Citation Nr: 1326367 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 09-45 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) with major depressive disorder and anxiety. 2. Entitlement to service connection for a low back disorder, claimed as residuals of back injury. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and a witness ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active service from March 1968 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Portland, Oregon. This matter was remanded in January 2012 for further development. The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in August 2011. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. PTSD has not been attributed to a verified stressor or an alleged stressor consistent with the Veteran's service. Major depression was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service. Mild anxiety noted on a single occasion during service had resolved at the time of separation from service and was not found to be a chronic disability. 2. A low back disability was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for establishing service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in January 2007 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at an August 2011 Board hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis and psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Psychiatric disability Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A § 1154(b), requires that a Veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis. See VAOPGCPREC 12-99 (October 18, 1999). If there is no combat experience, or if there is a determination that the Veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 9 Vet. App. 163, 166 (1996). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997). Just because a physician or other health professional accepted appellant's description of his service experiences as credible and diagnosed appellant as suffering from PTSD does not mean the Board is required to grant service connection for PTSD. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). The regulations pertaining to PTSD were amended, and 38 C.F.R. §3.304(f)(3) no longer requires the verification of an in-service stressor if the Veteran was in a location involving "fear of hostile military or terrorist activity." Such a location can be evidenced by awards such as the Iraq Campaign Medal or the Vietnam Service Medal. Lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations. The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. Id. The liberalizing criteria contained in the new § 3.304(f)(3) will be applied to PTSD service connection claims that are pending as of the effective date of the regulation (July 13, 2010) and to claims filed on or after this effective date. Taking into account all relevant evidence, the Board finds that service connection is not warranted for any psychiatric disorder, to include PTSD. Initially, the Board points out that the evidence does not show that the Veteran engaged in combat. Consequently, either the Veteran's alleged stressors must be verified, or the stressors must at least consistent with the places, types, and circumstances of the Veteran's service. First, at the Veteran's August 2011 Board hearing, he testified that he witnessed an American helicopter crash on the deck of his ship (the U.S.S. Annapolis) while it was ferrying supplies. He explained that the helicopter was then pushed over the side of the ship with the crew still inside. At the hearing, he stated that he was unaware if anyone was saved. However, in an earlier private treatment report dated in April 2006, he indicated that all of the crew drowned. Command histories of the U.S.S. Annapolis were obtained, and they confirm that in June 1969, a helicopter came into contact with the midship spiral antenna, and crashed over the starboard side. Though the crash was confirmed, the command history clearly states that the crew escaped with only minor injuries. Second, the Veteran testified that he witnessed his own ship hit a small Vietnamese fishing boat. He described the aftermath, including bodies floating face down in the water. He identified this event as occurring in summertime. The Board notes that the command histories are silent as to such an event. In January 1969, a Japanese fishing vessel reported that it had suffered an explosion of an ammonia tank, and had injured men requiring medical assistance. The U.S.S. Annapolis was in the vicinity and received a message to come to the aid of the fishing ship. The Annapolis's doctor rendered assistance and reported that there was one injured man and one dead. There was no indication of bodies floating around in the water and the fishing boat had not been hit by the Annapolis as the Veteran testified. Moreover, the incident happened in January, not in the summertime. Consequently, it is uncertain as to whether this was the event to which the Veteran was referring as the alleged stressor. During a private psychological evaluation with Dr. S.F. in April 2006, the Veteran described being "frequently afraid [during service] of being sunk or shot at by planes or missiles"; witnessing the dead bodies of (presumably) pilots who had been shot down; having his ship engaged in combat when it fired at by enemy planes; and fear of being locked in the engine room and being afraid of drowning or meeting an enemy soldier." The Veteran also mentioned that he had been involved in "missions where he likely was afraid of dying by sniper fire," but would not give a detailed account to the examiner because these "maneuvers," he claimed, "were probably top-secret." He also indicated during an August 2009 VA examination that he had been on a riverboat once in Vietnam to water-ski, and they incurred some sniper fire, but no death or injuries. The Board notes that the command histories of the U.S.S. Annapolis fail to reflect any incidents of sniper fire, engaging in combat with enemy planes, or meeting any enemy soldiers. Finally, an April 2007 stressor questionnaire identifies another claimed stressor involving the Veteran waking up one night and being malevolently asked if he had seen anything related a crewmember that had gone missing. When he said "no," he was told to keep his mouth shut. The Board notes that this stressor has not been verified, nor does it appear that it is even verifiable through unit records. The service department has confirmed that the Veteran served aboard the U.S.S. Annapolis, which was in the official waters of the Republic of Vietnam from July 19, 1968, to August 30, 1968, and again from March 6, 1969, to March 29, 1969. However, none of the claimed stressors have been corroborated by the objective evidence of record at present. In its January 2012 Remand, the Board instructed the RO that "if any stressor is verified, or if it is determined that the events described by the Veteran relating to fear of hostile military or terrorist activity are consistent with the circumstances of his service, then a psychiatric examination should be provided..." The RO made a thorough attempt to verify the alleged stressors, but the command histories of the U.S.S. Annapolis were unable to verify any of them. With regard to whether the alleged stressors were consistent with the circumstances of the Veteran's service, the RO did not specifically address this. However, the Board finds that by not scheduling the Veteran for a VA examination, it impliedly found that the alleged stressors were not consistent with the circumstances of the Veteran's service. Moreover, the Board agrees. As the Board noted, the command histories of the U.S.S. Annapolis fail to reflect any incidents of sniper fire, engaging in combat with enemy planes, or meeting any enemy soldiers. The Veteran alleges that he was "frequently afraid" of being sunk or shot at by planes or missiles; having his ship engaged in combat; getting locked in the engine room and drowning; or meeting an enemy soldier. The Board notes that being afraid of what might happen does not constitute a stressor. The Board acknowledges that the Veteran underwent an April 2006 psychiatric examination with private Dr. S.F., and that she diagnosed the Veteran with chronic PTSD, major depressive disorder, and a personality disorder. The Board notes that despite the diagnosis of PTSD, establishment of service connection for PTSD also requires: credible supporting evidence that the claimed in-service stressor actually occurred and medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). In this case, the diagnosis of PTSD has not been attributed to a verified in-service stressor. Dr. S.F. stated that the Veteran "witnessed the shocking deaths of fellow soldiers...heard horror stories from soldiers that were picked up off the mainland of Vietnam...witnessed the dead bodies of soldiers that were rescued from the sea after having been shot down." She stated that the Veteran's "ship did engage in combat where they fired at enemy planes." She stated that the Veteran "saw his own fellow soldiers die and also ones that were already dead, bloodied, and injured. His ship did shoot down enemy planes." She also noted that he was in constant fear of drowning in the engine room or being captured by enemy soldiers. Once again, the Board notes that Dr. S.F.'s diagnosis of PTSD has not been attributed to any verified stressors, and the relaxed provisions effective July 2010 do not apply as the claimed events are not consistent with the circumstances of his service. Consequently, the requirements for establishing service connection for PTSD have not been met. With regard to psychiatric disabilities other than PTSD, the Board notes that Dr. S.F. also diagnosed the Veteran with major depression, which she attributed to service. However, the Board notes that the service treatment records fail to contain any findings attributed to major depression. In July 1968, the Veteran reported episodes of sleepwalking (which have occurred since he was 11 years old). He was diagnosed with mild anxiety reaction secondary to his new life aboard the U.S.S. Annapolis. The examiner expected sleepwalking to stop once the Veteran got used to his new shipboard environment. There were no further findings in the service treatment records and his September 1969 separation examination was normal with respect to any psychiatric disability. The Veteran underwent a VA psychiatric examination in August 2009. The examiner reviewed the claims file in conjunction with the examination. The examiner noted some inconsistencies between the history that the Veteran reported to the examiner versus the history he reported to Dr. S.F. Most of the inconsistencies involved abuse as a child. However, the examiner noted that Dr. S.F.'s report stated that the Veteran was exposed to a number of traumatic events during his six years of military service in Vietnam. The examiner pointed out that the Veteran was only in service for 18 months. When she pointed this out to the Veteran, the Veteran's wife stated, "You're busted." He explained that he also had four years service in the Reserves and that his history was unclear. (In fairness to the Veteran, it appears that the reference to 6 years in Vietnam may have been an error on the private examiner's part and not influenced by the history presented by the Veteran at that time.) The Veteran reported that he began heavy alcohol abuse in 2006 and that he still uses alcohol and marijuana to drink himself to sleep. At this examination, the Veteran reported that he was not exposed to rocket and mortar attacks, not exposed to small arms fire, not exposed to sniper fire, not exposed to booby traps, not exposed to ambushes, that he never had to fire a weapon at the enemy, and was not involved in direct killing. He reported that his ship ran over a sampan, killing the civilians aboard. He also reported the helicopter crash and stated that one night he witnessed a sailor being thrown overboard by other sailors. He denied having been exposed to any other death or injury. The VA examiner diagnosed the Veteran with a history of mild anxiety reaction secondary to adjustment while onboard the U.S.S. Annapolis, described to have been what appeared to be panic attacks. The examiner opined that all of this appears to have been an adjustment disorder that occurred at the time and is currently resolved now that the Veteran is no longer in a life threatening situation. In this case the Veteran was seen on one occasion during service for sleepwalking, and he was diagnosed with mild anxiety. Thus, there is affirmative evidence of symptoms of a psychiatric disability during service. However, the claims file does not contain evidence of a chronic psychiatric disability inasmuch as he was only seen on one occasion, and his separation examination was normal. Moreover, the Board notes the gap of more than 3 decades between the Veteran's separation from service and the first documented treatment of a psychiatric disorder (PTSD and major depression). See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. However, such absence of documented treatment, in and of itself, is not a basis for discrediting his lay statements of continuity. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Thus, the Board must consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting continuity of symptomatology. In this case, the Veteran's has not asserted continuity of symptomatology. Additionally, it is noted that the Veteran did not file a claim of service connection for a psychiatric disability until 2006, decades after he separated from service. Had he been experiencing psychiatric symptoms since service it would be reasonable to expect that he would have filed a claim sooner. For the above reasons continuity of symptomatology is not demonstrated here, either by the clinical record or by the Veteran's own statements. Moreover, as the evidence is absent any showing of psychosis in service or the first post-service year, there is no chronic disease under 38 C.F.R. § 3.309(a) and thus an award of service connection solely based on continuity of symptomatology is not for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) As noted above, service connection is not warranted in this case on the basis of continuity of symptomatology. However, if the competent medical evidence indicates that the current psychiatric disability is related to the Veteran's active service, then an award of service connection would be appropriate. In this vein, the VA examiner in August 2009 concluded that the Veteran's mild anxiety in service has currently resolved. The Board finds the opinion of the VA physician to be persuasive evidence. Indeed, it was based on a review of the record and was offered following a psychiatric evaluation of the Veteran. Moreover, no other competent evidence of record refutes that opinion inasmuch as the Veteran's private doctor (Dr. S.F.) diagnosed the Veteran with PTSD and major depression (not anxiety). The Veteran himself believes that his current psychiatric symptoms are related to service. However, while he is competent to describe symptoms, he has not demonstrated the expertise generally required to opine on causation. Indeed, in this case, the question of etiology extends beyond an immediately observable cause-and-effect relationship, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau)). Here, psychiatric disabilities are not simple medical conditions that the Veteran can identify based on mere personal observation, that is, by visual observation or by any other of the senses. In sum, his statements as to etiology in this case are not competent and therefore lack probative value. As the preponderance of the evidence is against the claim under the applicable the theories of service connection under 38 C.F.R. § 3.303(b) and (d), the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). With respect to the question of entitlement to service connection on a presumptive basis, while there is medical evidence of mild anxiety during service, there is no competent medical evidence of any psychosis within one year of the Veteran's separation from active duty service, as required for service connection under 38 C.F.R. § 3.307(a), so service connection under the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 is not warranted, and the benefit of-the-doubt standard of proof does not apply. 38U.S.C.A. § 5107(b). The Board finds that the Veteran's PTSD has not been attributed to any verified in-service stressor or to any alleged stressor that is consistent with the circumstances of the Veteran's service. Moreover, the service treatment records fail to reflect any findings attributed to major depression; and the August 2009 examiner found that the Veteran's mild in-service anxiety resolved during service. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) with major depressive disorder and anxiety must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Back At the Veteran's August 2011 Board Hearing, he testified that he was in the engine room when he slipped and fell, landing on his buttocks. He knew he was hurt and he reported it to someone (he believes it was Chief Wright), who sent him to the medics. He never saw a doctor, but a corpsman gave him a bag of Darvon. The Veteran stated that the lieutenant commander in charge of the engine room told him to sit on a garbage can and run the evaporators. The Veteran testified that after two weeks of taking the Darvon, his condition improved and he returned to regular duty. He testified that his first post service treatment was in approximately 1976 (7 years after service), with Dr. B. The Board held the record open for 30 days so that the Veteran could obtain these records, though it was thought that they would be unavailable. The Veteran stated that Dr. B. thought that he had a sciatic nerve problem in his legs as a result of standing for 10-12 hours per day at post service job. The service treatment records fail to contain any findings attributable to a back injury. The September 1969 separation examination yielded normal findings with regard to the back. In a February 2000 treatment report, the Veteran complained of a three month history of low back pain, with radiation through the left buttock and into the left posterior leg. An October 2004 treatment report reflects that the Veteran slipped and fell on his right buttock approximately two months earlier. A September 2005 treatment report reflects continued pain in the low back area that had been going on since October (2004). An October 2005 MRI and an October 2005 x-ray revealed lumbar degenerative disk disease. In an October 2005 Medical Information Questionnaire, the Veteran stated that he had low back pain down his lower since 2000. He stated that in 2000, he fell onto his left buttock. An October 2005 Northwest Spine and Pain Center report states that "an extensive history was obtained from [the Veteran]. [The Veteran] is a 56-year-old man who self refers to Northwest Spine and Pain Center for a problem that had its origins in a fall onto his left buttock in the year 2000. He fell about 4 feet and had pain right away, got some medications from [Dr. H.] and he was better for nearly 4 years. Then approximately one year ago something gave him a repeat of the pain." A February 2006 treatment report shows complaints of chronic back pain of 6-7 years duration. The assessment was multi-level disc disease. A May 2006 examination report from Dr. M.P.B. of the Medford Neurological & Spine Clinic reflects that the Veteran sought treatment for intermittent chronic low back pain that began during service in 1968. He reported that manual labor exacerbates the back pain and that lately he had been performing manual labor for eight hours or more per day. A June 2006 treatment report from pain specialist G.D.J. indicates that the Veteran sought treatment for chronic low back pain and bilateral leg pain. The Veteran reported that the pain began several years ago without an antecedent event and that it had steadily worsened. The Veteran was diagnosed with lumbar spondylosis The Veteran underwent a VA examination in August 2009. The examiner reviewed the claims file in conjunction with the examination. He noted that a conference report reflects a history of sleepwalking in service and an incident in which he fell (also in service). The Veteran also gave a history of falling down an entire flight of stairs while sleepwalking in service. The Veteran stated that he first noticed pain and leg spasms in 1969 after falling three feet off of a ladder and landing on his buttocks and back. The examiner was not able to render an opinion on the etiology of the Veteran's current back disability without resorting to mere speculation. He reasoned that neither the Veteran's physical injuries nor his physical complaints were well documented in the service treatment records following the alleged fall. He noted that prior to the day of the examination, the Veteran's history of sleepwalking and falling onto a platform were predominant, yet the Veteran did not mention either event at the time of the examination. Rather, at the time of the examination, he gave a history of falling backwards off of a ladder while descending into an engine room. The examiner also noted that the Veteran reported physical abuse as a child that could also have caused back problems. The Veteran underwent another VA examination in February 2013. The examiner reviewed the claims file in conjunction with the examination. The Veteran complained of back problems that started in the 1980s when he had a lumbar sprain. He was on the job (checking lumber) when he pulled some muscles in his back. He also reported the alleged incident in which he fell 3-4 feet onto a steel deck while in the military. The examiner noted that the Veteran did not seem to have any problems with his back when he left the service or when he began working in the lumber industry. He stated that his back improved after the 1980s injury and did not bother him until the 1990s. The examiner opined that it is more likely that the Veteran's current degenerative joint disease of the lumbar spine with bilateral lower extremity sciatica is due to age and work activities after military service. He consequently found that it was less likely than not that the degenerative disc disease of the lumbar spine with bilateral lower extremity sciatica is related to activities in service or secondary to other service connected disabilities. In forming his opinions, the examiner reasoned that the Veteran had not had any problems with his back when he left service or started working in the lumber industry. He stated that this was confirmed by the Veteran's own words on direct questioning and was supported by the service treatment records, which are negative for any back injury upon separation from service. He stated that the alleged in-service injury resolved during service and that the Veteran did not have any problems with his back for 10 years after leaving service. Problems then arose in the 1980s, and resolved again. The Veteran had another 10 years without back problems. The examiner stated that the Veteran's disability is quite common with age and manual labor. He worked many jobs that put a strain on the back and this eventually led to forced retirement. The examiner opined that there was a lack of objective evidence to create a nexus connecting his current disability to an in-service injury. Analysis In this case, the first element of any service connection claim has been established. There is evidence of a current back disability. This has been established in the post service medical reports including October 2005 x-ray and MRI reports. The second element of service connection is a disease or injury sustained in service. The Board notes that the service treatment records fail to reflect such an injury. However, the Veteran has offered his lay testimony which has not been refuted. Consequently, the Board will concede that the Veteran sustained an injury to his back during service. The third element of service connection, a nexus between the current disability and the in-service injury, has not been established. In support of his claim for service connection the Veteran states that he has had back pain since service, and he is competent to describe symptoms of back pain. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). In this case, the Veteran's assertions are somewhat inconsistent. A May 2006 examination report from Dr. M.P.B. of the Medford Neurological & Spine Clinic reflects that the Veteran complained of intermittent chronic low back pain that began during service in 1968. However, at the Veteran's Board hearing, he claimed that following his injury, he took Darvon for two weeks and was on limited duty. After two weeks, his back got better and he returned to full duty. The service treatment records support the fact that his back got better inasmuch as no disability was noted upon separation from service. The Veteran also testified that he did not seek any post service treatment until 1976 (7 years after service). These records were thought to be unavailable, and though the Board held the record open for 30 days, they were not submitted. Even the Veteran's own testimony is to the fact that he sustained an injury during service; the injury got better after two weeks of limited duty; and he did not seek post service treatment for several years after discharge from service. Outpatient treatment reports dated October 2004 and September 2005 reflect that the Veteran sought treatment for back pain that began in October 2004 (when he slipped and fell on his right buttock two months earlier). In an October 2005 Medical information Questionnaire, the Veteran stated that he has had pain in his back since 2000, when he fell onto his left buttock. A Northwest Spine and Pain Center Report states that according to the Veteran, his symptoms were better for four years following the 2000 fall, but then approximately one year ago (2004) something caused a repeat of the pain. A February 2006 treatment report reflects that the Veteran complained of chronic pain that began 6-7 years earlier. Moreover, a June 2006 treatment report from pain specialist G.D.J. reflects that the pain began several years ago without an antecedent event. Finally, at the Veteran's February 2013 VA examination, he complained of back pain that began in the 1980s, then improved, and then returned in the 1990s. The fact that the Veteran failed to attribute his back pain to service when he sought treatment in October 2004, September 2005, February 2006, and June 2006 strongly weighs against a finding of continuity. Such statements were made in the course of seeking care, as opposed to attending an examination for the purpose of establishing disability benefits. Additionally, it is noted that the Veteran did not file a claim of service connection for a back disability until 2006, decades after he separated from service. Had he been experiencing chronic back problems since service it would be reasonable to expect that he would have filed a claim sooner. For the above reasons continuity of symptomatology is not demonstrated here, either by the clinical record or by the Veteran's own statements. As noted above, service connection is not warranted in this case on the basis of continuity of symptomatology. However, if the competent medical evidence indicates that the current low back disorder is related to the Veteran's active service, then an award of service connection would be appropriate. In this vein, the VA examiner in February 2013 concluded that the Veteran's back disability was less likely as not related to service. The rationale was that there was no evidence of acute or chronic back injury at the time of the Veteran's separation from service. Further, the Veteran himself admitted that the pain began in the 1980s, subsided for approximately a decade, and then resurfaced in the 1990s. The Board finds the opinion of the VA physician to be persuasive. Indeed, it was based on a review of the record and was offered following a physical evaluation of the Veteran. Moreover, it was accompanied by a clear rationale. Finally, no other competent evidence of record refutes that opinion. The Veteran himself believes that his current low back disorder is related to service. However, while he is competent to describe symptoms of back pain, he has not demonstrated the expertise generally required to opine on causation. Indeed, in this case, the question of etiology extends beyond an immediately observable cause-and-effect relationship, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau)). Here, degenerative disease of the lumbar spine is not a simple medical condition that the Veteran can identify based on mere personal observation, that is, by visual observation or by any other of the senses. In sum, his statements as to etiology in this case are not competent and therefore lack probative value. As the preponderance of the evidence is against the claim under the applicable the theories of service connection under 38 C.F.R. § 3.303(b) and (d), the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). With respect to the question of entitlement to service connection on a presumptive basis, while there is medical evidence in this case of degenerative disease of the lumbar spine, there is no competent medical evidence of arthritis within one year of the Veteran's separation from active duty service, as required for service connection under 38 C.F.R. § 3.307(a), so service connection under the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 is not warranted, and the benefit of-the-doubt standard of proof does not apply. 38U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) with major depressive disorder and anxiety is denied. Entitlement to service connection for a back disability is denied. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs