Citation Nr: 1330319 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 08-11 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION The Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran, his wife, and his brother ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In September 2011, the Board remanded the case to afford the Veteran a hearing. In April 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is in the record. In June 2012, the Board again remanded the Veteran's claim for record development and to provide the Veteran with a VA examination. The RO completed the record development and provided a VA examination in May 2013. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT A back disability was not present in service; was not manifest to a compensable degree within one year of separation from service; was first documented after service beyond the one-year presumptive period for a back disability as a chronic disease; and is unrelated to an injury or disease or event in service. CONCLUSION OF LAW A back disability was not incurred in or aggravated by service and service connection may not be presumed based on the one year presumption for a chronic disease. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- adjudication VCAA notice by letter, dated in June 2006. The notice included the type of evidence needed to substantiate the underlying claims of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Further VCAA notice is not required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, VA records, records from private medical caregivers, records from the Social Security Administration, records from a Worker's Comp claim filed by the Veteran, and provided the Veteran a VA examination in May 2013 and provided a hearing before the undersigned VLJ in April 2012. The report of the VA examination included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, as well as sufficient findings to rate disability. The examiner also provided the reasons and basis for the opinions regarding the relationship of any back disability to service. Therefore, the Board concludes that the VA examination is adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 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) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. 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. Here, during the Board hearing in July 2009, the VLJ indicated that the hearing would focus on the issue of entitlement to service connection for a back disability, and suggested to the Veteran it would help his claim if he could produce medical evidence that he had a back injury that pre-existed his civilian work injuries, or that his disability resulted from an injury in service. The Veteran was assisted at the hearing by an accredited representative from the veterans of Foreign Wars of the United States. The representative and the VLJ asked questions to ascertain the onset, etiology, and symptoms of the back disability. There was no pertinent evidence identified by the Veteran or his representative that might have been overlooked and that might substantiate the claim. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection for a back disability. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). The Veteran testified that he was treated at either the dispensary or base hospital after an in-service accident, and requested VA obtain these records. VA received a letter from the United States Army Medical Department at Fort Jackson that no records concerning the Veteran were located. The Veteran has been told that any such records are transferred after 5 years to the records storage area. VA made inquiries to the National Archives and the National Personal records Center not only for treatment records, morning reports, unit historical records including unit rosters and daily duty status reports. The inquiries included his training unit and two other units where the Veteran served after basic training. The Board therefore finds VA met the duty to assist the veteran in its unsuccessful attempts to locate documentation of the Veteran's accident in service. As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Legal Principles 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, 38 C.F.R. § 3.303. Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b). The Federal Circuit recently held that continuity of symptomatology under § 3.303(b) applies only to chronic diseases listed in § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Arthritis is listed under § 3.309 as a chronic disease. The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for degenerative disease (arthritis), if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 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). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Facts The Veteran seeks service connection for a back disability. The Veteran testified and also submitted additional lay evidence that towards the end of basic training in January 1972 at Fort Jackson, South Carolina, he attempted to make a log climb on an obstacle course when he slipped and fell injuring his lower back. He estimates that the log was between 8 and 12 feet high. The Veteran testified that after the accident, he was treated at either the dispensary or base hospital. He recalls the medical providers investigated his complaints, including an X-ray. He asserts that he has had pain and other symptoms since that time, although sometimes the symptoms are tolerable and other times the symptoms are very severe. As he served as a guard after basic training, the Veteran was able to complete service. Further, it was not until the 1980s that most of the complications from his back occurred. In 1991, at the earliest, he was told by physicians that he had a pre-existing injury that predisposed him to reinjuring the back. This resulted in the bulging and herniated discs at L3, L4, and L5. In the entrance examination in July 1971, the Veteran did not report a history of recurrent back pain, or any other back symptoms. The physical examination was normal. In the separation examination in October 1973, the physical examination was normal. As noted above, all attempts to locate base hospital records or unit records that might discuss the accident have been unsuccessful. In January 1997, a vocational rehabilitation specialist noted the Veteran had a history of injuring his back at work on 5 occasions. There was no mention of a back injury in service. Due to a work related injury in October 1997, an MRI of the Veteran's lumbar spine in November 1997 revealed a bulging annulus at L3-L4 and L4-L5. In addition, there was a small central disc herniation at L4-L5 and borderline narrowing in the spinal cord. The diagnosis was a lower back strain associated with or superimposed upon the MRI findings. A neurosurgeon consult noted that the Veteran reported two prior episodes of back pain that were similar in nature. One episode occurred 5 years earlier and another three years earlier. Each time, the Veteran lost 3 months from work. The consult also noted the Veteran worked as a truck driver and did a considerable amount of jumping on and off the back of his vehicle while working. The report also detailed other injuries the Veteran received, but there was no mention of the Veteran injuring his back during basic training. In December 1997, the Veteran was evaluated by a registered nurse, B. Summerfield, who covered the Veteran's past medical history. The history included mastoid surgery after the Veteran was hit in the head with a rock while he was in elementary school but there was no mention that the Veteran suffered a back injury during basic training. In February 1998, Dr. R. Condaras evaluated the Veteran for a Worker's Comp claim filed by the Veteran and noted the Veteran had 16 prior work related injuries, including four for the lower back. He did not mention any injuries in service although he noted the Veteran served as a military policeman from 1971 to 1973. The Veteran was limited in his forward, extension, and lateral flexion. The diagnosis was chronic lumbosacral strain or sprain secondary to degenerative changes and the bulging annulus at L3-L4 and L4-L5, the small central disc herniation at L4-L5 and borderline narrowing in the spinal cord as noted from the November 1997 MRI. In March 1998, the Veteran underwent a psychological evaluation where he was diagnosed with an adjustment disorder due to his physical diagnoses but the history did not include a back injury during basic training. In May 1998, a functional capacity report indicated the Veteran's lower back had been most recently injured in October 1997 when he was moving objects weighing between 125 and 150 pounds. The report also noted the Veteran had previously injured his back four times at work over the last 15 years while working for his current employer. His forward flexion was 50 degrees, extension to 20 degrees, bilateral rotation to 30 degrees, and bilateral flexion to 40 degrees. In November 1999, the Veteran's chiropractor, Dr. W. Jordan, provided a report regarding the Worker's Comp claim, but the report does not mention a back injury during basic training. In December 1999, the Veteran slipped while climbing out of a boom truck at work. He twisted his lower back when he slipped. He had loss in his range of motion, tenderness to the lumbar paraspinals, and bilateral muscle spasms. By March 2000, the Veteran complained of pain that radiated to his left hip. He attributed his symptoms to his work on a truck. In February 2001, the Veteran was in a motor vehicle accident. His complaints mainly involved the cervical spine including radiating pain down his left shoulder. An X-ray demonstrated degenerative changes in the lower spine and a minimal anterior wedge in the lower thoracic spine. In June 2001, the Veteran had soreness mostly in the cervical spine area but also muscle cramps in the lower back and the next month, he complained of dull pain in the lower back and trouble lifting his left leg. The Veteran was involved in another motor vehicle accident in July 2001. This resulted in various traumas to the lower extremities but there was no paresthesia or neurological symptoms. In August 2001, the Veteran while exiting a shower at home, fell face forward, and had a sudden onset of severe weakness and paresthesia in both the upper and lower extremities. The medical providers eventually determined the Veteran had a central spinal cord contusion at C4-C6 secondary to a fall. This resulted in incomplete tetraplegia. The history noted the prior motor vehicle accidents in February and July 2001 but nothing was mentioned regarding injuries during military service. An X-ray demonstrated mild degenerative changes of the lumbar spine, most prominently at L4-L5. In February 2002, the Social Security Administration determined the Veteran was disabled primarily due to the cervical cord contusion which resulted in incomplete spastic paraplegia. The Veteran was provided a VA examination in May 2013. The diagnosis was degenerative disc disease of the lumbar spine and bulging discs at L3-L4 and L4-L5. The examiner noted that the Veteran, while in basic training, was injured going up a log climb (8 foot high) and he slipped. The Veteran reported that he was taken to the post hospital. The Veteran claimed that he was diagnosed with a sprain and given pain medication. According to the Veteran, he was on profile for a week and then returned to full duty for the next two years. After service, in the 1980's, while driving a truck hauling cement and blocks, the Veteran had to lift a lot of blocks. He would have difficulty getting into the truck as his legs would become weak (either leg or both legs). In 2001, he fell getting out of the tub because his legs gave out. He was taken to a hospital and the Veteran states that he was paralyzed from the neck down for three months. He still has residual paresis of the right arm and leg. X-rays of the lumbar spine demonstrated multilevel degenerative changes and degenerative disc disease. This included severe disc space narrowing at L4-5 and L5-S1 with anterior and posterior osteophyte formation. There was moderate disc space narrowing at L3-4. In the examiner's opinion, the Veteran's present disability less likely than not began in service or is otherwise related to service. The examiner noted the Veteran's testimony that he fell during basic training and was treated. The examiner noted there were no medical records for a back injury during service. Nevertheless, the examiner concluded the injury did occur and the Veteran sustained a back strain based upon the Veteran's report and the witness report of P. M. M. He was able to complete his basic training and two full years of military service following the fall. No records of follow-up treatment were found. The examiner also noted after service the Veteran was engaged in heavy labor and suffered at least four back injuries. An MRI taken in November 1997 revealed a herniated nucleus pulposus at L5. There is no treatment of record involving significant back pain between separation and his back injuries in the 1990's. There also is no evidence of a spinal cord injury associated with his fall as he completed two full years of military service following the fall and was given a regular discharge. He has decreased functional mobility due to pain, weakness, fatigability, as well as incoordination. This limits all functions but is related to his work related spinal cord injuries which occurred in the 1990's. The Veteran has submitted evidence from several people who knew the Veteran. G. A. C. recalled the Veteran was in basic training and suffered a low back injury with problems to the present. The Veteran's wife testified that although she married the Veteran after service, they knew each other when he entered service and she recalls him writing to her about the injury. She also testified that she has observed the Veteran in a lot of pain over the years. The Veteran's brother J. P. testified that the Veteran had no problems with his back before service but since he returned, the Veteran has had back problems that have limited the Veteran's activities. In a statement dated in September 2011, P. M. M., who served with the Veteran during basic training, recalled that they were both doing the obstacle course with the Veteran in front of him when the Veteran slipped and fell. After that, the Veteran had trouble keeping in step and complained his back hurt. P. M. M. also recalled the drill instructors made the Veteran do extra exercises and activities because he could not keep up with the other recruits. Analysis Initially, the Board notes evidence in the file demonstrating that the Veteran has disorders involving the thoracic spine and the cervical spine but understands the Veteran is not including those disorders as part of his claim nor does the evidence suggest any association. The Board therefore has limited its discussion to the lower back. As noted, as a lay person, the Veteran is competent to describe symptoms, which he is able to perceive through the use of his senses. 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.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, 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). Further, the Veteran's statements and testimony are admissible and are to be considered as evidence of continuity. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept in determining whether lay evidence may be considered, in other words, whether the evidence is admissible). The Board thus finds that the Veteran is competent to describe his symptoms in service and thereafter. Although the Veteran is competent to describe symptoms of arthritis, unless the diagnosis is capable of lay observation, the determination as to the presence or diagnosis of such a disability is medical in nature and competent medical evidence is required to substantiate the claim. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The Veteran is not asserting any condition that is capable of lay observation. See Jandreau, 492 F.3d at 1377 (explaining in a footnote, sometimes a 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); see also Barr, 21 Vet. App at 309 (varicose veins were subject to non-expert diagnosis due to the readily observable defining characteristics of the condition). Furthermore, for the claim before the Board, a diagnosis cannot be made by the Veteran as a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses. As demonstrated by this case, a diagnosis depends upon interpretation of symptoms, and clinical and diagnostic tests, such as X-rays and laboratory tests, which requires medical knowledge. No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis. Therefore, the Veteran's assertion or opinion that he has a given diagnosis of the back and the relationship of a diagnosis or symptom to service is not competent evidence. To this extent his statements and testimony are not admissible as evidence of the diagnosis of a disability. It is the opinion of a layman and not competent medical evidence of a diagnosis by a medical professional. The Veteran's discussion of his symptoms over the years certainly is important, however, the Veteran's opinion as to the cause of his symptoms cannot outweigh the opinion of a medical professional. To sum up the foregoing, the Board will consider the Veteran's testimony as it relates to the onset and continued presence of his symptoms. Such lay evidence is relevant and competent. To the extent that the Veteran is offering his own opinion as to what disability is causing the symptoms, or the relationship of the disability to service, the Board has disregarded the Veteran's opinions in its analysis. To the extent that the Veteran asserts continuity of symptoms since service, the Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). 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); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). Arthritis is a chronic disease listed in 38 C.F.R. § 3.309. Therefore, if there is competent a credible evidence of continuity of symptomatology since service, entitlement to service connection would be warranted. 38 C.F.R. § 3.303(b), see also Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013). In this instance, there are no in service treatment records of the Veteran for an injury to the back although the Veteran testified that he was hospitalized at the Fort Jackson base hospital after he fell off a log climb on an obstacle course. There is evidence that the injury occurred. Besides the Veteran's testimony, another serviceman, P. M. M., submitted a statement that he witnessed the Veteran fell and complained of back pain. There are, however, no service treatment records that note treatment for the injury and as noted above, VA has made inquiries for hospital records, morning reports, incident reports, and other documentation reporting the Veteran's accident. Those inquires have not resulted in any report of the Veteran falling off a log climb resulting in injury or symptoms such as ongoing pain. For instance, the Veteran testified that he was placed on profile after the accident, but again, a profile document or reference to one has been found. Moreover, the evidence does not establish continuity of a back disability since service. Instead, the evidence establishes an onset of symptoms and disability well after service after the Veteran suffered work related injuries. For instance, in January 1997, a vocational rehabilitation specialist noted the Veteran had a history of injuring his back at work on five occasions. There was no mention of a back injury in service. When the MRI in November 1997 revealed bulging and herniated discs, a neurosurgeon consult noted that the Veteran reported two prior episodes of back pain, one occurring 5 years earlier (or about 1992) and another three years earlier (1994). In February 1998, Dr. R. Condras noted the Veteran had 16 prior work related injuries, including four for the lower back. He did not mention any injuries in service. In a similar manner, a May 1998 functional capacity report indicated the Veteran's lower back had been most recently injured in October 1997 but he had previously injured his back four times at work over the last 15 years while working for his current employer. In December 1999, the Veteran slipped while climbing out of a boom truck at work. The record also indicates that the Veteran has been in motor vehicle accidents that have resulted in injury to the back such as the ones that occurred in February and June 2001, well after service but before the he filed his claim. In sum, the evidence does not support the Veteran's claim of continuing symptomatology since service. The first time he sought treatment for the back was in 1991 after he acutely injured his back at work and filed a Worker's Compensation claim. Thereafter, the Veteran suffered several injuries to the back due to trauma. Until the Veteran filed his claim, medical records referred to prior events involving the back but did not mention an in service injury such as the basic training injury from his testimony. The evidence thus does not establish a nexus to service based upon continuity, but rather, suggests that the Veteran's current back disability resulted from intervening trauma. In the absence of demonstration of continuity of symptomatology, or a competent nexus opinion, the initial demonstration of current disability years after service is too remote from service to be reasonably related to service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (it was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints.); see also Shaw v. Principi, 3 Vet. App. 365 (1992) (a Veteran's delay in asserting a claim can constitute negative evidence, which weighs against the claim). The Federal Circuit has determined that 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. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here, the lapse of time from separation in 1973 to the first notation of complaints or treatment of the back weighs against the Veteran's assertions of continuous symptoms such as pain. The Board is not stating that the Veteran's testimony must be corroborated by contemporaneous medical records, see Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (lack of records does not, in and of itself, render lay testimony not credible). Instead, the evidence of continuity fails not because of the lack of medical documentation; rather the assertions of continuity are not credible and less probative than the negative evidence, which interrupts continuity. Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006); see also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder). Thus, the Board recognizes that documentation of an injury is not required, Buchanan, supra, but rather, the Board has weighed the negative evidence of the in service treating medical records and subsequent treating records against the Veteran's statements that an injury to the back in service has caused him problems since separation to the present. The Veteran's post-service medical records are negative for complaints, symptoms, treatment, findings, or diagnoses for almost 20 years following separation. Furthermore, as noted, the VA examiner determined that the picture of the Veteran's back disability is consistent with his job related injuries. In addition, at least four times, possibly more, the Veteran injured his back at work at times more recent to the diagnosis of degenerative changes or disc disorders in the back. The intercurrent injury interrupts continuity of symptomatology and is persuasive evidence against continuity of symptomatology. 38 C.F.R. § 3.303(b); Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). For this reason, the preponderance of the evidence is against the claim of service connection based on continuity of symptomatology under 38 C.F.R. § 3.303(b). Furthermore, as noted, the VA examiner determined the subsequent injuries did not aggravate a back disability that had its onset in service. The Board has thus determined that while the Veteran is competent to provide lay evidence concerning the onset of his back disability, the Veteran is not as credible as the documented medical evidence establishes that the onset of symptomatology occurred after service. The Board has therefore assigned little weight to the Veteran's assertions of continuity of symptoms since service. Based on the foregoing, the Board also finds that service connection cannot be granted on a presumptive basis as the evidence does not establish that the disability manifested itself to a compensable degree within one year of discharge from service. As the Veteran's lay evidence is not competent evidence on the questions of either a diagnosis or causation, or credible evidence of continuity of symptomatology, the Board looks to the medical evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159 As for the Veteran describing a contemporaneous medical diagnosis and symptoms described by the Veteran that later support a diagnosis by a medical professional, the Veteran testified that physicians have told him after one of his work injuries that he had a pre-existing injury to the back and it predisposed him to further injuries. The Board finds that the Veteran's assertion is not credible as there is no documentation in the evidence that the Veteran had a preexisting injury. Further, it is not clear from the evidence after which injury a physician told the Veteran that he had a prior injury and could have been referring to a prior work injury as prior work injuries were noted in the histories of treating physicians, but there is no reference to an in-service injury during basic training. The only competent medical evidence is the opinion of the VA examiner in May 2013. The examiner is qualified by education, training, or experience to diagnosis a medical condition and to offer an opinion on causation. With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -03 (2008). The Board finds the unfavorable medical opinion of the May 2013 VA examiner is well reasoned, detailed, provide a rationale that is consistent with other evidence of record, and included reviews of the claims file and the Veteran's symptoms. The examiner acknowledged the Veteran's evidence of a fall in basic training in service and accepted it as true. The examiner noted, however, the lack of treatment provided in service and the lack of findings at separation regarding the back. That accident did not result in the disability because the examiner determined more likely than not the Veteran's civilian work injuries led to the Veteran's back symptoms. The examiner thus took into account all of the medical evidence of record. He set forth an accurate historical history with medical details taken from the Veteran's claims file, which renders it especially probative. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Being based on a complete review of the record, these opinions also take into account the Veteran's own assertions, but the examiner has determined the Veteran's assertions do not establish a relationship to service. The Board therefore finds that the opinion of the May 2013 VA examiner as persuasive evidence against the claim for service connection for a back disability. As the VA examiner applied medical analysis to the significant facts of the case to reach the conclusion expressed in the opinions, the Board also finds the evidence competent and credible and highly probative on the material issues of fact, pertaining to the diagnosis and cause of a current disability of the back or the relationship to service, which opposes, rather than supports, the claim. Certain disabilities, such as arthritis, are presumed to be service-connected if they manifest to a compensable degree within a year of service. 38 C.F.R. §§ 3.307, 3.309 (2013). Here, the Board finds that the evidence establishes a later onset for arthritis as described above and therefore entitlement to service connection cannot be presumed. Accordingly, the weight of the medical evidence is against an association or link between any current disabilities of the back and service, including the incident with the log climb during basic training. The preponderance of the evidence is against the claim of service connection on the applicable theories of service connection, and the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a back disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs