Citation Nr: 1335687 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-36 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disorder, including a herniated disc, as a residual of an injury. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Appellant served on active duty for training (ACDUTRA) in the U.S. Army Reserves from February to June 1980, with additional training periods in 1981 and 1992. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied her claim of entitlement to service connection for a low back disability, including a herniated disc purportedly the result of an injury. In April 2012, in support of her claim, she testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. The Board subsequently, in July 2012, remanded her claim to the RO via the Appeals Management Center (AMC) for further development. Specifically, the RO/AMC was instructed to gather more information concerning her periods of military training, both ACDUTRA and inactive duty training (INACDUTRA). Additionally, she was notified that the medical records received in support of her claim were all dated prior to her claim, so she was given time to submit additional evidence. Finally, the RO/AMC was directed to schedule a VA compensation examination for a medical nexus opinion addressing the likelihood her low back disability is attributable to her service, in particular, whether pain she felt while marching during her first period of ACDUTRA in 1980, and reportedly also has experienced ever since, is related to her current low back disability. In October 2012, this requested medical nexus opinion was obtained. After considering it, the RO/AMC continued its denial of the claim in a January 2013 Supplemental Statement of the Case (SSOC) and returned the file to the Board for further appellate consideration of the claim. But in July 2013, rather than immediately adjudicating this claim on its merits, the Board again remanded it to the RO via the AMC, this time however so the Appellant could be provided a copy of the January 2013 SSOC at her new address. She also was given opportunity to submit additional evidence and/or argument in response to it. Her claim, therefore, is now ripe to be decided. FINDINGS OF FACT 1. The preponderance of the evidence weighs against finding that the Appellant has a herniated disc or that she has at any time since the filing of this claim. 2. The preponderance of the evidence also weighs against finding that the low back disability she does have - namely, lumbar spinal stenosis and lumbar spinal spondylosis - was caused or exacerbated by her service. CONCLUSION OF LAW Her low back disability, lumbar spinal stenosis and lumbar spinal spondylosis, was not incurred in or aggravated by her service and may not be presumed to have been. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claim Assistance Act (VCAA) The VCAA provides that VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and her representative of the evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist her in obtaining; and, (3) that she is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial decision on the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a Statement of the Case (SOC) or Supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of the notice because its intended purpose is still served inasmuch as the claimant is still provided opportunity to participate meaningfully in the adjudication of her claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the United States Court of Appeals for Veterans Claims (Court/CAVC) observed that a claim of entitlement to service connection consists of five elements: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and, (5) effective date. See 38 U.S.C. § 5103(a) (West 2002 & Supp. 2012). So compliance with the first Quartuccio element requires notice of all five of these elements of the claim, including the "downstream" disability rating and effective date elements. See Dingess, at 486. But a VCAA notice error is not presumptively prejudicial, rather, must be determined on a case-by-case basis. And as the pleading party attacking the agency's decision, the claimant, not VA, bears this evidentiary burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of this claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, a VCAA notice letter sent in September 2008 informed the Appellant as to each element of notice as set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The notice indicated the joint obligation between VA and her in obtaining pertinent evidence and information, and that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. It also provided information regarding the "downstream" disability rating and effective date elements of a pending claim for service connection. The notice was sent prior to the initial adjudication of the claim, so in the preferred sequence. The Board therefore finds that the duty to notify has been satisfied. The VCAA further provides that VA has a duty to assist her in the development of this claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). This duty includes assistance in obtaining relevant records, including service treatment records (STRs) and other pertinent medical records, including regarding relevant evaluation and treatment since service, whether from VA or privately, as well as the provision of an examination when necessary to make a decision on the claim. Id. Conversely, there is no duty to assist if there is no reasonable possibility that assistance could result in substantiation of the claim. This duty to assist in the development of this claim has been satisfied. The Appellant's STRs and post-service medical records have been obtained and associated with the claims file for consideration in this appeal. She has not identified any other outstanding records that she wanted VA to obtain or that she felt were relevant to this claim that have not been obtained. She also was provided a VA compensation examination in October 2012, resulting in a medical nexus opinion regarding the likelihood her lumbar spinal stenosis and lumbar spinal spondylosis are related or attributable to her service. The Board finds this opinion adequate to adjudicate her claim on its underlying merits, as it was based on a thorough review of the evidence, including her contentions, and most importantly is supported by explanatory rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion). See also Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA endeavors to provide an examination for a service-connection claim, even if not statutorily obligated to, it must ensure the examination is adequate, else, notify the claimant why such an examination will not or cannot be provided). The Board sees that VA compensation examiner did not provide an opinion on the etiology of a herniated disc. That was understandable, however, because the examiner did not diagnose a herniated disc, and the records showing the Veteran has as a herniated disc all predate her claim. Thus, as it is not a current diagnosis, and has not been diagnosed since the filing of her claim, no opinion was needed. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (The requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time the claim for VA disability compensation is filed or during the pendency of the claim, even if the disability resolves prior to VA's adjudication of the claim.). In an August 2013 letter, the Appellant expressed her dissatisfaction with her VA compensation examination. She maintained that she should have been given a magnetic resonance imaging (MRI) instead of an X-ray. She also argued that the pain medication she takes for other conditions had improved the range of motion of her back. As well, she thought the examination was too brief, so merely cursory, and she interpreted the report as indicating she had no pain, which she reasserted she most definitely has. The Board is not, however, persuaded that another examination is warranted or justified. She has not given any reason why an MRI was necessarily indicated or would have been a more effective diagnostic tool in her particular circumstance, and in any event the examiner referenced a prior MRI report in the record when discussing his examination findings and the history of this claimed disability. The range-of-motion tests were done in the event her claim for service connection was substantiated and would have been used to address a "downstream" issue, namely, to determine the severity of her disability and appropriate rating for it. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2013). These tests generally are not diagnostic in nature and did not factor into this examiner's opinion regarding the etiology of this alleged disability. In regards to the length of the examination, except for not providing her an MRI, she has not indicated what else should have been done. To the contrary, the Board finds the examination complete, and that all relevant tests were performed and the necessary medical nexus opinion provided. Finally, she asserts the examiner indicated she has no low back pain. In actuality, he said that he did not observe any objective indications of pain; he acknowledged her subjective complaints of pain and relied on her descriptions of it, both during service and on the day of his examination of her to formulate his opinion. Accordingly, she has not pointed out any insufficiency in the examination that would compromise its reliability or require a clarification or an addendum opinion. Unless a claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Indeed, even when this is challenged, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). Here, as explained, the examination report is adequate for deciding this claim. The examiner reviewed the claims file for the pertinent history, which, according to the holding in Neives-Rodriguez, in any event is not dispositive or determinative of an opinion's probative value. But he also personally examined the Veteran, recorded his clinical findings, and most importantly provided clear explanations for the opinions stated that are consistent with the other evidence of record and enable the Board to make an informed decision on this claim. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There are no apparent inconsistencies or ambiguities in the examination report. See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291. Accordingly, VA's duty to obtain a VA examination and opinion is satisfied. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. Also for these reasons, the Board is satisfied the AMC has complied with the Board's July 2012 and July 2013 remand directives, certainly substantially complied. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As instructed, the AMC obtained information concerning the Appellant's relevant dates of service, asked about updated treatment records, obtained a medical nexus opinion, and forwarded her a copy of the most recent SSOC to her new address. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Thus, as there is no indication or allegation that any other relevant evidence remains outstanding, which is obtainable, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002). In regards to her April 2012 hearing before this VLJ, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that a person chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position. Id., at 496. As to the duty to suggest overlooked evidence, the Court clarified that "overlooked evidence" means evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue. Thus the duty also applies to suggesting the submission of evidence on an issue that is raised at the hearing, for which there is no evidence in the record, and the submission of evidence that is actually mentioned during a hearing, which may exist or that could be reduced to writing. Id., at 486-97. During the hearing, the parties agreed that the issue was whether she was entitled to service connection for a low back disability. She described that she was marching during her first week of service when her symptoms (chronic pain, etc.) began, and she fell, which prevented her from being able to complete physical training. She explained how her back was treated and indicated she was not actually examined while in service. She additionally explained that she was unable to seek medical treatment for a long time after service, and that even once she began treating her low back she did not ask her physicians whether the pain she had felt since her service was related to the marching incident during her first period of ACDUTRA. She indicated she believed it was related to her service because she had experienced this pain since her service. She and her representative clearly understood that she needed to establish the required nexus or correlation between her low back disability, then claimed as a herniated disc, and her military service, such as by establishing it incepted during service and that she had experienced continuous symptoms since (i.e., continuity of symptomatology), as their arguments and testimony were focused on these very points. Hence, they evidenced their actual knowledge of the type of evidence and information needed to substantiate this claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). In turn, the Board remanded the claim so that the medical evidence could be further developed - including in the way of the medical nexus opinion that was obtained regarding the etiology of her low back disability. As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) such that the Board may proceed to adjudicating this claim based on the existing record. Standard of Review In deciding this claim, the Board has reviewed all of the evidence in the claims file. VA is transitioning into an entirely electronic (paperless) work environment, and to this end is now processing some claims either partly or even entirely using this medium. The two symptoms incorporated are Virtual VA and the newer Veterans Benefits Management System (VBMS). This appeal was processed using the latter, so the records involved in this appeal are all stored and maintained electronically. The Board has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See Gonzales, 218 F.3d at 1380-81. The Board's analysis, therefore, focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning the claim. The Appellant must not assume the Board has overlooked pieces of evidence that are not explicitly discussed. The law requires only that the Board address its reasons for rejecting evidence favorable to her. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, so including both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against it, with the Appellant prevailing in either event, or whether instead the preponderance of the evidence is against the claim, in which case it is denied. Id. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine whether the evidence also is "credible," or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible). Only if the evidence is both competent and credible does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has personal knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). On the other hand, laypersons equally have been found not competent in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Appellant's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). As the Federal Circuit Court has observed, lay evidence must "demonstrate some competence." See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on her behalf, but also the Appellant's demeanor when testifying at a hearing when she has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Relevant Statutes, Regulations and Cases Service connection is granted for current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Active military, naval, or air service includes any period of active duty (AD) or ACDUTRA during which the individual concerned was disabled from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled from injury, but not disease, incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. § 3.6(a), (c), (d). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full-time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316 , 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training. These drills are deemed to be part-time training. So to establish status as a "Veteran" based upon a period of ACDUTRA, the Appellant must establish that she was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., AD) does not obviate the need for her to establish that she is also a "Veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for a claimant to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that she was disabled or died from an injury, but not disease, incurred or aggravated during INACDUTRA. Id.; see also Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). In order to establish entitlement to service connection on a direct-incurrence basis, the record must contain competent and credible evidence showing: (1) the existence of a present disability or, at the very least, showing the claimant has had the alleged disability at some point since the filing of her claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A disease or disability is considered to have been "aggravated" when it has increased in severity during service beyond its normal progression. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain specific diseases listed in 38 C.F.R. § 3.309(a) are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year following separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). It also does not apply to claims predicated on ACDUTRA and INACDUTRA service, only AD. See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010). The presumptions of soundness and aggravation also do not apply to ACDUTRA and INACDUTRA service, only instead AD. See id. Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is generally, although, as mentioned, not always, required to associate the claimed condition with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). So service connection may be established either by showing direct service incurrence or aggravation pursuant to Shedden, by using applicable presumptions, if they are available, or by showing the claimed condition is secondary to a service-connected disability. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In adjudicating claims, the Board must consider all potential bases of entitlement. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the U.S. Court of Appeals for Veterans Claims (Court/CAVC) has jurisdiction by virtue of a Notice of Disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof). This includes the duty to address arguments a claimant has specifically made as it relates to the adequacy of any given VA examination. Here, the Appellant has asserted that her low back has been painful since her first month of ACDUTRA. She claims that, while she was marching, her legs and back began hurting to the point that she could not lift her legs, could not continue marching, and could not run. During her hearing, she testified additionally to actually falling, so sustaining injury. She said that she was given Motrin for her consequent pain. But after reviewing the evidence, the Board does not find that service connection is warranted for her low back disability. She only ever served on ACDUTRA. Thus, to establish her entitlement to benefits, the evidence must show that an injury or a disease sustained during a period of ACDUTRA led to her current low back disability. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The second page of the report of her November 1979 enlistment examination (the first page is missing) indicates she had no disqualifying defects that were noted on that date. She was found to be qualified for enlistment, and she was rated a "1" in each aspect of her PULHES profile. A complete copy of her Report of Medical History, completed in November 1979, notes no complaints or history of recurrent back pain. She had a period of ACDUTRA from February to June 1980, an again from April 26, 1981, to May 9, 1981. A June 1991 Report of Medical Examination indicated her spine was clinically evaluated as normal. She was again rated a "1" in each aspect of her PULHES profile. In her Report of Medical History, she did not complain of a history of recurrent back pain, and instead reported she was in "good health." A June 1992 Statement of Medical Examination notes that she had sprained her right leg during physical training because she was wearing the wrong shoes. She had a period of ACDUTRA from May 23 to June 5, 1992. In March 2006, she had an MRI at Central Texas Open MRI, on her lumbar spine. It was noted that her lumbar vertebrae were intact. Anatomic alignment was seen. At L4-L5, a disc bulge was noted, along with moderate bilateral facet joint arthrosis, moderate central canal stenosis, and mild bilateral foraminal encroachment. At L5-S1, no disc herniation was noted, but there was bilateral spondylolysis with bilateral facet joint arthrosis and mild bilateral foraminal narrowing. In April 2006, the March 2006 MRI was interpreted by a private physician at South Texas Spinal Clinic. The diagnosis was L4-5 herniated nucleus pulposus (HNP) with radiculopathy. In October 2006, the March 2006 MRI was interpreted by a different private physician at Consultants in Pain Medicine. The diagnosis was spinal stenosis at L4-5, bilateral spondylosis at L5-S1, and facet joint arthrosis. An August 2007 South Texas Spinal Clinic treatment record notes the Appellant was being treated for the HNP with lumbar epidural steroid injections (ESI), which had been of some benefit. It was also noted she had mechanical back pain that was showing some relief on Skelaxin. In a December 2008 statement, she said her back had begun hurting after being in training for about a week and a half, then her knees. She described a feeling of heaviness and terrible pain. She said she went to see the nurse, who told her it was shin splints, and that they gave her Motrin and sent her back to training. She described her difficulty marching, that she could barely lift her legs. She said her drill sergeant punished her for her inability and did not believe she was in pain, so malingering. During her April 2012 hearing, she again testified that her back began hurting while marching. She reported that she fell. She was sent to sick call and given Motrin. She said they said she was having chest pains. She said she could not walk, run, or march due to the back pain. She said she was not ever able to complete the physical training, but that she was passed by her sergeants nonetheless. At the conclusion of her October 2012 VA compensation examination, the diagnoses were lumbar spinal stenosis and lumbar spondylosis. The examiner reviewed the Appellant's medical records and noted that the March 2006 MRI did not show evidence of an L4-5 HNP. He also noted review of her STRs, her letters, and other private records, discussed above. She reported to the examiner that she began feeling pain in her legs below the knees during the second week of training. She said she went to sick call and was told she had shin splints, and given Motrin for her pain. She said her legs swelled, which caused her trouble, but she completed basic training. She told him that an MRI showed she had a slipped disc in her back, and that steroid injections had helped. She said she had no further treatment. As for her back, she denied lower leg weakness and radicular pain. She reported urinary incontinence, but that was attributed to a gynecological problem, likely prolapse. She denied numbness or tingling in her feet. During the examination, her muscle strength and reflexes were normal, she had a negative straight leg raise test and normal sensory examination. She had no neurologic abnormalities, no intervertebral disc syndrome (IVDS), and a normal X-ray. The October 2012 VA examiner opined that the Appellant's lumbar spinal stenosis and lumbar spondylosis were not likely related to her service. He determined that her current condition instead is most likely the result of congenital spinal stenosis, which would have been pre-existing when she entered service. He said the back pain she experienced during training would have been the normal progression of the condition, as would the current pain she experiences. He added there is no medical evidence of an HNP, and that the degenerative changes, spondylosis, are part of the normal aging process and consistent with her age (60 years old). He said that he saw no incident or injury that caused her low back pain, but rather, the pain was brought on by increased activity due to basic training. He explained this is consistent in someone with congenital lumbar spinal stenosis who has been relatively inactive until the time of joining the military. He surmised this result - pain brought on by increased activity - was a normal progression of the condition, not an aggravation of the pre-existing condition. As already alluded to, in a subsequent August 2013 statement, the Appellant expressed her displeasure with the VA examination and the examiner's findings and opinion. She reiterated that she went to sick call but all they did was give her some Motrin and send her back to training. She said she could not march or complete any of the physical training, and that she was embarrassed at having to carry the team's duffel bag rather than participate. Based on the collective body of evidence relevant to this claim, the Board finds that service connection is not warranted. Initially, the Board points out that the October 2012 VA examiner clarified the Veteran has a congenital abnormality, which generally is not considered a disease or an injury within the meaning of applicable legislation pertaining to disability compensation for VA purposes, and resultantly provides no basis for service connection. 38 C.F.R. §§ 3.303(c), 4.9; Beno v. Principi, 3 Vet. App. 439 (1992); see also, generally, Winn v. Brown, 8 Vet. App. 510, 514 (1996) (upholding Secretary's authority to exclude certain conditions from consideration as disabilities under 38 C.F.R. § 4.9). VA's General Counsel has held, however, that service connection may be granted for diseases (though not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. See also Quirin v. Shinseki, 22 Vet. App. 390 (2009); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and, VAOPGCPREC 11-99. As an example, VA's General Counsel explained in VAOPGCPREC 82-90 that support for this position could be found in the VA regulations, themselves, noting that sickle cell anemia, although a familial disease, was included for rating purposes in the Schedule for Rating Disabilities (Rating Schedule). Moreover, although service connection cannot be granted for a congenital or developmental "defect," such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. But such disorders require more than an increase in severity during service in order to warrant a grant of service connection. The evidence must show that the congenital or developmental defect was subject to a superimposed disease or injury during service that resulted in increased disability. Id. Thus, to allow for proper legal analysis of an Appellant's claim as it pertains to the claimed disability, medical clarification may be necessary as to whether the claimed condition is a congenital or developmental "disease" or "defect." See id.; Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). If the claimed disorder is a disease, an opinion may be required as to whether it was as likely as not aggravated by the claimant's period of military service beyond its natural progression. If instead the claimed disorder is a defect, an opinion may be required as to whether it was as likely as not subject to a superimposed disease or injury during active military service that resulted in disability apart from the congenital or developmental defect. Here, the October 2012 VA examiner opined that the Appellant's spinal stenosis was congenital based on his review of the file, including radiologic evidence, diagnostic tests, and the Appellant's statements concerning her pain and its onset. He explained that she entered service with spinal stenosis, since it is congenital so necessarily predated her service. Moreover, he concluded that, although it began causing her pain once she became more active during her military training, after having been relatively inactive up until that point in time, the pain she had in service was not to an extent above and beyond that she would have experienced as part of the normal progression of this congenital condition. Independent medical evidence generally is needed to support a finding that the pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Here, this independent medical evidence comes in the way of the October 2012 VA compensation examiner's opinion, which discounted any notion there was aggravation of the pre-existing congenital condition during the Veteran's service beyond its natural progression. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); and Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991) (all holding that mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered "aggravation in service", unless the underlying condition, itself, as contrasted with mere symptoms, has worsened). Moreover, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service. Only if the Veteran somehow manages to show a chronic (i.e., permanent) worsening of the condition during service does the presumption of aggravation apply and, in turn, require VA to then show by clear and unmistakable evidence that the worsening was not beyond the condition's natural progression. The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). Here, even if accepting there was some worsening of the condition during the Appellant's service, and even if as a result of the type of physical activity and training alleged, the October 2012 VA compensation examiner clarified the worsening was not over and above the condition's natural progression, so not ultimately tantamount to aggravation. He also opined that the Appellant's lumbar spondylosis was a result of the normal aging process, so also unrelated to any of her periods of ACDUTRA and the training intrinsic to it. The Board finds the October 2012 VA examination report to be probative evidence weighing against service connection, indeed, the most probative evidence on the determinative issues. There is no other evidence that probatively outweighs it. The Appellant's statement, during her hearing, that she fell is not probative and need not be subjected to further medical consideration and opinion. She is competent to attest to her own personal experiences, such as falling during her service. Barr v. Nicholson, 21 Vet. App. 303 (2007). See also Washington v. Nicholson, 19 Vet. App. 363 (2005) (A Veteran is competent to report what occurred in service because testimony regarding firsthand knowledge of a factual matter is competent). The Board does not find her lay testimony concerning this also credible, however, so not ultimately probative, because it is inconsistent with other statements she has made, including when recounting her relevant history to the VA examiner. Rucker v. Brown, 10 Vet. App. 67 (1997) (when determining whether lay evidence is satisfactory, the Board may consider its consistency with other evidence submitted on behalf of the claimant). The Board sees that some of her statements during the hearing were not transcribed because they were muffled or unintelligible, so she may have been saying that she "felt" rather than she "fell." When she said she "fell," her testimony was being cut off by her representative, and she completed her statement by indicating that she "felt" pain. As a fall is inconsistent with the other evidence, and she has not ever asserted a fall at any other time, the Board does not find this evidence of a fall to be probative to this claim. There is no other evidence suggesting that her current diagnoses are related to her ACDUTRA service. Instead, they have been attributed to the normal progression of congenital spinal stenosis, a defect, with no superimposed injury found that aggravated it. Her spondylosis was attributed to aging. As the preponderance of the evidence weighs against service connection, the benefit-of-the-doubt rule is not for application, and this claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The claim of entitlement to service connection for a low back disability is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs