Citation Nr: 1337418 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-19 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a low back disability, including as secondary to service-connected degenerative joint disease (DJD) of the left knee. 2. Entitlement to service connection for an upper back and neck disability, including as secondary to service-connected DJD of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and K.M. ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to August 1962. These matters come before the Board of Veterans' Appeals (Board) on appeal from January, March, and September 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In June 2012 the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. The claims were previously remanded by the Board in September 2012 and April 2013 for additional development, and now return for further review. This appeal was processed using the Veterans Benefits Management System (VBMS) claims processing system. The Board has also reviewed the Veteran's Virtual VA file and finds that it does not include any additional relevant documents. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT DJD of the thoracic spine, degenerative disc disease (DDD) and DJD of the lumbar spine, and DDD and DJD of the cervical spine were not manifest during service or within one year of the Veteran's separation from service; the Veteran's current low back, upper back, and neck disabilities are not attributable to service nor are they proximately due to or aggravated by his service-connected left knee disability. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a low back disability, to include as secondary to service-connected DJD of the left knee, are not met or approximated. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2013). 2. The criteria for the establishment of service connection for an upper back and neck disability, to include as secondary to service-connected DJD of the left knee, are not met or approximated. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). The VCAA notice requirements apply to all elements of a claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran was provided with the relevant notice and information in a December 2009 letter prior to the initial adjudication of his claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The December 2009 letter informed him of the information and evidence necessary to reopen claims for service connection for lower back and neck conditions, and advised him of the elements necessary to substantiate the underlying claims for service connection. The Veteran has not been provided VCAA notice which specifically advises him of the information and evidence necessary to substantiate a claim for secondary service connection; however, this appeal arises from the Veteran's successful reopening of the claims. Because the claims have been reopened, (and an examination conducted) the purpose of the VCAA has been satisfied. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Moreover, it cannot be doubted that the Veteran and his representative were aware of what evidence would substantiate the claim. In his August 2012 Informal Hearing Presentation (IHP), the Veteran's representative argued that the claimed low back disability is secondary to the service-connected left knee disability. He included the pertinent regulation, 38 C.F.R. § 3.310(a), and cited relevant cases. The Veteran, through his representative, has demonstrated actual knowledge of the requirements for establishing service connection on a secondary basis. The Veteran has been represented by an accredited representative during his appeal and has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). Therefore, the lack of a specific VCAA notice letter addressing the claims for secondary service connection did not result in prejudice to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed conditions. The Veteran has alleged that his service treatment records are incomplete; however, the service treatment records presently of record appear to be complete, as they include pre-induction and induction examinations, separation examination, Reports of Medical History obtained in conjunction with each of these examinations, and numerous treatment records. Moreover, the Veteran has repeatedly asserted that he did not receive treatment for his claimed low back, upper back, and neck disabilities during service. Therefore, even if additional service treatment records were available, they would not be pertinent to the claims on appeal. The Board finds the Veteran's report of in-service injury to be credible. The case turns on the question of a nexus between the current disabilities and service or the service-connected left knee disability. Any additional service treatment records, which would not include records regarding treatment for the claimed disabilities, would not substantiate the claims. Remand to obtain additional service treatment records would impose unnecessary additional burdens on adjudication resources, with no benefit flowing to the Veteran, and is, thus, unnecessary. See Soyini, supra. The Veteran submitted a release regarding treatment records from Dr. P.M.I. in January 2010. The records were requested, however, the physician responded in February 2010 that no records were available. The Veteran also submitted releases regarding treatment records from Dr. M.R., Dr. T.P.D., and Dr. S.T. Dr. M.R. responded that a special release was required and Drs. T.P.D. and Dr. S.T. responded that there was a fee to provide medical records. The Veteran was advised of these facts in February 2010 and was asked to submit copies of treatment records from these providers if he wanted them to be considered as part of his claim. Treatment records from Dr. M.R. and Dr. S.T. were subsequently submitted. In June 2012, K.M. testified that he had spoken to the Veteran's wife earlier that day, and she reported the Veteran saw Dr. T.P.D. beginning in around 1971, but not in the 1960s. Treatment records from this chiropractor, dated from February 1985 to March 1991 were associated with the claims file in October 1994. While the Veteran testified in June 2012 that he had received earlier treatment from Dr. T.P.D., he stated that his chiropractor had advised him that there were no records regarding this earlier treatment available. In June 2012, Dr. T.P.D. wrote that he treated the Veteran in approximately 1979. In light of the above, no further action regarding obtaining additional treatment records from these private healthcare providers is warranted. Treatment records from Dr. T.P.D. include workmen's compensation forms completed regarding a June 1989 injury to the low back; however, additional records regarding a workmen's compensation claim have not been obtained. During the July 2013 examination, the Veteran reported being hospitalized once "probably in the 1980s" for an episode of acute back pain for which he was not able to get up off the floor. Records regarding this hospitalization are not of record. The Veteran has been advised on numerous occasions, including in the December 2009 VCAA letter and in February 2010, September 2012, and May 2013 letters, to submit a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), for records he wanted VA to obtain for him. VA is only obligated to obtain records that are adequately identified and for which necessary releases have been received. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not submitted a release to allow VA to obtain additional records regarding a June 1989 workmen's compensation claim or the reported hospitalization in the 1980s. Therefore, it is not possible for VA to obtain them; hence, no further action in this regard is warranted. In May 2013, the Veteran reported suffering a heart attack for which he received treatment at a private hospital, with follow-up treatment at the VA outpatient clinic (OPC). A July 2013 VA examination report reflects that, in addition to reviewing the claims file, the examiner reviewed the Veteran's records in the Computerized Patient Record System (CPRS). The examiner summarized a May 2013 VA treatment record regarding the lumbar and cervical spines. The most recent VA treatment records associated with the claims file are dated in 2010. The May 2013 statement and the July 2013 VA examination report indicate that more recent VA treatment records are available. However, records pertaining to follow-up treatment for a heart attack are not pertinent to the claims on appeal. The July 2013 VA examiner summarized the pertinent May 2013 treatment record. This examiner, who reviewed and provided a detailed summary of pertinent evidence in the claims file and CPRS, provided negative opinions regarding the relationship between the Veteran's claimed low back and upper back/neck disabilities and service or his service-connected left knee disability. The May 2013 record was summarized in the July 2013 VA examination report. Significantly, in light of the opinions provided by the VA examiner, this May 2013 record would not include evidence of a nexus between the Veteran's claimed disabilities and service or his service-connected left knee disability. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a VA examination report "must be read as a whole" to determine an examiner's rationale). Remand to obtain a copy of the May 2013 record would impose unnecessary additional burdens on adjudication resources, with no benefit flowing to the Veteran, and is, thus, unnecessary. See Soyini, supra. In September 2012, the Board reopened the claims for service connection and remanded the reopened claims for additional development. The RO was to obtain outstanding VA treatment records dated between May and July 1994 and private treatment records from Dr. M.R. and Dr. T.T. The RO was also to contact all necessary sources to obtain any additional service treatment records and the Veteran was to provide additional details regarding the alleged in-service treatment. The Veteran was also to be provided a VA examination. The identified VA and private treatment records have been obtained. The Veteran did not provide additional information to enable VA to obtain further service treatment records. In any event, as discussed above, remand to attempt to obtain additional service treatment records is not necessary. The Veteran was afforded a VA examination in March 2013. Because the VA examination was inadequate, the claims were again remanded in April 2013 to obtain a supplemental medical opinion. The Veteran was also provided an additional opportunity to submit any further evidence regarding in-service complaints, treatment, or symptoms. The Board instructed that, if additional records were not obtained, the Veteran should be notified in accordance with 38 C.F.R. § 3.159. A May 2013 letter advised the Veteran to submit any additional information relevant to his appeal on an enclosed form. While he has provided additional statements in support of his claims, he has not submitted any additional evidence to allow VA to obtain additional service treatment records. Rather, in a statement received in August 2013, he alleged that his records had been destroyed in a fire at the U.S. Army Reserve Personnel Center (ARPERCEN) in St. Louis years earlier. The Appeals Management Center (AMC) did not specifically notify the Veteran that no additional service treatment records were obtained; however, this was not necessary as he did not provide any further information to allow for a search for more records. The Veteran was afforded a VA examination to evaluate his claimed disabilities in July 2013. A supplemental opinion was provided in September 2013. The July 2013 and September 2013 reports, read together, include medical opinions addressing the etiology of each of the Veteran's claimed disabilities, are responsive to the questions posed in the April 2013 remand, and include bases for the examiner's opinions. Thus, these examination reports are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In October 2013, the Veteran's representative argued that the July 2013 VA examination was inadequate because the examiner based his opinion on a lack of documentation of post-service complaints from the Veteran. As will be discussed below, while the Veteran has reported neck and back problems since service, the Board finds these reports not to be credible. Therefore, to the extent that the examiner's opinion was based on a lack of documentation of post-service complaints, it is not rendered inadequate. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The June 2012 hearing was adequate as the Veterans Law Judge explained the issues and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has not identified any additional, relevant evidence that has not been requested or obtained. The Veteran has been notified of the evidence and information necessary to substantiate his claims, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claims. Analysis Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F.3d at 1339. When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and the "nexus" requirement of the three-element test must be met. Id. at 1338-39. Arthritis is a chronic disease listed in section 3.309(a); therefore, the provisions of subsection 3.303(b) for chronic disabilities apply. Service connection can be granted for certain chronic diseases, including arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service. Such diseases shall be presumed to have been incurred in service even though there is no evidence of disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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), (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of the inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). 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). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr, 21 Vet. App. 303 (concerning varicose veins). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical 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 v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see 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"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has current low back, upper back, and neck disabilities, as the July 2013 VA examination report includes diagnoses of DJD of the thoracic spine, DDD and DJD of the lumbosacral spine, grade 1 anterolisthesis of L4 on L5, DJD of the bilateral sacroiliac joints, multilevel DDD and DJD of the cervical spine, and 3 mm. anterolisthesis of C2 on C3. There is also evidence of an in-service injury. The Veteran has repeatedly reported being injured when a piece of a tree fell and hit him on the head, knocking him unconscious. He stated that the force of the blow sheered the bolts off of his seat and he was forced down into the vehicle he was sitting in. Service treatment records do not reflect complaints regarding or treatment for this injury, nor do they otherwise document complaints regarding or treatment for the low back, upper back, or neck. The Veteran has denied receiving in-service treatment on numerous occasions, including in an October 2009 statement and during the June 2012 hearing. Rather, the Veteran testified that he got medication in from a medic in the barracks. The Veteran is competent to report his in-service injury. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). The lack of contemporaneous service treatment records corroborating this injury does not undermine the credibility of the Veteran's reported history. See Buchanan, 451 F.3d at 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Although the Veteran reported in his August 2009 claim that he was injured in 1961, he has at other times reported that his injury occurred in 1962. During the June 2012 hearing, he reported that the injury occurred around April 1962. He has, however, been consistent in his description of the injury; reporting hitting a tree while driving a personnel carrier causing a piece of the tree to break and hit him on the head. Inconsistency in reporting the date of the injury does not render his report of in-service injury not credible. Some post-service medical records do call into question the credibility of the Veteran's reported in-service injury. For example, these records document that the Veteran suffered an injury to his low back at work in June 1989 when he stepped of a pay loader. In a workmen's compensation questionnaire completed regarding this injury the Veteran denied ever injuring his low back before. In May 2003, the Veteran reported to his private chiropractor that he had lower back pain with problems on and off for the past few months and he denied any trauma. In March 2009, the Veteran was evaluated for a long history of low back pain with right-sided radicular pain as well as lumbar stenosis claudication type symptoms. He reported initially injuring his back over 15 years earlier when he stepped off a loader at work and twisted his back. In October 2009, the Veteran submitted an April 1994 statement from a fellow service member who wrote that he remembered the Veteran being hit in the head with a tree top while driving a personnel carrier through the woods in 1962, with complaints of headaches and a stiff neck for weeks afterwards. In a statement submitted in October 2009, the Veteran's ex-wife wrote that she remembered the Veteran getting hurt in Alaska between 1961 and 1962 while driving his personnel carrier when a tree fell on his head. She stated that he had a stiff neck and headaches, but did not go to the dispensary. An April 2010 statement from a fellow service member, H.M.S., recounts that the Veteran told H.M.S. that he had been hit on the head by a large section of birch tree during service. The lay statements support the Veteran's reported history. Despite the post-service records which call into question the credibility of the reports in-service injury, the Board is resolving any doubt on this point in favor of the Veteran and finds the Veteran's report of in-service injury to be credible. Thus, the remaining question regarding the direct service connection claims is whether there is a relationship between the current low back, upper back, and/or neck disabilities and service. Because there is X-ray evidence of degenerative changes in the lumbar, thoracic, and cervical spines, service connection based on chronicity or continuity of symptomatology is for consideration. See 38 C.F.R. § 3.309(a). The Veteran has described back and neck problems since service, for example, in a May 1994 claim, in an October 2009 statement, and during the June 2012 hearing. However, such assertions are outweighed by the evidence of record. The Veteran's June 1962 Report of Medical History at separation makes no mention of back or neck problems. While he reported swollen painful joints, this was in reference to his left knee which had been "banged" in service. Clinical evaluation of the neck and spine on separation examination was normal. In an undated statement included in the service treatment records, the Veteran verified that there had been no change in his physical condition since the June 1962 examination. These service treatment records are highly probative as they were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than subsequently reported history). The Veteran's statements reporting a history of back and neck symptoms beginning in and continuing since his in-service injury are contradicted by the June 1962 Report of Medical History in which he appears to have reported all of his existing medical conditions without mentioning any problems related to his back and/or neck. See AZ v. Shinseki, 731 F. 3d 1303, 1315 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Based upon the language and context of the Report of Medical History, the Board finds that the Veteran was reporting all the symptoms that he was experiencing at that time. Therefore, his failure to report any complaints regarding his back and/or neck at that time is persuasive evidence that he was not then experiencing any relevant problems and outweighs his present recollection to the contrary. The first post-service treatment record of a complaint regarding the back or neck is a 1985 treatment record documenting shoulder pain, and inability to lift the arm, and a sore back. The Veteran has reported receiving treatment earlier than 1985, and, during the June 2012 hearing, K.M. stated that the Veteran's wife had reported that the Veteran began treatment with Dr. T.P.D. not in the 1960s, but in approximately 1971. In a December 1991 new patient information form, the Veteran reported low back pain, neck pain or stiffness, and pain between his shoulders. In June 2012, Dr. T.P.D. reported providing chiropractic treatment for the Veteran in approximately 1979 for neck and back problems. He stated that the Veteran had problems with these conditions for years. In May 2003, the Veteran reported to his private chiropractor that he had lower back pain with problems on and off for the past few months. In May 2005, he described a week to a week and a half of back symptoms which began while cutting some wood. He denied a significant previous history. In March 2009, the Veteran was evaluated for a long history of low back pain with right-sided radicular pain as well as lumbar stenosis claudication type symptoms. He reported initially injuring his back over 15 years earlier when he stepped off a loader at work and twisted his back. He described flare-ups of pain since that time. During VA treatment in June 2009, the Veteran denied back pain. A January 2012 chiropractic health record indicates that the Veteran was asked to describe any major injuries and reported that he was "hurt in service" in 1962. However, he reported that his symptoms of right sided neck pain down to his shoulders began two weeks earlier. The May 2003 report of lower back problems for a few months, the May 2005 denial of a significant previous history, the March 2009 report of flare-ups of back pain since his work injury, the June 2009 denial of back pain, and the January 2012 report of neck pain down to the shoulders beginning two weeks earlier, also weigh against the reports of continuity of symptomatology of back and neck problems since service. Accordingly, the reported continuity of symptomatology is not credible. See Madden, 125 F.3d at 1481. Thus, service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) is not warranted. Service connection on a direct basis, then, must be established by evidence of a nexus. On VA examination in March 2013, the diagnosis was lumbar spondylolisthesis with radiculopathy. The examiner noted that there was no documentation in the service treatment records of a back injury or mid-low back condition. The Veteran reported that he did not seek care for a back condition during service, but went to a chiropractor on a regular basis after discharge. He described his work injury about 15 years earlier when he twisted his back getting out of a truck. The examiner opined that the claimed back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The explanation for this opinion was that no mid to low back condition was documented in the military; rather, a back problem was first noted after discharge from service. The examiner also noted that the Veteran had a documented work injury with similar symptoms since that injury. The same examiner also diagnosed advanced DDD of the cervical spine. She noted that there was no documentation of a neck injury in the service treatment records. The Veteran denied in-service treatment for a neck condition. Rather, he reported chiropractic treatment after discharge. He stated that he "just kept taking aspirin" to treat his neck when he got out of service. The examiner opined that the claimed neck condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The explanation for this opinion included the fact that Dr. T.D. reported in June 2012 that he had treated the Veteran for back and neck problems beginning in approximately 1979; that a 1985 treatment record documented shoulder pain, and inability to lift the arm, and a sore back; and the Veteran had a workplace injury in 1989. The examiner noted that the Veteran did not recall having any treatment for a neck condition during service, thus, his current condition was less likely due to military service. She explained that her opinion was based on the late onset from discharge from service, with ongoing treatment. She added that the significant degenerative changes in the cervical spine were likely related to aging and also cited the post-service work-related injury. The March 2013 VA examiner's opinions were based, at least in part, on the absence of documentation of an in-service injury. This is not a sufficient basis for a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). As stated above, the Board finds the Veteran's reports of in-service injury to be credible. In July 2013, the Veteran underwent another VA examination to evaluate his claimed disabilities. The examiner reviewed the claims file and the records in the CPRS. He gave a detailed history of the claimed conditions, including a January 1960 pre-induction examination, a September 1960 induction examination, and a June 1962 separation examination which identified no physical abnormalities of the neck or spine. The examiner discussed in detail the post-service history, including the documented work injury in June 1989 when the Veteran twisted his back. The examiner acknowledged the Veteran's assertion that his service treatment records are incomplete; however, he noted that review of the claims file, and the Veteran's current history provided in conjunction with the examination, verified that he did not seek medical care following the incident where he was struck in the head by a falling tree branch in service. Therefore, he observed that, even if a portion of the service treatment records were destroyed in the St. Louis fire, given the Veteran's statements, there was no reason to expect any documentation that a medical evaluation was provided to the Veteran following this falling tree branch incident. The Veteran denied acute injuries to his low back or neck since separation from service. He reported twisting his back in approximately 1989 when he stepped out of his truck at work and stepped on a rock, developing acute back pain. He described this as an acute episode which was resolved with chiropractic treatment. X-ray of the thoracic spine revealed large degenerative marginal spurs at multiple levels. Lumbar spine X-ray revealed DDD at all levels, severe facet arthropathy at L4-L5, grade 1 anterolisthesis of L4 on L5, mild apex right lumbar scoliosis, and degenerative change of the sacroiliac joints. X-ray of the cervical spine revealed DDD at all levels except for C1-C2 and C2-C3, loss of the normal cervical lordosis with replacement by a mild kyphosis centered at C3-C4, and anterolisthesis of C2 on C3 by 3 mm. The diagnoses were DJD of the thoracic spine, DDD and DJD of the lumbosacral spine, grade 1 anterolisthesis of L4 on L5, DJD of the bilateral sacroiliac joints, multilevel DDD and DJD of the cervical spine, and 3 mm. anterolisthesis of C2 on C3. The examiner opined that these conditions were less likely than not (less than 50 percent probability) related to active duty status. He provided an explanation for his opinions, noting that the enlistment history and examination identified no physical abnormalities of the thoracolumbar or cervical spine. The examiner acknowledged the Veteran's testimony regarding his in-service injury, and the supporting lay statements, and stated that there was no medical basis to doubt the history provided by the Veteran of this incident where a tree branch struck him in the head. The examiner stated that the first evidence of the Veteran presenting with a back condition was in 1989, following his work injury. The examiner acknowledged the testimony that the Veteran's wife indicated that he began receiving treatment for his back condition in 1971 as well as the letter from Dr. T.P.D. reporting the Veteran being seen for back and neck problems in 1979. The examiner stated that the first evidence of the Veteran presenting with a neck condition was in December 1991, at which time he was reported to have significant DJD of the cervical spine. The examiner observed that the first available evidence of radiographic imaging of the thoracolumbar spine was in May 2005 when a lumbar spine MRI demonstrated spondylolisthesis at L4-5 with spinal stenosis with a bulging disc (DDD) and a January 2006 lumbar spine x-ray demonstrated evidence of DJD. He added that a January 2012 MRI of the thoracic spine showed "degenerative disease" and the first available radiographic imaging of the cervical spine was a January 2012 MRI demonstrating significant DDD and mild to moderate degenerative facet disease. The examiner explained that his opinion was based on the absence of any physical abnormalities of the thoracolumbar and cervical spine at enlistment and the absence of evaluation or treatment for a thoracolumbar or cervical spine condition during service (acknowledging the reported in-service injury), and the absence of abnormalities of the thoracolumbar and cervical spines on separation examination, as well as the first indicated post-service report of treatment for a back condition being in 1971, the first indicated post-service treatment for cervical pain being in 1979, the statement from Dr. T.P.D. regarding chiropractic treatment in 1979, the first evidence of evaluation for severe back pain in 1989 after the work injury, the first report of significant DJD of the cervical spine in December 1991, the first X-ray evidence of degenerative changes in the lumbosacral spine in May 2005, the first X-ray evidence of degenerative changes in the thoracic and cervical spine in January 2012, the current physical examination demonstrating no evidence of ligamentous instability of the thoracolumbar or cervical spine or radiculopathy, and the July 2013 X-ray findings. Based on this evidence, he opined that, the current lumbosacral, thoracic, and cervical spine disabilities were most likely related to aging and an active lifestyle. The July 2013 opinion is highly probative regarding the question of whether the Veteran's current low back, upper back, and neck disabilities are related to service. See Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The examiner formed his opinion after interview with and examination of the Veteran as well as review of the claims file and CPRS. His opinion was also supported by a clearly-stated rationale. Significantly, this examiner concluded that the Veteran's current lumbar, thoracic, and cervical spine disabilities were less likely than not related to his in-service injury; rather, he attributed them to aging and an active lifestyle. The Veteran, via his representative, argued in October 2013 that the July 2013 VA examination was inadequate because the VA examiner's opinion was based on a lack of documentation of post-service complaints reported by the Veteran. He argued that the reliance on the lack of documentation of these complaints conflicts with the Federal Circuit's holding in Buchanan. As indicated above, the Federal Circuit held that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible. See Buchanan, supra. However, in this case, the Board has found the Veteran's reports of continuity of symptomatology of back and neck problems since service not to be credible. Accordingly, to the extent that the VA examiner cited the absence of post-service complaints regarding or treatment for back and neck problems until many years after separation from service in explaining his opinions, this does not render his opinions inadequate. The examiner provided a thorough and detailed examination report and concluded that the Veteran's current disabilities are related to aging and an active lifestyle, as opposed to service. The VA examiner stated that the first evidence of the Veteran presenting with a back condition was in 1989, following his work injury. The earliest post-service treatment record available is a February 1985 chiropractic record from Dr. T.P.D. documenting the Veteran's complaint of a sore low back. This treatment record was specifically discussed in the July 2013 VA examination report. However, it appears that the Veteran was presenting for left shoulder treatment in February 1985, and mentioned his sore back at that time. In any event, the VA examiner considered the report of back treatment as early as in 1971 in forming his opinion. Thus, the only competent, probative opinion on the question of whether the Veteran's current low back, upper back, and neck disabilities are related to service weighs against the claims for service connection. The Veteran has not presented or identified any existing, contrary medical opinion that, in fact, supports the claims for service connection. There is also no competent, probative evidence that the Veteran's current low back, upper back, and/or neck disabilities were caused or aggravated by his service-connected left knee disability. A February 2010 VA examination report reflects that the Veteran did not have a limp and was able to walk about two blocks before having left knee pain. Gait was normal. The examiner opined that there was no evidence that left knee DJD caused any other joint problems, citing the minimal gait disturbance. He specifically noted that there was no evidence of the left knee disability causing or aggravating a low back condition, observing that the Veteran had significant chiropractic treatment for low back pain without any mention of a significant joint abnormality or gait disturbance. He added that the back injury existed prior to the left knee becoming significantly symptomatic. In September 2013, the July 2013 VA examiner reviewed the claims file and noted that the Veteran's gait was normal on VA examination in February 2010. While the right foot was slightly more valgus directed on VA examination in July 2013, the Veteran had a normal weight bearing arch and no evidence of pelvic tilt or shift in center of gravity while walking to serve as a mechanism for shifting stressful forces from the left lower extremity to his lower back or upper back/neck. He opined that the claimed conditions were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. He specifically stated that DJD of the thoracic spine, DDD and DJD of the lumbosacral spine, grade 1 anterolisthesis of L4 on L5, DJD of bilateral sacroiliac joints, multilevel DDD and DJD of the cervical spine, and 3 mm anterolisthesis of C2 on C3 were less likely than not caused by or aggravated by his service connected left knee disability. He explained that there was no evidence of ligamentous instability or meniscal pathology of the left knee on physical examination to cause altered weight bearing on the left lower extremity to serve as a mechanism for shifting of stressful forces to the lower back or upper back/neck. Rather, direct observation of gait during ambulation showed no shift in center of gravity or pelvic tilt. The September 2013 opinion is dispositive of the question of whether the Veteran's current low back and/or upper back and neck disabilities were caused or aggravated by his service-connected left knee disability, as the examiner's findings were based interview with and examination of the Veteran as well as review of the claims file and CPRS. His opinion was supported by a clearly-stated rationale. The September 2013 opinion regarding the relationship between the low back disability and the service-connected left knee disability is further supported by the February 2010 VA examination report. A comprehensive reading of the examination reports indicates that the examiners provided well-informed opinions which as a whole are responsive to the Board's inquiry. Monzingo, supra. Thus, the only competent, probative opinion on the question of whether the Veteran's current low back and/or upper back and neck disabilities were caused or aggravated by service-connected left knee disability weighs against the claims for service connection. The Veteran has not presented or identified any existing, contrary medical opinion that, in fact, supports the claims for service connection on a secondary basis. Additionally, there is no evidence that DJD of the thoracic spine, DDD and DJD of the lumbar spine, or DDD and DJD of the cervical spine manifested to a compensable degree within one year of the Veteran's separation from military service. Rather, the first post-service treatment record associated with the claims file is dated in February 1985 and the first mention of degenerative changes is the December 1991 chiropractic treatment record noting significant DJD of the cervical spine. Thus, service connection is not warranted for a low back, upper back, and/or neck disability on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In addition to the medical evidence, the Board has considered the Veteran's contention that he has current low back, upper back, and neck disabilities related to service and/or his service-connected left knee disability. Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions, such as concerning a form of cancer. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran does not have or claim to have any specialized knowledge in the field of medicine. The Board therefore finds that the etiology of his low back, upper back, and neck disabilities is beyond his competence. Moreover, the question of etiology of these conditions is complex in nature. Therefore, to the extent he has asserted that the low back, upper back, and neck disabilities are related to service and/or service-connected disability, the Board finds such assertions to be of little probative value, especially in relation to the July 2013 VA examiner's opinions, as the Veteran is not competent to opine on these complex medical questions. His contentions regarding etiology of his current low back, upper back, and neck disabilities are outweighed by the medical evidence of record, specifically the opinions of the July 2013 VA examiner. The preponderance of the evidence is against the claims and the appeal will be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for a low back disability, including as secondary to service-connected DJD of the left knee, is denied. Service connection for an upper back and neck disability, including as secondary to service-connected DJD of the left knee, is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs