Citation Nr: 1339208 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 07-28 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an effective date earlier than January 7, 2005 for the grant of service connection for left lower extremity radiculopathy and sciatica. 2. Entitlement to service connection for a bilateral shoulder disability, claimed as residuals of a bilateral shoulder blade dislocation. REPRESENTATION Appellant represented by: Harold Hoffman-Logsdon III, Attorney ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from May 1986 to May 1992. This matter comes on appeal before the Board of Veterans' Appeals (Board) from February 2006 and June 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran requested a Travel Board hearing in an August 2009 substantive appeal (VA Form 9), but indicated in a March 2011 statement that wished to revoke his hearing request. Accordingly, the Veteran's Travel Board hearing request has been withdrawn. In a May 2012 decision, the Board denied an effective date earlier than January 7, 2005 for the grant of service connection for left lower extremity radiculopathy and sciatica, denied service connection residuals of a bilateral shoulder blade dislocation, and remanded service connection for scapula thoracic strain/sprain. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In February 2013, the Court granted a Joint Motion for Partial Remand, and the part of the Board's decision, only to the extent that it denied an earlier effective date for service connection for left lower extremity radiculopathy and sciatica and denied service connection for residuals of a bilateral shoulder blade dislocation, was remanded to the Board for action consistent with the terms of the Joint Motion. Service connection for scapula thoracic strain/sprain was remanded by the Board in May 2012 for additional development; that issue has not been recertified to the Board and is still in remand status. In that regard, it does not appear that the requested development on remand has been completed, the Appeals Management Center (AMC) has not issued a supplemental statement of the case addressing the issue, and there is no indication that the issue has otherwise been recertified to the Board for adjudication at this time. Therefore, service connection for scapula thoracic strain/sprain is being referred to the AMC for appropriate action. FINDINGS OF FACT 1. The Veteran submitted an informal claim for service connection for a low back disability on January 17, 1994. 2. A sympathetic reading of the January 17, 1994 back claim which noted neurological treatment, when considered with contemporaneous medical evidence of radiculopathy and sciatica in the left lower extremity, constitutes an implicit claim for service connection for left lower extremity radiculopathy and sciatica associated with the claimed back disability. 3. For the period from January 17, 1994, the Veteran was shown to have a diagnosis of left lower extremity radiculopathy and sciatica related to a service-connected lumbar spine disability. 4. There are no written documents or communications of record prior to January 17, 1994 that constitute a formal, informal, or implicit claim for service connection for sciatica or radiculopathy of the left lower extremity 5. The Veteran has currently diagnosed bilateral shoulder strain as well as current x-ray evidence of minimal acromioclavicular degenerative changes. 6. The Veteran did not sustain an injury to the bilateral shoulder in service, nor did he exhibit symptoms related to a right or left shoulder disability in service. 7. The Veteran did not have chronic symptoms of arthritis in the bilateral shoulders in service or continuous symptoms after service separation. 7. Arthritis of the bilateral shoulders did not manifest to a compensable degree within one year of separation from service. 8. The currently diagnosed bilateral shoulder disability is not related to service. CONCLUSIONS OF LAW 1. Resolving doubt in the Veteran's favor, the criteria for an earlier effective date of January 17, 1994, for service connection for left lower extremity radiculopathy and sciatica are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 3.400(o), 4.16(a) (2013). 2. The criteria for service connection for a bilateral shoulder disability, claimed as residuals of a bilateral shoulder blade dislocation, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. VCAA notice applies to all five elements of a service connection claim, including (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO issued a December 2005 preadjudicatory notice letter to the Veteran which met the VCAA notice requirements. The Board finds that additional notice addressing the appeal for an earlier effective date is not necessary. Effective date claims are generally considered to be "downstream" issues from the original grant of service connection if appealed from that initial grant of service connection. VA's General Counsel has promulgated an advisory opinion holding that separate notice of the VA's duty to assist the veteran and of his concomitant responsibilities in the development of claims involving such downstream issues is not required when the veteran was provided adequate VCAA notice following receipt of the original claim. VAOPGCPREC 8-2003. Service treatment records, private treatment records, VA examinations, and the lay statements are of record. An August 2011 VA examination addressed service connection for a bilateral shoulder disability. 38 C.F.R. § 3.159(c)(4) (2013). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the August 2011 VA examination and opinion obtained are adequate because the examination was performed by medical professional, was based on a review of the record, to include a lay history and symptomatology provided by the Veteran, and included a thorough examination which included a review of current x-ray evidence, and the VA examiner offered relevant opinions along with supporting reasons for the opinions offered. See Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. See 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal and to respond to VA notices. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. For these reasons, the Board finds that VA has met its duties to notify and assist the Veteran. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Effective Date Laws and Regulations In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Except as otherwise provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2013). In new service connection cases, the effective date is the date of receipt of claim or the date entitlement arose, whichever is later. However, if the claim is received within one year of separation from service, the effective date will be the day following the date of separation from service. 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a)). A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p), 3.151 (2013). Any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155 (2013). Such an informal claim must identify the benefit sought. Id. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2013). Where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2013). Additionally, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). Where a claim is reconsidered and service connection granted, the effective date shall be the later of the date entitlement arose and the date VA received the previously decided claim. 38 C.F.R. § 3.156(c)(3). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(2). VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Earlier Effective Date Analysis Pursuant to a February 2013 Order of the Court, the appeal for an earlier effective date for the grant of service connection for left lower extremity radiculopathy and sciatica was vacated and remanded for action consistent with the terms a February 2013 Joint Motion for Partial Remand. The Joint Motion provided that a remand was necessary so that the Board could consider whether a January 1994 claim encompassed a claim for entitlement to service connection for left lower extremity radiculopathy and sciatica, taking into account the Veteran's January 1994 report of being evaluated by a neurologist and medical evidence at that time which noted left side sciatica and radiation of pain from the lower back to the left lower extremity. The Veteran and representative contend in a January 2013 statement that the January 1994 claim for service connection for a back injury included a claim for sciatica. The Board finds that a sympathetic reading of the January 17, 1994 back claim which noted neurological treatment, when considered with contemporaneous medical evidence of radiculopathy and sciatica in the left lower extremity, constitutes an implicit claim for service connection for left lower extremity radiculopathy and sciatica associated with the claimed back disability and an earlier effective date of January 17, 1994 is warranted for the grant of service connection for left lower extremity radiculopathy and sciatica. The Board finds that there are no written documents or communications of record dated prior to January 17, 1994 that constitute a claim for service connection for sciatica or radiculopathy in the left lower extremity. The Veteran was discharged from active service in May 1992. He filed an initial, formal claim for service connection for a lumbar spine disability in May 1992. The Veteran did not identify sciatica or radiculopathy in the initial May 1992 claim for service connection for a lumbar spine disability and cited only a "pulled back muscle/strain in lower back." A claim, formal or informal, must identify the benefit sought. 38 C.F.R. § 3.155. Additionally, no evidence of sciatica or radiculopathy was associated with the May 1992 claim. Because the May 1992 claim for service connection did not identify sciatica or radiculopathy, the Board finds that it does not constitute a claim for such benefits. In a May 1992 rating decision, the RO denied service connection for a back disability. The Veteran did not appeal that determination and it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2013). The Board finds that left radiculopathy or sciatica was not otherwise noted in the record at any time prior to January 17, 1994. While a later June 1994 private treatment letter from Dr. B.C. shows that the Veteran was treated from November 1993 to January 1994 for lower back pain that radiated with his left leg, diagnosed as lumbar disc herniation with sciatica, the effective date for service connection is based the date of receipt of claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Thus, an earlier effective date, prior to January 17, 1994, is not warranted by an earlier showing of entitlement. The Veteran submitted an informal claim for service connection for a "back injury" in January 17, 1994. In this claim, he made reference to an in-service injury to the back, post-service treatment for back pain in February 1993 with later referral to a neurologist for further evaluation, and a diagnosis of a "slipped disc." VA and private treatment records identified by the Veteran and associated with the record in June 1994 reflect diagnoses of left lower extremity sciatica and radiculopathy. Resolving reasonable doubt in favor or the Veteran, the Board finds that the January 17, 1994 reference to neurological disability, when considered with medical evidence of left lower extremity sciatica and radiculopathy, encompassed a claim for service connection for left lower extremity and sciatica and radiculopathy secondary to the claimed lumbar spine disability. The RO granted service connection for a herniated disc L5-S1 in an August 1994 rating decision. While the Veteran was not rated on sciatica at that time, the diagnosis of disc herniation with sciatica was noted in the RO's discussion. The Board finds that the evidence associated with the record at the time of the August 1994 rating decision established a diagnosis of left lower extremity sciatica and radiculopathy secondary to the claimed lumbar spine disability. The Board finds that there was no implicit denial of service connection for sciatica and radiculopathy prior to the June 2007 grant of service connection. The Veteran did not appeal the August 1994 rating decision which granted service connection for a herniated disc and assigned an initial 10 percent rating effective May 21, 1992, and it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2013). The next document of record, received from the Veteran, was an informal claim for an increased rating for the "spinal disc condition" in May 2003. In a July 2003 rating decision, the RO granted an increased 20 percent evaluation for a herniated disc L5-S1 without reference to sciatica or radiculopathy. The RO reconsidered the claim in a June 2004 rating decision based on additional evidence received within one year of the July 2003 rating decision, but again, made no reference to left lower extremity sciatica or radiculopathy. In a February 2006 rating decision, the RO denied an increased evaluation for herniated disc L5 to S1, stating in its discussion that a compensable evaluation was not warranted for left side sciatica. The Board finds subsequent to the January 17, 1994 claim for service connection, the RO granted service connection for a herniated disc L5 to S1, but did not deny service connection for left lower extremity sciatica and radiculopathy. Instead, in a February 2006 rating decision, the RO acknowledged symptoms in the left lower extremity as being a part of the Veteran's service-connected lumbar spine disability. Cf. Munro v. Shinseki, 616 F.3d 1293, 1298-1300 (2010) (holding that even if a formal or informal claim is not addressed, a subsequent denial of the identical claim is an "implicit denial" of the earlier claim.). Because there was no implicit denial of service connection for left lower extremity sciatica and radiculopathy subsequent to the January 17, 1994 claim, service connection may be granted back to the date of the claim. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the January 17, 1994 claim for service connection for left lower extremity sciatica and radiculopathy remained pending and an earlier effective date of January 17, 1994 is warranted. The Board finds that the Veteran did not indicate any intent to file a claim for service connection for radiculopathy or sciatica of the left lower extremity prior to January 17, 1994, and the initial claim for a low back strain in May 1992 may not be construed as such. Service Connection Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) apply to any diagnosis of arthritis in the bilateral shoulders. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In rendering a decision on appeal the Board must also 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. 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"). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service Connection Analysis After a review of all the evidence, lay and medical, the Board finds that a currently diagnosed bilateral shoulder disability is not related to service. The August 2011 VA examination identified current diagnoses of bilateral shoulder strain and minimal acromioclavicular degenerative changes on x-rays, indicating at least some degree of arthritis present in the bilateral shoulders. The Board finds that the Veteran did not sustain an injury to the bilateral shoulders in service, nor he did exhibit symptoms related to a right or left shoulder disability in service. In a January 2005 claim, the Veteran identified a claim for "residuals of a bilateral shoulder blade dislocation" stating that he "tore shoulder blades from muscles in service." Service treatment records, however, contain no complaints, diagnoses, or treatment for a bilateral shoulder blade dislocation, or other shoulder injury or disability in service. Service treatment records show that in December 1986, the Veteran reported to sick call with complaints of soreness in his upper back for approximately two weeks. He was assessed with myalgia and cervical strain; however, specific complaints related to the shoulders were not identified. On periodic examinations in August 1988, September 1989, April 1991, and on a March 1992 separation examination, clinical evaluation of the Veteran's upper extremities and spine were normal, and the Veteran denied having or previously having arthritis, rheumatism, or bursitis; a bone, joint, or other deformity; or painful or "trick" shoulder or elbow on reports of medical history. The March 1992 separation examination shows no complaints related to the shoulders. A February 2013 Joint Motion for Partial Remand provides that a remand was necessary so that the Board could provide an adequate statement of reasons and bases for a credibility determination regarding the Veteran's assertion of continuity of symptomatology since service. The Board was directed to consider lay evidence from a June 1995 patient questionnaire indicating that the claimed shoulder condition developed "gradually over time," associated with the statement that the shoulder condition began in 1995. The Veteran and representative contend in a January 2013 statement that the June 1995 patient form identified two different injuries. Specifically, it identified the onset of a "compressed disc" in 1991 as well as complaints of "stiff neck, shoulder and lower neck pain" in June 1995, specifying that the latter problems "gradually developed over time. The Board finds that the weight of the evidence, lay and medical, shows that the Veteran did not have chronic symptoms of arthritis in the bilateral shoulders in service or continuous symptoms after service separation. The Board finds that the earliest evidence documenting a bilateral shoulder disability was post-service in June 1995. In June 1995, the Veteran sought private chiropractic treatment for a "stiff neck, shoulder and lower neck pain." The Veteran reported that his problem began on June 25, 1995, the specific date cited was just two days prior to the date of treatment, but he also checked a box indicating that the problem "gradually developed over time." In an associated patient information sheet, the Veteran also identified a separate 1991 injury of a "compressed disc." In a June 2004 patient history report associated with private chiropractic care, the Veteran identified shoulder blade, neck, and lower back complaints which began in "1997," stated that such complaints were present for the last eight years, and checked that they were related to a "work accident." During an August 2011 VA examination, the Veteran reported that he had the onset of bilateral shoulder pain in the 1980s, gradually, after carrying heavy backpacks. He reported that care was provided at Fort Drum, including nonsteroidal anti-inflammatory medications, and that he had subsequent physical therapy. The Board finds, consistent with the Veteran and representative's January 2013 contention, that the June 1995 chiropractic treatment report and patient information form identified the onset of two separate disabilities, the onset of a "compressed disc" due to in-service injury in 1991, and, relevant to this appeal, the June 1995 post-service onset of "stiff neck, shoulder and lower neck pain" stated to have "gradually developed over time." Given that the Veteran reported that his problem began on June 25, 1995, the Board finds that the Veteran's qualification that the shoulder disability gradually developed over time does not provide additional information as to the time of onset. The Board finds, however, that the June 1995 report of gradual onset of shoulder pain tends to be inconsistent with the Veteran's January 2005 claim of having a "bilateral shoulder blade dislocation" in service, and contention that he tore the muscles from his shoulder blades in service. In that regard, while the Veteran was able to identify the 1991 date for a specific in-service "compressed disc" injury in the June 1995 report, he did not similarly identify any in-service onset for the bilateral shoulder complaints in the report completed that same day, and instead specified that his shoulder disability had its onset two days prior to the date of treatment. The Board finds that it is unlikely that the Veteran would report an in-service onset for a compressed disc injury, but in the same report, fail to identify an in-service shoulder blade dislocation or shoulder strain had such an injury leading up to his current symptoms occurred. The Board finds that the Veteran's failure to identify any shoulder dislocation injury or muscle strain in service in the June 1995 chiropractic report, in light of his contemporaneous report of an in-service back injury, is one factor that weights against the credibility of the January 2005 claim of having such a shoulder injury in service. See Buchanan, 451 F.3d at 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). Additionally, the record shows that the Veteran sustained a post-service injury to the shoulders, neck, and back in or around 1997, after his initial 1995 treatment for bilateral shoulder complaints. The June 2004 chiropractic report identifies a 1997 date of injury for the shoulder blades, neck, and lower back, due to a work accident, and the Veteran indicated that this condition had been chronic for the last eight years, consistent with a 1996 or 1997 post-service injury. While the Veteran's more recently identified bilateral shoulder pain in the 1980s and in-service treatment for such during the August 2011 VA examination, service treatment records do not reflect any injury or treatment relating to the shoulder, and the Veteran specifically denied having a painful or trick shoulder on reports of medical history associated with clinical evaluations in August 1988, September 1989, April 1991, and during a March 1992 separation examination. The Board finds that the denial of having a history of shoulder pain in service and at separation, in this context, is highly probative, contemporaneous evidence that the Veteran did not experience shoulder symptoms in service. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the lack of findings related to the shoulders in service, the Veteran's denial of shoulder pain during in-service periodic examinations and at service separation, the lack of post-service treatment for the shoulders until 1995 despite treatment shown for a lumbar spine disability during this time, the Veteran's June 1995 report of an onset of injury two days prior to treatment without specific descriptions of a in-service shoulder injury, additional post-service treatment records evidencing a shoulder complaints related to a post-service work accident in 1996 or 1997, even with the consideration of the Veteran's report of "gradual onset" of shoulder symptoms in June 1995, weigh against the credibility of the Veteran's self-reported history of in service injury and symptoms and chronicity of symptomatology post service made in conjunction with his claim for compensation. Based on inconsistencies in the Veteran's reports with findings in service treatment records and the absence credible of post-service complaints of shoulder pain until 1995, the Board finds that the Veteran is not a credible and has not provided credible lay evidence addressing a history of injury to the shoulders or symptoms in service. Accordingly, the Board finds that the weight of the evidence does not establish the occurrence of a shoulder injury in service, and that the Veteran's more recent statements with regard to chronic symptoms in service and continuous symptoms since service are not probative. For these reasons, the Board finds that the Veteran's assertion in January of chronic shoulder injury and symptoms in service and continuous symptoms post-service are outweighed by the other, more contemporaneous lay and medical evidence of record. See Caluza, 7 Vet. App. at 511; see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). The Board finds that arthritis in the bilateral shoulders did not manifest to a compensable degree within one year of separation from service. Private treatment records identify treatment for shoulder pain since 1995, but do not identify a diagnosis of arthritis within one year of service separation in May 1992. The earliest x-ray evidence indicating arthritis was an August 2011 VA examination which identified minimal acromioclavicular degenerative changes. The Board finds that a currently diagnosed bilateral shoulder disability, to include bilateral shoulder strain and arthritis, is not otherwise related to service, or to the Veteran's report of carrying heavy backpacks in service. There are conflicting medical opinions with respect to whether a current bilateral shoulder disability is related to service. In a June 2005 private opinion, G.C., DC stated that the Veteran was first seen in his office in June 1995 with complaints of right neck, shoulder, and scapulothoracic pain and was subsequently treated on twelve follow-up occasions from June 1995 to August 2003. Attached chiropractic treatment notes show that he was seen twice in June 1995, but did not receive treatment from 1996 to 1997. He was subsequently seen from June 1998 to June 2005 for treatment of the shoulders back and neck. G.C. stated that he had reviewed the Veteran's records concerning a 1986 active duty medical visit for "back pain," reported by the Veteran to be due to carrying a heavy rucksack weighing 100 pounds for roughly 50 miles over a four-day period. G.C. also noted the Veteran's report that this injury never resolved and resulted in a need for periodic treatment over the years. G.C. opined that the mechanism of injury the Veteran sustained in service was compatible with the chronic musculoskeletal problems he presented with at his office, which required long-term follow up due to its chronic nature. While G.C. related current musculoskeletal problems to the Veteran's report of carrying a heavy rucksack in service, and in-service treatment for back pain in 1986, the Board finds that this opinion is based, at least in part, on the Veteran's own report of injury to the shoulders in service, his report that such injury "never resolved" and his report of continuous periodic treatment for such injury. The Board has found, however, that the Veteran did not have chronic shoulder symptoms in service or shortly after service separation, and that he is not credible in reporting the chronicity and continuity of such symptoms. Medical opinions premised upon an unsubstantiated account of a claimant are of no probative value and do not serve to verify the occurrences described. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In contrast, an August 2011 VA examiner opined after examination of the Veteran, a review of current x-ray evidence, a review of service treatment records, and consideration of the Veteran's self-reported history of shoulder pain in service from carrying a heavy rucksack that a bilateral shoulder disability was less likely as not a related to service. In providing this opinion, the VA examiner noted G.C.'s June 2005 opinion and the Veteran's report of chronic in-service lifting exposure, i.e. carrying a heavy rucksack or backpack. The VA examiner opined nonetheless that the shoulder disability was less likely related to service, reasoning that he would expect much more specific radiographic changes were there a significant insult 25 years ago. The Board finds that the August 2011 VA opinion is probative, as it addressed the Veteran's report of lifting a heavy rucksack in service, which the Board finds is consistent with duties in service generally, included a review of the record and the opinion provided based on an accurate factual background consistent with the Board's own findings. The VA examiner provided adequate reasoning for his opinion based on current x-rays findings, which were stated to be inconsistent with a significant in-service injury 25 years prior. According to CAVC, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. The Board finds that the August 2011 VA opinion, provided by a physician, who based his opinion on findings from current x-rays of the shoulder as well as his own medical expertise is more probative than the opinion provided by C.G., a chiropractor who did not discuss x-ray findings in the shoulder, and who based his opinion in part on the Veteran's own inaccurate history chronic shoulder symptoms in service and since service. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). The Board finds that the most probative evidence of record, provided by the August 2011 VA examiner, does not establish a nexus between a currently diagnosed right shoulder disability and service. The Board finds that the Veteran has not provided competent or credible lay evidence of a nexus between any current shoulder disability and service through his own lay assertions. The Board finds the Veteran is not credible in this case and has not provided credible evidence regarding a history of shoulder injury or symptomatology. Absent competent, credible, and probative evidence of a nexus between a current bilateral shoulder disability and service, the Board finds that service connection is not warranted. For the reasons discussed above, the Board finds that service connection for a bilateral shoulder disability, claimed as bilateral shoulder blade dislocation, is not warranted. Because the preponderance of the evidence is against the claim for service connection for a bilateral shoulder disability, the claim must be denied, and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER An earlier effective date of January 17, 1994 for the grant of service connection for left lower extremity radiculopathy and sciatica is granted. Service connection for a bilateral shoulder disability, claimed as bilateral shoulder blade dislocation, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs