Citation Nr: 1333609 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 00-02 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for residuals of a back injury involving the thoracolumbar spine. 2. Entitlement to service connection for a respiratory disorder, including due to Agent Orange or asbestos exposure. 3. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) and schizoaffective disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from May 1971 to March 1973 with subsequent service in the Army National Guard from April 1973 to April 1977. This appeal to the Board of Veterans' Appeals (Board) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In February 1999, the RO denied service connection for a respiratory condition predicated on exposure to herbicides (the dioxin in Agent Orange). In September 1999, the RO also denied service connection for a psychiatric disorder, inclusive of PTSD, and determined that new and material evidence had not been submitted to reopen a previously denied claim for service connection for residuals of a back injury. And lastly, in November 1999, the RO denied service connection for a lung condition based on alleged exposure to fiberglass. The Veteran since has attributed his lung condition instead to exposure to Agent Orange and/or asbestos. As support for his claims, the Veteran testified at an RO hearing in May 2000. He also testified at a hearing before the undersigned Veteran's Law Judge (VLJ) of the Board in September 2004. Thereafter, the Board remanded the claims to the RO, via the Appeals Management Center (AMC), in November 2004 and again in December 2005 for additional evidentiary development, including further attempts to obtain the Veteran's complete service treatment records (STRs), also medical records from a company where he previously had been employed, outstanding treatment records from VA medical facilities, records from the Social Security Administration (SSA), and personal information from him as well as other information and evidence from the U.S. Armed Services Center for Research of Unit Records (USASCRUR). Following that development, the AMC issued supplemental statements of the case (SSOCs) continuing to deny the claims. In a subsequent March 2010 decision, the Board granted the Veteran's petition to reopen his claim for service connection for residuals of a back injury. However, because the Board could not immediately readjudicate this claim on its underlying merits the claim was remanded along with the claims for service connection for a psychiatric disorder, inclusive of PTSD, and for a respiratory disorder, including as secondary to Agent Orange and/or asbestos exposure, for further development and consideration, specifically, for VA examinations addressing the etiology of these claimed disabilities and to have the USASCRUR (now the Joint Services Records Research Center (JSRRC)) try and independently verify the Veteran's alleged PTSD stressors. In a February 2012 rating decision, on remand, the AMC granted service connection for PTSD and assigned a 70 percent rating for this disability retroactively effective from February 17, 1999, and a higher (and maximum possible) 100 percent rating for this disability as of August 8, 2010. The AMC also issued an SSOC continuing to deny the remaining claims, however. With respect to that claim of entitlement to service connection for PTSD, since it was resolved in the Veteran's favor, there remains no issue or controversy regarding that claim inasmuch as the AMC granted service connection for this disability. The record does not reflect that he disagreed with the 70 percent rating that initially was assigned for his PTSD and/or the effective date that was assigned for that rating or even his higher 100 percent rating, which must be separately appealed as these are "downstream" issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). But because the Veteran was diagnosed with psychiatric disorders other than PTSD, the issue of entitlement to service connection for a psychiatric disorder other than PTSD remained before the Board. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In August 2012, the Board remanded the remaining claims for still additional development, including obtaining supplemental medical nexus opinions regarding the determinative issue of etiology. In an April 2013 rating decision since issued, on remand, the AMC granted service connection for schizoaffective disorder. So both the PTSD and schizoaffective disorder are now considered service-connected disabilities. An SSOC that same month, however, continued the denials of service connection for residuals of a back injury, a respiratory disorder, major depressive disorder, and paranoid schizophrenia. Because that supplemental psychiatric opinion did not address the etiologies of these other mental disorders (major depressive disorder or paranoid schizophrenia), and since the respiratory disorder opinion did not address the issue of whether it is a result or consequence of Agent Orange exposure, the Board must yet again remand these claims to the RO via the AMC in Washington, DC. However, the Board is going ahead and deciding the other claim for residuals of a back injury. FINDINGS OF FACT 1. There is competent, credible, and therefore probative evidence of a back injury during the Veteran's military service. 2. But the most competent and credible, so ultimately probative, evidence indicates his current back disorders are unrelated to his military service - and specifically to that back injury during his service. CONCLUSION OF LAW His current back disorders are not due to disease or injury incurred in or aggravated by his active military service and may not be presumed to be. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants with their claims for VA benefits upon receipt of a complete or substantially complete application. The VCAA was codified by statutes at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, and the implementing VA regulations were codified, as amended, at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). To this end, VA must: (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform him of the information and evidence that VA will obtain; and (3) inform him of the information and evidence he is expected to provide. See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). When the claim is for service connection, the notice should address all five elements of the claim: (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and service, but also the "downstream" (4) disability rating, and (5) effective date in the eventuality service connection is granted. See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The United States Court of Appeals for Veterans Claims (Court/CAVC) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004), that, to the extent possible, the VCAA notice also should be provided to the claimant before an initial unfavorable decision on the claim. Pelegrini at 119-20. If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively rectified ("cured") by providing any necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, April 2001, May 2003, January 2005, and May 2006 letters provided the Veteran the required notice of the evidence and information necessary to substantiate his claim, the information required of him to enable VA to obtain evidence, and the assistance that VA would provide in obtaining supporting evidence. He also received notice consistent with Dingess as concerning the "downstream" disability rating and effective date elements of his claim, in the event service connection ultimately is granted. VA also has made reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim. To the extent possible, VA and non-VA treatment records were obtained. His available service treatment records (STRs) are in his claims file, but they are incomplete and all attempts to obtain the missing records were unsuccessful. When, through no fault of the Veteran, records under the control of the Government are unavailable, the duty to assist him with his claim is heightened, including in terms of trying to obtain alternative forms of evidence, such as Surgeon General's Office (SGO) extracts or other evidence from the National Archives and Records Administration (NARA), and insofar as explaining the reasons and bases for the decision and applying the benefit-of-the-doubt doctrine. Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); see also Moore v. Derwinski, 1 Vet. App. 401 (1991). While there is no presumption of service connection that arises in this unfortunate circumstance, VA is obligated to exercise greater diligence in assisting the Veteran with the development of the evidence in support of his claim. Washington v. Nicholson, 19 Vet. App. 362 (2005); Cromer v. Nicholson, 19 Vet. App. 215 (2005). It also has been held that, where service records are missing or destroyed, VA must provide a thorough, "explanation to the [claimant] on how service records are maintained, why the searches undertaken constitute a reasonably exhaustive search, and why further efforts would not be justified." Dixon v. Derwinski, 3 Vet. App. 261 (1992). The law also provides that, where the STRs are incomplete or presumed destroyed, VA not only has a heightened obligation to explain its findings and conclusions, but that it also has a heightened duty to consider the benefit-of-the-doubt rule. O'Hare, 1 Vet. App. at 367; Dixon, 3 Vet. App. at 263-264. But having said that, the Board must also reiterate that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim. That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between this claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367). Also consider that when, as here, there have been hearings, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the presiding hearing officer's duties under section 3.103(c)(2) are twofold. First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the presiding hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. Here, the hearing officer and undersigned who presided over the May 2000 and September 2004 hearings identified the issue on appeal and pertinent treatment records. The undersigned, in particular, also noted the importance of having supporting nexus evidence establishing the required correlation between the claimed disability and service. The Veteran and his representative did not raise any new issues pertaining to the claim during the course of the hearings. See Bryant, 23 Vet. App. at 497-98. Thus, the Board finds that the two-fold duty was sufficiently satisfied. The Veteran has not alleged there was any deficiency in the conducting of those hearings, including in relation to the presiding hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Moreover, even assuming for the sake of argument there was such a deficiency, the Board finds that it did not prejudice the claim. In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability (in a claim concerning entitlement to service connection), the purpose of 38 C.F.R. § 3.103(c)(2) nonetheless had been fulfilled because the record reflected that these issues were developed by VA and through the Board's multiple remands. Indeed, after discussion during his hearings of the importance of having the required medical nexus evidence, the Veteran demonstrated his actual knowledge of this evidentiary requirement lending credence to his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). There also is no indication he had any additional information or evidence to submit, that is, other than that since obtained on remand. The additional development of the claim directed by the Board's most recent remand in August 2012 was completed. The supplemental VA nexus opinion was obtained and fully supported; therefore, there was compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error, as a matter of law, in failing to ensure compliance). But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); and Dyment v. West, 13 Vet. App. 141, 146-4 (1999) (indicating situations when it is acceptable to have "substantial", even if not "exact" or "total", compliance with remand directives). The Board therefore is proceeding with the adjudication of the claim concerning the back. Legal Criteria for Service Connection Service connection is granted for disability resulting from a disease contracted or an injury sustained in the line of duty during active military service or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing entitlement to service connection on a direct-incurrence basis requires competent and credible evidence showing: (1) the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain diseases, including arthritis, are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year following separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). But if chronicity of disease or injury in service is not shown, or if it is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service; (2) symptoms of that condition continued after service; and, (3) the current condition is related to those continuing symptoms. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, recently held that continuity of symptomatology only can be used to establish this required linkage between the current condition and service if the condition is one of those explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis, as mentioned, is among the conditions listed in this VA regulation as chronic, per se. So service connection may be established either by showing direct service incurrence or aggravation, or by using applicable presumptions, if available, or under 38 C.F.R. § 3.310(a) and (b) and Allen v. Brown, 7 Vet. App. 439, 448 (1995), by alternatively showing the condition claimed is secondarily related to service, meaning either caused or permanently worsened by a service-connected disability. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine whether the evidence is "credible", or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible). Only if the evidence is both competent and credible does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 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. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In certain instances, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). On the other hand, laypersons equally have been found not competent in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis In deciding this claim, the Board reviewed all of the evidence in the Veteran's claims file, both the physical claims file and electronic ("Virtual VA") file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends his current back disorder originated from an injury he sustained during his service in the military. See the March 1986 claim. Specifically, he fell off a personnel carrier vehicle and then was hospitalized. See the May 1987 letter. His December 1995 and May 2000 testimony was to the effect that he fell off a truck during service, lost consciousness, and was hospitalized for a few days. In September 2004, he provided similar testimony. He testified the injury occurred in March 1972 when he was going out on guard duty. He fell when the truck turned a corner and hit a ditch. He stated he was given a couple of days rest in the hospital and told he was bruised. He added that he did not receive any additional treatment but continued to have problems with his back from that point forward. In support of his claim, he submitted a sworn statement from E.S., a former serviceman, attesting that he witnessed the Veteran's accident. E.S. stated the Veteran fell off the back of a truck and was unconscious. An ambulance was called and he was taken to "Mac V" hospital for medical treatment. He added that, as a result of the fall, the Veteran had ongoing, so chronic, health problems. Aside from a November 1970 pre-induction examination that was unremarkable for any spine abnormality or complaints, the Veteran's STRs are unavailable despite attempts to obtain them. Nevertheless, he is competent to report any injury he sustained in service because this concerns his firsthand knowledge of a factual matter. See Washington v. Nicholson, 19 Vet. App. 363 (2005). Similarly, E.S. is competent to report an injury he witnessed first-hand. The Board finds no basis to question the credibility of their lay testimony and statements regarding that purported back injury in service since their assertions have been consistent, the incident is facially plausible, and it is not inconsistent with other evidence of record. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Hence, the Board accepts that the back injury occurred as alleged. Again, the mere fact the Board is accepting the Veteran's claimed injury in service as having occurred lessens the significance of not having the STRs from the period of active duty service because, for all intents and purposes, the Board is conceding he sustained the claimed injury. But as already explained, missing STRs, alone, while indeed unfortunate, do not obviate the need for him to still have evidence supporting his claim by establishing he has the claimed disability and suggesting there is a relationship or correlation between this disability and his military service, and in particular that injury. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). And it is in these other equally critical respects that the evidence is less favorable to the claim. Regarding the second element of a successful claim, which requires evidence of a current disability, there is ample evidence of spine disorders since findings of August 1995 magnetic resonance imagings (MRIs) of the lumbar spine revealed "degenerative lumbar intervertebral disc at L5-S1", a May 2008 VA treatment record located in the Veteran's Virtual VA file showed a computed tomography (CT) scan of his lumbar spine revealed degenerative joint disease (i.e., arthritis), degenerative disc disease (DDD) was diagnosed based on April 2010 VA compensation examination lumbar X-rays, and lumbar strain and mild facet arthropathy were diagnosed during his September 2012 VA examination. But there still has to be attribution of these disorders to his military service and, again, especially to the injury in service he cites as the source or cause of this present-day disability. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). As to this third element, competent nexus evidence linking a current back disorder to his military service, there is not this required competent nexus evidence establishing this necessary causation. An initial opinion was obtained in April 2010 on VA compensation examination by a medical professional who had examined the Veteran and reviewed the claims file. The examiner provided an opinion against the claim, and in her rationale she stated "medical records indicate by several civilian DRS caring for the 2 MVA's (1988 and 1993) that there was an active duty low back injury. History and medical records indicate no chronic care for low back condition. He worked as a chemical operator with no work injury history. He admits low back condition made worse by the MVA. LS spine x-rays reveal DDD of L5-S1, a development due mainly to aging. The active duty injury was 1972 and active treatment was not until 1988, some 16 yrs after active duty". The Board found the examiner's rationale to be inadequate since she acknowledged there had been some impairment prior to the motor vehicle accidents (MVAs) after service that did not originate or was a result of those post-service accidents, but instead worsened due to those motor vehicle accidents. The Board pointed out there was evidence of back complaints in 1985, which was before the motor vehicle accidents. The examiner also did not appear to attribute any credibility to the Veteran's statements regarding continuing symptoms since service, which, under 38 C.F.R. § 3.303(b), may be used to support a claim despite the absence of continuous treatment. The essence of 38 C.F.R. § 3.303(b) is continuous symptoms, not treatment for them. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record"). Consider, as well, that not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Recently, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and the "nexus" requirement of the three-element test must be met. Id. at 1338-39. At the conclusion of a September 2012 VA compensation examination, the evaluating physician addressed the Board's concerns and again a negative opinion was offered. This physician's rationale stated the "Veteran had repeatedly reported [low back pain] ever since falling from a vehicle while in service in 1973. As the remand discusses and the previous examiner noted, follow[-]up medical care has been scanty except for care following multiple MVAs. Review of multiple Lumbar x-ray, CT and MRI reports shows little evidence of structure damage and no significant arthritic changes. Facet arthropathy is described in recent years. This is consistent with aging and the history of repeated back traumas. This reviewer feels that given the complex interim history it is unlikely that the current or ongoing back complaints are specifically due to the in-service described injury. The Veteran's post-1974 active and strenuous work history (including National Guard service) would also disfavor an ongoing active back injury or problem". The Board finds the rationale to adequately support the opinion and provided the supplemental information the Board sought. Although the examiner indicated the back disorder was consistent with repeated back trauma, which arguably could include the in-service injury, he appears to distinguish this injury from the post-service injuries by noting the Veteran's history of physical labor after service as evidence against finding he had a significant back injury in service. Moreover, he cited the Veteran's additional (subsequent) service in the Army National Guard as seemingly both indication the injury during his earlier active duty (AD) service had not resulted in chronic residual disability, but also, by implication, in suggesting that additional service in the Army National Guard had not aggravated any pre-existing disability. The presumption of aggravation under 38 U.S.C.A. § 1153 does not apply to claims based on a period of active duty for training (ACDUTRA) or inactive duty training (INACDUTRA), such as, here, in the Army National Guard. Smith v. Shinseki, 24 Vet. App. 40, 48 (2010). Therefore, unless "Veteran" status already has been established based upon a prior period of service, such as the prior period of AD in this particular instance, a claimant must establish "Veteran" status for benefits based on aggravation of a preexisting condition during a period of ACDUTRA or INACDUTRA in the Army National Guard. See Donnellan v. Shinseki, 24 Vet. App. 167, 173 (2010). To establish "Veteran" status, a claimant has the burden of showing both aggravation elements. The claimant, rather than VA, bears the burden of proof in establishing both that (1) "the preexisting disability worsened in service" and (2) "that such worsening was beyond the natural progression of the disease." Id., at 174. A claimant is entitled to the benefit-of-the-doubt standard when the question of "Veteran" status arises. Id., at 175. The Veteran's service involved AD and presumably also ACDUTRA and INACDTRA. Active military, naval, or air service includes any period of AD or ACDUTRA during which the individual concerned was disabled from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled from injury, but not disease, incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. § 3.6(a), (c), (d). National Guard duty, however, is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States[; a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). "Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401 , or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. So to the extent the Appellant is alleging that his disability is a result of injury or disease incurred or aggravated during his time in the National Guard, it must be remembered that only "Veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(a). Thus, to establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., his prior period of AD) does not obviate the need to establish that he is also a "Veteran" for purposes of the period of ACDUTRA if the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for the Appellant to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury, though not disease, incurred or aggravated during his INACDUTRA. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). And as also already explained, consider additionally that there is no presumption of soundness or aggravation for ACDUTRA and INACDUTRA service, only for AD, nor is there any presumption normally available for conditions considered chronic, per se, which manifest to the required compensable degree within a specified amount of time after service, usually one year. See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010). Because, then, the VA examiner's rationale is supported by the evidence, his opinion is probative evidence against the claim. As pointed out by the September 2012 VA examiner, the Veteran has had a complex medical history since service. This history includes motor vehicle accidents in January 1987 and July 1993. See records in January 1987, August 1993, and February 1994. The Board does not dispute whether the Veteran had back pain after service that pre-dated his motor vehicle accidents, but as opined by the September 2012 VA examiner it is unlikely that ongoing symptoms were related to that injury in service. The Veteran testified to the fact that after service he started doing physical labor. While moving 50-pound sacks and other things he had an aching back at night, which he treated with aspirin and heat pads. He stated it progressed as he got older. He testified that since becoming an adult most, if not all, of his employment was manual labor. See December 1995 hearing transcript. Even in the 1985 post-service treatment record he did not attribute his backaches to his service or to any injury during his service; instead, he indicated it was related to work activities as a civilian. The VA examiner's rationale surmised the Veteran would not have been able perform years of heavy labor as a civilian if there had been a significant back injury in service or even aggravation of any consequent disability during his additional (subsequent) service in the Army National Guard. The record does not contain any probative medical nexus evidence that refutes the September 2012 VA examiner's opinion, therefore, the claim cannot be granted on the basis of medical nexus evidence because it is uncontroverted and against the claim. As to the presumptions found at 38 C.F.R. § 3.309(a), the record does not show a diagnosis of lumbar arthritis in the first post-service year. In fact, March 1987 and October 1992 X-rays of the lumbar spine were normal and there was no objective evidence of arthritis until many years later. Arthritis, including if due to trauma (i.e., post-traumatic), must be objectively confirmed by X-ray. 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003 and 5010 (2013). Given that arthritis is a chronic disorder, the Board has given consideration as well to the Veteran's assertions of continuing symptomatology. Arthritis, as mentioned, is among the conditions listed in 38 C.F.R. § 3.309(a) as chronic, per se, so entitled to this pleading-and-proof exception. His other noted back disorders, however, are not chronic according to this VA regulation, so the continuity-of-symptomatology standard does not apply to those. In looking at the history of the Veteran's claimed back disorder there is credible evidence of a back injury in service; however, his assertions of continuing back problems since service are not consistent with some of the evidence of record. Notably, a January 1987 treatment record is when he first reported having intermittent back pain since falling off a truck during his service, and he has made similar assertions several times since then. See the October 1991 and September 1992 private treatment records, and hearing transcripts in December 1995 and May 2000. However, just the following month, so in February 1987, a VA treatment record shows he reported having just instead a 7-year history of low back pain that was aggravated by his previous job that involved lifting; the assessment was possible low back strain, chronic. Not only does this record establish an onset of back problems in 1980 instead of during his earlier service, this record is consistent with an earlier VA treatment record in July 1985 in which he reported having a backache with work activities as a civilian. In contrast to what he reported in January 1987, he also provided contradictory information much closer to his period of AD, when he denied having any back problems. His service personnel records (SPRs) show he entered the National Guard after separating from AD. Although his service separation examination report is unavailable, his April 1973 enlistment examination for the National Guard, a month after he separated from service, is in the file and shows no spine abnormality was found. Furthermore, the April 1973 medical history report completed by him shows he checked the box indicating he did not then currently or ever have recurrent back pain. Evidence dated one month after service showing he did not have recurrent back pain is inconsistent with a first report of continuing symptoms made 15 years after AD. As the National Guard records are essentially contemporaneous to when he separated from service, as opposed to the January 1987 statement made many years later, the Board finds the earlier records are more credible and, thus, probative as to the condition of his back at that time and whether he had ongoing symptoms since his initial injury during his AD service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous records are entitled to more probative weight than the recollections of the Veteran and others of events that occurred years or even decades after discharge from service). The courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to in turn receive the best or most appropriate medical care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). When, as here, there is an inconsistently reported history concerning the amount and extent of symptoms experienced since service, this tends to undermine the probative value of this history. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later); Struck v. Brown, 9 Vet. App. 145, 155-56 (1996) (Contemporaneous medical findings may be given more probative weight). Also, to the extent the February 1987 record contains a history that is to some degree corroborated by an earlier 1985 record it carries some probative value as to the history and onset of back symptoms. While the Veteran is competent to report continuing symptoms since the injury in service, for the reasons discussed, his statements concerning this are not credible due to inconsistent and contradictory evidence described previously. Therefore, the second and third Shedden elements are not established based on continuity of symptoms. There are many other medical records in the file related to back treatment and diagnoses over the years, but they provide no information etiologically linking the Veteran's back disorder to his service - and, again, especially to his injury during his AD service, so even accepting that it occurred as asserted. Since a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. ORDER The claim of entitlement to service connection for residuals of a back injury involving the thoracolumbar (thoracic and lumbar) spine is denied. REMAND In the prior August 2012 remand, the Board determined that supplemental opinions were needed regarding the Veteran's claimed respirator disorder. In the directives, the Board specifically requested a supplemental opinion and rationale regarding the disability in relation to possible asbestos exposure. However, in the body of the remand where the Board explained the inadequacies of the February 2011 VA compensation examination opinions, the Board also indicated the rationale provided as to why exposure to Agent Orange was unrelated to the respiratory disorder was inadequate because the examiner had based the opinion on the findings of a study without addressing the Veteran's specific circumstances. Because the Board's request for a supplemental opinion only involved asbestos exposure and inadvertently omitted any mention of an opinion involving Agent Orange exposure in the directives, the VA physician who provided the supplemental opinion in March 2013 only addressed the asbestos aspect of the claim. Therefore, the matter must be remanded for a supplemental opinion that additionally addresses herbicide exposure. The Board's prior August 2012 remand also requested VA psychiatric nexus opinions for schizoaffective disorder or schizophrenia, and major depressive disorder with psychotic features, including whether they were caused or aggravated by the service-connected PTSD. The examiner did not address the etiology of major depressive disorder or schizophrenia, only instead the schizoaffective disorder, which since has been determined like the PTSD to be a service-connected disability. Therefore, comment is needed as well concerning the etiologies of the major depressive disorder and schizophrenia. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, these remaining claims are REMANDED for the following additional development and consideration: 1. If available, return the claims file and a copy of this remand to the VA physician who offered the supplemental opinion in March 2013 for the claimed respiratory disorder. * That March 2013 examiner must offer a supplemental opinion, as well, as to the likelihood (very likely, as likely as not, or unlikely) the Veteran's current respiratory disorder is related to herbicide exposure during his service in Vietnam. This additional opinion cannot rely solely on the study previously relied upon, but must take into account the specifics of the Veteran's circumstances and history in rendering an opinion. The physician must fully explain the reasoning used to render the opinion and, where appropriate, refer to specific records or findings. * If the March 2013 VA physician is unavailable to offer another opinion, then the claims file and a copy of this remand must be forwarded to and reviewed by another appropriate physician who must comply with the above instructions. If the reviewer determines that an additional VA examination is needed to provide the requested opinion, then another examination must be scheduled and the Veteran appropriately notified. Whether another examination is needed is left to the designee's discretion. 2. Also, if still available, return the claims file and a copy of this remand to the psychologist who offered a supplemental opinion in February 2012 regarding the Veteran's claimed psychiatric disorder. * The examiner must offer a supplemental opinion as to the additional likelihood (very likely, as likely as not, or unlikely) the Veteran's major depressive disorder with psychotic features or schizophrenia originated during his military service, incepted within one year of his discharge in the case of the schizophrenia, or is otherwise related or attributable to his service. * If it is found unlikely that the schizophrenia or major depressive disorder with psychotic features is directly related to service, opine whether each instead is proximately due to, the result of, or aggravated by the service-connected PTSD or schizoaffective disorder. * If the February 2012 VA psychologist is not available to offer another opinion, then the claims file and a copy of this remand must be forwarded to and reviewed by another appropriate mental healthcare provider who must comply with the above instructions. If the reviewer determines that an additional VA examination is needed to provide the requested opinions, then another examination must be scheduled and the Veteran appropriately notified. Whether another examination is needed is left to the designee's discretion. 3. Ensure the above remand instructions have been complied with and adequate responses and rationales provided for all opinions. If any opinion or rationale is inadequate, return the claims file to the examiner for an addendum. 38 C.F.R. § 4.2. 4. Then readjudicate these remaining claims in light of this and all other additional evidence. If either claim is not granted to the Veteran's satisfaction, send him another SSOC and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these remaining claims. He has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs