Citation Nr: 1334763 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-28 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for a thoracic spine disability, claimed as thoracic spine fracture at T11 including as secondary to service connected left knee disability. [A separate Board decision addresses the issue of entitlement to a total disability rating based on individual unemployability]. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served in the Air National Guard. He had an initial period of active duty from April 1965 to September 1965. Thereafter he continued in the Air National Guard until June 1986. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2010 rating decision by the Cheyenne, Wyoming Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision the RO denied service connection for a thoracic spine disability claimed as a thoracic spine fracture at T11 including as secondary to service connected left knee disability. The Veteran had a Board videoconference hearing on the back disability service connection issue in October 2011 before the undersigned Acting Veterans Law Judge (AVLJ). A transcript of the hearing is associated with the claims file. In April 2012 the Board remanded the issue of service connection for back disability to the RO via the VA Appeals Management Center (AMC). The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran sustained a back injury diagnosed as lumbar strain in an August 1969 motor vehicle accident and the lumbar strain resolved without residual pathology. 2. In July 2009, that Veteran sustained a thoracic spine fracture at T11 in a fall. 3. The service-connected left knee disability did not cause or contribute to the July 2009 fall that resulted in thoracic vertebra fracture and thoracic spine disability. 4. The service-connected left knee disability has not worsened current thoracic spine disability. 5. The current thoracic spine disability to include the fracture at T11 is not caused by any in-service event and is not related to active service. CONCLUSION OF LAW The criteria for service connection for thoracic spine disability to include the fracture at T11 are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Also, in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. With respect to the Veteran's claim for service connection for back disability, the RO provided the Veteran with VCAA notice in a September 2009 letter, issued before the initial unfavorable decision on that claim. In that letter the RO addressed the information and evidence necessary to substantiate a claim for service connection, on a direct basis and on a secondary basis. The RO informed the Veteran how VA assigns disability ratings and effective dates. The letter also addressed who was to provide the evidence. In the October 2011 Board videoconference hearing the undersigned AVLJ fully explained the issues. In order to determine what additional evidence might be needed, the AVLJ asked questions about where the Veteran received treatment. Then in the April 2012 Board remand the AVLJ called for the AMC or RO to make efforts to identify and obtain additional relevant medical records. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the October 2011 Board hearing. The Board therefore finds that, consistent with Bryant, the AVLJ who conducted that hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the Veteran's hearing constitutes harmless error. The Veteran's claim file (including information on paper and in electronic form) contains service treatment records, records of post-service treatment and examinations, statements from the Veteran, and a transcript of the 2011 Board hearing. In VA medical examinations and opinions clinicians have addressed the nature of the Veteran's back disability and the question as to the likelihood that his service-connected left knee disability caused a fall and thereby caused the back disability. VA examinations and opinions were provided by qualified clinicians who reviewed the Veteran's claims file. Pursuant to the Board's instructions in the April 2012 remand the AMC or RO ensured that a clinician who provided an opinion in May 2012 had all parts of the claims file to review. VA examination reports and opinions include the clinicians' explanations of the findings and conclusions. The record thus contains examination reports and medical opinions that are adequate for addressing the back disability service connection claim. In response to the instructions in the April 2012 Board remand, additional medical records were added to the claims file and a VA clinician reviewed the updated and complete record and provided additional medical opinion. The Board is satisfied that there has been substantial compliance with the remand directives. Therefore no additional remand is needed, and the Board may proceed with review of the back disability service connection issue. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration on the merits of his back disability service connection claim. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Law and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 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). In this case, a fracture of the spine is not listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) is not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2013); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Pursuant to 38 C.F.R. § 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). National Guard service generally includes periods of active duty or training (ACDUTRA) and/or inactive duty for training (INACDUTRA). This generally refers to the two weeks of annual training that each National Guardsman must perform each year, or, in some cases, an initial period of training. For purposes of eligibility for service connection and disability compensation, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a) (2013). Active military, naval, or air service also includes any period of INACDUTRA during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002). As the Veteran reported in 1969 that he also injured his back in the same 1969 MVA which caused his left knee disability, service connection potentially is warranted for any back disability related to the 1969 MVA. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). 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. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). 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. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3, 4.7. Analysis The Veteran has a service-connected left knee disability described as left knee arthroplasty. His main contention is that his back disability to include the thoracic spine fracture at T11 was caused by his service-connected left knee disability. He states that in July 2009, because of his left knee disability, he fell and sustained back injury that produced ongoing disability. Service connection is in effect for left total knee arthroplasty and a 30 percent rating has been assigned from December 15, 2004. There is competent evidence that the Veteran sustained a fracture at T11 after a fall in his home in July 2009. See the private treatment records from Cheyenne Regional Medical Center dated in July 2009. Based upon a review of all the lay and medical evidence, the Board finds the weight of the competent and credible evidence shows that the Veteran injured his thoracic spine in a fall in 2009 and sustained a thoracic spine disability to include a fracture at T11. The Board finds the weight of the competent and credible evidence shows that the service-connected left knee disability did not cause the July 2009 fall or otherwise proximately cause the thoracic spine disability and does not aggravate the thoracic spine disability. Review of the record shows that in August 1969 the Veteran had inpatient treatment at De Paul Hospital in Cheyenne, Wyoming, after a motor vehicle accident (MVA) in which he was thrown from the vehicle. He reported having pain in his back and knee. Lumbosacral spine x-rays showed no abnormality. On discharge from hospital treatment a physician diagnosed lumbar strain, and described the injury as improved. Air National Guard service treatment records from October 1969 reflect the Veteran's report that the August 1969 MVA occurred while returning home from an Air National Guard Unit Training Assembly. He stated that he was thrown from the back of a pickup truck and hurt his back and left knee. The RO established service connection for the Veteran's left knee disability, finding that the MVA that caused the disability occurred in service for purposes of establishing service connection. The claims file contains some medical records for the Veteran, from service and private sources, from his Air National Guard years, 1965 to 1986. As noted above, records reflect that in August 1969, while returning home from a Unit Training Assembly, the Veteran was in an MVA. He stated he was thrown from the back of a pickup truck and he hurt his back and left knee. Following the MVA clinicians noted tenderness over the lumbar area and no abnormality on x-ray. Service and private medical records from later in 1969 through 1986 do not reflect complaints of any further back problems. Medical records from 1969 through 1986 show ongoing left knee problems. In November 1969 private orthopedic surgeon D. M. K., Jr., M.D., wrote that there was evidence of damage and weakness of ligaments in the knee. Dr. K. cleared the Veteran for military duties. Dr. K. stated that the Veteran might develop significant disability in the future, and that time would tell. In April 1974 Dr. K. wrote that he had seen the Veteran intermittently since 1969 for ongoing left knee problems. Dr. K. reported that in 1973 the knee sometimes gave out, and there was clinical evidence of lateral instability. The Veteran underwent left knee surgery in September 1973. In February 1974 the knee was better than it was before the 1973 surgery. In a July 1974 service examination the examiner noted mild instability of the left knee. In an April 1978 service examination the examiner noted mild instability of the left knee. In private treatment in May 1980, it was noted that Dr. K. had performed two surgeries, including a medial meniscectomy and a proximal tibial osteotomy, on the Veteran's left knee. Private orthopedist M. O. D., III, M.D., found that the knee was reasonably stable to varus and valgus stress. In service in 1983 and again in 1985 the Veteran was placed on limited duty profiles due to left knee disability. On examination in May 1983 it was noted that the Veteran's left knee was moderately unstable. In service treatment in May 1986 it was noted that the knee had moderate instability. Private medical records reflect that the Veteran had total left knee replacement surgery in March 1989. In July 1994 the Veteran reported that while changing light bulbs he fell and injured his left knee. Later that month he was admitted to United Medical Center-West in Cheyenne, Wyoming for debridement and possible removal of the total knee replacement. The surgery included drainage for septic arthritis. Over the next couple of months clinicians noted swelling and then an ulcer and drainage in the knee. The Veteran had another knee surgery in October 1994. In 1995 he had rehabilitation treatment for his left knee disability. The Veteran received private treatment for left hip and thigh pain in 2001. At that time he reported having occasional aching and swelling in his left knee. In private treatment in 2004 the Veteran reported that the condition of his left knee had worsened such that it was catching and almost locking. An October 2004 surgery revealed infection in the knee. In May 2005 the Veteran had a VA examination of his left knee. The examiner reported having reviewed the Veteran's claim file. The examiner noted the history of left knee injury in 1969, and ongoing left knee problems with multiple surgeries including arthroplasty and revision arthroplasty. The Veteran reported that the knee had daily intermittent pain, and had stiffness and locking. He indicated the knee had not given way since 2004. The examiner observed that the Veteran had a slightly antalgic gait because of the left knee. The examiner found that the knee was stable when stressed. VA treatment records indicate that the Veteran was seen in September 2005 following a fall. He stated that while he was cleaning a ceiling fan he fell off of a stepladder and hit his lower back on the sofa. On VA examination in December 2006, the Veteran reported that because of his left knee replacement he moved slowly and cautiously while walking and using stairs. The examiner observed that the Veteran had a normal gait. VA treatment records from 2008 and 2009 show treatment for alcohol abuse and withdrawal, a report of two falls a few days apart, the second after consuming a large quantity of alcohol, and reports of heavy daily drinking. Private treatment records from Cheyenne Regional Medical Center show that in July 2009 the Veteran was transported by ambulance to the emergency department and was admitted. Ambulance, emergency department, and treatment records reflect the Veteran's account that the previous day he fell down and hit his back. Treatment records reflect the Veteran's reports that he fell when he was tripped by his cat, when he tripped over his cat, or when his cat got caught up in his feet. He indicated that he had back pain immediately after the fall, but the next morning had severe, intractable back pain and could not get out of bed. He stated that he then called for help and was transported to the hospital by ambulance. Spine MRI and CT scan revealed fracture of the T11 vertebra. Clinicians described the fracture as comminuted or burst. It was noted that the Veteran's history included severe degenerative arthritis of the left knee and seven knee surgeries including replacement surgery. A few days after the injury the Veteran underwent spine surgery including decompression. After the surgery he received additional inpatient treatment, followed by physical rehabilitation. In August 2009 the Veteran submitted a claim for service connection for a back disability, described as a broken lower back. He reported that in July 2009 his left knee buckled and he fell and broke his back. Private primary care notes from October 2009 reflect a history of T11 fracture from a fall from tripping over a cat, and of spine surgery with prolonged hospitalization and rehabilitation. In March 2010 the Veteran sought reevaluation of back pain after another fall. He stated that a chair leg broke and he fell and sustained bruising of the right hip. In September 2010 the Veteran had a VA examination to address his claim that thoracic spine fracture resulted from his service-connected left knee disability. The examiner reported having reviewed the Veteran's claims file. The examiner found that medical records and the Veteran's current account reflected some history of instability and giving way of the left knee, without specific information as to how frequently the knee gave way. The Veteran described the circumstances of his July 2009 fall, stating that just before he fell was standing beside his kitchen sink and his cat was sitting beside his feet. He related that when he was ready to leave the kitchen he pushed the cat away with his left leg in order to clear his path. He reported that he then started back pedaling and could not stop until he hit the door jamb. He stated that he made his way to bed and could not manage to move to reach the telephone to call for help until twelve hours later. The examiner noted accounts of the fall in medical reports from July 2009. On examination in September 2010 the examiner observed surgical scars on the thoracic spine. The examiner found left knee scarring and grinding, and indicated that no lateral instability was detected. The examiner provided the opinion that it is less likely than not that the fracture of the Veteran's T11 vertebra was caused by his service-connected left knee disability. The examiner noted that the Veteran's reports of the 2009 fall were inconsistent. She noted that he reported having pushed away his cat with his left leg, such that his weight was not on his left leg, which was inconsistent with giving way of the left knee being the cause of stumbling and falling. The examiner also found that the available records did not document complaints of left knee instability. The examiner also noted medical record evidence of heavy alcohol use around the era of the 2009 fall, and indicated that such information suggested that alcohol use might have been a factor in the fall. VA treatment notes from October 2010 include a report that the Veteran had experienced numerous falls at home. In March 2011, the Veteran underwent cervical spine surgery. In the October 2011 Board videoconference hearing, the Veteran described the 2009 fall in which he sustained spine injury. He stated that he was at his kitchen sink, taking cholesterol medication in preparation for going to bed. He stated that his cat was by his left leg, and he moved to push the cat aside with his left leg to clear a path out of the kitchen. He stated that as he moved to do so his left knee gave out and he stumbled backward and fell. He stated that after the fall he crawled from his kitchen to his bedroom, but could not reach a telephone. He stated that he laid in bed for a long while, and eventually opened dresser drawers and pulled himself up on the drawers to reach the telephone on the dresser and call 911 for help. The Veteran reported that since the 2009 back surgery he had problems with balance. He stated that a doctor opined that his back disorder caused the balance impairment. The Veteran expressed his belief that his balance was impaired because the back injury and surgery caused prolonged immobility and led to the reduction of strength in his legs. He stated that he was not drinking the night of the fall. He indicated that he continued to have frequent falls because his left knee gave out. He reported that since the left knee replacement he did not have full motion of that knee. He reported that he used a cane because of balance problems since his back injury. The Veteran's representative asserted that reports of treatment following the 2009 fall described the cause of the fall inconsistently, suggesting that clinicians did not listen carefully to the Veteran's account. VA treatment records reflect that the Veteran underwent right hip replacement surgery at a private facility in January 2012, after having fallen and fractured that hip. In the April 2012 remand the Board noted that the Veteran had appeals on different issues pending before the Board at the same time, and that all volumes of the claims file were not before the Board. The Board found it likely that the VA clinician who examined the Veteran in 2010 did not have before her records regarding the August 1969 MVA from which the Veteran reported back and left knee injury, nor complete records regarding the manifestations of the Veteran's left knee disability since service. The Board remanded the back disability service connection issue for the AMC or RO to obtain the complete file and any additional records identified by the Veteran, particularly those concerning any instability of the left knee leading up to the 2009 fall. The Board instructed that then the September 2010 examiner or another VA examiner should review the complete record and provide an addendum or new opinion addressing the likelihood that current back disability was related to the August 1969 MVA, the likelihood that left knee disability caused the 2009 fall and back injury, and the likelihood that left knee disability aggravated the current back disability. Additional medical records were added to the claims file. In May 2012, the VA clinician who examined the Veteran in September 2010 reviewed the amended claims file. The examiner endorsed the opinion that it is less likely than not that the Veteran's back disability is related to in-service injury. The examiner explained that after the Veteran reported back and knee injury from the August 1969 MVA, medical records from his Air National Guard years contained no further mention during of back problems, except for a single 1984 mention of back pain history without further explanation. The examiner noted that on the remainder of the numerous service examinations over the years the Veteran did not report any past or present back problems. The examiner opined that it is less likely than not that the Veteran's back disability was caused by his left knee disability. The examiner explained that medical records show a history of a number of falls without any mention of the left knee disability as a factor in any of the falls. She noted that those records did not mention any instability of the left knee. She indicated that after review of the record there remained insufficient evidence to support the assertion that the July 2009 fall was caused by left knee instability. The Veteran was treated for low back tenderness and lumbar strain after an August 1969 MVA. At that time spine x-rays showed no abnormality. After the initial post-accident treatment, records of medical examinations and treatment over many years do not reflect any complaints involving the back. The May 2012 VA medical opinion indicates that the VA examiner reviewed the service treatment records including the records of medical treatment after the August 1969 MVA and after service. The VA examiner concluded that there was no evidence that a back condition persisted after the August 1969 MVA. The VA examiner noted that in service examinations in 1970, 1971, 1972, 1974, 1975, 1976, 1977, 1978, 1979, and 1980, the Veteran did not report having back pain and/or the report of medical history noted "good health" or no significant injury or illness since the last examination. The Veteran has not contended that the 1969 MVA produced his current back disability. There is no competent evidence which establishes that the current thoracic spine disability is caused by injury or event in service. Without evidence of back problems continuing after or recurring soon after the 1969 MVA or competent evidence of a medical nexus to service, the preponderance of the evidence is against the incurrence or aggravation of any back disorder during the Veteran's service. The Board finds the weight of the competent and credible evidence shows that the thoracic spine disability did not manifest in service and is not otherwise related to active service. Thus, service connection on a direct basis is not warranted. The Veteran contends that in July 2009 he fell and hurt his back because his left knee gave way. He notes that he has had some instability in his left knee. Evidence regarding the condition of the Veteran's left knee from 1969 forward shows pain, limitation of motion, infections, and surgeries including replacement surgery. There is evidence of mild to moderate instability on some occasions, but the evidence does not relate considerable instability or frequent giving way. In particular, the evidence from the years closely preceding the 2009 fall lacks findings of significant left knee instability or reports relating any left knee instability to falls. The Veteran is competent to report an observable or firsthand event such as a fall or an injury and to report observable symptoms such as pain. See Jandreau; supra. The Board finds that the Veteran's statements that he injured his back in July 2009 after his left knee gave out are competent but not credible, therefore, have no probative value. The Board has the duty to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997), and cases cited therein. The Court in Madden held 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." Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997). When the Veteran fell in July 2009, each of several medical reports describing the cause of the fall related the fall to the cat being underfoot, and did not find left knee disability to be a contributing factor. Hospital treatment notes mentioned the history of left knee arthritis and replacement. It is likely that those notes would have mentioned a role of the knee disability in the fall if the Veteran had reported such at the time. The Veteran's representative asserted that the treatment notes are inconsistent about the cause of the fall, and that this tends to indicate that clinicians did not listen carefully to the history the Veteran provided. In fact, the several records from soon after the fall are quite consistent. Each, with slight variations in wording, indicates that the Veteran related that he tripped over the cat and fell. The Veteran's statements in the course of treatment are more credible than his statement several weeks later, in his VA benefits claim, that he fell when his knee buckled. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (finding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; 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); Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). In later statements, the Veteran indicated that he tried to move the cat with his leg and then his knee buckled. The VA clinician who considered the questions in 2010 and 2012 made the persuasive observation that, if the Veteran was using his left leg to move the cat, his weight would not have been on his left leg, so buckling of the left knee would not be expected to cause the stumble and fall. Considering the Veteran's statements during the course of treatment, the completeness and consistency of treatment records, and the relatively lesser plausibility of the accounts the Veteran provided later, the Board concludes that the Veteran's assertion, that his service-connected left knee disability caused his left knee to give way and caused the July 2009 fall, is not supported by the evidence of record and is not credible, and therefore this assertion has no probative value. The Board finds that the private treatment records from Cheyenne Regional Medical Center are more probative and establish that in July 2009, the Veteran sustained a thoracic spine injury after he fell down and hit his back. The treatment records reflect the Veteran reported that he fell when he was tripped by his cat, when he tripped over his cat, or when his cat got caught up in his feet. The Board finds that the private treatment records from Cheyenne Regional Medical Center are more probative because the records are contemporaneous to the injury in question and the Veteran made the statements in the course of medical treatment. Such statements are more trustworthy and reliable. The weight of the competent and probative evidence establishes that the Veteran's thoracic spine disability to include a fracture at T11 is not proximately due to or aggravated by the service-connected left knee disability. 38 C.F.R. § 3.310; Allen, supra. The weight of the competent and probative evidence establishes that the Veteran fell in July 2009 and incurred a thoracic spine disability to include a fracture at T11 after tripping over a cat and the service-connected left knee disability did not cause the fall. The Veteran has not contended that his longstanding left knee disability has aggravated his thoracic spine disability. There is no clinical or other finding or medical opinion supporting that such aggravation has occurred. The record therefore does not suggest or support service connection for aggravation of the thoracic spine disability by the left knee disability. For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a thoracic spine disability to include a fracture at T11 on a secondary basis, and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for thoracic spine disability to include a fracture at T11 is denied. ____________________________________________ C. L. Krasinski Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs