Citation Nr: 1325629 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 10-09 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for obstructive sleep apnea (OSA), prior to March 29, 2011. 2. Entitlement to a rating in excess of 50 percent for OSA, from March 29, 2011 3. Entitlement to service connection for a neck disorder (claimed as a neck sprain). 4. Entitlement to service connection for a thoracolumbar spine disorder (claimed as a thoracolumbar spine sprain). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the St. Petersburg RO. A transcript of the hearing has been associated with the Veteran's claims folder. In February 2013, the Board remanded the issues of entitlement to service connection for a neck disorder and a thoracolumbar spine disorder to the RO/AMC. In a May 2013 rating decision, the disability rating for OSA was increased to 50 percent effective March 29, 2011. The Board notes that the United States Court of Appeals for Veterans Claims (the Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the matter of a higher rating remains in appellate status for OSA. FINDINGS OF FACT 1. For the period from August 28, 2007 to January 5, 2011, the Veteran's OSA was manifested by documented sleep disorder breathing and persistent daytime hypersomnolence, but did not require the use of a breathing assistance device. 2. As of January 5, 2011, the Veteran's OSA required the use of a breathing assistance device. 3. For the period from January 5, 2011 onward, the Veteran's OSA did not result in chronic respiratory failure with carbon dioxide retention or cor pulmonale or tracheostomy. 4. The Veteran's scoliosis of the spine is a developmental defect and the fusion of T1 and T2 vertebral bodies are a congenital defect; neither was subjected to superimposed injury during service. 5. The Veteran's degenerative joint disease and degenerative disc disease of the cervical spine are not attributable to service nor was arthritis manifest in the initial post-service year. 6. The Veteran's degenerative joint disease, degenerative disc disease, and osteoporosis of the lumbar spine, as well as his degenerative joint disease of the thoracic spine, are not attributable to service nor was arthritis manifest in the initial post-service year. 7. Recurrent torticollis of the cervical spine was initially manifest during service and is attributable to service. CONCLUSIONS OF LAW 1. For the period August 28, 2007 to January 5, 2011, the criteria for an initial disability rating in excess of 30 percent for OSA were not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.20, 4.59, 4.71a, 4.97, Part 4, Diagnostic Code 6847 (2012). 2. For the period from January 5, 2011 to March 29, 2011, the criteria for a 50 percent rating for OSA were met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.20, 4.59, 4.71a, 4.97, Part 4, Diagnostic Code 6847 (2012). 3. For the period March 29, 2011 forward, the criteria for a rating in excess of 50 percent for OSA were not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.20, 4.59, 4.71a, 4.97, Part 4, Diagnostic Code 6847 (2012). 4. The criteria for service connection for scoliosis of the spine and congenital fusion of T1 and T2 vertebral bodies have not been met. 38 U.S.C.A. §§ 1110. 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 4.9 (2012). 5. A cervical spine disability, diagnosed as degenerative joint disease and degenerative disc disease, was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). 6. A thoracolumbar spine disability, diagnosed as degenerative joint disease, degenerative disc disease, and osteoporosis, was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). 7. Recurrent torticollis of the cervical spine was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These 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; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any 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 and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VCAA letters were sent in September 2007, November 2007, and March 2013. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claims and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess. With regards to the claim for a higher initial rating for OSA, the Veteran is challenging the initial evaluation assigned following the granting of service connection for this disability, as well as the subsequent increase. In Dingess the Court held that in cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled. Id., at 490-91. Thereafter, once a notice of disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Here, in the NOD, the Veteran took issue with the initial disability rating assigned, and it is presumed he is seeking the highest possible rating or maximum benefits available under the law. Id.; see also AB. Therefore, in accordance with 38 U.S.C.A. §§ 5103A, 5104, and 7105(d), the RO sent him an SOC that contained, in pertinent part, the criteria for establishing his entitlement to a higher rating for this disability and a discussion of the reasons and bases for not assigning a higher rating he received after appealing the initial rating. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims ("the Court") held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating as well as the elements of service connection. The VLJ also sought to identify any pertinent evidence not currently associated with the claims and the Veteran also volunteered his treatment history. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he/she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ/DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning these claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records (STRs), VA medical treatment records, and identified private medical records were obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication that any additional evidence, relevant to these claims, is available and not part of the claims file. The Veteran also was provided VA compensation examinations, including for medical nexus opinions concerning the etiology of the claimed service connection disorders and their potential relationship with military service, as well as the current state of the Veteran's OSA, as the Board directed when remanding these claims in February 2013. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The medical nexus opinions obtained are responsive to the determinative issue of causation, so additional examinations and opinions are not needed. 38 C.F.R. § 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). And see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated). As regarding the OSA issue, as noted, the Veteran additionally was examined to assess and then reassess the severity of this disability and, although the Veteran has disputed some findings on this examination as addressed below, this examination adequately reflects the current state of the Veteran's OSA. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The examinations of record are adequate to address all pertinent concerns, as the claims file was reviewed for the relevant medical and other history, the Veteran examined, the findings reported in sufficient detail, and there was discussion of the underlying medical rationale, which is where most of the probative value of an opinion is derived. See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA examination reports are thorough and supported by the record. The records taken as a whole satisfy 38 C.F.R. § 3.326. Furthermore, in obtaining this additional medical evidence, the Board is satisfied there was compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). The Board notes that additional evidence was recently forwarded to the Board which consisted of arguments of the Veteran, records of the Baptist Hospital including 2010 private sleep disorder studies, a VA BIPAP issuance letter dated in March 2011, and a Baptist Pulmonary Critical Care BIPAP prescription dated February 2011. The Board observes that not all of this evidence was cited in the subsequent supplemental statement of the case, although it is presumed that it was reviewed as it had been received into the record prior to the supplemental statement of the case. Nevertheless, the medical evidence, as discussed below, is duplicative of similar evidence of record. The BIPAP records are in fact duplicates and did serve as a basis for the Veteran being assigned a higher rating. The sleep studies confirm that the Veteran has sleep apnea, which is not being disputed, but they do not reflect that he was using a breathing assistive device prior to 2011. Therefore, they are duplicative in that they establish that he had sleep apnea. Thus, even though it is presumed, as noted, that this evidence was considered by the RO, the Board notes that it is not prejudicial for the Board to consider it. In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claims." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, staged ratings are warranted. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The Veteran has been assigned an initial 30 percent rating for OSA under DC 6847, effective August 28, 2007, and then a 50 percent rating, effective March 29, 2011. He seeks higher ratings, asserting that his OSA is of greater severity than currently rated. Under DC 6847, a noncompensable evaluation is assigned for asymptomatic sleep apnea with documented sleep disorder breathing. A 30 percent evaluation is assigned for sleep apnea with persistent daytime hypersomnolence. A 50 percent evaluation is assigned for sleep apnea requiring the use of a breathing assistance device, such as a continuous airway pressure ("CPAP") machine. A 100 percent evaluation is assigned for sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring a tracheostomy. 38 C.F.R. § 4.97, DC 6847. Historically, the STRs show that in September 1991, the Veteran underwent a uvulpalatalpharyngoplasty ("UP3") and septoplasty based on findings of sleep apnea. A March 1992 sleep study revealed findings of moderate OSA that was largely positional. Post-service treatment records beginning in February 1998 show a history of OSA and surgical treatment. Post-service, in March 2008, the Veteran was afforded a VA examination. At that time, the examiner reviewed the STRs and noted the Veteran's previous operations. Despite stating that there was no post-surgical sleep study in the claims folder, as noted above, a March 1992 inservice study still demonstrated findings of OSA. The Veteran reported that procedures had not been successful, as he still experienced snoring and occasionally paused in breathing during sleep. He also reported daytime somnolence, but noted that he was not on a breathing assistance device at that time. A private medical report date in June 2008 noted that the Veteran's OSA was manifested by snoring, the stopping of breathing, startle awakening, and nocturnal sweating. A sleep study was recommended. Other private records noted that the Veteran has OSA, including 2010 private sleep studies. However, none of these records showed that he had been prescribed or was using a breathing assistive device. During his October 2012 hearing before the Board, the Veteran reported that he had recently been prescribed a BIPAP machine for his OSA. He also submitted prescriptions from his private physician, dated in January 5, 2011 and February 2, 2011, for the machine, along with a full face mask, chin strap and heated humidifier. A March 29, 2011 VA treatment record also reflected that the Veteran was using a BIPAP machine. However, a February 21, 2012 VA record noted that the Veteran was not using a BIPAP or CPAP machine. Further, an August 12, 2012 VA record noted that the Veteran could not tolerate the BIPAP or CPAP machine and felt that he did not have much instruction. The Board remanded this case in February 2013 for an additional examination to determine the nature and severity of his current obstructive sleep apnea. In April 2013, the examination was conducted. At that time, the Veteran reported that he was never issued a CPAP device, but have been issued a BIPAP device which he only used for two months. He related that he was continuously tired and had low energy. A physical examination was performed. The diagnosis was OSA with no currently prescribed BIPAP therapy. The examiner stated that there was no functional impairment. The examiner indicated that it is less likely as not that your OSA resulted in respiratory failure or in cor pulmonale or in a tracheostomy. Based largely on the examination, in a May 2013 rating decision, the RO increased the disability rating to 50 percent, effective March 29, 2011, which was the date that the BIPAP machine was issued by VA. Based on a review of the aforementioned evidence, the Board finds that, as of January 5, 2011, but not before that time, a 50 percent rating was warranted as the Veteran's sleep apnea required the use of a breathing assistance device, as evidenced by the two prescriptions issued for that device, the earlier one dated on January 5, 2011. The Board recognizes that VA issued a device on March 29, 2011, the date which was assigned for the higher 50 percent rating, but the evidence shows that the Veteran required such a device as of January 5, 2011. However, for the period prior to January 5, 2011, the criteria for an initial disability rating in excess of 30 percent for OSA under DC 6847 were not met. During this period, the Veteran experienced documented sleep disorder breathing and persistent daytime hypersomnolence not requiring the use of a breathing assistance device. These symptoms warrant a 30 percent disability evaluation under DC 6847. The Veteran was not prescribed, issued or using a breathing assistance device, such as required for a 50 percent rating. As such, the assignment of an initial rating in excess of 30 percent for this period is not warranted. For the period from January 5, 2011 onward, a 50 percent rating has been assigned. The Veteran needs a breathing assistive device, but per his assertions, cannot use one for various reasons. A higher 100 percent rating requires chronic respiratory failure with carbon dioxide retention or cor pulmonale, or a tracheostomy. The Veteran does not have chronic respiratory failure with carbon dioxide retention or cor pulmonale or a tracheostomy. As such, a higher rating is also not warranted for this period. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a higher 50 percent rating from January 5, 2011 for OSA, but a preponderance of the evidence is against an initial rating in excess of 30 percent for OSA prior to January 5, 2011, and in excess of 50 percent from January 5, 2011. The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In Thun, the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as noted above, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is, whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. In this case, the Board concludes that the Veteran's service-connected OSA has not been so unusual or exceptional in nature as to render the assigned schedular rating inadequate. The Veteran has submitted no evidence showing that his condition markedly interferes with his employment status beyond that contemplated by the assigned evaluation, and there is also no indication that it has necessitated frequent, or indeed any periods of hospitalization. The symptomatology shown during this period of the appeal has been fully contemplated by the diagnostic code considered above and is consistent with the assigned evaluation. As such, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, supra. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 30306. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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. In addition, arthritis will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board notes that 38 C.F.R. § 3.303(b) provides that with chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of cases, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required 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." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 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 the Department of Veterans Affairs 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). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr. Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. 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" such as actual treatment records). The Veteran is competent to report the Veteran can observe and feel through the senses. See Layno. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he/she has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. As already explained, competent lay evidence may establish the presence of observable symptomatology and, in certain circumstances, it may provide a basis for establishing service connection. See Barr. Although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions beyond simple observations. Jandreau; see 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 aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Indeed, even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive and, thus, not ultimately probative. Buchanan; see also Rucker and Layno. The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases. Buchanan at 1337. The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence. Id. Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this case, there are numerous complex medical assessments to be made. As such, and as set forth below, the Board remanded this case for a medical opinion to be rendered by a professional as the complexities of this case are beyond the scope of the Veteran's or his representative's lay opinions. The Veteran contends that he sustained neck and thoracolumbar spine injuries during service, resulting in chronic neck and back disabilities. He testified that prior to service, he injured his mid-back while playing football when he was a teenager. He stated that he had a strain or a sprain, slight in degree. On his entrance examination into service, he related that he did not recall that the examiner performed x-rays. He also reported that he did not have any problems with spinal deformities at that time nor did he have any residual mid-back issues, from the prior injury. During service, he reported that he did not have problems with his neck or back until 1981, about 7 years into service. He indicated that he worked in a position where he had to lift heavy equipment. In one instance, he lifted a heavy gun that created a tremendous strain and he was placed on bedrest. This occurred at MacDill Air Force Base. His representative referred to several times between 1981 and 1988 when the Veteran was treated for cervical and thoracic strains, but noted that the discharge examination was normal. The Veteran stated that he did not recall much of a retirement examination. The Veteran also reported that he had received post-service treatment for neck and back problems. The representative also stated that torticollis was diagnosed during service and that this disorder is otherwise named cervical dystonia, according to a Mayo Clinic article, which he provided. This article also noted that it may be caused by head, neck, and shoulder injuries. The representative further stated that scoliosis was diagnosed during service and the Mayo Clinic article also stated that scoliosis may be caused by injuries or infections to the spine. It was asserted that neither of these conditions preexisted service. It was additionally contended that the inservice tasks that the Veteran had to engage in resulted in repetitive stress on his back and neck. The Mayo Clinic article is of record. Medical treatise evidence can provide important support when combined with the pertinent opinion of a medical professional. Similarly, medical treatise evidence could "discuss [] generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon objective facts." Mattern v. West, 12 Vet. App. 222, 229 (1999); Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). Here, the Board accepts the information presented in the article, but there is no personal reference to this article regarding the Veteran from a medical professional nor does the article discuss the Veteran. The STRs showed that on entrance, no back or neck abnormality was noted. Thereafter, the Veteran complained of neck pain in April 1985, which was diagnosed as cervical strain. The Veteran was treated with Parafon Forte, Motrin and physical therapy and was placed on profile. There were additional complaints of muscle spasm to your neck in September 1988, which was diagnosed as torticollis. X-rays showed findings consistent with torticollis. This condition was treated with physical therapy and continued to have treatment. The STRs also showed complaint of low back pain in February 1981 at the Emergency Room, which was diagnosed as strain of the right trapezius muscle that resulted in pain in the thoracic spine. Physical therapy was provided. In March 1982, the Veteran reported having pain in the lower back after playing basketball two weeks prior, which was diagnosed as an acute paraspinous muscle strain. The Veteran was given Parafon Forte. In June 1983, the Veteran was issued a cane by the Physical Therapy Clinic. The Veteran continued treatment. The November 1992 retirement examination noted no back or neck disease or injury. On his Report of Medical History, the Veteran denied having arthritis, rheumatism, bursitis, bone or joint deformity, and recurrent back pain. A litany of historical medical problems was discussed, but there was no mention of the back or neck. According to a July 2010 Formal Finding of Unavailability, some medical records of the Veteran are unavailable. Under such circumstances, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). Turning to the post-service evidence, in March 2008, the Veteran was afforded a VA examination. At that time, the examiner diagnosed the Veteran with recurrent torticollis of the cervical spine, but opined that he was unable to determine without resort to speculation whether the condition is congenital or a result of military service. The Veteran was also diagnosed as having mild degenerative changes at C5-6 with underlying Osteopenia which was most likely than not related to natural aging and least likely than not related to neck strain while in the military. With regard to the back, the Veteran was diagnosed as having mild degenerative changes at L1-2 with Osteopenia which was most likely than not related to natural aging and least likely than not related to thoracolumbar strain while in the military. May 2008 x-rays revealed mild degenerative spondylosis of the lower lumbar spine and Osteopenia. The Veteran was treated post-service by a private provider, M.E.N., ARNP, CNS, who, in a June 2008 letter, diagnosed him as having cervical and lumbar strain with x-ray evidence of degenerative disc disease and scoliosis. The Veteran was also found to have on x-ray osteoporosis of the lumbar spine. Subsequent private evidence reflected that the Veteran was treated for his back complaints. In the Board's prior remand, it was noted that the March 2008 VA examiner provided no rationale for the conclusions reached. As such, the Board noted that this medical opinion is entitled to little probative value and the Board found that another examination was necessary to obtain an opinion regarding the cause of the Veteran's recurrent torticollis of the cervical spine. Similarly, the Board found the VA examiner's opinion regarding the cause of the Veteran's degenerative spinal disorders to be of little probative value. In this regard, he diagnosed the Veteran with mild degenerative changes at the C5-6 and L1-2 spinal levels with Osteopenia, finding that the conditions were less likely than not related to military service and more likely the result of the natural aging process. The examiner, however, failed to provide a rationale for these conclusions. While the Veteran's STRs were replete with findings of multiple back and neck strains or sprains, the examiner failed to explain why these injuries fail to support a finding that the Veteran's current disorders are the result of service. The Board also noted the possibility that the Veteran had a preexisting back disorder which was present prior to service. The failure of the physician to provide a basis for his or her opinion goes to the weight or credibility of the evidence. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The Court has further recognized that a mere statement of opinion, without more, does not provide an opportunity to explore the basis of the opinion. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Thus, the Board remanded the claim to determine the nature, approximate onset date and/or etiology of his current neck and thoracolumbar spine disorders. The Veteran was examined by VA in April 2013. The record was reviewed and the pertinent findings were discussed. With regard to his neck, the Veteran reported that towards the end of every day, he had a tightness and burning pain on the right side of the neck, pain level 4/10, and if he would get in and out of cars to visit clients in the evening, the pain level went up to 7/10. With regard to the spine, the Veteran reported that if he sat in one position more than a few minutes at a time, he would get a burning pain in the lower back; if he shifted positions, it alleviated the pain. This pain level is 3-4/10. During flare ups, once in 6 months to a year, his pain level was 10/10 and he was unable to move for 2-3 days. The actions of getting in and out of car also hurt the low back. With regard to osteoporosis, a Dexa scan was done because of incidental finding of Osteopenia on plain x rays of lumbar spine. The examiner noted that osteoporosis had no clinical manifestations until there is a fracture, but this Veteran had not had fracture of spine. The Veteran stated that after service, he had not been to physical therapy for spine conditions, and never had injections in my spine. He also denies seeking consultation from Neurosurgeon, or Orthopedic physician or Pain specialist for his neck and back conditions. A physical examination was performed. The diagnoses for the cervical spine were: scoliosis, degenerative joint disease, and degenerative disc disease. The examiner opined that it is less likely as not that the current diagnoses are caused by or a result of service or cervical sprain or torticollis in service because while sprain and strain and in this case, torticollis, are all acquired conditions (enlistment physical being silent for sprain/strain/torticollis), scoliosis is a developmental defect. The one is not the cause of, or related to, the other. Further, it was less likely as not that the Veteran incurred any superimposed disease or injury on such developmental defect (scoliosis) during his military service, because while sprain and strain and torticollis are soft tissue conditions, scoliosis is a skeletal condition. The one is not the cause of, or related to, the other. The examiner indicated that there was no aggravation of this condition by sprain or strain in service; while sprain and strain are acquired soft tissue conditions, scoliosis is a developmental skeletal condition. The one is not the cause of, or related to, the other. With regard to the thoracolumbar spine, the diagnoses were degenerative joint disease and degenerative disc disease and the lumbar spine. The examiner opined that it is less likely as not that the diagnoses were caused by or a result of service because while inservice sprain or strain, or torticollis of the neck involved the muscles and ligaments (soft tissues) of the spinal region, degenerative joint disease and degenerative disc disease is a degenerative process involving the discs and vertebral bodies; the one is not the cause of, or related to, the other; and because STRs are silent for this condition which is diagnosed about 15 years after service. Also, the Veteran had osteoporosis of the lumbar spine, but the examiner opined that it is less likely as not caused by or a result of or incurred in service because STRs are silent for this condition which was diagnosed 17 years after service. Further, it is less likely as not caused by or a result of the other diagnoses because these are two different skeletal conditions, the other diagnosis being a degenerative disease of vertebrae and discs and osteoporosis being loss of bone mass, with his risk factor for osteoporosis being hypogonadism. The one is not the cause of, or related to, the other. It was noted that the Veteran also had a congenital fusion of T1 and T2 vertebral bodies and degenerative joint disease of the thoracic spine. The examiner opined that it is less likely as not that these diagnoses were caused by or a result of service or thoracic sprain or strain in service because while sprain and strain are acquired soft tissue conditions, congenital fusion is a congenital skeletal defect. The one is not the cause of, or related to, the other; less likely as not that the Veteran incurred any superimposed disease or injury on such congenital defect during his military service, because while sprain and strain are soft tissue conditions, congenital fusion of vertebrae is a skeletal condition. The one is not the cause of, or related to, the other. The examiner stated that there was no aggravation of this congenital condition by strain or sprain in service; while sprain and strain are acquired soft tissue conditions, congenital fusion is a developmental skeletal condition. The one is not the cause of, or related to, the other. The examiner indicated that with regard to degenerative joint disease of the thoracic spine, it is less likely as not caused by or a result of thoracic sprain or strain in service or service because while sprain and strain are acquired soft tissue conditions, degenerative joint disease is a condition of the bony skeleton; the one is not the cause of, or related to, the other; and because STRs are silent for this condition which is diagnosed 19 years after service. The Veteran has asserted that this examination did not record findings that he reported to the examiner. However, even if the examiner did not record all of the Veteran's complaints, that does not mean that they were not considered. Moreover, the Veteran's assertions primarily focus on the symptoms and level of severity used to rate a disability, not to establish service connection. The VA examination report is thorough in nature regarding all aspects pertinent to service connection and the Board finds that it is adequate in that regard. With regard to the question of any preexisting neck or back disabilities, a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity. Townsend v. Derwinski, 1 Vet. App. 408 (1991); 38 C.F.R. § 3.306(a). In contrast, a flare-up of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). In July 2003, the VA General Counsel issued a precedent opinion, which held that, to rebut the presumption of sound condition under Section 1111 of the statute, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. Although VA's General Counsel has determined that the definition of "aggravation" used in 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306 does not apply in determining whether the presumption of soundness has been rebutted, the statute and regulation do not otherwise provide any definition of "aggravation" to be applied in making that determination. The word "aggravate" is defined as "to make worse." Webster's II New College Dictionary (1999). After determining whether the presumption of soundness has been rebutted the Board will consider whether the claimed disabilities were "made worse" by his military service. As noted, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions," Id. at (b)(1). Thus, at the time of entry, there is a presumption that the Veteran entered in sound health. Here, there is no evidence that at entry, there was any defect, infirmity, or disorder with regard to the neck or spine on objective examination. The examination was negative. Thus, the Veteran is entitled to a presumption of soundness. Because the Veteran is entitled to a presumption of soundness, the Board must determine whether, under 38 U.S.C.A. § 1111, the presumption of soundness is rebutted by clear and unmistakable evidence. The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service and that it was not aggravated during service. See Wagner v. Principi, 370 F 3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). In Wagner the Court established that the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C.A. § 1153. Wagner v. Principi, 370 F.3d 1089 (2004). In Miller v. West, 11 Vet. App. 345, 348 (1998), the Court indicated that "a bare conclusion, even one written by a medical professional, without a factual predicate in the record does not constitute clear and unmistakable evidence sufficient to rebut the statutory presumption of soundness." The Court held that the presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record. In this case, the Veteran testified that he had a slight sprain or strain to the back from a basketball injury; however, he stated that he had no neck or back problems when he entered service. On his pre-induction medical history report, he indicated that he had previously had broken bones, but the Veteran explained that this was not regarding the neck or back. The entrance examination yielded no positive findings for the neck or back. Thus, on entry, no defect, infirmity, or disorder of the neck or back was present. Accordingly, the Veteran's personal report that he had a previous back injury does not meet the burden of clear and unmistakable evidence that a neck or back defect, infirmity, or disorder existed when he entered service. Further, as noted, the Veteran reported that historical incident, but indicated that there was no residual to it. Therefore, the sole report of a back injury prior to service made by the Veteran, and later explaining that there were no residuals, does not satisfy the standard of clear and unmistakable evidence required to rebut the presumption of soundness. As such, the Veteran is entitled to the presumption of soundness. With regard to claimed scoliosis of the spine, the VA examiner determined that this was a developmental defect. Although the Mayo Clinic article may be caused by an injury, the article also noted that it may be a developmental defect, which is consistent with the VA examiner's opinion. Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation and cannot be found to be service connected. See 38 C.F.R. § 3.303(c), 4.9 (2011). A precedent opinion of the VA General Counsel, VAOPGCPREC 82-90 (July 18, 1990) (a reissue of General Counsel opinion 01-85 (March 5, 1985)), held in essence that a disease which is considered by medical authorities to be of familial (or hereditary) origin must, by its very nature, be found to have pre-existed a claimant's military service, but could be granted service connection if manifestations of the disease in service constitute aggravation of the condition. Moreover, while congenital or developmental defects, as opposed to diseases, could not be service-connected because they are not diseases or injuries under the law, if superimposed injury or disease occurred, the resultant disability might be service-connected. Id. Generally, a congenital abnormality that is subject to improvement or deterioration is considered a disease. Id. Initially, the Board notes that the April 2013 VA examiner stated that the scoliosis is a developmental defect in this case and that the Veteran also has fusion of T1 and T2 vertebral bodies, which is a congenital defect. The examiner also opined that there was no superimposed injury to either defect. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez. The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the examiner in April 2013 was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board notes that this opinion is afforded the most probative value because unlike the prior examination, the examiner provided sufficient rationale and made reference to all pertinent findings. As noted, although the Veteran has presented his own opinion, and his representative likewise, they are not as probative as the VA examiner's opinion because this case involves very complex medical questions due to the myriad of back and neck disabilities and the complicated history. Since the VA examiner opined that the Veteran's scoliosis is a developmental defect and the fusion of T1 and T2 vertebral bodies was a congenital defect, and that there was no superimposed injury to either defect, service connection is not warranted for either of these conditions. See 38 C.F.R. § 3.303(c), 4.9 (2011); see also VAOPGCPREC 82-90 (July 18, 1990). With regard to the remaining acquired conditions which were diagnosed as: scoliosis, degenerative joint disease, and degenerative disc disease of the cervical spine; degenerative joint disease, degenerative disc disease, and osteoporosis of the lumbar spine; and degenerative joint disease of the thoracic spine; the most probative evidence of record, the April 2013 VA examiner's opinion, establishes that these diagnoses are not attributable to service, are not etiologically related to any inservice incident or diagnosis, manifest remotely many years after service, and are not otherwise in any way connected to service. Thus, service connection is not in order for any of those diagnoses. However, with regard to torticollis of the cervical spine, it appears that the April 2013 VA examiner did not include this condition as a current diagnosis, although the examiner indicated that the inservice diagnosis of torticollis was acquired and not congenital; thus resolving that matter. Although the March 2008 examination was not probative as to the matter of etiology due to the lack of rationale, the Board finds that the diagnoses were competently made, as the examiner is competent as a medical professional to make an independent diagnosis based on an examination. He also indicated that it was "recurrent torticollis," thus indicative that is periodic or intermittent. As such, the Board accepts that it was not symptomatic on the most recent examination, but subject to recurrence. Since this condition was first diagnosed during service, since it was acquired in nature according to the April 2013 examiner, and since it is recurrent in nature, the Board finds that service connection for recurrent torticollis of the cervical spine is warranted. ORDER For the period August 28, 2007 to January 5, 2011, an initial rating in excess of 30 percent for OSA is denied. For the period January 5, 2011 to March 29, 2011, a rating of 50 percent for OSA is granted, subject to the law and regulations governing the payment of monetary benefits. For the period March 29, 2011 forward, a rating in excess of 50 percent for OSA is denied. Service connection for scoliosis of the spine and congenital fusion of T1 and T2 vertebral bodies is denied. Service connection for a cervical spine disability, diagnosed as degenerative joint disease and degenerative disc disease, is denied. Service connection for a thoracolumbar spine disability, diagnosed as degenerative joint disease, degenerative disc disease, and osteoporosis, is denied. Service connection for recurrent torticollis of the cervical spine is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs