Citation Nr: 1330311 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-07 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for malaria. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active service from August 1969 to August 1971. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. A Board hearing at the local RO was held in March 2012 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Board previously remanded these issues for further development in December 2012. The Veteran's Virtual VA electronic claims processing folder has also been reviewed in conjunction with the claim. With the exception of additional VA treatment records dated to April 2012, the documents are either not pertinent to the issues on appeal or duplicative of records already in the claims file. FINDINGS OF FACT 1. The competent evidence fails to show that the Veteran was diagnosed with malaria in service; and any claimed residuals are not shown to be causally or etiologically related to the incident of acute enteritis in service. 2. A low back disability is not shown to be causally or etiologically related to any disease, injury, or incident in service, and arthritis did not manifest within one year of the Veteran's discharge from service. CONCLUSIONS OF LAW 1. The criteria for service connection for malaria have not been met. 38 U.S.C.A. §§ 1101, 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist 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: (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). 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) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Here, the Veteran was sent notice in April 2009 that fully addressed all notice elements and was sent prior to the RO's initial adjudication of the issues on appeal. The letter advised the Veteran of the evidence and information necessary to substantiate his service connection claims as well as his and VA's respective responsibilities in obtaining such evidence and information. Moreover, the letter also informed the Veteran of 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. 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). In this regard, the claims file contains the Veteran's service treatment and personnel records, post-service reports of private and VA treatment, Social Security Administration (SSA) records, Board hearing testimony and VA examination report. The record shows that the RO has requested all identified private treatment records and either received such records or negative responses from the providers. As noted above, a review of Virtual VA includes additional VA treatment records. Furthermore, the Veteran's Board hearing testimony and statements in support of the claim are of record. The Board has carefully reviewed the testimony and statements and concludes that no available additional 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 claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2012) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. Here, during the March 2012 Board hearing, the undersigned Veterans Law Judge adequately explained the claims on appeal and suggested evidence that may support these claims, including evidence that the Veteran might submit that may have been overlooked. The Board accordingly concludes that the notice requirements under Bryant were effectively satisfied. To the extent any such notice may have been inadequate, this was effectively cured both by actual knowledge as evidence by statements and questions of the Veteran's authorized representative at the hearing, as well as by the Board providing such explanation of issues and suggesting submission of evidence in the subsequent remand the Board issued to develop these 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 claims. 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). Finally, the Board finds that there was substantial compliance with the December 2012 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, the Board in December 2012 directed the RO to request clinical records dated from June 12, 1970 to June 26, 1970 from the USS Sanctuary Naval Hospital from the National Personnel Records Center (NPRC), obtain SSA records and to schedule the Veteran for VA examinations. The RO requested records from the NPRC, but received a negative response in March 2013. The RO notified the Veteran that same month and prepared a Formal Finding of Unavailability in April 2013. Moreover, as noted above, the RO obtained the Veteran's SSA records. Further, the Veteran was afforded a VA examination April 2013. As the VA examination report was prepared by a competent clinician who considered the Veteran's claims file and medical history in the report and provided etiological opinions, complete with rationales, the Board finds that the examination is adequate to adjudicate the Veteran's claims. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board finds that there has been substantial compliance with the prior Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008). Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 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, 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, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Malaria The Veteran asserts that he had malaria in service while stationed in Vietnam and currently suffers from residuals, including night sweats and weakness. He reported that he was evacuate form Vietnam with a viral infection, and stated that at the time he experienced a high fever, chills, and flu-like symptoms. He remembered speaking with a shop board nurse who told him that he had the least [dangerous] form of malaria of the two types known to exist. Service treatment and personnel records are silent with respect to any findings of malaria. In pertinent part, service treatment records showed that in June 1970, the Veteran was admitted to the USS Sanctuary Naval Hospital for approximately 14 days for fever, chills, headaches and general malaise. The discharge diagnosis was enteritis, viral. A December 1970 service record signed by the Veteran acknowledged that by virtue of having served in Vietnam, he was exposed to malaria and was to begin a malaria prophylaxis course during his stay in Vietnam and was directed to continue the tablets after leaving Vietnam for eight weeks. The Veteran's August 1971 service examination prior to discharge is silent with respect to any findings of malaria. In March 2003, the Veteran filed an initial claim for service connection for residuals of malaria. He was afforded a VA examination in May 2003. The Veteran reported that he had malaria in service. He also stated that he was attempting to obtain services through the VA and had been told by another Veteran that if he claimed malaria, his rating would be upgraded and he would obtain such services. After examining the Veteran and reviewing the service treatment records, the VA examiner diagnosed past enteritis, possible malaria equivalent. He indicated that the service treatment records and subsequent history did not paint a clear picture of malaria. The examiner continued that the Veteran's history as related in the service medical records, was not highly incidental to common course of acute malaria, although the Veteran had some of the symptoms related to malaria although the flu or viral enteritis would certainly have commonality as well. It was telling that the Veteran was not actually treated at the time for malaria and the blood work was negative. The Board observes that it does not appear that any blood work was done at this examination. Post-service treatment records include an October 1999 record that showed a medical history of malaria in the distant past. However, remaining treatment records, as well as a March 2003 Agent Orange examination, were silent with respect to any findings pertaining to malaria. However, these records do show treatment for other stomach/abdominal disorders. An April 1996 record showed an impression of duodenal bulb ulceration and an April 1999 record showed an impression of acute duodenitis. A December 2003 record showed an assessment of possible diverticulitis of the colon. Follow up treatment records continue to show treatment for abdominal pain, including diagnoses of diverticulosis and chronic gastritis. A May 2008 VA treatment record indicated that the Veteran requested a test for malaria. However, remaining treatment records are silent with respect to any findings concerning malaria. The Veteran filed his current claim in April 2009. In that claim, he asserted that although his service treatment records showed a diagnosis of another disease, he was told at the time that he had malaria. In support of his claim, the Veteran has submitted statements from his wife and brothers who all recalled that they were told he suffered from malaria while in service. SSA records associated with the claims file on remand are also silent with respect to any findings of malaria. The Veteran was afforded a VA examination in April 2013. The claims file was reviewed. Although the Veteran reported that he thought he had malaria when he was severely ill in service, the examiner determined that the Veteran was diagnosed with viral gastroenteritis in June 1970. The Veteran indicated that he was told by an unknown "medical person" on the hospital ship that malaria was the cause of his illness. The Veteran reported taking antimalarial prophylaxis medicine when available while in Vietnam and upon returning. He recalled that in 1972, he had fever, chills, sweats, headaches, nausea, vomiting and diarrhea, but no recurrence after this episode. The examiner noted that there were no medical record documenting this illness. However, the Veteran reported that he still got night sweats on occasion that were relatively brief, but similar to symptoms in Vietnam. After examining the Veteran, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that no medical entries in the service treatment records confirmed the Veteran's claim that a diagnosis of malaria was made during service. In fact, the examiner observed that service medical records, as they pertain to claimed malaria condition, were quite limited. There is no medical evidence in the service treatment records to support a diagnosis of malaria and the hospital discharge note clearly stated that the discharge diagnosis was enteritis. The examiner further observed that the one serological test done at the VA in May 2012 was not diagnostic for serological evidence of malaria. The examiner continued that the gastroenteritis/enteritis condition that was noted on the hospital ship discharge note was an acute illness with no residuals. Of note, the examiner considered the Veteran's claims file and medical history in the report. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Additionally, he provided an etiological opinion, complete with the rationale described above. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, the Board assigns great probative value to the April 2013 VA examination. Therefore, based on the evidence of record, the Board finds that a preponderance of the competent medical evidence is against a finding that the Veteran had malaria in service or continues to suffer from any residuals thereof for VA purposes. Again, service treatment and personnel records are silent with respect to any findings of malaria. The March 2003 VA examiner observed that the Veteran was not treated for malaria in service and the blood work at that time was negative. Moreover, importantly, the April 2013 VA examiner clearly indicated that there is no indication that the Veteran suffered from malaria in service. The Veteran's hospital discharge note showed a diagnosis of enteritis. The examiner also noted that a May 2012 VA serological test was not diagnostic for evidence of malaria. There is simply no competent medical evidence showing that the Veteran was diagnosed with malaria in service. The Court has indicated that in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board observes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the Federal Circuit recently reiterated that it had previously consideration and explicitly rejected the view that medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically in Jandreau, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Similarly, the Court has held that when 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. Barr v. Nicholson, 21 Vet. App. 303 (2007). When applying the case law discussed above, here, the Veteran is competent to describe symptoms and to report a continuity of symptoms since service. However, while he can describe symptoms, he is not competent to diagnose malaria. Given that blood work is necessary for such a diagnosis, the Board finds that medical experience is required to diagnose malaria and that the Veteran has not shown that he has such experience. Thus, his contentions are outweighed by the medical evidence of record, specifically, the highly probative April 2013 VA examination. The Board recognizes that at the time of treatment in service, the Veteran may have been told that he had malaria, but the more probative clinical evidence at that time clearly shows that he was diagnosed with viral enteritis. Further, as the lay statements from his wife and brothers are based on the Veteran's own reported history, they also cannot be considered probative evidence of a diagnosis of malaria. Moreover, the April 2013 VA examiner clearly found that the episode of enteritis was an acute episode that resolved with no residuals. There is no evidence of record, medical or lay, linking any current residuals to the acute illness suffered in service. In conclusion, the preponderance of the evidence is against service connection for malaria. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). Low Back Disability The Veteran is also seeking service connection for a low back disability. At the Board hearing and in statements of record, the Veteran claims that he experienced back pain and muscle spasms in service due to carrying at least 50 pounds of equipment while on combat missions in Vietnam. He has also stated that his back pain has continued since that time and sought treatment shortly after service with a private provider, J. N. M.D. in 1971. He indicates having treatment records showing pain the 1980s, but nothing before that period. Service treatment records are silent with respect to any complaints of low back pain. His August 1971 discharge examination showed that the spine was clinically evaluated as normal. Nevertheless, the evidence of record shows that the Veteran was the recipient of the Combat Action Badge. Thus, the provisions of 38 U.S.C.A. § 1154(b) are applicable and the Veteran's assertions regarding experiencing back pain and spasms in service are accepted despite the lack of supporting documentation in service treatment records. See Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). The Veteran filed a claim for service connection for a low back disability in April 2009. In support of his claim, he has submitted lay statements from his wife and brothers that corroborate that the Veteran complained of back pain when he returned from service. The first post medical evidence of a low back disability is a November 1992 private treatment record from Dr. J.N. It noted that the Veteran reported slipping on ice and fell. It was similar to pain that he experienced in February 1990. The assessment was muscle strain paraspinal muscles. In October 1996, the Veteran presented again complaining of low back pain and the assessment was low back strain. In March 1998, the Veteran slipped and fell again. However, on x-ray, no acute fracture was seen. Again, in January 1999, the Veteran presented complaining of low back pain that had been present since January 1994. The assessment was muscle strain, but could not rule out herniated disk. Importantly, in September 1999, the Veteran again presented with low back and indicated that he had experienced low back pain on and off for the last 10 years, but did not relate it to a specific injury although he did fall in 1992. The April 2003 Agent Orange examination noted chronic low back pain, but did not provide any sort of etiological opinion. Private treatment records showed that in January 2007, the Veteran presented with low back pain after carrying 60 pound plates down some steps by himself. Importantly, a February 2007 private opinion stated that based on the Veteran's history, the disk herniation started with lifting heavy objects at work and the examiner continued that the Veteran's disk herniation was a result of his on-the-job injuries. A February 2007 MRI showed a large free disc herniation at L4-5 producing severe spinal stenosis. Another MRI in September 2007 showed that there was a minimal decrease in size of a large disc herniation at L4-5. In January 2008, the Veteran underwent low back surgery. Follow up private and VA treatment records, including clinical records associated with the Veteran's SSA records, continued to show treatment for chronic low back pain, but do not provide any sort of etiological opinion. At the April 2013 VA examination, the examiner noted the following diagnoses: lumbar strain, degenerative disc disease, congenital spina bifida occulta, lumbar radiculopathy and arthritis. The Veteran again reported injuring his back while carrying equipment during combat operations. However, he could not recall a specific injury. The Veteran recalled that back pain came on gradually while stationed in Vietnam and would flare during combat operations. The Veteran indicated that his current severe low back pain that developed after the 2007 injury when he developed a herniated lumbar disk was not like the pain experienced in service. The Veteran reported chronic low back pain ever since service. The examiner noted that the claims file documented a number of post service back injuries, some at work and some off duty. Specifically, a lifting injury at work in about 2007 caused a herniated disc that required back surgery. After reviewing the claims file and examining the Veteran, the examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that the herniated lumbar disk with lumbar radiculopathy clearly occurred post service in 2007 with the work related lifting injury. It was also noted that arthritis changes and degenerative disc disease after trauma take at least two to five years to appear, and sometimes longer. Review of the claims file revealed a pattern of vigorous physical activities and multiple falls and other back injuries post service. Thus, the bulk of the medical evidence is consistent with back arthritis and degenerative disc disease being due to post service activities and injuries that are well documented in the claims file. The examiner further observed that spina bifida occulta is a congenital condition, and in turn, not related to military service. The examiner continued that the Veteran's in service back pain, more severe during his combat service, was most consistent with lumbar strain. Lumbar strain commonly occurs as an overuse injury as the combat service was described by the Veteran in this case. The exit examination report showed no significant back conditions, which was presumptive evidence of resolution of the in-service lumbar strain after return to more normal use. The Veteran's post service employment and his injuries and other sporting activities after work all involved physically vigorous activities that stresses the lumbar spine and soft tissues and are more than sufficient to account for the current symptoms of lumbar strain. Again, the examiner considered the Veteran's claims file and medical history in the report. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Additionally, he provided an etiological opinion, complete with the rationale described above. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, the Board assigns great probative value to the April 2013 VA examination. After considering the totality of the evidence of record, the Board finds service connection for a low back disability is not warranted as there is no competent medical evidence linking any disability to an injury in service, and no evidence of arthritis within one year of service. Indeed, although the Veteran's statements concerning back pain during combat operations are accepted as fact, no diagnosis of a chronic back disability was made at that time. Importantly, the Veteran's spine was clinically normal at the time of his discharge examination. Moreover, as discussed further below, there is simply no competent evidence demonstrating a link of any current low back disorder to service. Again, based on the case law discussed above, in the instant case, the Veteran is competent to report in-service injuries and incidents of back pain. He is also competent to report pertinent symptomatology since service. However, he is not competent to directly link any current disability to service as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Davidson, supra; Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Moreover, the Board finds the Veteran's current assertions of pertinent symptoms since service to not be credible. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In the instant case, the Board finds that such statements are not credible as they are outweighed by the remainder of the evidence of record and were made under circumstances indicating bias or interest. For instance, the private treatment records from Dr. J.N showed that the Veteran reported his back pain beginning in approximately 1989 , which was approximately 18 years after his discharge from service. During the course of seeking treatment, the Veteran was silent with respect to any prior injuries during military service, but rather related his back pain to recent injuries. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); See Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). The Board also finds it significant that the Veteran filed a claim for service connection at the VA as early as 2003 and underwent a VA examination, but was silent with respect to any low back problems. It would be reasonable to assume that if he had continued to experience low back pain since service, he would have mentioned it when he filed his initial claim in 2003. Accordingly, the Veteran's current statements, made in connection with his pending claim for VA benefits, that he has experienced continuous symptoms since service are inconsistent with the contemporaneous evidence and have no probative value. Moreover, as the statements submitted from his wife and brothers are also based on the Veteran's history, which has been found to not to be credible, they also have no probative value. Accordingly, while his contentions have been carefully considered, neither these contentions nor the clinical record establish a continuity of symptomatology such as to serve as a basis for a grant of service connection. Again, after reviewing the claims file, the highly probative April 2013 VA examination found that the Veteran's current low back disabilities were not related to service. As discussed above, the examiner provided a detailed rationale for this opinion. There is no competent medical evidence of record to refute this opinion. Further, the Board notes that congenital or developmental defects are not diseases or injuries for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9. VA's General Counsel has further explained that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin, as long as the evidence as a whole establishes that the familial conditions in question were incurred or aggravated during service within the meaning of VA laws and regulations. VAOPGCPREC 82-90 (July 18, 1990). Thus, as spina bifida occulta has been identified as congenital, service connection is precluded. VAOPGCPREC 82-90 (July 18, 1990). In conclusion, based on the analysis above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for a low back disability. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for malaria, is denied Service connection for a low back disability, is denied ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs