Citation Nr: 1324368 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 08-34 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Kordich, Senior Counsel INTRODUCTION The Veteran served on active duty from February 1966 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In April 2012, the Veteran testified at a Travel Board hearing before the undersigned. A transcript of this hearing is associated with the claims file. In a July 2012 decision, the Board reopened the Veteran's claim for service connection for back disability based on the submission of new and material evidence, and remanded the underlying merits of the claim for additional development. Thereafter, the case was returned to the Board for further appellate action. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT A back disorder was not present in service and did not originate in service; arthritis of the back was not manifested in the first post-service year; and the back disability is not otherwise etiologically related to service. CONCLUSION OF LAW A back disorder, to include arthritis, was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). Notice provided in support of a service connection claim must inform a claimant that if a claim is granted, VA will assign the service-connected disability a rating and an effective date. Id. at 486. In this case, the RO provided the Veteran VCAA notice on this claim by a letter dated in June 2007. With regard to content, the letter reflects compliance with pertinent regulatory provisions and case law, noted above. Therein, the RO acknowledged the Veteran's claim, notified him of the evidence needed to substantiate the claim, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated that it was developing his claim pursuant to that duty. The RO also provided the Veteran all necessary information on disability ratings and effective dates. As well, it identified the evidence it had received in support of the Veteran's claim and the evidence VA was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence, provided he identified the source(s) thereof. The RO also noted that, ultimately, it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). In this case, the RO sent the notice letter in a timely manner, before the RO initially decided the Veteran's claim. Duty to Assist VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The RO made reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002 & Supp. 2012). Specifically, the RO secured and associated with the claims file all evidence the Veteran identified as being pertinent to his appeal, including service treatment records and post-service treatment records. The current claim was previously remanded by the Board in July 2012. In this regard, a claimant is entitled to substantial compliance with Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Stegall) (holding that a remand by the Board imposes upon the Secretary of Veterans Affairs a duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 104 -05 (2008) (indicating that substantial compliance is the applicable standard for review of Board remands); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board remanded the Veteran's claim for a VA orthopedic examination to obtain an adequate medical opinion as to the question of whether the Veteran had a current back disability related to his service. The Board also remanded the case to obtain any medical records related to a 1995 motor vehicle accident the Veteran experienced, which reportedly led to cervical spine fusions. In September 2012, the Veteran attended a VA thoracolumbar spine examination, which was conducted by a VA nurse; therefore, this examination was conducted by a qualified medical professional. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (holding that a nurse practitioner, having completed medical education and training, thus fits squarely into the requirement of § 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions). The examiner provided a thorough review of the Veteran's current back disabilities, thoroughly reviewed the current manifestations of such disorders, and offered a medical opinion with rationale as to whether the back disability was related to service. In a November 2012 letter, VA informed the Veteran that records were requested from the Presbyterian Hospital, Georgetown Medical Center, and Dr. S.T.; however, negative responses were received and they did not have the Veteran's medical records. As VA has made reasonable efforts to assist the Veteran in obtaining non-federal medical records, the Board finds that VA's duty to assist the Veteran in this regard has been fulfilled. The July 2007 and September 2012 VA examinations of the Veteran have provided a thorough review of the Veteran's current back disorder. There is no evidence that obtaining further opinions or examinations of the Veteran would result in greater clarity regarding the service connection issue on appeal, such that remanding this case for further examinations would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Furthermore, the September 2012 VA examination opinion provided a thorough review of the relevant history and fully addressed the relationship of the Veteran's current low back disorders to his military service, such that the information of record is adequate to resolve the Veteran's claim. Therefore, the Board has ensured that the Veteran's claim has been fully reviewed as it has obtained an adequate medical opinion sufficient to resolve the Veteran's claim at this time. No additional remand is necessary in this regard. Finally, the Board directed that the Veteran be provided with a readjudication of his claim, which was accomplished via the April 2013 Supplemental Statement of the Case (SSOC). Therefore, no further development in terms of obtaining medical records, examinations, or opinions, is necessary. 38 U.S.C.A. § 5103. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. The April 2013 SSOC readjudicated the claim on the merits. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the Veteran's claims folder shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) 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) 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); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternate method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) (2012) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). Service connection on the basis of a continuity of symptomatology is only possible if a claimed disability is among the chronic conditions listed in 38 C.F.R. § 3.309(a), see Walker, supra. In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for 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 professional." 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 v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). Background The Veteran asserts that he has low back disability as a result of his military service. He describes an incident in May 1969 in which he was subjected to an initiation after being promoted and was thrown overboard from the deck of the ship. According to the Veteran, he resisted and grabbed a rail. This caused him to hit his back on one of the ship's columns before falling into the water. The Veteran reported being taken to sick bay and treated there for a number of days. Service treatment records do not document the above incident; however, the Veteran contends that the incident was not recorded as it was a result of hazing. Service treatment records do show that the Veteran had a normal clinical evaluation of the spine and musculoskeletal system at separation in September 1969 and a chest X-ray was normal at the time. The Veteran contends that he has experienced periodic back pain since the military. The first medical evidence of any back disorder is in October 2002 when the Veteran complained of low back pain at a VA Agent Orange Protocol examination and reported a history of a back injury in 1969. X-rays from 2004 showed an old compression fracture of the L1 body with degenerative bone spurring in L1 and L2; degenerative bone changes were also seen in the lower thoracic spine. A February 2007 statement from J.B.G. indicated that he witnessed the Veteran sustain an injury to his back during an initiation rite while in service and that the Veteran had to spend several days in sick bay. VA treatment records covering the period from February 2004 to May 2007 show evidence of osteoporosis of the lumbar spine and extensive spurring in the lower thoracic and upper lumbar spine. During a July 2007 VA examination, the Veteran reported that in May 1969 he had a shipboard back injury with pain radiating down the right leg. Current X-rays showed osteopenic bones; spondylitic changes were noted; a mild compression fracture was present involving the L1 vertebral body; T12-L1 disc spaces were reduced in height; and L2-L3 and L3-L4 disc spaces were also marginally reduced in height. The diagnosis was degenerative disc disease, thoracolumbar spine. An April 2008 statement from B.T., who identified himself as the ship's Executive Officer, indicated that he served on the USS Conserver and heard about the initiation incident involving the Veteran in May 1969, but did not witness the event. B.T. noted that the Veteran was confined to sick bay for several days following the incident. B.T. was made aware that no medical records were available to substantiate the Veteran's claim and he indicated that as this was an initiation/hazing it was one of those times when "What happens on the Conserver, stays on the Conserver". An October 2008 statement from M.S., M.D. indicated it was his belief, after reviewing medical records from the Temple VA facility that the Veteran's old compression fracture of the L1 body and the large anterior bone bridge formation noted between L1 and L2 was most likely (or at least as likely as not) related to the hazing incident of 1969. VA neurosurgery consult treatment records dated in August 2009 note that the Veteran reported he was injured in an automobile accident in about 1995. He subsequently had a spinal fusion at C3 and C4 for disc problems. The examiner noted that the Veteran reported two fractures in his back. The first occurred 35 years before in service as a result of a fall; a questionable fracture was noted then, but no X-rays were taken at that time. The second occurred more recently when he fell 10 days before off a ladder and was told he had a compression fracture in his lumbar spine. A December 2011 statement from C.J.S., M.D. indicated that in his opinion the Veteran's current back condition was more likely than not directly related to the injury suffered while in the service, and that the fractures located on X-rays at L1 and L4 were old fractures, and it was at least as likely as not that they could have occurred during the Veteran's military career. This opinion was based on medical evidence dating from February 2004. At his April 2012 Travel Board hearing, the Veteran testified that while in Pearl Harbor on board the USS Conserver in May 1969, he injured his back in an initiation rite when fellow shipmates tried to throw him overboard. He indicated he grabbed the rail of the ship and came down and hit his back on the column and then fell into the water. He stated he ended up in sick bay for the next week to 10 days. The Veteran stated that they did not want this disclosed and did not remember all the people involved. By the end of the week, the Veteran stated he could get out of bed and walked using a cane and he was on pain medication. The Veteran indicated that at the time of the injury the corpsman took X-rays and told the Veteran he had a compressed disc but he felt sure that the X-rays were destroyed. The Veteran testified that he processed out of the Navy quickly as he was given a hardship discharge after his wife died. He testified that he did not have a physical examination at separation and no X-rays were taken. The Veteran stated that he was treated by civilian doctors after service and took medication and wore back braces. He started going to the VA in 2001 and he stated the VA finally took X-rays in 2003 or 2004. A VA examination dated in September 2012 noted that the Veteran had degenerative joint disease of the lumbar spine with spinal stenosis and compression deformity of the L1 and L4 vertebral bodies. The examiner indicated that she had reviewed the Veteran's claims file and noted that a "lower vertebral condition" (which the Board takes to mean as including a lower lumbar compression fracture) would not be seen on a chest X-ray. The examiner opined that it was less likely as not that the Veteran's claimed disability was caused by the claimed in-service injury, event or illness. The examiner noted that the September 1969 separation examination from service did not reference back symptoms or physical findings. The examiner indicated that the Veteran's claimed acquired back injury by being thrown over the side of a ship would not be consistent with the typical mechanism of injury for a compression fracture which is usually a jumping or falling (vertical deceleration) injury etiology. His "sciatica" of the right leg seemed more consistent with a meralgia paresthetica than a radiculopathy or sciatica. The examiner noted that the Veteran was also service connected for diabetic peripheral neuropathy. The examiner noted that there were no medical records found from the time the Veteran separated from military service in 1969 until the VA medical records in 2002 to support an ongoing back condition since military service. An October 2012 statement from N.G., who stated he served aboard the USS Conserver with the Veteran, indicated he observed a ritual common aboard ship to throw someone over the side as he had been. Analysis In this case there is clear evidence of current back disability and the Veteran and his shipmates have relayed that the Veteran injured his back when he was thrown overboard during an initiation. The Board accepts the occurrence of the event as true, although there is no official record of the event or injury. At the outset, the Board finds that the Veteran has a current diagnosis of degenerative joint disease of the lumbar spine with spinal stenosis and compression deformity of the L1 and L4 vertebral bodies. During his April 2012 Travel Board hearing, the Veteran testified that he was processed out of the Navy quickly and did not have a physical examination at separation and no X-rays were taken. However, the September 1969 separation examination report on file includes the Veteran's signature and the signature of the examining physician and dentist. As such, the Board finds that the Veteran did have a separation examination. The Board finds that, although the Veteran sustained a back injury in service, symptoms relating to a thoracolumbar spine disability were not "chronic" in service. The service treatment records are silent for any diagnosis of any low back disorder, let alone a "chronic" one such as arthritis. Even if the Veteran were told that he had a compressed disc in service, such a finding is not a "chronic" disease for VA purposes. Moreover, service treatment records show that the Veteran had a normal clinical evaluation of the spine at separation in September 1969. This was a mere several months after the injury. Thus, the service records do not establish the presence of a chronic back disorder in service. The Board finds the September 1969 separation examination to be highly probative as it suggests the Veteran was not reporting any complaints, or exhibiting any indication of back problems. Here, while the Veteran complained of other ailments during service, such as sore throats and stomach pain, he never mentioned experiencing any back pain, especially since during his testimony at his Travel Board hearing he indicated that he was in bed for a week after his accident in May 1969 and when he was able to walk had to do so with the assistance of a cane. Had the Veteran experienced continuous thoracolumbar spine pain during service, the Board finds it reasonable to assume that the Veteran would have reported such ailments prior to his separation and during the separation examination. In this regard, the Board does not find it reasonable that his treating providers would steadfastly hide any and all evidence that they treated him for back problems, simply because the precipitating injury was the result of hazing. For the same reason, the Board finds the Veteran's assertion that he was told in service that X-rays showed a compression fracture to lack credibility. The Board would expect such a serious medical finding to be recorded. For these reasons, the Board finds that the Veteran did not have a thoracolumbar spine disability by the time he was discharged. The Board notes that while the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Court held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing; the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). But, the Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Yoyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). However, a medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, when evaluating the ultimate merits of this claim, the Board ascribes the greatest probative value to the medical opinion provided by the September 2012 VA examiner, who reviewed the Veteran's medical records and provided a clear rationale for her conclusion. Although Dr. M.S. and Dr. C.J.S. in their October 2008 and December 2011 statements conclude that the Veteran's current back disorder was more likely than not related to the May 1969 incident in service, they did not further elaborate on their conclusions. Although the December 2011 opinion mentioned that the compression abnormalities were old, given that the Veteran was out of service more than three decades before the changes were found, the Board finds that this does not even remotely suggest service origin. The September 2012 VA examiner noted that the Veteran's separation examination dated in September 1969 was negative concerning back symptoms or physical findings. In addition, the examiner indicated that the Veteran's recitation that he sustained a back injury by being thrown over the side of a ship would not be consistent with the typical mechanism of injury for a compression fracture which is usually a jumping or falling (vertical deceleration) injury etiology. This examiner also noted that there were no medical records found from the time the Veteran separated from military service in 1969 until the VA medical records in 2002 to support an ongoing back condition since military service. In other words, the examiner noted the absence of evidence of a disorder by the time of discharge, and found that the current disorder was not consistent with the type of injury experienced in service. The September 2012 VA examiner's opinion took into account the Veteran's medical history and provided a rationale for her opinion. For the above reasons, the Board finds the probative value of the September 2012 VA examiner's opinion outweighs the opinions of Dr. M.S. and Dr. C.J.S. which provided no medical history or rationale for the opinions offered. In short, then, the evidence as a whole shows that the Veteran's current low back disorder, currently diagnosed as degenerative joint disease of the lumbar spine with spinal stenosis and compression deformity of the L1 and L4 vertebral bodies is not related to the Veteran's active duty service. The Board acknowledges that the Veteran is competent to report back symptomatology, including pain. A layperson is even competent, in some circumstances, to offer an opinion as to etiology of a disorder. The Board has considered the arguments advanced by the Veteran that his low back disability is a result of his service injury in May 1969. However, the resolution of issues that require medical knowledge requires professional evidence. It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, determining whether the injury the Veteran sustained in service in May 1969 is related to the currently diagnosed degenerative joint disease of the lumbar spine with spinal stenosis and compression deformity of the L1 and L4 vertebral bodies clearly requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. In this regard, the Board notes that the Veteran's low back symptoms in service and currently have not been associated with an underlying pathology that is observable to a layperson's senses. In any event, even if the Veteran were competent to address the etiology of his disability, the probative value of his opinion is outweighed by that of the September 2012 VA examiner, who clearly has education, training, and experience superior to that of the Veteran in determining the etiology of disorders. For the above reasons, the Board finds that the probative value of the September 2012 VA opinion outweighs that of the opinions rendered by Dr. M.S. and Dr. C.J.S. in October 2008 and December 2011 and the Veteran. In short, then, the evidence as a whole shows that the Veteran's back disorder was not incurred in or aggravated in active service. Nor does the evidence establish that a back disorder was manifest within one year of discharge. The Board next finds that the weight of the evidence demonstrates that symptoms associated with a thoracolumbar spine disability have not been continuous since service separation. Upon review of the evidence of record, the Board finds that the evidence does not demonstrate any complaints, treatment, or diagnosis relating to the throacolumbar spine until 2002, approximately 33 years after service separation. The Board finds the lack of complaints, treatment, and diagnosis from either private or VA medical professionals for over 30 years to be highly probative of the absence of any back disorder during that time. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered in deciding a claim). Insofar as the Veteran has argued continuity of symptomatology since service by stating that his back disability began in service, the Board finds that the Veteran is simply not credible in that assertion. As noted above, the Board recognizes that the Veteran is competent to state medical history and to relate his symptomatology. With regard to credibility however, the Veteran sustained a back injury in service in May 1969 and had a normal examination on separation in September 1969. Although the Veteran indicated that he was processed out of the Navy quickly as he was given a hardship discharge and at his April 2012 Travel Board hearing testified that he did not have a separation examination or X-rays, the September 1969 separation examination is on file and includes evidence of a chest X-ray. After service, the first reference to back problems was during a VA Agent Orange Protocol examination in October 2002 in which the Veteran reported a history of a back injury in 1969. VA treatment records note the Veteran's report of a motor vehicle accident in 1995 and during his Travel Board hearing, the Veteran testified that he incurred a neck injury after service but nothing in the lower back. Efforts to obtain these medical records prior to October 2002 during remand were unsuccessful. Consequently, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a back disability. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable and the Veteran's claim must be denied. ORDER Entitlement to service connection for back disability is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs