Citation Nr: 1342053	
Decision Date: 12/19/13    Archive Date: 12/31/13

DOCKET NO.  12-14 840	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for degenerative disc disease of the thoracolumbar spine with scoliosis (back disability).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

G.R. Waddington, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from February 1979 to April 1983.

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  

The Veteran testified at an August 2013 Board hearing before the undersigned.  An electronic transcript of the hearing is in the Virtual VA paperless claims processing system. Additional documents pertinent to the present appeal are not in the electronic system. 


FINDING OF FACT

The Veteran's current back disability did not manifest in service or within a year of service, was not aggravated by service, and is not otherwise related to service.


CONCLUSION OF LAW

The criteria for a grant of service connection for a back disability have not been met.  38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

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 United States Court of Appeals for the Federal Circuit  (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (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.  38 U.S.C.A. 
§ 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2013) (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). 

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

For service connection claims, proper notice of what is necessary to substantiate the claim requires that the Veteran be informed of the following five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio, 16 Vet. App. at 187. 

All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a Statement of the Case or Supplemental Statement of the Case (SSOC)) after the claimant has had an opportunity to submit additional evidence.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).

Prior to the initial rating decision in this matter, a February 2010 letter notified the Veteran of all five elements of service connection and informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim.  Therefore, the duty to notify is satisfied.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. at 484; Quartuccio, 16 Vet. App. at 187. 

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when such is necessary to make a decision on the claims.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

The Veteran's service treatment records (STRs), VA examination records, and private medical records are in the claims file.  He has not identified any other outstanding records or evidence.  The duty to obtain relevant records is satisfied.  See 38 C.F.R. § 3.159(c).

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  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).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.

Appropriate VA examinations were performed in May 2010 and December 2012.  In combination, the VA examinations are adequate for deciding this claim.  Specifically, the claims file, medical history, and diagnostic test were reviewed, the Veteran was examined, and an explanation was provided that enables the Board to make an informed decision.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  There are no apparent inconsistencies or ambiguities in the examination report, and the Veteran has not challenged its adequacy or thoroughness, or the competency of the examiner.  See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291.  Accordingly, VA's duty to provide a VA examination is satisfied.  See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. 

VA has satisfied its duties to notify and assist and the Board may proceed with appellate review.

The Merits of the Claim

The Veteran contends that his current back disability relates to his service.  Although he has been diagnosed as having thoracic spine scoliosis and degenerative joint disease of the lumbosacral spine, the preponderance of the competent evidence does not establish that the Veteran's back disability was aggravated by or manifested in or within a year of service or otherwise relates to service.  Thus, the appeal is denied.

The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002).  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 the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Board must assess the credibility and weight of all evidence, including both lay and medical evidence, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation generally involves a three-step inquiry.  First, the Board must determine whether the evidence is competent.  See, e.g. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Second, the Board must 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).  Third, the Board must assess the probative value and weight of the evidence in light of the entire record.  Gonzales, 218 F.3d at 1380-81.

With regard to the competency of the evidence, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Thus, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See id. (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent merely because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  In this regard, lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility, probative value, and relationship to other items of evidence.  See Layno, 6 Vet. App. at 469 (observing that the credibility and weight of testimony are factual determinations that must be distinguished from the initial assessment of its competency); accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."); Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active 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 of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Entitlement to service connection may be established on a direct basis with evidence showing (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).  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a).  

For the chronic diseases listed in 38 C.F.R. § 3.309(a) (2013), the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases," and only applies to the chronic diseases set forth in § 3.309(a)).  Specifically, § 3.303(b) provides that 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 causes unrelated to service ("intercurrent causes").  If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden.  Walker, 708 F.3d at 1338; C.F.R. § 3.303(b).  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period."  Walker, 708 F.3d at 1338-39 (observing that a claim for a chronic disease "benefits from presumptive service connection . . . or service connection via continuity of symptomatology").

Because the Veteran has been diagnosed as having degenerative disc disease, and arthritis is defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic diseases apply and the claim may be established with evidence of a chronicity in service or a continuity of symptomatology after service.  See Walker, 708 F.3d at 1338-1339. 

Where a claimant served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for degenerative disc disease may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  This presumption may be rebutted by affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

In addition, if a pre-existing disability is noted upon entry into service the claimant cannot bring a claim for service connection for that disability; rather, the claimant may bring a claim for aggravation of that disability.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306.  

Every Veteran is presumed to have been in sound condition when he or she was examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  When a defect, infirmity, or disorder is noted on a claimant's entrance examination, he or she has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation.  See Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  If the claimant demonstrates an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption.  Horn, 25 Vet. App. at 234; 38 U.S.C. § 1153; 38 C.F.R. § 3.306.  To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease.  Horn, 25 Vet. App. at 235 n. 6; 38 U.S.C. § 1153.

To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report.  38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994).  History of pre-service existence of a disease does not constitute a notation of such condition.  See id. at 240 (holding that "asthma" was not noted where, although the Veteran checked a box indicating that he had a history of the disease, a clinical evaluation detected no abnormalities of the lungs).  However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided.  See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that "bunions" were noted at induction examination where orthopedic examiner diagnosed "bunions," despite also stating "no problem [with] feet.").

The Veteran's January 1979 entrance examination report notes that he had mild scoliosis upon enlistment.  See also June 1979 Medical Examination Report and Consultation Sheet (noting asymptomatic scoliosis).  Because scoliosis was diagnosed on the Veteran's entrance examination, the condition was "noted" upon entry into service even though it was not symptomatic at the time.  See Verdon, 8 Vet. App. at 530; 38 C.F.R. § 3.304(b).  Consequently, to the extent the Veteran seeks compensation for disability resulting from his scoliosis, he has the burden to demonstrate an increase in disability during service, which would serve to establish the presumption of aggravation.  See Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); Horn, 25 Vet. App. at 235 n. 6. 

The Veteran's service treatment records (STRs) do not show a worsening of the Veteran's preexisting scoliosis during service or that his degenerative disc disease manifested during service.  The Veteran experienced cervical strain after he was involved in a motor vehicle accident in January 1981 and some back pain during service.  See May 1982 STR.  However, in the same month (May 1982) a doctor observed that the Veteran had a good range of motion and no spasms associated with his spine.  The STRs indicate the Veteran was not prescribed medication for a back disability while in service and did not have further difficulty and that he was able to perform all his assigned duties.  See STRS dated June 1978, January 1979, June 1979, June 1980, June 1981 (reporting being in good health and not taking any medications).  The Veteran denied having spinal or muscular skeletal problems on his March 1983 separation examination.  Thus, the Veteran's STRs do not show any support for a chronic or continuous back disorder, or that his current back disability is related to military service.

The Veteran's private medical records show that he first reported having post-service back pain in April 2008 - approximately 25 years after service.  See April 2008 Private Medical Records.  In addition, in May 2010 diagnostic imaging of the thoracolumbar spine showed significant scoliosis with mild spurring, no compression fracture, and marked degenerative changes with spondylolisthesis at L5-S1.  In this respect, the medical record suggests that the Veteran's current back disability did not manifest within a year of service or that the Veteran has a continuity of symptomatology associated with his current back disability.

The May 2010 VA medical examiner opined that it is less likely than not that the Veteran's current back symptomatology is related to service.  The examiner noted that the Veteran's STRs show some scoliosis with back pain in service and that a scoliosis x-ray revealed degenerative disc disease.  He also noted that the Veteran experiences ongoing back pain and occasional leg pain.

The December 2012 VA medical examiner opined that the Veteran's current low back disability is less likely as not related to the back condition he had while in service.  The examiner also opined that the Veteran's pre-existing scoliosis was less likely as not permanently aggravated during military service and that his degenerative disc disease is less likely as not caused by aggravation of his pre-service scoliosis or by his motor vehicle accident in 1981.  The examiner observed that the Veteran's STRs show that the Veteran had asymptomatic pre-service scoliosis and that he did not receive treatment for any symptoms related to scoliosis during service.  The examiner also observed that the STRs do not show a diagnosis or treatment for degenerative disc disease during service or long-term symptomatology, impairment, or treatment associated with the Veteran's current back disability.  The examination report states that the Veteran's spinal scoliosis was diagnosed in 1978 and that his degenerative joint disease lumbosacral spine was diagnosed in 2010.

The May 2010 and December 2012 VA examination reports constitute highly probative evidence that weighs against the Veteran's claim.  The May 2010 examination was rendered by an orthopedist who reviewed the claims file and considered the Veteran's medical history and diagnostic tests.  The December 2012 examination was rendered by a VA physician who reviewed the claims filed, considered the medical history and imaging studies, and performed an extensive physical examination.  In addition, the December 2012 examiner provided a clear rationale for finding against a relationship between the Veteran's current back disability and his active duty.

The Veteran's pre-existing scoliosis did not worsen during service.  The Veteran's current back disability did not manifest in or within a year of service and that, although the Veteran reported some back pain in service, the medical nexus element is not satisfied for direct service connection for degenerative disc disease.  In addition, the Veteran's degenerative disc disease is not related to his pre-existing scoliosis.  Thus, the Veteran's service connection claim for a current back disability must be denied.  See 38 C.F.R. §§ 3.303(a) and 3.304(b).  See also Shedden, 381 F.3d at 1166-67.

The fact that 25 years elapsed between service separation, in April 1983, and the Veteran's first reports of post-service back pain in April 2008 further weighs against a relationship to service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that, in assessing whether a claimed disorder was incurred in active service, a proper consideration for the trier of fact is the amount of time that has elapsed since military service).  Thus, the probative evidence weighs against a relationship between the Veteran's current back disability and his military service.

The Board has considered the Veteran's statements regarding his current back disability.  The Veteran contends that he entered service without any complaints of back pain or a disabling back condition and that his current back problems began when he injured his back in boot camp.  See February 2010 Claim; May 2013 Statement; August 2013 Hearing Testimony.  The Board also considered the Veteran's contention that he was prescribed medication for his back disability while he was in service and that he remained silent regarding his ongoing back problems for fear of being discharged for health reasons.  The Veteran testified that his back disability has worsened with age.

Although the Veteran is competent to report symptoms such as ongoing pain, his statements regarding the origins and aggravation of his back disability in service are not credible.  The STRs show that the Veteran was diagnosed with scoliosis prior to entering the military-not during service-and do not show ongoing symptoms associated with a back disability or medications prescribed during service for a back disability.  Although not dispositive, STRs dated February 1983-two months prior to separation and two years after his motor vehicle accident-indicate that the Veteran was sufficiently healthy to play recreational basketball.  In addition, the Veteran denied having back problems on separation.

Further, the Veteran's testimony that he did not report his back pain during service for fear that he would be prematurely discharged is largely inconsistent with the fact that he promptly sought treatment for other symptoms that manifested during service.  For example, the Veteran reported back symptoms the day after his motor vehicle accident in January 1981 and ankle symptoms two days after he sprained his left ankle playing basketball in February 1983.  See STRS dated January 1981 and February 1983.  In this last respect, the evidence indicates that the Veteran sought medical treatment in service when treatment was necessary.

Moreover, whether the Veteran's current back disability relates to his active duty is a medically complex determination that cannot be made based on lay observation alone.  See Jandreau, 492 F. 3d at 1376-77, n.4; see also Barr, 21 Vet. App. at 309.  Instead, such a determination must be made by a medical professional with appropriate expertise.  See id.  The Veteran, as a lay person, does not have the appropriate medical training and experience to render a competent opinion regarding the relationship between his current back disability and his service.  See King v. Shinseki, 700 F.3d, 1339, 1345 (Fed. Cir. 2012) (noting that lay evidence must "demonstrate some competence"); see also Layno, 6 Vet. App. at 469 (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to that fact, and that incompetent testimony must be excluded from consideration).  Thus, the Veteran's assertion that his current back disability is related to service is not competent evidence and is outweighed by the May 2010 and December 2012 VA examinations, which were rendered by medical experts and demonstrate careful review of the Veteran's medical history.

Accordingly, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply and service connection for a back disability is denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 


ORDER

Entitlement to service connection for a back disability is denied.




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs