Citation Nr: 1334893 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 12-23 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service in the United States Navy from July 1979 to December 1984. She subsequently served in the United States Navy Reserve. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In December 2012, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the Veteran's Virtual VA file. A review of the Virtual VA paperless claims processing system reveals additional hearing testimony pertinent to the present appeal. The Board will adjudicate the issue of entitlement to service connection for a low back disorder. However, the issue of service connection for tinnitus will be addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have a current low back disorder that manifested in service or within one year thereafter or that is related to her military service, including in-service treatment for a low back strain. CONCLUSION OF LAW A low back disorder was not incurred in or aggravated by active service, nor may arthritis of the low back be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist For the issue of entitlement to service connection for a low back disorder, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters sent from the RO to the Veteran in November 2011 and May 2012. These letters satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing her about the information and evidence not of record that was necessary to substantiate her service connection claim; (2) informing her about the information and evidence the VA would seek to provide; and (3) informing her about the information and evidence she was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the November 2011 VCAA letter advised the Veteran of the elements of a disability rating and an effective date. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Thus, the Veteran has received all required notice in this case, such that there is no error in the content of VCAA notice. See also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). Moreover, with regard to the timing of VCAA notice, the U.S. Court of Appeals for Veterans Claims (Court) and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued all required VCAA notice prior to the February 2012 rating decision on appeal. Thus, there is no timing error. With respect to the duty to assist, the RO has secured the Veteran's service treatment records, private medical evidence as authorized by the Veteran, and a VA examination report. For her part, the Veteran has submitted personal statements, argument from her representative, and additional private treatment records. She has not identified any relevant VA treatment records. The Board notes that VA is also required to make reasonable efforts to obtain private medical records. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1). As with the duty to assist in obtaining VA records, the duty to obtain private records applies to relevant or potentially relevant records. See Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010); McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir 2008). In this regard, the Veteran filled out several VA authorization forms sent to her (VA Forms 21-4142) in order to secure outstanding private treatment records from Dean Clinic dated from 1986 to 2000. However, the RO received negative responses from Dean Clinic in January 2012, April 2012, and May 2012, indicating that no treatment records for the Veteran were found. A June 2012 Report of General Information (VA Form 21-0820) reiterated that these records were not available. In addition, the Veteran herself stated that she was informed by Dean Clinic that these records were destroyed after 10 years of inactivity. See August 2012 VA Form 9. Moreover, the Veteran has stated on several occasions that she may never have sought treatment for low back pain at Dean Clinic. See August 2012 VA Form 9; April 2012 NOD; June 2012 Veteran's statement; December 2012 hearing testimony at pages 6-12. For these reasons, the Board finds that the RO has made reasonable efforts to obtain these private treatment records. 38 C.F.R. § 3.159(c). The Veteran was also afforded a VA examination and opinion in February 2012 that addressed the etiology of her current low back problems. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). As will be discussed below, when considered as a whole, this examination and opinion was thorough, supported by an explanation, based on a review of the claims folder, and supported by clinical evidence of record, as well as some of the Veteran's own previous statements to medical personnel. There is no basis for any further VA examination or opinion as to the low back disorder issue on appeal, as the February 2012 VA examination was adequate. Moreover, as previously noted, the Veteran was provided the opportunity to testify at a December 2012 videoconference hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2); Procopio v. Shinseki, 26 Vet. App. 76 (2012). At the videoconference hearing, the undersigned Veterans Law Judge identified the issue on appeal. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony and questioning by her representative, demonstrated her actual knowledge of the elements necessary to substantiate her claim. In this regard, the Veteran testified as to her symptoms in service and alleged the continuity of symptomatology since service, despite the lack of documented treatment. The Veteran also indicated that no doctor had provided a private nexus opinion. See hearing testimony at pages 6-13. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). There have been no allegations to the contrary, and the Veteran and her representative have not requested another hearing. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of her low back claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of the low back issue on appeal. With regard to the service connection for tinnitus issue on appeal, the Board finds that further evidentiary development is needed and will be discussed below. Therefore, an analysis regarding compliance with the VCAA for this issue is not required at this time. Governing Laws and Regulations for Service Connection Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. §§ 3.303, 3.306. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under 38 C.F.R. § 3.303(a), 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Federal Circuit Court recently held that diseases that would be considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a) as an enumerated "chronic disease," may still qualify for service connection under the three-element test for disability compensation described in § 3.303(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), with an enumerated "chronic disease" (such as arthritis) shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See also Groves v. Peake, 524 F.3d 1306, 1309 (2008). This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity of symptomatology. 38 C.F.R. § 3.303(b). 38 C.F.R. § 3.303(b) also provides another route by which a Veteran can establish service connection for a "chronic disease" - by way of continuity of symptomatology. Continuity of symptomatology after discharge is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, i.e., "when the fact of chronicity in service is not adequately supported." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed. 38 C.F.R. § 3.303(b). See also Walker v. Shinseki, 708 F.3d 1331, 1339-40 (Fed. Cir. 2013). For continuity of symptomatology, the Board may consider the absence of contemporaneous medical evidence, but the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Buchanan, 451 F.3d at 1337. Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection for certain enumerated diseases, such as arthritis, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Competent medical evidence means 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 mean 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). 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, 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 on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. Layno v. Brown, 6 Vet. App. 465, 469 (1994). If the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Analysis - Low Back The Veteran has asserted that she injured her low back during service when she lifted a box in 1981 and claimed that she has experienced a continuity of symptomatology since that time. She has stated that she only began receiving treatment for her low back years after service when her low back pain became severe. Prior to that time, she indicated that she self-treated with Motrin and Bengay. See August 2012 VA Form 9; April 2012 NOD; June 2012 and November 2011 Veteran's statements; December 2012 hearing testimony at pages 6-12. Upon review of the evidence of record, the Board concludes that the Veteran is not entitled to service connection for a low back disorder. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the present case, there is sufficient evidence that the Veteran meets the threshold criterion for service connection of a current low back disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Specifically, based on VA X-rays of the lumbar spine, the February 2012 VA examiner diagnosed degenerative changes and spondylosis of the lumbar spine. An earlier private August 2004 magnetic resonance imaging (MRI) report also revealed a mild disc bulge, and a January 2007 private treatment record assessed degenerative disc disease of the lumbar spine. Thus, the Veteran clearly has a current low back disorder, and the remaining question is whether the disorder manifested in service or is otherwise related thereto. The Veteran's service treatment records reveal that she reported many years of low back pain in April 1981, but with severe pain occurring during only the last three years. This report would date the onset of her low back pain to at least 1978, which would have been prior to her period of military service. However, at her earlier enlistment examination in June 1979, no objective abnormality of the low back was found. Thus, the presumption of soundness applies in this case. Moreover, the presumption of soundness has not been rebutted by clear and unmistakable evidence. In this regard, the Board finds that there is insufficient evidence establishing that a low back disorder clearly and unmistakably existed prior to service. The only evidence suggesting that there may have been a preexisting disorder is the Veteran's own reported history several years into her period of service, which does not amount to clear and unmistakable evidence, particularly in light of the physical examination findings at her June 1979 enlistment examination. She also denied any problems prior to service during the February 2012 VA examination. Thus, it cannot be said that there is clear and unmistakable evidence showing that the Veteran had a preexisting low back disorder. Accordingly, the presumption of soundness is not rebutted. Additionally, the Veteran and her representative have not contended, nor does the evidence show, that there was a preexisting low back disorder that was aggravated by her military service. 38 U.S.C.A. §§ 1111, 1137, 1153 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.304, 3.306 (2013). See also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-2003. They have never proffered any argument or evidence as to a preexisting low back disorder or aggravation thereof, despite having the opportunity to do so at her videoconference hearing. As such, it cannot be said that the evidence clearly and unmistakably shows that the Veteran had a preexisting low back disorder. Therefore, the Board's analysis must turn to the issue of whether a current low back disorder was incurred during the Veteran's active service. See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed. Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). VAOPGCPREC 3-2003 (July 16, 2003). The Veteran's service treatment records document that she was treated for low back pain in April 1981 at which time she was diagnosed with a low back strain. She was prescribed Valium, and bedrest was recommended. Her condition improved in one week. She was treated again for low back pain of seven weeks duration in May 1981. The Veteran also reported mid-lower back pain in June 1982. No recent history of heavy lifting or exertional activity was indicated, but it was noted that she had experienced similar symptoms in the past. The diagnosis was mechanical low back pain. She was prescribed Tylenol and heat treatment. However, the remaining service treatment records are entirely negative for any complaints, treatment, or diagnosis of a low back disorder. Moreover, upon separation in November 1984, no low back disorder was clinically assessed by military medical personnel. Thus, despite there being evidence of low back problems while in service, the remaining service treatment records dated after June 1982 show that the Veteran did not have a low back disorder at the time she separated from service in November 1984. Following her military service, there is no objective indication of arthritis or degenerative changes of the low back within one year after service. Arthritis must be objectively confirmed by X-ray. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Rather, the first evidence of arthritis was revealed in 2004 private X-rays, which would have been decades after her separation from service. Thus, the Veteran is not entitled to service connection for a low back disorder (arthritis) on a presumptive basis. Moreover, under 38 C.F.R. § 3.303(b), this case does not meet the test for "chronic disease" as set forth in lieu of a medical nexus. Although arthritis is an enumerated "chronic disease" under 38 C.F.R. § 3.309(a) (listing named chronic diseases), arthritis in the present case is not "shown" in service. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). The service treatment records in the present case fail to establish a combination of manifestations sufficient to identify the disease entity of arthritis as opposed to any other diagnosis. That is, 38 C.F.R. § 3.303(b) equates "shown in service" with a reliable diagnosis of the chronic disease while in service. Walker, 708 F.3d at 1339. No such diagnosis of arthritis is of record during service. Moreover, the evidence as a whole does not establish continuity of symptomatology of low back arthritis since service. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1339. In making this determination, the Board acknowledges the Veteran's lay assertions regarding continuous low back pain since her separation from service in 1984. See April 2012 NOD; August 2012 VA Form 9; November 2011 Veteran's statement; December 2012 hearing testimony at pages 6-12. She indicated that she only sought treatment post-service once her low back pain became severe. In any event, the Veteran is competent to report low back pain from the time of her military service. Layno, 6 Vet. App. at 469. See also 38 C.F.R. § 3.159(a)(2). Once evidence is determined to be competent, the Board must determine whether the evidence also is also credible. The former, the Court has held, is a legal concept, which is useful in determining whether testimony may be heard and considered by the trier of fact, while the latter is 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). See also Layno, supra. The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence that it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The Veteran's credibility affects the weight to be given to her testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Credibility can be generally evaluated by considering interest, bias, or inconsistent statements, the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony." Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza, 7 Vet. App. at 506 (citing State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992). In this case, the Veteran is competent to state that she has had low back symptoms following treatment for her in-service problems. Nevertheless, this history is not credible and is of limited probative value for the following reasons. First, in the record, the Veteran has made inconsistent statements regarding the onset of a low back disorder. See Gardin v. Shinseki, 613 F.3d 1374, 1379 (Fed. Cir. 2010). Despite her lay assertions as to continuity of symptoms during and after service, the Veteran specifically denied a history of recurrent back pain at post-service Navy Reserve examinations dated in August 1989 and December 1990, which were five to six years after her separation from active duty. Moreover, upon objective examination in August 1989 and December 1990, no low back disorder was clinically assessed by military medical personnel. Thus, there is affirmative lay and medical evidence showing that she did not have a low back disorder several years after separation from service in 1989 and 1990, which is inconsistent with the Veteran's lay assertions decades later that her low back pain continued since her injury and treatment in service. These medicals records from the Navy Reserve in 1989 and 1990 were generated with a view towards ascertaining the appellant's then-state of physical fitness; they are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). These records contradict the Veteran's lay assertions regarding continuous low back pain and symptoms since her confirmed low back strain and mechanical low back pain during service, and her personal interest to receive benefits becomes a factor in such an instance. Cartright, 2 Vet. App. at 25. Second, the first documented evidence of post-service low back pain is from a September 1995 Group Heath private record that noted a history of low back pain of several weeks. A history of an earlier muscle pull from years before was also noted. An August 2004 private treatment record also noted a lifting injury from many years earlier. No nexus opinion was proffered in either instance. Regardless, this first documented treatment is nearly 11 years after her discharge from service. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1336-37. However, the Board may consider a lack of contemporaneous medical evidence of any low back pain for approximately 11 years after separation from service as one factor in determining the credibility of lay evidence. Id. at 1337. Again, the documented fact that the Veteran denied a history of low back pain at 1989 and 1990 examinations weighs strongly against her more recent lay assertions of continuity, which were asserted only after she filed her claim for VA compensation. For the foregoing reasons, the Board finds the Veteran's reported history of having a low back disorder since service is not particularly persuasive or credible. In addition, with regard to a nexus, the Board finds that the evidence of record weighs against a finding that the Veteran's current low back disorders are related to her military service, including her in-service treatment for a low back strain. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). Significantly, in February 2012, a VA examiner reviewed and discussed the evidence of record and opined that it was less likely than not that here current low back disorder was incurred in or caused by her military service. The examiner noted that, although there were two lumbar strains while she was on active duty, two later Navy Reserve physical examinations did not document any complaints of low back pain. Thus, the examiner determined that the service records and Navy Reserve records did not support a finding of chronic low back problem related to service. In making this determination, the examiner also considered the Veteran's lay assertions regarding the onset of her low back problems. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). As discussed above, the Board has found these lay assertions to not be credible. Overall, this February 2012 VA medical examination and opinion was thorough, supported by an explanation, based on a review of the claims folder, and supported by the Veteran's medical records. There is no contrary medical opinion of record. With regard to lay evidence, the Board acknowledges that the Veteran is competent to report purported symptoms and treatment for a low back disorder. See 38 C.F.R. § 3.159(a)(2). Based on recent case law, the Veteran, in certain circumstances, can be competent to testify to the fact that low back symptoms she experienced in service or immediately thereafter are reflective of the same condition with which she is currently diagnosed. Davidson, 581 F.3d at 1316. However, the Veteran's lay assertions in the present case are outweighed by the clinical findings of the February 2012 VA examiner, who determined that the Veteran's in-service low back problems did not continue post-service. The Board has discussed in detail above why it found the Veteran's lay statements as to continuity to be unpersuasive. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for a low back disorder. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, the Board concludes that service connection for a low back disorder is not warranted. ORDER Service connection for a low back disorder is denied. REMAND Before addressing the merits of the remaining issue of entitlement to service connection for tinnitus, the Board finds that additional development of the evidence is required. In particular, the Board finds that an additional medical opinion is necessary. The Veteran was afforded a VA audiology examination in February 2012 at which time the examiner stated that the Veteran's tinnitus was not related to hearing loss. However, she did not specifically provide an opinion as to whether the Veteran's tinnitus was related to her military service, including noise exposure therein. The examiner also did not consider the fact that the Department of Defense has indicated that the Veteran's military occupational specialty as a machinist mate for a little over two years during service involved a "high" probability of noise exposure. Moreover, it appears that the examiner did not consider the Veteran's reported lack of intercurrent, post-service noise exposure. See hearing testimony at pages 3-5. Nor did she address the significance, if any, of the Veteran's recurring in-service treatment for ear problems, such as otitis externa and chronic eustachitis. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that a clarifying VA medical opinion is necessary. Accordingly, the tinnitus issue is REMANDED for the following action: 1. The RO/AMC should refer the Veteran's claims folder and Virtual VA folder to the February 2012 VA audiology examiner, or if she is unavailable, to another suitably qualified VA audiology examiner for a clarifying VA addendum opinion as to the nature and etiology of the Veteran's tinnitus. Only if deemed necessary by the new VA examiner is an actual examination necessary. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should then render an opinion as to whether it is at least as likely as not (i.e., 50 percent or more probable) that the Veteran's current tinnitus is related to her military service, including noise exposure and ear problems therein. In making this determination, the examiner should specifically address the Department of Defense's Duty Military Occupational Specialty (MOS) Noise Exposure Listing indicating that the Veteran's MOS as a machinist mate for a little over two years during service involved a "high" probability of noise exposure. The examiner should also address the significance, if any, of the Veteran's recurring in-service treatment in July 1979, July 1981, January 1982, and September 1983 for chronic ear problems, such as otitis externa and chronic eustachitis. In addition, the examiner should consider the Veteran's reported lack of intercurrent, post-service noise exposure in her occupation in administrative work. See hearing testimony at pages 3-5. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for the opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The RO/AMC should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. 3. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted for service connection for tinnitus, the Veteran and her representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs