at 496-97. The Veteran has not alleged that there were any deficiencies in the conducting of that hearing related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Moreover, even assuming for the sake of argument there was such a deficiency, the Board finds that it did not prejudice the Veteran's claim. In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication the appellant had any additional information to submit. Indeed, in his statements, pleadings and hearing testimony, the Veteran evidenced his actual knowledge of the type of evidence and information needed to substantiate this claim by showing his low back disorder and radiating pain into his left leg are the result of his military service and, in particular, the injury in service that he cites as the source or cause of this present-day disability. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). The Veteran has not made the RO or Board aware of any other evidence still needing to be obtained in order to fairly decide this appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of his appeal has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that a three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement). Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, 708 F3d. at 1336. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit Court indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Id. at 1339. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. at 1338-40. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required." Id. at 1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). Here, the records in the file, including those the Veteran most recently submitted after issuance of the November 2012 SSOC concerning his evaluation and treatment at Sutter Tracy Community Hospital, show he has degenerative disc disease (DDD) rather than degenerative joint disease (DJD), i.e., arthritis. Because, then, his low back disorder is not among the chronic diseases in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities do not apply, and the claim may not be supported by evidence of a continuity of symptomatology since service. So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is generally, though not always, required to associate the claimed condition with service or a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether the evidence also is credible). Third, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales, 218 F.3d at 1380-81. As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent. See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue. See Davidson, 581 F.3d at 1316. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy). For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity. See Barr, 21 Vet. App. at 309. For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). The Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007). Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Id. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id. The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value. See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board discounts the weight of evidence it finds not to be credible. See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). Low Back Disorder The Veteran asserts he has a current low back disorder that is the result of an injury that occurred during his active military service. Specifically, he claims the injury occurred in 1967 at Beal Air Force Base while reinstalling the nose cone on a missile aircraft, by hand, instead of using a jack in accordance with usual procedure. He claims that he was in a hurry, so decided to skip using the jack, but then immediately felt a sharp pain in his lower back as he pushed up on the nose cone and could not lift his feet more than a half inch from the floor by the time he returned to the barracks. He says he treated himself with some pain medication he had from a previous dental appointment and avoided heavy labor until the pain subsided. But he claims that was only temporary, as he has had continuous dull pain in his low back ever since, eventually worsening and spreading down into his left leg. The evidence establishes persistent or recurrent symptoms of a low back disorder. In particular, a February 2002 magnetic resonance imaging (MRI) report revealed mild-to-moderate broad-based disc protrusion at L4-5, possibly associated with compression of the left L5 nerve root. Private treatment records from August 2008 and a December 2009 statement from the Veteran's private physician show a long history of recurrent low back pain. Moreover, the June 2012 VA examiner diagnosed a low back disorder, as did, as mentioned, the doctors at the Sutter Tracy Community Hospital who also have had occasion to evaluate and treat the Veteran. Thus, he has satisfied the first prong of this service-connection claim by at least showing he has this claimed disability. But despite having the required proof of current low back disability, there is no competent and credible indication of a low back injury during his service - including especially of the manner and type alleged. His STRs are completely devoid of any reference to a low back injury or low back diagnosis. He testified that he did not report nor seek treatment for the injury while in service, choosing instead to "self medicate." It is understandable, then, that his STRs would not specifically mention or document any such injury. But when, as here, the injury is not alleged to have occurred in combat, and the STRs are complete or at least substantially complete in relevant part, it is permissible for the Board to in turn draw a negative inference from the absence of any supporting evidence in the STRs, assuming also that the type of injury claimed ordinarily would have been reported had such an injury, in fact, occurred. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board also may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following service during which there was no clinical documentation of the claimed disorder). Also keep in mind that, because the Veteran's now claimed condition was not noted during his service, the notion of continuity of symptomatology since his service under 38 C.F.R. § 3.303(b) does not apply, and this is irrespective of the Federal Circuit Court's holding in Walker indicating this notion of showing continuity of symptomatology since service also does not apply because the Veteran does not have a condition according to § 3.309(a) that is chronic by definition. That said, negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). Here, even assuming for the sake of argument that the purported injury in service occurred as alleged, there still must be attribution of the current disability to that injury in service, and there is not. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Following and as a result of the Board's May 2012 remand of this claim, a VA compensation examination was scheduled for the needed medical nexus opinion concerning this determinative issue of the etiology of the Veteran's current low back disorder in terms of its claimed relationship to the injury he says he sustained during his military service. But after examining him and reviewing his claims file for the relevant medical and other history, the VA examiner determined in June 2012 that the Veteran's current low back disorder was not caused by or a result of his military service. Hence, this VA examiner disassociated all current low back disability from the Veteran's military service, so did not attribute it to any low back injury or other trauma he sustained in service. This VA medical nexus opinion is highly probative evidence, as it relied on sufficient facts and data, provided explanatory rationale for the opinion, and contains sound reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the Veteran has offered numerous lay statements suggesting a correlation between his military service and low back disorder, he has not offered any supporting medical nexus evidence establishing the required linkage between his present-day disability and events coincident with his military service, especially the alleged trauma. Indeed, the VA compensation examiner's unfavorable opinion is the only medical nexus evidence in the claims file addressing this determinative issue of causation. As such, this requirement to establish entitlement to service connection has not been satisfied, so service connection pursuant to 38 C.F.R. § 3.303(a) must be denied. Tellingly, the Veteran's long-time primary care physician - Dr. C. - refused to opine on the etiology of the low back disorder, so declined to offer any statement or opinion affirming or corroborating the Veteran's lay testimony of this alleged cause-and-effect correlation. See February 2012 hearing transcript. The Veteran is competent to report observable symptoms, such as pain in his low back. However, the question of whether his current low back disorder is related to his service is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). Because the record is unremarkable for any evidence suggesting he has the appropriate training, experience, or expertise to provide a medical opinion concerning a back condition, he is not competent to comment on the etiology of his low back disability. For these reasons and bases, the preponderance of the evidence is against finding that the Veteran's low back disorder is related to his active military service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER The claim of entitlement to service connection for a low back disorder with radiating pain into the left leg is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs