Citation Nr: 1334317	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  13-02 875	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for multilevel degenerative disc disease, claimed as residuals of a lumbar injury (i.e., low back disability).


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

A. Dean, Associate Counsel



INTRODUCTION

The Veteran had active service in the U.S. Air Force from December 1977 to December 1982.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).


FINDING OF FACT

The Veteran's current low back disability, including the multilevel lumbar degenerative disc disease and multilevel lumbar facet osteoarthritis, is not shown by competent and credible evidence to be the result of his military service, including especially the low back injury (lumbosacral strain) he sustained during his service.


CONCLUSION OF LAW

His low back disability is not due to disease or injury incurred in or aggravated by his service and may not be presumed to be.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

Standard of Review

In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and the electronic ("Virtual VA") claims file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See id.  The analysis below therefore focuses only on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all of the relevant evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).


The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), sets forth VA's duties to notify and assist a claimant in substantiating a claim for VA benefits.  The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and medical or lay evidence not of record that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court/CAVC) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Ideally, VCAA notice should be provided prior to an initial decision on a claim by the RO as the Agency of Original Jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, if notice was not provided prior to initially adjudicating a claim, or if provided and it was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect because the intended purpose of the notice is preserved, not frustrated, since the Veteran is still given meaningful opportunity to participate effectively in the adjudication of his claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). 


A claim of entitlement to service connection consists of five elements:  (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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006).  The Court has held that notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) thus requires notice of all five of these elements, so including concerning the "downstream" disability rating and effective date that are assigned once service connection is granted.  See id. at 486; Quartuccio, 16 Vet. App. at 187.

In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), however, the U.S. Supreme Court clarified that 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, bears this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim.

Here, prior to initially deciding this claim in September 2011, an April 2011 letter informed the Veteran of all five elements of his claim, gave examples of the types of evidence he could submit in support of his claim, and informed him of his and VA's respective responsibilities in obtaining relevant records and other evidence on his behalf that would tend to support his claim.  He therefore received all required notice and in the preferred sequence.

VA's duty to assist under the VCAA includes helping the claimant obtain relevant records, including service treatment records (STRs) and other pertinent records, such as regarding his evaluation and treatment since service, whether from VA or private healthcare providers, as well as providing an examination or obtaining a medical opinion when needed to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).


Here, a May 25, 2011 memorandum indicates the Veteran's "complete" STRs are unavailable for review, that all procedures to obtain these records have been correctly followed (there also was detailing of these efforts, including contacting the National Personnel Records Center (NPRC), which is a military records repository, and the Veteran personally to have him submit any in his personal possession), and that all efforts to obtain these records have been exhausted, such that further attempts would be futile.  See Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); 38 C.F.R. § 3.159(c)(2) (providing that VA will end its efforts to obtain records from a Federal department or agency only if VA concludes the records sought do not exist or that agency advises VA the requested records do not exist or that the custodian does not have them).  The Veteran also must be appropriately notified and given opportunity to supplement the record with compensating evidence, including evidence in his personal possession.  See 38 C.F.R. § 3.159(e)(1).

The Board also sees, however, that several, if not most or all, of the Veteran's STRs are indeed in the file.  These records were received on May 4, 2011, so earlier during the month of preparation of that memorandum.  What is equally noteworthy is that these available STRs include the times when he sustained the low back injury at issue during his service, and the complaints, evaluation and treatment he received in the aftermath of that injury.  Thus, for the specific times in question, there are STRs to consider in deciding his appeal.

The Board therefore finds the RO made sufficient attempts to obtain all necessary records concerning his service.

He has not identified any other outstanding records that he wants VA to obtain or that he believes are relevant to his claim, so needing to be obtained.  Therefore, the duty to assist him in obtaining pertinent records has been satisfied.  See 38 C.F.R. § 3.159(c).


The duty to assist also, as mentioned, includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4), 3.326(a).  See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Here, in July 2011, the Veteran was provided the appropriate VA compensation examination for the necessary medical nexus opinion.  The VA examination report provides the information needed to make an informed decision on his claim.  It is evident from the report that the examiner reviewed the claims file for the pertinent history, including of the injury in service and of the complaints, evaluation and treatment in the aftermath and during the many years since.  The examiner also performed a personal physical evaluation of the Veteran and, most importantly, provided explanatory rationale for the consequent opinion that is grounded in fact and based on information in pertinent medical literature.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so the Board's evaluation of the disability will be a fully informed one).

Unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (similarly holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Indeed, even when this is challenged, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1) , the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

Notably, a physician performed the July 2011 VA compensation examination and, as indicated, provided sufficient discussion of the underlying rationale of his opinion.  The discussion of the underlying medical rationale of an opinion, not just review of the claims file, is where most of the probative value of an opinion is derived.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two"); Stefl, 21 Vet. App. at 125 ("a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)).  

This examiner reviewed the claims file and medical history, examined the Veteran and recorded the clinical findings, and provided clear explanation for the opinion stated that is consistent with the other evidence of record and enables the Board to make an informed decision on this claim.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (reiterating the holding in Stefl that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  There are no apparent inconsistencies or ambiguities in the examination report, and the Veteran has not challenged its adequacy or thoroughness, or the competency of the examiner.  See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291.  Accordingly, VA's duty to obtain a VA examination and opinion is satisfied.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312.

The Veteran has received all essential notice and assistance, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice or assistance deficiency along the way.  Under the circumstances presented, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claim.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

Accordingly, the Board may proceed with appellate review of this claim.

Legal Criteria

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.

Stated somewhat differently, establishing entitlement to direct service connection requires:  (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a causal relationship or correlation between the current disability and the disease or injury incurred or aggravated during service - which is the so-called "nexus" requirement.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Aside from having supporting medical nexus evidence establishing this required linkage between the currently claimed disability and service, a Veteran may establish chronicity (i.e., permanency) of disease or injury in service by alternatively showing continuity of symptomatology since service under 38 C.F.R. § 3.303(b) - assuming he has one of the "chronic diseases" specifically enumerated at 38 C.F.R. § 3.309(a).  See generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The essence of 38 C.F.R. § 3.303(b) is continuous symptoms, not continuous treatment for them.  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  These specific diseases listed in § 3.309(a), which include degenerative joint disease (DJD), i.e., arthritis, but not degenerative disc disease (DDD), also may be presumed to have been incurred in service if manifested to the required minimum compensable degree of at least 10-percent disabling within the initial post-service year.  This presumption; however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.309(a).

As will be further discussed, at the conclusion of the July 2011 VA compensation examination, the diagnoses were multilevel lumbar DDD and multilevel lumbar facet osteoarthritis (so also DJD).  It therefore is permissible for the Veteran to show continuity of symptomatology since his service to establish the required linkage between his current disability and service, at least as concerning his lumbar facet osteoarthritis (DJD), but not additionally as concerning his DDD.

In assessing the posited cause-and-effect correlation between the Veteran's service and his now claimed disability, the evaluation of the evidence 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).

Analysis

The Veteran attributes his current low back disability to specific injury or injuries during his military service.  But having reviewed the evidence of record, that is, both the lay and medical evidence, including the medical nexus opinion obtained, the Board finds that the preponderance of this evidence weighs against this claim, so it must be denied.

Specifically, the Veteran asserts that his multilevel DDD (also multilevel DJD) is a result of a lumbar injury he sustained while in service, sometime between April 1978 and December 1979, when he awkwardly caught a right forward missile launcher that he was helping to install under an aircraft after the person assisting him lost his hold on the launcher.  He further alleges that he has had recurrent low back problems ever since that have become progressively worse.

His STRs show that, in November 1978, he reported to the USAF Regional Hospital at MacDill AFB, Florida, with complaints of back pain.  He indicated that he had hurt his back while lifting a heavy object out of a plane the previous day.  The diagnosis was lumbosacral sprain, and he given a limited duty physical profile directing him to avoid bending or heavy lifting (more than 20 pounds) for one week.  In February 1980, he was seen at the clinic on base for additional trauma to his back that had occurred several days prior, resulting in a laceration.  He was told to treat the laceration with topical medication.  In August 1982, he reported to medical with complaints of lower back pain, and it appears that a lumbosacral sprain again was diagnosed.  In addition, in his Report of Medical History at time of separation, he mentioned his earlier back injury at MacDill AFB and stated that he had experienced recurrent back pain since 1978 (so presumably since that injury), albeit that had been treated with medication and physical therapy with good relief.  His military service ended in December 1982.

In July 2011 he was provided the VA compensation examination already mentioned concerning this claim.  The examiner diagnosed multilevel lumbar DDD and multilevel lumbar facet osteoarthritis (so also DJD).  But based on his review of the claims file and physical examination of the Veteran, the examiner determined the Veteran's current low back disability was less likely than not incurred in or caused by the claimed injury, event, or illness in service.  In explanation, the examiner stated the Veteran's complaints of back pain in service appeared to have been short-lived, so acute and transitory, although the Veteran disputed that notion.  

The examiner also noted a lack of documentation of chronicity, meaning permanency of any consequent disability, owing to the fact that the Veteran did not receive treatment or have X-rays performed for his symptoms until that VA examination in July 2011.  The examiner added that he was unable to determine that the Veteran's back pain had been an ongoing problem, as opposed to two discrete events in service.

The Board can confirm from its additional review of the file that the Veteran did not complain about or receive any evaluation treatment for his low back disability until 2011 at the earliest, so not until some 29 years after the conclusion of his service.  The determinative issue of whether any etiological relationship exists between the activity in service of awkwardly catching the right forward missile launcher or of the later lumbosacral strain and eventually developing low back disability of the type shown, which was first documented many years after his discharge from service, is a complex medical matter that is not readily amenable to mere lay comment or opinion.  See Jandreau, 492 F.3d 1372; see also Buchanan, 451 F.3d at 1336.  And the Board finds the opinion of the VA examiner in July 2011 that the current low back disability is unrelated to the Veteran's service, including especially to his injury or injuries in service, to be most probative on this determinative issue of causation.  This examiner, who, to reiterate, is a physician, is a trained medical health care professional who had access to the entire claims file.  And while the Board cannot summarily discount the Veteran's lay testimony concerning having purportedly experienced persistent low back pain since his service merely out of hand, it is permissible for the Board to consider factors that might affect the credibility of his lay testimony concerning this, including his inherent bias and investment in the favorable outcome of this appeal.  See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence).


In Buchanan, 451 F.3d 1331, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  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").  Moreover, although the Board cannot reject a claimant's statements, including regarding the supposed history or chronic recurrence of his disability, merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors.  See Cartwright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias...").

The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Board therefore may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following the conclusion of his service during which there was no clinical documentation of the claimed disorder).


In Kahana v. Shinseki, 24 Vet. App. 428 (2011), and Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc), the higher Veterans Court and even higher Federal Circuit Court cautioned that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Still, ultimately, the Board must consider all of the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2001) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Accordingly, the lack of any contemporaneous evidence in this instance tends to diminish the reliability or trustworthiness of the lay statements the Veteran has provided long after the fact alleging that he has had chronic low back pain since the injury or injuries during his military service.  The July 2011 VA compensation examiner acknowledged the occurrence of said injury or injuries in service, so readily accepted or conceded they had happened as alleged, just nonetheless did not believe they could account for the Veteran's current low back disability in the way of the multilevel lumbar DDD and multilevel lumbar facet osteoarthritis (DJD) he now has.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion).  Here, instead, there was due recognition of the trauma in service, but, that notwithstanding, still disassociation of the current disability from that trauma.  And it is not enough merely for the Veteran to show he sustained relevant injury or injuries during his service, rather, there also must be the required proof of consequent disability, which, here, there simply is not.  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.").

For these reasons and bases, the preponderance of the evidence is against this claim.  Therefore, the benefit-of-the-doubt rule is inapplicable and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

The claim of entitlement to service connection for a low back disability is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs