Citation Nr: 1336898 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 05-04 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from September 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama, that denied the Veteran's request to reopen a previously denied claim of service connection for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair, and also denied service connection for a low back disability. In October 2009, the Veteran testified at a travel board hearing over which the undersigned Acting Veterans Law Judge presided. A transcript of the hearing has been associated with the Veteran's claims file. The Board observes that, in an October 1996 rating decision, the RO denied the Veteran's claim of service connection for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair. The Veteran did not appeal this decision, and it became final. See 38 U.S.C.A. § 7104 (West 2002). The Veteran also did not submit any statements relevant to this claim within one year of the October 1996 rating decision which would render this decision non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue of whether new and material evidence has been received to reopen a claim of service connection for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair, is as stated on the title page. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. In December 2009, the Board denied the Veteran's claim of service connection for a low back disability and remanded his request to reopen the previously denied service connection claim for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair, to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. The Veteran appealed the Board denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand, a November 2010 Order of the Court vacated the part of the decision denying the claim and remanded the claim for readjudication in accordance with the Joint Motion for Remand. In May 2011, August 2012, and in March 2013, the Board remanded both of the Veteran's currently appealed claims for further development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the RO/AMC schedule the Veteran for appropriate examination to determine the nature and etiology of his low back disability. This examination occurred in May 2013. The Board also directed that the RO/AMC obtain the Veteran's VA outpatient treatment records dated between 2003 and 2009. These records subsequently were associated with the Veteran's Virtual VA claims file. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. In a rating decision dated in October 1996, and issued to the Veteran and his service representative that same day, the RO denied service connection for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair; the Veteran did not appeal. 2. The evidence received since the October 1996 RO decision does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair. 3. The Veteran's current low back disability did not have its clinical onset during service, arthritis of the spine was not diagnosed within the first post service year, and a low back disability is not otherwise related to active service. CONCLUSIONS OF LAW 1. The unappealed October 1996 rating decision that denied service connection for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair, is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. Evidence received since the October 1996 RO decision that denied service connection for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair, is not new and material; accordingly, this claim is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). 3. The criteria for the establishment of service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in July 2003, January 2010, June 2011, and in September 2012, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the Veteran to submit medical evidence relating the claimed disability to active service and noted other types of evidence the Veteran could submit in support of his claims. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA substantially has satisfied the requirement that the Veteran be advised to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The January 2010, June 2011, and September 2012 letters also defined new and material evidence, advised the Veteran of the reasons for the prior denial of the claim of service connection for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair, and noted the evidence needed to substantiate the underlying claim. That correspondence satisfied the notice requirements as defined in Kent v. Nicholson, 20 Vet. App. 1 (2006). Additional notice of the five elements of a service-connection claim was provided in the January 2010, June 2011, and September 2012 VCAA notice letters, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As will be explained below in greater detail, the evidence does not support reopening the Veteran's claim of service connection for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair. The evidence also does not support granting service connection for a low back disability. Because the Veteran was fully informed of the evidence needed to substantiate his claims, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the July 2003 VCAA notice letter was issued prior to the currently appealed rating decision issued in August 2003; thus, this notice was timely. Because both of the Veteran's claims are being denied in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file and VBMS paperless claims file have been reviewed. The Veteran's complete Social Security Administration records also have been obtained and associated with the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned noted the basis of the prior determination and noted the element of the claims that was lacking to substantiate the claims for benefits. The undersigned specifically noted the issues as including whether new and material evidence had been received to reopen a previously denied service connection claim for a status-post right inguinal hernia repair and entitlement to service connection for a low back disability. The Veteran was assisted at the hearing by an accredited representative from The American Legion. The representative and the undersigned then asked questions to ascertain whether the Veteran had submitted evidence in support of these claims. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. The representative specifically asked the Veteran about continuity of the Veteran's low back disability symptomatology since active service and whether he had submitted new and material evidence in support of his request to reopen the previously denied claim of service connection for a status-post right inguinal hernia repair. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claims for benefits. The Veteran's representative and the undersigned asked questions to draw out the evidence which related the Veteran's disabilities to active service, the only element of the claims in question. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103Veteran(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159Veteran(4). VA need not conduct an examination or obtain a medical opinion with respect to the issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection because the duty under 38 C.F.R. § 3.159Veteran(4) applies to a claim to reopen only if new and material evidence is presented or secured. 38 C.F.R. § 3.159Veteran(4); McLendon v. Nicholson, 20 Veteran. Veteran. 79 (2006). As will be explained below in greater detail, because new and material evidence has not been received to reopen the Veteran's claim of service connection for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair, an examination is not required. The Veteran also has been provided with VA examinations which address the contended causal relationship between the low back disability and active service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159Veteran(4) ; McLendon v. Nicholson, 20 Veteran. Veteran. 79 (2006). Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. As discussed below, although a VA examination conducted in July 2011 and a VA clinician's opinion obtained in November 2012 are not adequate for VA purposes, the Board finds that a May 2013 VA examination is adequate for rating purposes and additional examination is not necessary regarding the Veteran's service connection claim for a low back disability. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Reopening a Previously Denied Claim In October 1996, the RO, in pertinent part, denied the Veteran's claim of service connection for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7104, 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2013). The Veteran did not initiate an appeal of the October 1996 rating decision and it became final. The Veteran also did not submit any statements relevant to this claim within 1 year of the October 1996 rating decision which would render this decision non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie, 24 Vet. App. at 251-52. The claim of service connection for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair, may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed an application to reopen his previously denied service connection claim for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair, on a VA Form 21-4138 which was date stamped as received by the RO on June 20, 2003. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a) (2013). As relevant to this appeal, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran's application to reopen a claim of service connection for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair, the evidence before VA at the time of the prior final RO decision in October 1996 consisted of his service treatment records, his post-service VA treatment records, his lay statements, and a VA examination report dated in November 1995. The RO noted that the Veteran's statements on a January 1994 VA Form 21-4138 appeared to raise a claim of service connection for a status-post right inguinal hernia repair, to include as due to service-connected status-post left inguinal hernia repair. The RO also noted that the Veteran's service treatment records showed no complaints of or treatment for a right inguinal hernia. The RO acknowledged that the Veteran had right inguinal hernia repair surgery in 1988 (approximately 16 years after his service separation in 1972). The RO concluded that the evidence did not indicate that the Veteran's status-post right inguinal hernia repair was related to service, to include as due to his service-connected status-post left inguinal hernia repair. Thus, the claim was denied. The newly received evidence includes voluminous additional VA outpatient treatment records, the Veteran's Social Security Administration records, and his lay statements and October 2009 Board hearing testimony. A review of the Veteran's voluminous additional VA outpatient treatment records does not show that he has sought treatment for a status-post right inguinal hernia repair in recent years. A review of the Veteran's Social Security Administration records shows that he is in receipt of Social Security disability benefits due to schizophrenia. The Veteran testified at his October 2009 Travel Board hearing that he had been told that he had a right inguinal hernia by a military doctor during follow-up in-service treatment for his (service-connected) status-post left inguinal hernia repair. See Board hearing transcript dated October 6, 2009, at pp. 8-9. The Veteran also testified that he had right inguinal hernia repair surgery in 1988 after his service separation while he was working for a private company. Id., at pp. 20. He testified further that he had filed for worker's compensation benefits at the time of his right inguinal hernia repair surgery. Id., at pp. 20-21. With respect to the Veteran's request to reopen the previously denied service connection claim for a status-post right inguinal hernia repair, including as due to a service-connected status-post left inguinal hernia repair, the Board notes that the evidence of record in October 1996 did not indicate that the Veteran experienced any current disability due to a status-post right inguinal hernia repair which could be attributable to active service or any incident of service, including as due to a service-connected status-post left inguinal hernia repair. Despite the Veteran's assertions, a review of the record evidence submitted since October 1996 does not indicate that he experiences any current disability due to a status-post right inguinal hernia repair which could be attributable to active service, including as due to a service-connected status-post left inguinal hernia repair. The Board finds that, although the evidence received since October 1996 is new, in that it has not been submitted previously to agency adjudicators, it is cumulative or redundant of the evidence at the time of the prior decision which showed that the Veteran does not experience any current disability due to a status-post right inguinal hernia repair which could be attributable to active service, including as due to a service-connected status-post left inguinal hernia repair. Thus, the Board also finds that the evidence received since the October 1996 rating decision denying the Veteran's service connection claim for a status-post right inguinal hernia repair does not relate to an unestablished fact necessary to substantiate this claim and does not raise a reasonable possibility of substantiating it. The Board finally observes that, in Shade v. Shinseki, 24 Vet. App 110 (2010), the Court held that the phrase "raises a reasonable possibility of substantiating the claim" found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. In this case, however, there is no reasonable possibility that the newly received evidence would enable rather than preclude reopening the Veteran's previously denied service connection claim for a status-post right inguinal hernia repair, including as due to a service-connected left inguinal hernia repair. Unlike in Shade, there is no evidence in this case - either previously considered in the October 1996 rating decision or received since that decision became final - which demonstrates that the Veteran experiences any current disability due to a status-post right inguinal hernia repair which could be attributable to active service, including as due to a service-connected status-post left inguinal hernia repair. Thus, the analysis of new and material evidence claims that the Court discussed in Shade is not applicable to the Veteran's request to reopen his previously denied service connection claim for a status-post right inguinal hernia repair. In summary, as new and material evidence has not been received, the previously denied claim of service connection for a status-post right inguinal hernia repair is not reopened. Service Connection Claim The Veteran contends that he incurred a low back disability during active service. He specifically contends that he injured his low back during active service when he was moving machine guns in an ammunition room. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including arthritis of the low back, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a). Because a low back disability other than arthritis is not explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a), the Board finds that Savage and the theory of continuity of symptomatology in service connection claims is inapplicable to this claim. By contrast, because arthritis of the low back is considered a "chronic" disability under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology remains valid in adjudicating that part of the Veteran's claim. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Veteran's available service treatment records show that, at a pre-induction (or enlistment) physical examination in April 1970, prior to his entry on to active service in September 1970, he denied any relevant pre-service medical history. Clinical evaluation was normal. At his separation physical examination in January 1972, prior to his separation from active service, the Veteran reported that he was in good health. Clinical evaluation was unchanged from his pre-induction (or enlistment) physical examination. The post-service evidence shows that, on VA outpatient treatment in January 2003, the Veteran's complaints included low back pain following an injury. His "pain improved as activity increases." A history of back pain was noted. Physical examination showed no tenderness to palpation of the spine, a steady gait, and negative straight leg raising bilaterally. The impression was lower back pain. In his April 2004 notice of disagreement, the Veteran asserted that he had injured his low back when moving machine guns during active service. He also asserted that his doctors had told him that his spine was "cracked" from this injury and he should not lift very much weight. A review of the Veteran's Social Security Administration records, received by VA in May 2007, shows that he is in receipt of Social Security Administration disability benefits for schizophrenia. These records do not indicate any complaints of or treatment for a low back disability. The Veteran testified at his October 2009 Travel Board hearing that he had felt a "pop" in his lower back when moving machine guns during active service. See Board hearing testimony dated October 6, 2009, at pp. 7. He also testified that he was told by a VA clinician soon after his service separation that he had a slipped disc and arthritis in his back. Id., at pp. 15-16. He testified further that he currently was being treated for a low back disability. Id., at pp. 19. On VA spine examination in July 2011, the Veteran's complaints included low back pain, stiffness, weakness, and spasm since service. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran reported that he injured his low back when "lifting and loading machine guns" during active service. He denied any history of spine pain flare-ups or incapacitating episodes of spine pain. He described his low back pain as moderate throbbing daily pain which radiated to the inguinal area and both buttocks. Physical examination showed normal gait, posture, symmetrical head position, no abnormal spinal curvatures, no thoracolumbar spine ankylosis, bilateral thoracolumbar sacrospinalis muscle tenderness, normal sensation, and 5/5 muscle strength. Range of motion testing of the thoracolumbar spine showed a full range of motion without objective evidence of pain or limitation of motion after repetitive testing. X-rays showed worsening chronic degenerative changes throughout the mid- and lower lumbar spine. The Veteran reported that he had been employed as a construction worker on a seasonal basis for the previous one to two years and had been doing this work since 1990. "He states he works when he gets any work. He worked about a month ago. He stops working when his back hurts." The VA examiner opined that it was less likely than not that the Veteran's current lumbar degenerative joint disease was related to active service. The rationale for this opinion was that, although there was evidence of lumbar degenerative joint disease on the Veteran's current x-rays, there was no evidence in his service treatment records of abnormal x-rays or back trauma during active service. The diagnosis was lumbar degenerative joint disease. On VA outpatient treatment in July 2012, no relevant complaints were noted. Physical examination showed a full range of motion and no tenderness to palpation of the spine. The impression was chronic low back pain. In a November 2012 opinion, a VA clinician stated that she had reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. She acknowledged "[t]he Veteran's competent reports as to the onset and continuity of symptomatology" of his low back disability. She concluded that there were "multiple possible etiologies" of the Veteran's current lumbar degenerative disc (or joint) disease "with none more prevalent than another. Therefore, I cannot resolve this issue without resort to mere speculation." A VA Disability Benefits Questionnaire dated in May 2013, shows that the Veteran reported constant low back pain which he rated as 8/10 on a pain scale (with 10/10 being the worst imaginable pain). The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran reported injuring his low back during active service when picking up machine guns. Range of motion testing showed 60 degrees of forward flexion with objective evidence of painful motion at 60 degrees, 20 degrees of extension with objective evidence of painful motion at 20 degrees, 15 degrees of lateral flexion bilaterally with objective evidence of painful motion at 15 degrees, and 15 degrees of lateral rotation bilaterally with objective evidence of painful motion at 15 degrees. There was additional limitation of motion on repetitive testing. The Veteran occasionally used a cane for ambulation. Physical examination showed functional impairment of the thoracolumbar spine due to less movement than normal, excess fatigability, and pain on movement, tenderness to palpation at L1-3 midline, no guarding or muscle spasm, 5/5 muscle strength, no muscle atrophy, 1+ reflexes, decreased sensation in the feet/toes, negative straight leg raising bilaterally, no radiculopathy, no other neurologic abnormalities, and no intervertebral disc syndrome. Current X-rays of the thoracolumbar spine showed arthritis. The VA examiner reviewed prior X-rays of the Veteran's thoracolumbar spine taken in August 1999 which showed focal degenerative spondylosis, in May 2008 which showed degenerative disc disease and mild to moderate degenerative joint disease of the thoracolumbar spine, and in July 2011 which showed worsening degenerative changes throughout the mid- and lower lumbar spine (as noted above). The VA examiner concluded that the Veteran's current low back disability were the result of a combination of diagnoses, to include degenerative disc disease, degenerative spondylosis, and degenerative joint disease. This examiner opined that it was less likely than not that the Veteran's current low back disability was incurred in or aggravated by active service. This examiner also opined that he could not provide a nexus opinion between the Veteran's current low back disability and the subjective complaints of low back pain during active service. The rationale for this opinion was that there was no evidence in the Veteran' s service treatment records of any complaints of or treatment for a low back disability during active service. The rationale also was that there was no evidence of a chronic low back disability prior to 1999. This examiner noted further that the Veteran himself had reported that he worked in construction following his service separation and injured his low back when lifting a heavy object in May 2008. This examiner opined instead that it was likely that the Veteran's current low back disability and associated symptomatology were related to his post-service employment. The diagnoses were lumbar spine degenerative joint disease, lumbar spine degenerative disc disease, and lumbar spondylosis. The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a low back disability. The Veteran has asserted that he incurred a low back disability during active service and continues to experience such disability. The record evidence does not support his assertions regarding in-service incurrence of a low back disability or an etiological relationship between his current low back disability and active service, however. It shows instead that, although he currently experiences a low back disability, it is not related to active service. The service treatment records show no complaints of or treatment for a low back disability at any time during active service, although the Board acknowledges that the lack of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). It appears that, following his service separation in April 1972, the Veteran first was treated for a low back disability in approximately 1999, or 27 years later, X-rays showed focal degenerative spondylosis (as the VA examiner noted in March 2013). It also appears that the Veteran later injured his back in January 2003 when he sought treatment for back pain following an apparent injury. The Court has held that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges that following VA examination in July 2011, the VA examiner opined that it was less likely than not that the Veteran's current lumbar degenerative joint disease was related to active service. The examiner's rationale was that, although there was evidence of lumbar degenerative joint disease on the Veteran's current X-rays, there was no evidence in his service treatment records of abnormal X-rays or back trauma during active service. This rationale violates the Court's holdings in Buchanan and Barr because it appears that the July 2011 VA examiner found the lack of in-service complaints of or treatment for a low back disability persuasive support for his negative nexus opinion concerning the contended causal relationship between the Veteran's current low back disability and active service. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. Thus, the Board finds that the July 2011 VA examination is less than probative on the issue of whether the Veteran's current low back disability is related to active service. The Board also acknowledges that, in a November 2012 opinion, a different VA clinician opined that, because there "multiple possible etiologies" of the Veteran's current low back disability, she could not provide an opinion regarding the etiology of this disability without resorting to mere speculation. The Court has held that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr, 21 Vet. App. at 303. The Court also has held that medical opinions using the "mere speculation" language, without more, generally are disfavored because they are inconclusive as to the origin of a disability. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). The Court has explained that opinions which contain the "mere speculation" language, without more, amount to 'nonevidence' neither for nor against the claim because service connection may not be based on speculation or remote possibility. See Bloom v. West, 12 Vet. App. 185 (1999) (holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). The Court held in Jones v. Shinseki, 23 Vet. App. 382 (2010), that, when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability. Id. at 389-90. See also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (noting that speculative opinion is not legally sufficient to establish service connection). Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, however, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, VA must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear from either the examiner's statements or the Board's decision that the examiner has considered "all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves v. Nicholson, 21 Vet. App. 46 (2007). Having reviewed the November 2012 VA opinion, the Board finds that the clinician who prepared it did not sufficiently explain the reasons for her inability to provide the requested opinion concerning the etiology of the Veteran's low back disability. See Jones, 23 Vet. App. at 389-90. In other words, the basis for the VA clinician's inability to provide the requested etiological opinion in November 2012 is not clear from a review of the record evidence. See Stefl, 21 Vet. App. at 124. Nor is it clear whether the November 2012 VA clinician considered "sufficient facts of data" or "all procurable or assembled data" prior to concluding that she could not provide the requested etiological opinion. She stated only that she had reviewed the claims file and considered the Veteran's competent lay statements. See Nieves-Rodriguez, 22 Vet. App. at 302, and Daves, 21 Vet. App. at 46. Accordingly, the Board finds that the November 2012 VA opinion is non-evidence neither for nor against the Veteran's claim and has no probative value on the issue of whether his low back disability is related to active service. The remaining opinion of record, obtained in May 2013, indicates that the VA examiner concluded that the Veteran's current low back disability was the result of a combination of diagnoses, to include degenerative disc disease, degenerative spondylosis, and degenerative joint disease. This examiner opined that it was less likely than not that the Veteran's current low back disability (which was diagnosed as lumbar spine degenerative joint disease, lumbar spine degenerative disc disease, and lumbar spondylosis) was incurred in or aggravated by active service. The May 2013 VA examiner also opined that he could not provide a nexus opinion between the Veteran's current low back disability and the reported subjective complaints of low back pain during active service. The rationale for this opinion included that there was no evidence that the Veteran experienced a chronic low back disability prior to 1999, or several decades after his service separation. The May 2013 VA examiner noted that the Veteran himself had reported that he worked in construction following his service separation and injured his low back when lifting a heavy object in May 2008. This examiner opined that it was likely that the Veteran's current low back disability and associated symptomatology were related to his post-service employment in construction. There is no competent contrary opinion of record. The Veteran also has not identified or submitted any evidence, to include a medical nexus, which demonstrates that his current low back disability is related to active service. In summary, the Board finds that service connection for a low back disability is not warranted. The Board finally finds that service connection for arthritis of the low back is not warranted on a presumptive basis as a chronic disease. See 38 C.F.R. §§ 3.307, 3.309. There is no indication that the Veteran experienced arthritis of the low back during active service or within the first post-service year (i.e., by April 1973). Thus, service connection for arthritis of the low back is not warranted on a presumptive basis. Id. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons 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). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown,6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr, 21 Vet. App. at 309 (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current VA disability compensation claim, in recent statements and sworn testimony, the Veteran has asserted that his symptoms of a low back disability have been continuous since service. He asserts that he continued to experience symptoms relating to a low back disability (low back pain) after he was discharged from service. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of a low back disability after service separation. Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible. The Board finds that the Veteran's more recently-reported history of continued symptoms of a low back disability since active service is inconsistent with the other lay and medical evidence of record. Indeed, while he now asserts that this disorder began in service, in the more contemporaneous medical history he gave at the service separation examination, he denied any history or complaints of symptoms of a low back disability. Specifically, the service separation examination report reflects that the Veteran was examined and his spine was found to be normal clinically. His in-service history of symptoms at the time of service separation is more contemporaneous to service so it is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later). As noted elsewhere, the post-service medical evidence does not reflect complaints or treatment related to a low back disability for several decades following active service. The Board emphasizes the multi-year gap between discharge from active service (1972) and initial reported symptoms related to a low back disability in approximately 1999 (a 27-year gap) when X-rays showed focal degenerative spondylosis (as noted on VA examination in May 2013). See Maxson, 230 F.3d at 1333; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board notes that the Veteran sought treatment for a myriad of medical complaints since discharge from service, including bilateral inguinal hernias and a right little finger fracture. Significantly, during that treatment, when he specifically complained of other problems, he never reported complaints related to the low back. Rucker, 10 Vet. App. at 67 (holding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran filed VA disability compensation claims for service connection for hernias and for a right little finger fracture in May 1972, approximately one month after his service separation, but did not claim service connection for a low back disability or make any mention of any relevant low back symptomatology. He did not claim that symptoms of his disorder began in (or soon after) service until he filed his current VA disability compensation claim in June 2003. Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories. See Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). During the recent VA compensation claim, the Veteran reported the onset of symptoms to different times. Specifically, on the service connection claim, he reported that his low back disability began in active service. The Veteran subsequently reported injuring his back initially during post-service employment as a construction worker (as the VA examiner noted in May 2013). He reported on VA examination in July 2011 only that he stopped working when his back was hurting him and did not report any post-service low back injuries. These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for years after service, and the medical evidence showing no etiological relationship between his current low back disability and active service. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. ORDER As new and material evidence has not been received, the previously denied claim of service connection for a status-post right inguinal hernia repair is not reopened. Service connection for a low back disability is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs