Citation Nr: 1326633 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-09 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a low back disorder, and if so, whether service connection for a low back disorder should be granted. 2 Entitlement to service connection for a right hip disorder. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to April 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated March 2010 and issued in April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, that determined new and material evidence had been received to reopen the claim for arthritis of the lumbar spine, but denied the Veteran's claim for entitlement to service connection for arthritis of the lumbar spine and entitlement to service connection for a right hip disorder. The Board notes that the RO on appeal characterized the low back issue as arthritis of the lumbar spine. However this issue has been recharacterized to a low back disorder to comport with the Veteran's allegations, applicable laws and regulations, and the evidence of record. The Board further notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. In a final decision issued in September 1970, the RO denied the Veteran's claim of entitlement to service connection for sacralization of L5. 2. Evidence added to the record since September 1970 is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a low back disorder. 3. The Veteran's current sacralization L5 is congenital and was noted upon entry to service. 4. The Veteran's congenital low back disorder was not aggravated beyond the scope of the natural progression of the disease in service. 5. The Veteran's arthritis of the lumbar spine did not manifest in service, or within one year thereafter, and is not related to any period of active duty. 6. A right hip disorder did not manifest in service, or within one year thereafter, and is not related to any period of active duty. CONCLUSIONS OF LAW 1. The September 1970 rating decision that denied service connection for a low back disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20. 302, 20. 1103 (2012). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. A low back disorder was not incurred in nor aggravated by active service, nor may arthritis of the lumbar spine be presumed to have been so incurred. 38 U.S.C.A. §1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 4. A right hip disorder was not incurred in nor aggravated by active service, nor may arthritis of the right hip be presumed to have been so incurred. 38 U.S.C.A. §1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 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). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In a claim to reopen a previously and finally denied claim, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. To satisfy this requirement, VA must look at the bases for the denial in the prior decision and provide a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran was provided all required VCAA notice in a December 2009 letter, prior to the initial adjudication of the claim in March 2010. The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran reported in his November 2009 claim that he received treatment from Dr. C.B. from 1970 to 2009. Although those records were not obtained, the Veteran reported that Dr. C.B. was deceased and the Veteran did submit an authorization form or an address to obtain these records. See Wood v. Derwinksi, 1 Vet. App. 190, 192 (1991) (holding that, "the duty to assist is not a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence"). Also, the Veteran stated at a February 2010 VA examination that he has been receiving disability since he underwent surgery for an aneurysm repair in 2005. There is no indication that this grant of benefits was based on a low back or hip disorder. Therefore, the Board finds that the records are not relevant, and the VA does not have a duty to request these records. The Veteran's written statements and buddy statements from his mother and brother are also of record. Neither the Veteran nor his representative have identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The duty to assist also includes providing a medical examination or obtaining a medical opinion when there is (A) competent evidence of a current disability that (B) may be associated with service, but (C) there is insufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d). McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, the Veteran was afforded a VA spine examination in February 2010 addressing the etiology of his current low back disorder. As discussed below, the examination was thorough, supported by explanations, based on a review of the claims file, and supported by clinical evidence of record. The Veteran has not been afforded an examination addressing the current etiology of his right hip disorder. For the reasons stated below, an examination of the right hip is not necessary. In sum, the Board finds that VA has complied with its duty to assist the Veteran. Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). II. New and Material Evidence for a Low Back Disorder Laws and Regulations The Board notes that even though the RO found that new and material evidence had been submitted to reopen the claim, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 28 U.S.C.A. §§ 5108, 7105(c)). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1103 (2012). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis The RO denied the Veteran's original claim of service connection for a low back disorder in a September 1970 rating decision. The Veteran was notified of this decision and of his appeal rights in a September 1970 letter, but did not perfect a timely appeal of that denial. Moreover, no evidence pertaining the to the Veteran's low back disorder was associated with the claims file within one year of the RO's decision. When the Veteran's claim was denied in September 1970, the record contained his service treatment records documenting a notation of transitional L5 vertebrae upon enlistment, complaints of low back pain, a diagnosis of sacralization of L5 and impression of low back strain in April 1970, and an April 1970 medical opinion that reports the Veteran's condition preexisted service and was not aggravated by service beyond the normal progression of the disease. The evidence of record also contained a June 1970 statement from Dr. C.B., the Veteran's private physician, that shows, in July 1969, Veteran had previously complained of back pain with no residuals and had a transitional lumbar condition, a congenital abnormality. Based on this evidence, the RO denied the Veteran's claim on the basis that his low back disorder preexisted service and there was no evidence that the low back disorder was aggravated by service. While the Veteran was given notice of this action, he did not perfect an appeal on this decision. As such, the September 1970 rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104, 20.1103 (2012). As explained, the Veteran's claim for service connection may only be reopened if new and material evidence is received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); see also Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Therefore, the Board's inquiry will be directed to the question of whether any additionally received evidence (i.e., since September 1970) raises a reasonable possibility of substantiating the Veteran's claim. The evidence associated with the Veteran's claims file since the September 1970 rating decision includes letters from private physicians dated in March 1973 that endorse that the Veteran was treated for back injuries sustained after car accidents in May 1969 and July 1972. Also of record are the Veteran's January 2007 to December 2009 private treatment records that show a current back disorder, January 2010 buddy statements from the Veteran's mother and brother that indicate the Veteran injured his back while in service, and a February 2010 VA examination opinion that reports the Veteran's current low back condition was not related to nor aggravated by service. The January 2010 buddy statements are "new" in that they were not of record at the time of the September 1970 denial. The evidence is also "material" because it relates to an unestablished fact necessary to substantiate the claim, namely, that the Veteran's low back disorder was aggravated by service. In Shade the Court indicated that new and material evidence could be found where the new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. The Veteran's claim was previously denied because there was no evidence the Veteran's back injury was aggravated by service. As noted above, there is now evidence that indicates the Veteran sustained an injury that may have aggravated his low back in service. For those reasons, the Board finds that the evidence received since September 1970 warrants a reopening of the Veteran's claim of service connection for a back disorder, as it is new and material evidence within the meaning of 38 C.F.R. § 3.156(a). III. Service Connection Laws and Regulations As an initial matter, the Board notes that the Veteran does not claim, and the evidence does not reflect, that his disabilities are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service," the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Congenital or developmental defects as such are not considered to be diseases or injuries within the meaning of applicable legislation providing VA disability compensation benefits. 38 C.F.R. § 3.303(c) (2012). The United States Court of Appeals for Veterans Claims (Court) has recognized that congenital diseases, but not defects, may be service connected. See Winn v. Brown, 8 Vet. App. 510, 516 (1996). A congenital disease is capable of improving or deteriorating whereas a congenital defect is "more or less statutory in nature." VAOPGCPREC 82-90 (July 18, 1990). Service connection can be established if a congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. Id. Service connection can also be established if a congenital disease was permanently aggravated by the Veteran's military service beyond the natural progress of the disease. Quirin v. Shinseki, 22 Vet. App 390 (2009). The presumption of soundness applies to a congenital disease, but not to a congenital defect. Id. The Board notes that every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment. 38 U.S.C.A. § 1111. The term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but it will be considered together with all of the other evidence in question as to the commencement of the disease or disability. 38 C.F.R. § 3.304(b)(1). In deciding an aggravation claim, after having determined the presence of a pre-existing disability, the Board must determine whether there has been any measurable worsening of the disability during service and whether this worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). An injury or disease that has been determined to be preexisting will then be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. The burden to show no aggravation of a pre-existing disease or disorder during service lies with the government. Cotant v. Principi, 17 Vet. App. 117, 131 (2003). The presumption of aggravation is rebutted where there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). 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 C.F.R. § 3.306(b). Low Back Disorder The Veteran contends that his low back disorder was incurred in service. After careful review of the record, the Board finds that the Veteran had a pre-existing, congenital abnormality in his low back that was noted upon enlistment and the congenital abnormality was not aggravated by service beyond the normal progression of the disease. As an initial matter, the Board notes that the Veteran is diagnosed with sacralization of L5, a congenital abnormality. As noted above, congenital abnormalities can be classified as a "defect" or a "disease." The Board will consider the Veteran's congenital abnormality as both a defect and a disease as to not prejudice the Veteran. If treated as a defect, service connection may not be granted for the Veteran's low back disorder because a congenital defect is not a disease or injury within the meaning of VA law and regulation. 38 C.F.R. §§ 3.303(c), 4.9 (2012). The Veteran has also not alleged, nor does the evidence of record reflect, that a superimposed disease or injury occurred during active service that could be separately service connected. The issue of other diseases or injuries associated with the low back disorder that could be superimposed are, however, considered below. The Board finds that a preexisting back disorder was noted at enlistment in February 1970. A review of the service treatment records show that on enlistment examination dated February 1970, the physician noted transitional L5 vertebrae. Upon examination, the Veteran's back was found to be normal and the physician indicated the transitional L5 vertebrae was not currently disabling. As a low back disorder was recorded in the examination report at the time the Veteran was accepted and enrolled for service, the Board finds the presumption of soundness does not attach. 38 C.F.R. § 3.304(b). The Board notes, prior to service, the Veteran sought treatment for his back by Dr. C.B. and Dr. E.C from June 1956 to July 1969. A March 1973 letter from Dr. E.C. notes that the Veteran sought treatment for a back injury he sustained after an automobile accident in May 1969. A June 1970 letter from Dr. C.B. indicates that the Veteran sought treatment for a back injury and had no residual injury as of July 1969. The Veteran also endorsed in a February 1970 report of medical history, soreness in his back after an automobile accident in October 1969 and a history of back trouble. These endorsements do not constitute "notations" pursuant to 38 C.F.R. § 3.304(b)(1), and there is no indication of residuals from any injuries sustained as a result of the car accidents. Having determined that the Veteran entered service with a pre-existing low back disorder, the next step involves examining whether there has been any measurable worsening of the disability during service and whether this worsening constitutes an increase in disability. As the low back disorder was asymptomatic and not disabling at entrance in March 1970 and the Veteran was discharged from service in April 1970 because the disorder was "symptomatic, severe," the Board will assume a worsening of the condition. The Board finds, however, that there was no aggravation of the low back disorder in service beyond the normal progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The Veteran complained of low back pain in March 1970, less than one week after enlistment, and was referred to an orthopedic consultation and X-ray examination in April 1970. Upon examination, the Veteran reported he sustained back injuries as a result of an automobile accident in September 1969 and suffered from severe back pain at that time. The physician reported a diagnosis of sacralization of L5, the Veteran's congenital abnormality, with low back strain. The physician referred the Veteran for discharge for a disorder that existed prior to service. The Veteran's April 1970 separation report of medical history notes a final diagnosis of sacralization of L5, symptomatic, severe. The examiner also reported that the Veteran has not experienced a significant illness or injury since induction. The Veteran was afforded a separation examination in April 1970. The examiner reported the Veteran had a history of low back pain and while in Basic Training continued to have low back pain which was severe enough to interfere with Basic Training. The examiner further reported the Veteran's past history was not remarkable except for his sacralization L5. The examiner noted that the Veteran's medical condition existed prior to service and recommended that the Veteran be discharged because the pre-existing disorder made it impossible for him to complete Basic Training. The disposition was, "The above medical condition existed prior to entry into service and has not been aggravated by service beyond the normal progression of the disease." The Board finds the April 1970 examination report particularly probative as the examiner provided a contemporaneous opinion as to the condition of the Veteran's low back disorder at the time of separation. There is also no contrary medical opinion or evidence of record. Although the service treatment records show the Veteran's low back disorder was asymptomatic at enlistment and symptomatic, severe at separation, an increase in symptoms does not constitute aggravation. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). In connection with the current claim on appeal, the VA afforded the Veteran a spine examination in February 2010. The Veteran reported constant low back pain since service and indicated he sought treatment from a chiropractor approximately one time per month for low back adjustments. He worked manual labor from the time of his discharge from service until 2005. X-rays from 2009 show diminished disc heights with associated osseous changes and anterior and lateral spurring. After an examination, a review of the claims file to include lay statements from the Veteran and buddy statements from the Veteran's mother and brother, and X-ray examination results, the examiner diagnosed the Veteran with arthritis of the lower back with some osteophytes. The examiner opined his current arthritis is less likely than not related to service. He explained the Veteran entered service with transitional L5 vertebrae and developed low back pain in service. Upon separation, he was diagnosed with sacralization L5 and was able to work in manual labor from separation until 2005. He opined, with the pre-existing congenital disease noted upon entry and separation, the Veteran's current low back disorder is not related to or aggravated by service beyond the point of normal progression of the disease. The medical opinion was thorough and supported by an explanation and the Veteran's medical records. These specific findings, taken in totality, constitute clear and unmistakable evidence that the Veteran's pre-existing low back disorder was not aggravated by service. There is no reliable evidence to show a worsening of the condition as the result of service; the only reliable evidence in this case is to the contrary. As such, the Board concludes that there was no aggravation. The Board has also considered statements from the Veteran in his November 2009 claim, and March 2011 VA Form 9 that he was fit for duty at enlistment and sustained a back injury during service. The Board acknowledges the Veteran is competent to report as to the observable symptoms he experienced, such as an onset of his symptoms of a low back disorders. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, competence must be distinguished from probative weight. The question of whether the Veteran had a low back disorder in service and whether it was related to his current low back disability is a complex medical matter as to an internal medical process that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Thus, to the extent the Veteran asserted that a low back disorder manifested in service, or aggravated a pre-existing back disorder beyond the normal progression of the disease, his testimony is in conflict with the overall findings in the service treatment records and the VA examination report, and there is no other competent evidence to support such a finding. The Veteran's statements and the January 2010 buddy statements that the Veteran had no prior back conditions and sustained an in-service back injury are also in conflict with the evidence of record. The Veteran noted in his February 1970 report of medical history that he had a history of back problems and had soreness in his back after an automobile accident in October 1969. Upon physical examination for enlistment, the physician noted the Veteran had transitional L5 vertebrae. In addition, a March 1970 letter from the Veteran's private physician, Dr. C.B. reported the Veteran sought treatment for a back and right shoulder injury in July 1969, and a March 1973 letter from the Veteran's physician, Dr. E.C., notes the Veteran sought treatment for a back injury he sustained after an automobile accident in May 1969. Therefore, the Veteran had issues with his back prior to service. Also, the Veteran's service treatment records document complaints of low back pain throughout his month of active service, but do not indicate any specific injury occurred in service. Upon separation, the Veteran's report of medical history notes he sustained no significant injuries or illnesses while in service. The lay assertions are therefore in conflict with the evidence of the record, which indicate the Veteran did not sustain an in-service injury to his low back. The specific and reasoned opinions of the trained professional of a lack of aggravation are more probative than the Veteran's general lay assertions of an injury or aggravation. The Board has also considered whether the Veteran is entitled to service connection for the arthritis of the lumbar spine. As a preliminary matter, the clinical evidence of record fails to show that the Veteran manifested arthritis of lumbar spine to a degree of 10 percent within one year following his active duty service discharge in April 1970. The Veteran also did not serve 90 days or more of active service. As such, presumptive service connection is not warranted for arthritis of the lumbar spine. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran has a current diagnosis of arthritis of the lumbar spine. The February 2010 VA examination report specifically notes it is less likely than not that the Veteran's current arthritis is related to or aggravated by service. The examiner opined the arthritis of the lumbar spine is due to the normal progression of the Veteran's sacralization of L5. The Board finds that service connection on a direct basis must be denied because there is no probative evidence that the Veteran's arthritis of the lumbar spine is related to his military service. In sum, the Board finds that service connection for a low back disorder must be denied because there is no probative evidence that the Veteran's back disorder was aggravated beyond the normal progression of the disease in service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service Connection for a Right Hip Disorder Upon review of the record, the Board finds that service connection for a right hip disorder is not warranted. The Board has first considered whether service connection is warranted on a presumptive basis. The clinical evidence of record fails to show that the Veteran manifested arthritis of the hip to a degree of 10 percent within one year following his active duty service discharge in April 1970. The Veteran also did not serve 90 days or more of active service. As such, presumptive service connection is not warranted for arthritis of the hip. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran's January 2007 to December 2009 private treatment records from Dr. S.K. report a current diagnosis of a hip disorder. X-rays of the lumbar spine dated in December 2009 reveal degenerative changes to the right sacroiliac joint and Dr. S.K. diagnosed the Veteran with chronic lumbosacral, right sacroiliac joint/right hip condition. Consequently, it is undisputed the Veteran has a current hip disorder. A review of the Veteran's service treatment records show no in-service complaints, treatments, or a diagnosis of a right hip disorder. While the Veteran complained of low back pain in March 1970 and had an orthopedic consultation in April 1970, the Veteran did not complain of right hip pain at that time. There is also no evidence of any in-service injuries to the hip. Upon separation, no right hip injury or pain was observed by military medical personnel upon objective examination in April 1970. A review of the Veteran's January 2007 to December 2009 private treatment records from Dr. S.K. show the Veteran sought treatment for his back and hip disorders. The private treatment records indicate the Veteran's hip disorder is chronic and has been symptomatic for many years. However, the treatment records do not indicate when the disorder began nor whether its onset was related to or aggravated by service. As above, the Board acknowledges the Veteran is competent to report as to the observable symptoms he experiences, such as an onset of his symptoms of a hip disorder, and its history. See Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the question of whether the Veteran's current hip disorder is related to an in-service injury is a complex medical matter as to an internal medical process that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); with Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Thus, to the extent the Veteran asserts that a hip disorder began in service, and caused his current hip disorder, his testimony is in conflict with the overall findings in the service treatment records and there is no other competent evidence to support such a finding. The Board, therefore, finds that the probative weight of the evidence is against the Veteran's assertions. Although VA did not afford the Veteran an examination to determine the etiology of his condition, the Federal Circuit has held a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the McLendon standard, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters v. Shinseki, 601 F.3d 1274, 1278-1279 (Fed. Cir. 2010). There is no evidence of complaints, treatments, or a diagnosis of a hip disorder in service. The record reflects only a conclusiory statement by the Veteran that his hip condition is related to service. In sum, there is no "injury, or disease in service" to which the current disability may be related. See McLendon, 20 Vet. App. 81. As such, a medical opinion would not resolve the issue, and is not necessary. Waters, 601 F.3d at 1278-1279; McLendon, 20 Vet. App. at 81. The Board has also considered whether the Veteran would be entitled to service connection for a right hip disorder as secondary to a low back disorder. As discussed above, service connection for a low back disorder has been denied. Therefore, the Veteran is not eligible for service connection on a secondary basis nor is the Veteran eligible for a VA examination on the basis that his hip disorder was incurred in or aggravated by service because his hip disorder is related to a low back disorder. In sum, the Board finds that service connection for a hip disorder must be denied because there is no probative evidence that the Veteran's disorder is due to military service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for a low back disorder, and, to that extent only, the claim is granted. Service connection for a low back disorder is denied. Service connection for a right hip disorder is denied. ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs