Citation Nr: 1335211 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 02-08 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to a rating in excess of 30 percent for psychophysiological disability, manifested by chronic pain syndrome, for the period prior to November 3, 2012. 3. Entitlement to a rating in excess of 10 percent for gastrointestinal reaction. 4. Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, for the period prior November 3, 2012. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARINGS ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from October 1974 to October 1976. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The RO declined to reopen a previously denied claim of service connection for a back disability, denied an increased evaluation for a psychophysiological disorder, granted a separate noncompensable rating for gastrointestinal reaction, and denied entitlement to a total disability rating based on individual unemployability (TDIU). During the pendency of the appeal, the RO issued a February 2003 rating decision granting a 10 percent evaluation for a gastrointestinal reaction, effective from October 16, 1998. As this was not a full grant of the benefit sought, the issue remained in appellate status. In August 2002 the Veteran gave testimony at a hearing at the RO before a local hearing officer. In August 2004, the Veteran and his wife testified at a personal hearing held at the RO before an Acting Veterans Law Judge; a transcript of that hearing is associated with the claims file. In August 2005, the Board reopened the claim of service connection for a low back disability, and remanded the underlying service connection claim and the evaluation issues to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development. In October 2007, the Board notified the Veteran that the Acting Veterans Law Judge who had presided at his hearing was no longer employed by the Board. He was offered the opportunity for a new hearing, so that the presiding Judge could participate in the decision on his appeal. 38 U.S.C.A. § 7107; 38 C.F.R. § 20.707. The Veteran declined a new hearing. In a February 2008 decision, the Board denied entitlement to service connection for a back disability and again remanded the evaluation issues to the RO via the AMC for further development. The Veteran appealed the denial of service connection for a back disability to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a September 2009 memorandum decision, the Court vacated the Board's denial, and remanded the matter of service connection for a back disability for further consideration. In July 2010, the Board remanded all four issues to the RO via the AMC for additional development. In April 2012, the Board, again, remanded these matters for additional notice and development actions. In a May 2013 rating decision, the AMC granted a 100 percent disability rating for the Veteran's service-connected psychophysiological condition, chronic pain syndrome, effective November 3, 2012. Contrary to the AMC's conclusion in the May 2013 rating decision that this constituted a full grant of the benefit sought on appeal, this decision represents only a partial grant of the benefit sought on appeal, and the issue of a higher rating for the Veteran's service-connected psychophysiological disability, manifested by chronic pain syndrome, for the period prior to November 3, 2012, remains in appellate status. In addition, in a June 2013 supplemental statement of the case (SSOC), the AMC determined that, with the award of a 100 percent rating for the Veteran's service-connected psychophysiological condition, the remanded issue of entitlement to TDIU was rendered moot. However, the AMC did not consider whether a TDIU rating may be warranted for the period on appeal prior to the assignment of a 100 percent schedular rating, that is, prior to November 3, 2012. Therefore, this issue remains on appeal. The issues of entitlement to a rating in excess of 30 percent for psychophysiological disability, manifested by chronic pain syndrome, for the period prior to November 3, 2012, entitlement to a rating in excess of 10 percent for gastrointestinal reaction, and entitlement to a TDIU for the period prior to November 3, 2012 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC. FINDING OF FACT The most probative medical evidence does not demonstrate that a low back disability was present in service or within a year of discharge from service, and the most probative medical evidence does not establish a nexus or link between the Veteran's current low back disability and his active service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters, including those dated in August 2005, June 2006, and June 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent June 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. Service treatment records are associated with the claims file, as are identified VA and private medical records. VA has obtained examinations and opinions with respect to the claim decided herein, most recently in March 2013. Since then, in a July 2013 Informal Hearing Presentation, the Veteran's representative asserts that the report of the examination is inadequate to decide the back disability claim. Citing Dalton v. Nicholson, 21 Vet. App. 23 (2001) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion), he contends that, because the examiner provided a negative opinion based on a lack of documentation in the service treatment records, his opinion should not be found probative. The Board disagrees and finds the facts of this case distinguishable from those in Dalton. Here, the VA examiner contemplated the Veteran's reported history of an in-service injury, to include falling from a helicopter while on active duty. She nonetheless ruled out a relationship between the Veteran's current back disability on multiple bases, including that, multiple private post service medical records reflect that the Veteran related his back complaints to post service work related injuries. In this case, comprehensive history provided by the Veteran along with objective physical findings were considered when the examiner rendered his opinion as to whether a back disability was related to service. As such, the Board finds that the examinations and opinions of record are adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation of the claim). Thus, the Board finds that the duty to assist has been satisfied, and that an additional VA examination is not warranted. During the August 2004 Board hearing, to assist the Veteran, the Acting Board Member asked questions to help direct the Veteran's testimony concerning the onset of his claimed back disability. Further, the Acting Board Member asked the Veteran to specify the dates of treatment for his back disability. The Veteran was informed that the record would be held open for 60 days in an effort to give the Veteran additional time to submit evidence in support of the appeal. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and 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 hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. The Board finds that there has been substantial compliance with its April 2012 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Significantly, as noted, in March 2013 VA obtained an opinion that addressed the medical matters presented by this appeal. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the low back claim. II. Service connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: (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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain specified chronic diseases, such as arthritis, may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). To rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of the rebuttal standard attaches. VAOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089(Fed. Cir. 2004). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Analysis The Veteran contends that he had a chronic, congenital back disability prior to service enlistment and that the physical demands of training and numerous injuries to his back in service aggravated or caused additional disability. The Veteran asserted that employment medical records in 1973 clearly showed that he had chronic back problems that existed prior to service. In the alternative, the Veteran asserts that his current back disability is due directly to injuries sustained in service. Employment records from Pontiac Motors Division show that the Veteran was on sick leave from September 1973 to October 1973 for back pain. It was noted that the Veteran stated he was prescribed medication (unspecified). He was seen in August and September 1973 with complaints of back ache. The Veteran's September 1974 enlistment examination is negative for any findings, complaints, or symptoms of a spine abnormality. On contemporaneous self-report of medical history, the Veteran denied ever having had recurrent back pain or arthritis. The Veteran was treated for a bruise on his thoracic spine after he slipped on a wet floor and fell while working in the mess hall in May 1975. He was given medication, placed on light duty for three days and told to use hot soaks. The Veteran returned to the clinic the next day complaining of pain in his thoracic and lumbar spine and right thigh. He was found to have a mildly tender thoracic and lumbar spine with full range of motion. When seen four days later, the Veteran reported no relief of his back pain and was referred to a physician for further evaluation. On examination, the Veteran complained of back pain between his scapula and across the posterior chest, and in the right buttock to the popliteal space which was aggravated by lifting. There was some tenderness at L5-S1 level, and straight leg raising was positive in the supine position at 60 degrees on the right and at 70 degrees on the left. The impression was lumbosacral strain with possible malingering. The Veteran was placed on light duty for one week, and was started on an exercise regimen and diet to reduce his weight from 177 to 155 pounds. Although there are numerous service treatment records after May 1975 for various other ailments, there are no further complaints, treatment, abnormalities, or diagnosis referable to any back problems during the Veteran's more than 17 months of remaining active service. His separation examination in September 1976 revealed that his spine and musculoskeletal system were normal. Post-service VA medical records from January 1977 to January 1979 reflect complaints and treatment for a variety of ailments, but are negative for any complaints, findings, treatments or diagnosis of a back condition A March 1979 private medical record reflects that the Veteran was seen for complaints of right lower extremity pain with a noted history of a job-incurred injury in January 1979. The Veteran noted that he had an injury while lifting that subsequently involved pain of the right lower extremity and a sciatic nerve distribution. A March 1979 VA psychiatric examination report reflects that the Veteran stated he ruptured his disc in his back in January 1978 at work. He described his symptoms as pain in the lower back which went down his right leg. An April 1979 VA examination report reflects a diagnosis of low back syndrome. An August 1979 private medical record notes that the Veteran's back remains the same, achy with radiation to the lower extremities. It was also noted that the Veteran was in receipt of Workman's Compensation. An October 1979 lumbar myelogram revealed stenosis of the lumbar subarachnoid space, otherwise, essentially negative lumbar myelogram. It was noted that the Veteran had back problems. In an October 1979 private neurological report, H.M.L. Negrete, M.D., reported that the Veteran stated that on January 26th, he was pushing a piece of steel at work which weighed 300 to 400 pounds when he developed a sudden snap in his back followed by immediate pain in his right lower extremity. The impression was that the Veteran was suffering from a lumbar radiculopathy. A January 1981 VA psychiatric examination report notes that the Veteran reported that a year earlier he injured his back doing heavy labor and had been out of work for about 10 months. A February 1983 lumbar myelogram revealed that the Veteran had injured his back. The impression was amipaque myelgoram demonstrating minimal ventral defect at L4-5 consistent with annulus bulging fibrosis, with no definite evidence of herniated disc material. An April 1983 Hurley Medical Center record notes that the Veteran was admitted with a history of low back pain radiating along both lower extremities for the prior four to five years. A myelogram from March 1983 revealed a disc protrusion at L4-L5 interspace with root sleeve defects bilaterally at the same level. The Veteran underwent a partial hemilaminectomy and removal of extruded L4-L5 disc. Records received from the Social Security Administration (SSA) included medical reports showing treatment for back problems from a work injury (See March 1983 private medical report). These records included a Case History, dated in July 1981, in which the Veteran reported a back injury on January 26, 1979. Also included was a Worker's Compensation Questionnaire and a claim form, dated in August and September 1981, respectively. The Veteran reported that he injured his back while lifting sheets of steel at work on January 26, 1979, and that he had been out of work for 22 months. He specifically denied any prior injury to his back or any back problems prior to the accident. He also indicated that he was capable of working on an equal basis with others of his age prior to the injury. In July 1987, the Veteran submitted a report of accidental injury in support of a claim for VA benefits. He stated that on May 6, 1975, he sustained an injury to his back while working in the mess hall. He stated he was carrying a load of pots and pans when he stepped on a puddle of water or grease. His legs slipped out from under him, he dropped the pots and pans, and landed on his back. He injured his back and it caused him a lot of pain. He stated he did not file a report and that he was sent to the dispensary. He asserted that this back injury, at the very least, played a part in having a ruptured disc removed from his back in 1983. A June 1988 VA physical therapy record notes that the Veteran stated he initially injured his back in 1975 when he slipped on a wet floor. He had a period of exacerbation in 1979. The provisional diagnosis was chronic pain syndrome. In an October 1988 private medical record, it was noted that the Veteran related his initial back discomfort developed in 1975 while in the Marines. In 1979, he noted pain while pushing steel into a press, this pain radiated from the lumbar spine to the right lower extremity. A November 1988 private hospital record notes that the Veteran complained of low back pain and right leg pain and paresthesia. It was noted he was admitted with a history of low back pain due to a job-related injury in the late 1970s. The discharge diagnosis was debilitating lumbosacral strain with radiculopathy. A December 1988 VA psychiatric examination report reflects that the Veteran stated he injured his back in 1975 while running. He referenced another incident in March 1975 when he slipped in the Mess hall and hurt his back. In a January 1989 letter, G. Gruzd stated that he worked with the Veteran in October 1976 and that he complained several times of his back hurting. A November 1992 private MRI of the lumbar spine revealed that the Veteran had moderate right L5-S1 foraminal stenosis caused by hypertrophic bony spurs. Within the report, it was noted that the findings were the result of a combination of the degenerative posterior elements as well as congenitally and relatively shortened pedicles. A November 1996 private MRI study included deformities of the thoracic spine associated with old juvenile kyphosis. A subsequent evaluation of the MRI report by a radiologist in December 1996 was to the effect that the "kyphosis" was not in the thoracic spine, but actually in the thoracolumbar region. The radiologist did not indicate that the identified deformity was congenital in nature and indicated only that it was present on studies taken in 1992. In a January 1997 letter to the Social Security Administration, J. T. Hoff, M.D. stated that the Veteran has had problems with his low back and right leg for the prior nine years. Dr. Hoff opined that the Veteran's current situation was one of intractable pain that now precludes his further working. He will not recover to the point that he would be able to resume his work even part time at a sedentary desk job. In a July 1997 to the Social Security Administration, J. Shah, M.D., noted that the Veteran reported at one time he jumped from a helicopter and had a 25 to 30 foot accidental fall on his back. At that time, he had trivial pain and did not pay much attention to it but later developed pain in the right leg and went to the infirmary clinic where he was told that the pain in the back and the leg were because of running. The Veteran continued to be in pain and was operated on in 1983. The diagnosis was chronic status post lumbar laminectomy-multiple surgeries and probably degenerative osteoarthritis of the lumbar spine. VA and private medical records show ongoing complaints and treatment for various back conditions. A March 2000 VA examination report reflects that the Veteran reiterated prior contentions. He was assessed with vertebral body compression T12 to L2 with narrowing of disc spaces and status post lumbar laminectomies times three, mild compression of thoracic vertebral bodies at multiple levels and degenerative arthritis, thoracic and lumbar spine. The Veteran asserted at the personal hearing in August 2004, that his leg pain, which he claimed the medic attributed to shin splints, was actually radiating pain from his lower back. The Veteran testified, in essence, that although he had chronic back pain, the pain in his legs was more intense and so he only reported his leg pain. In a December 2005 letter, the Veteran's wife stated that she met the Veteran in April 1978 and that the Veteran had a back problem since before she met him. She stated in 1978 she noticed him limping and standing half bent over and the Veteran indicated he had a back ache. A July 2006 VA spine examination report reflects that the VA examiner reviewed the claims file. The VA examiner noted the Veteran's reported history. The diagnosis was degenerative changes of the thoracic and lumbar spine and evidence of compression deformity of L1 vertebra. The VA examiner opined that the diagnosed back disability was not congenital in nature and that it was less likely than not that any current disability had its origin initially in active service. It was his opinion that the Veteran did not have any pre-existing back disability that was increased in severity during his period of service. Neither did his current back disability have its origin from an in-service injury. In a June 2010 letter, K. Matthewis, M.D (Dr. M) stated that he had been treating the Veteran since July 2004. Dr. M stated that while on active duty, the Veteran fell out of a helicopter at Camp Pendleton. He noted that he had immediate pain in his back, but noted he got back up and went on with his duties. His fall was approximately 12 feet landing on a hard surface. He noted that he flipped over in the air, landed on his back , and when he got to his feet, he had immediate right leg pain. Over the next few days he had increasing pain in his back radiating down his right leg. One to two days later, he had severe bilateral leg and back pain and was seen by a corpsman who gave him 1 to 2 days off to recover. The Veteran noted that since this initial injury, he has never had a day in which he did not have back and leg pain. Over the past few years the pain had gotten increasingly worse. The diagnosis was severe degenerative disc disease, chronic, severe uncontrolled back and leg pain. Dr. M opined that the Veteran's initial injury occurred while he was on active military duty and all of his current problems are a progression of this initial injury. A September 2010 VA spine examination report reflects that the examiner reviewed the claims file in conjunction with the examination. The VA examiner noted that while in the Marine Corps as well as infantry, on one or two occasions the Veteran had fell down while running and also another time while he was carrying a machine gun. Even after one or two injuries, the Veteran did not go and see any doctor, but checked with the corpsmen. In May 1975, he had some pain during his duties. After his discharge, he returned to his first job with General Motors and had his first surgery in 1983 for his lower back and a second surgery in 1989, and a third surgery in 1996 for continued problems with his back. The diagnosis was chronic low back strain with a history of multiple lower back surgeries, degenerative disc disease of the lumbar spine as well as thoracic spine. Mild kyphosis in the thoracic spine was appreciated. The VA examiner noted that he had reviewed the extensive notation about the requirements for this examination as well as the claims folder. He opined that the nature and etiology of the back disorder was degenerative disc disease. He furthered opined that the Veteran's current back disorder is not congenital in nature. It was also his opinion that the disorder was not incurred in nor due to the Veteran's service in the military. There is no evidence of non-congenital preexisting disease. The rationale for his opinion was based upon pertinent information in the claims folder as well as the Veteran's complaints of discomfort of the back in 1973 and 1975. In an August 2011 addendum, the September 2010 VA examiner noted that he had reviewed many pertinent records associated with the claims file, to include a prior July 2006 VA examination in support of his rationale. He did not find any congenital changes in the spine X-rays. Moreover, the Veteran was in service sometime in 1974 to 1976, and there is no specific record of any injuries other than what the Veteran had explained to the VA examiner. Most of his problem started after he came out of service and began working in a private capacity with General Motors and had to have multiple back surgeries for various reasons. The VA examiner also noted that some of the information contained in different X-ray reports was somewhat contradictory. In November 2012, the Veteran underwent an additional VA examination. The diagnosis was degenerative disc disease of the thoracolumbar spine with radiculopathy status post lumbar laminectomy. It was noted that the date of diagnosis was 1983, the time of first surgical intervention. The VA examiner noted that the Veteran reported that during high school the Veteran started having pain in his back that was intermittent. The Veteran stated he fell from the top bunk at home onto an open suitcase at age 8 or 9. He stated that he had pain after that for a period of time. After that, he did not have pain in his back until high school. He denied any other trauma. The Veteran did not seek medical care for his back while in high school. In 1973, he was working at Pontiac Motors where he worked as a general laborer. He stated that one day while at work he sprained his back. He was off work for one month and continued to have intermittent back pain that increased with increased activity. He stated that at the time he was inducted into the Marine Corps, he did not recall having back pain. The Veteran stated that during boot camp he did not have pain in his back, despite increased physical activity. The Veteran stated that in 1975 while at ITS training he fell out of a helicopter (10 to 12 feet). After the injury, he was having back and bilateral leg pain. In addition, the Veteran stated that during ITS training, he had two additional incidents where he injured his back. He stated both incidents were related to falling with his back pack on, full of gear. The Veteran stated he also fell in the mess hall. Ever since the helicopter accident, the Veteran stated he would have pain in his back and both legs. The Veteran denied any other back injuries. He stated he did have increased pain in his back and legs after carrying a machine gun barrel up a hill. He was seen on and off for his back while on active duty. He was treated conservatively while on active duty with limited duty and pain medications. In 1979, the Veteran stated he injured his back while at work as a factor worker pushing sheets of metal. He had numbness in his leg after the injury. He underwent a laminectomy in 1983. The VA examiner continued to note the Veteran's post-service medical history pertaining to his back, as discussed in the above medical records. The VA examiner noted that he could not provide the requested medical opinion as the Veteran's claims file had not been provided to him for review. Later in November 2012, the VA examiner was provided with the claims file and opined that the claimed low back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In March 2013, the prior November 2012 VA examiner noted a review of the available records without in-person examination. The VA examiner provided a detailed, comprehensive chronological recitation of pertinent evidence that was considered in her opinion. With regard to conflicting medical evidence, she initially noted that there are two congenital spine anomalies that occur most often, one being Spina bifida and the other scoliosis. Based on the review of the available medical evidence, the Veteran does not have spina bifida. The diagnosis of spina bifida is based on an X-ray that shows that the vertebrae have not developed. This defect is usually in the sacral region of the spine. With regard to scoliosis, there was mention of mild scoliosis on X-rays done in March 2000. However, September 2010 X-rays do not mention scoliosis. Physiological scoliosis can also be caused by position of the Veteran on the X-ray table, muscle spasms, and disc problems. Pathologic is caused by structural abnormalities within the vertebrae that are noted during childhood. The VA examiner stated that the Veteran does not have pathologic scoliosis because there would be evidence on every X-ray, MRI or diagnostic test of the spine. This is not the case based on the September 2010 X-ray that was silent for a diagnosis of scoliosis. Based on the fact that the scoliosis is not seen on most recent X-rays, the most likely is physiologic because of muscle spasms or in the position of the Veteran on the examination table at that time. She opined that the evidence of record clearly and unmistakably does not establish that there was an acquired back disability present prior to the Veteran's entry into active duty service in October 1974. She further stated that the Veteran reported during his November 2012 examination that he had injured his back when he was a child and also again had a work related injury in 1973, one year before his active duty military service. The examiner stated that there is no medical evidence of this injury other than the Veteran's statements provided to this examiner during the prior VA examination. Therefore, this would not meet the standard for clearly and unmistakable medical evidence. The VA examiner further opined that the Veteran's degenerative disc disease of the lumbar spine (any currently diagnosed back disability) was less likely than not incurred in or caused by the claimed in-service injury, event or illness. She noted a review of the service treatment records showed treatment for an acute back injury due to a slip and fall incident in 1975. The region of the spine affected by the slip and fall was the upper thoracic region. The region of the spine injured at work was the lumbar region. The VA examiner stated that these are two separate areas of the spine. While on active duty, the Veteran required treatment for an acute back condition, diagnosed with lumbosacral strain and back contusion. He was treated over a seven day period in May 1975 for this slip and fall injury. She noted that there was no documentation in the STRs of ongoing treatment for this acute injury. Therefore, she opined that this condition would not be considered chronic. She also noted that at the time of separation from service, the Veteran's spine was reported as normal. After the acute injury in 1975, the Veteran was able to complete the remainder of his military service without documented problems, which was an additional 17 months of service. During the November 2012 VA examination, the Veteran reported several other injuries to the lumbar spine, including falling from a helicopter while on active duty. These incidences are not confirmed by medical evidence. There is no documentation in the STRs of being treated for such an injury. It was not until the last year that the Veteran is claiming this injury (helicopter-crash/fall). This incident is not considered valid because there is no documentation of the incident. Previous claims written by the Veteran do not claim that he suffered an injury while in the service from a helicopter crash/fall. From 1976 to 1979 there is no documentation of treatment for an acute or chronic lumbar spine condition. In 1979, there is clear and unmistakable evidence that the Veteran sustained a work related injury. All reports at that time, listed that the Veteran was in excellent health prior to the injury. All of the reports from that period of time are silent for a chronic back problem before this incident. The VA examiner furthered that all reports from the period of time list the problems with the Veteran's spine related to this incident at work in 1979. She opined that based on careful review of all verifiable medical evidence, clearly indicates that he cause of the Veteran's current back condition are his work related injury that occurred after military service in 1979. A low back disability was not clinically noted (per Crowe v. Brown, 7 Vet. App. 238 (1994)) at the time of his examination for entrance to service. Although the Veteran has indicated that he had a history of such disability at the time of his entrance to service, the regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b). Significantly, even the Veteran's private physician, Dr. M., in a June 2010 letter, indicated that the Veteran's initial back injury occurred during service. While the Veteran has submitted pre-service employment records which showed that he complained of a "backache" in August and September 1973, and that he was on sick leave for one month from September to October 1973, there is no competent evidence of a specific back disability. That is, the employment records merely showed that the Veteran had a "backache" more than a year prior to service enlistment and that he took sick leave for one month. The records do not include any specific findings or diagnosis of a back disability, nor has the Veteran provided any competent evidence of a congenital back disability or the specific nature of his "backache" in 1973. In fact, contrary to his assertions, he specifically denied any history of recurrent back pain on a Report of Medical History for service enlistment in September 1974, and his service enlistment examination at that time showed that his spine was normal. VA medical examinations and opinions have been obtained, in July 2006, September 2010, and in March 2013, and each examiner has opined that the Veteran did not have a pre-existing back condition. The Board will now address the Veteran's assertions concerning a pre-existing congenital back disability. It would appear that his belief is based, at least in part, on an impression from a November 1996 private MRI study which included deformities of the thoracic spine associated with old juvenile kyphosis. A subsequent evaluation of the MRI report by a radiologist in December 1996 was to the effect that the "kyphosis" was not in the thoracic spine, but actually in the thoracolumbar region. However, the radiologist did not indicate that the identified deformity was congenital in nature and indicated only that it was present on studies taken in 1992. In this regard, the Board notes that there are no medical findings or opinion of record that even remotely suggests that the Veteran has a congenital back disability. In view of the foregoing, the Board finds that the record does not contain clear and unmistakable evidence that the Veteran had a preexisting low back disability prior to service that was not aggravated by service. 38 U.S.C.A. § 1111. As such, the presumption of soundness on induction is not rebutted, and the Veteran's claim for service connection must be considered on a direct incurrence basis. After carefully considering the multiple volumes of pertinent evidence, to include the Veteran's assertions as well as family and friends, the Board finds that the preponderance of the evidence is against the claim for service connection for a back disability. Despite the Veteran's contentions, his service treatment records from active service show treatment for his back only during a brief period, that is, for one month, and there was no evidence of a chronic condition or diagnosed disability during active service. Although there are numerous service treatment records after May 1975 for various other ailments, there are no further complaints, treatment, abnormalities, or diagnosis referable to any back problems during the Veteran's more than 17 months of remaining active service. Had he been having low back pain as he claimed, the Board believes that he would have mentioned such when being seen by medical personnel during service. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). With regard to continuity of symptomatology, after service, the Veteran first complained of back symptoms in a March 1979 private medical record. However, at that time, the Veteran was seen for complaints of right lower extremity pain with a noted history of a job incurred injury in January 1979. A March 1979 VA psychiatric examination report reflects that the Veteran stated he ruptured his disc in his back in January 1978 at work. Even if the Board were to find that the Veteran first had complaints pertaining to his back in January 1978, such period is more than 1 year after discharge from service and beyond the presumptive time period for establishing service connection for arthritis as a chronic disease. 38 C.F.R. §§ 3.307, 3.309. In addition, the Board notes that the Veteran's first post-service diagnosis of a low back disability was in relation to a work related injury in March 1979. At that time, the Veteran never mentioned that he had pain in his back since service, or that his back pain was in any way related to his military service. The Board finds it significant that while seeking medical treatment from March 1979 to April 1983, none of the medical records associated with the claims file, prior to the Veteran's submission of his claim for VA benefits, show that the Veteran ever mentioned that he had back pain during his active service or that he had suffered a back injury in service or that any back problem was in any way related to his service. Rucker v. Brown, 10 Vet. App. 67(1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The evidence of record contains an opinion of etiology favorable (Dr. M's June 2010 opinion) to the Veteran's claim and a March 2013 VA opinion that rejects the Veteran's claim. Greater weight may be placed on one physician's opinion over another depending on factors such as the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The professional credentials and experience of opinion providers are properly considered in assigning probative value. Sklar v. Brown, 5 Vet. App. 140, 146 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. Harris v. West, 203 F. 3d 1347, 1350-51 (Fed. Cir. 2000). "[M]ost of the probative value of a medical opinion comes from its reasoning." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). With these considerations in mind, the Board finds that the favorable opinion from Dr. M has less probative value than the March 2013 VA examiner's opinion. While Dr. M. provided a favorable opinion that the Veteran's initial injury occurred while he was on active military duty, and that all of his current problems are a progression of this initial injury, such opinion clearly did not take into consideration all pertinent evidence of record, relying essentially on the Veteran's unsubstantiated medical history. By contrast, the Board accords great probative value to the March 2013 medical opinion and rationale provided by the VA examiner, based as it was on a thorough review of the Veteran's claims file, to include a review of the Veteran's service records, post service medical records, the Veteran's assertions and other lay statements and testimony, and the prior medical opinions of record. Importantly, the VA examiner provided clear medical reasoning and logic for her opinions specific to the facts of the Veteran's case consistent with the evidence in the claims file. The March 2013 VA examiner, unlike Dr. M., also noted that the Veteran's back was found to be clinically normal at separation, and that the Veteran did not report any problems with his back at the time of his discharge from service. Further, the March 2013 VA examiner made specific references to multiple clinical and diagnostic records in support of her opinion. Significantly, Dr. M. made no mention of the Veteran's well-documented March 1979 work injury. As for the Veteran's own statements, his assertions of continuity of low back symptomatology since service is substantially rebutted by the complete absence of complaints pertaining to a any back problem until after a post-service work accident in 1979. Further, examination reports at the time of the Veteran's discharge from active service are negative for complaint, symptoms, findings, or diagnosis of any back disability. Moreover, it is pertinent to note that when the Veteran reported that he had back pain in March 1979 and October 1979 private medical records, during March 1979 and January 1981 VA psychiatric examinations, and Worker's Compensation Questionnaire and a claim form, dated in August and September 1981, the Veteran reported that he injured his back as a result of a post-service work accident, described as lifting or pushing steel. In 1981, he specifically denied any prior injury to his back or any back problems prior to the accident. Significantly, the Veteran never gave his early medical care providers a history of having back pain since service or as due to service. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006). In this case, the Veteran's first complaints of any back disability related to service were made contemporaneous with his claims for VA compensation. Cartwright v. Derwinski, 2 Vet. App. 24(1991) (a pecuniary interest may affect the credibility of testimony). In this regard, the Board notes that since his initial claim in July 1987, he asserted that his back was related to a slip and fall incident in service. He never asserted that he had fallen from a helicopter until July 1997, 10 years after his original claim. It would seem most reasonable that someone who fell from a helicopter in service would also assert that as an underlying cause for a claimed back disability at the time of the initial claim for VA disability benefits, not 10 years after. In light of the above, the Board therefore finds that the Veteran's statements do not show a continuity of back symptomatology since service. Recognition is made of the statement from the Veteran's brother that he recalled the Veteran complained of chronic back pain on several occasions from October 1976 to May 1977. To the extent that the Veteran (and his brother) argues that an in-service injury caused his current back disability, the Board finds his statements are not competent evidence. Whether a layperson opinion as to a nexus or a diagnosis is competent evidence depends on the facts of the particular case. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor for consideration is the complexity of the question to be determined. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example in footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not competent to diagnose a form of cancer). Another factor is whether the question can be answered by personal observation alone. See Layno v. Brown, 6 Vet. App. 465, 496 (1994) (explaining that a layperson is competent to report only that which he or she observed). Taking the aforementioned Davidson, Jandreau, and Layno together leads the Board to the conclusion that the complexity of the question, such as whether the asserted in-service injury results into degenerative changes of the spine, can not be determined by direct observation and is not a simple question. His opinion in this regard is not competent evidence and is not favorable to his claim. A review of the evidence has revealed that a disease or injury of the Veteran's back did not have onset during his active service, was not present within one year of service discharge, and was not caused by his active service. As the preponderance of evidence is unfavorable to his claim, the Board must deny his appeal as to entitlement to service connection for a back disorder. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a back disorder is denied REMAND With regards to the Veteran's claim for a rating in excess of 30 percent for psychophysiological disability, manifested by chronic pain syndrome, as noted above, a May 2013 rating decision granted a 100 percent disability rating, effective November 3, 2012. The May 2013 rating decision and the June 2013 supplemental statement of the case did not address the 30 percent rating assigned to the service-connected psychophysiological disability for the period prior to November 3, 2012. As a result, the matter must be remanded for issuance of a supplemental statement of the case. See 38 C.F.R. § 19.31. The Veteran is service-connected for gastrointestinal reaction; however, he is also diagnosed with several additional gastrointestinal disorders that are not service-connected. As the Veteran is diagnosed with additional gastrointestinal disorders, there is the issue as to whether these are manifestations of the Veteran's service-connected gastrointestinal reaction disorder or are separate disorders. The Board finds that the November 2012 VA examination does not set forth a clear discussion as to the gastrointestinal manifestations medically related to the Veteran's service-connected gastrointestinal reaction disorder, or whether it is even possible to separate manifestations of the Veteran's nonservice-connected gastrointestinal disorders from his service-connected gastrointestinal reaction disability. Therefore, the Board finds that a new VA examination is warranted to determine the current severity of the Veteran's service-connected gastrointestinal reaction disability. In addition, the Board notes that the Veteran's TDIU claim is inextricably intertwined with his increased rating claims on appeal. Accordingly, consideration of the Veteran's TDIU claim must be deferred pending the resolution of those pending increased rating claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. Arrange for the Veteran to undergo a VA examination, by an examiner with the appropriate expertise to determine the severity of the Veteran's service-connected gastrointestinal reaction. The entire claims file must be provided to the examiner designated to examine the Veteran, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The examiner should clearly identify all symptoms and manifestations pertaining to the Veteran's service-connected gastrointestinal reaction. In doing so, the examiner is requested to discuss the November 2012 VA examiner's opinions. The examiner should specifically indicate whether it is possible to separate gastrointestinal symptoms of the Veteran's nonservice-connected gastrointestinal disorders from those of his service-connected gastrointestinal reaction disorder on appeal. See Mittleider, supra. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Then, readjudicate the claims of entitlement to a rating in excess of 30 percent for psychophysiological disability, manifested by chronic pain syndrome, for the period prior to November 3, 2012, entitlement to a rating in excess of 10 percent for gastrointestinal reaction, and entitlement to a TDIU for the period prior to November 3, 2012. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ David S. Nelson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs