Citation Nr: 1428126 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 09-16 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from June 1964 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded the appeal in July 2012. The electronic record of a March 2012 rating decision reflects that a claim for increased ratings for service-connected disabilities, to include a claim for total disability benefits for individual unemployability due to service-connected disabilities (TDIU), was submitted or inferred in 2008. The Board is unable to locate the claim. See March 2010 rating decision. The Board is unable to locate a notice from the Veteran expressing disagreement (NOD) with the March 2010 decision, but VA acknowledged receipt of an NOD in a November 2010 letter from the RO to Veteran. VA's appeals tracking database (VACOLS) reflects that a statement of the case (SOC) was issued in May 2013. The Board is unable to locate such document (although a June 2013 supplemental SOC addressing the issue discussed in the decision below is of record). The Veteran's physical claims file (Volume VII) includes a June 2013 substantive appeal for TDIU, with a request for a videoconference hearing on that issue. Since the record before the Board appears incomplete, the Board is unable to determine if the requirements for timey appeal are met on the TDIU issue, notwithstanding the fact that this is a multivolume case. The RO should move expeditiously to determine whether a 2008 claim, 2010 NOD, and 2013 SOC referenced in VA documents and in VACOLS exist. If so, the Veteran should be scheduled for a Videoconference hearing in the order to which he would have been entitled if VA had associated the documents with the physical or electronic files when received. The Veteran requested a personal hearing before the RO, and that hearing was conducted in October 2007. In a 2009 substantive appeal, the Veteran requested a Videoconference hearing before the Board regarding the issue addressed in this decision. The requested hearing was scheduled in October 2009. The Veteran did not appear for the scheduled hearing, so his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d)(2013). The Board may proceed on this issue on the service connection claim. FINDING OF FACT The preponderance of the evidence, including service treatment records, is against a finding that the Veteran sought medical evaluation for or complained of back pain or an accident in service to which the Veteran now attributes back pain, and is against a finding that the Veteran complained of chronic back pain or reported a back injury in service during the first 20 years after his service discharge or that a back disability diagnosed in the 1990s might be linked to the Veteran's service. CONCLUSION OF LAW The criteria for service connection for a back disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also 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). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, a showing of continuity after discharge may support a claim for service connection defined as chronic for VA purposes. 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). However, lay evidence may be sufficient to establish a medical diagnosis or nexus of a disability, such as arthritis, defined as chronic under 38 C.F.R. § 3.309(a). See Walker, supra; Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, 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 Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally 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. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The Veteran's service medical records reflect that he was treated on about 40 occasions during service, including while stationed in South Korea, not including dental treatment, immunizations, audiometry, or health screenings. There is no record that the Veteran reported that he sustained a groin injury due to a fall while in South Korea. The Veteran was treated for dislocation of the proximal interphalangeal joint of the middle finger of the right hand while in Korea; he reported he caught his ring when disembarking from a truck. The Veteran was seen for gastrointestinal and genitourinary disorders on multiple occasions, including at Womack Army Hospital, Ft. Bragg, for genitourinary symptoms in September 1966. The Veteran's service treatment records are highly detailed. Service medical records disclose no radiologic examination of the back or neck. The Veteran complained of pain in the lower left side on one occasion; this pain was attributed to a gastrointestinal tract problem. No diagnosis of a back injury or disability was assigned during the Veteran's service; no report of neck or back injury was noted at April 1967 separation examination. The Veteran stated, "I think that I am in good health." In response to questions as to whether the Veteran had rheumatism or arthritis of bone, joint, or other deformity or paralysis, the Veteran indicated that none of these symptoms were present, providing factual evidence against his own claim. The Veteran's service medical records are devoid of any notation that the Veteran reported back pain or injury or was treated for a back disability in service, notwithstanding extensive notations for other problems. The Board finds it significant that the Veteran did not report during his service that he sustained a back or groin injury in a fall. For example, he sought evaluation after he sustained injuries to his hands, but did not report that he sustained an accident while on a telephone pole. The contemporaneous records prior to the Veteran's 1967 service discharge are of greater probative value than the Veteran's statements for purposes of this appeal or the 2004 statements of fellow service members as to their recollections of an event that occurred 40 years ago (the Veteran and his fellow service members are attempting to recall events that occurred decades ago). Based on a detailed review of the record, the in-service evidence is of significantly more persuasive value than statements of the Veteran and others provided decades after the Veteran's separation from service. The Veteran sought and was granted education benefits in 1973. No other claims were filed. Beyond the service record, the post-service records provides particularly negative evidence against this claim. In February 1987, the Veteran sought VA treatment for complaints of left groin pain of six months' duration, decades after service. The Veteran stated that he "felt something give" when he performed some heavy lifting in August 1986. The Veteran underwent herniorrhaphy in March 1987. The 1987 contemporaneous clinical records include no notation that the Veteran complained of back pain, or requested evaluation of the spine or muscles of the back. The Veteran did not report that groin pain for which he sought treatment in 1987 had an onset in service, nor did he report that groin pain had its onset after an injury in service. The Board finds it significant that the Veteran did not report that he sustained groin injury in a fall or other injury during service. The Board also finds it significant that the Veteran did not report or seek VA treatment for a complaint of back pain in 1987 when he sought VA treatment for the left groin, and other disorders (as the Veteran has indicated he has had a back problem since service). The evidence contemporaneous to the 1987 VA treatment is of greater persuasive value than statements of the Veteran and others provided decades after the Veteran's separation from service. Treatment notes dated in 1989 and 1990 reflect that the Veteran's groin pain recurred and increased in severity, but there is no report that the Veteran reported that he sustained an injury to his back or his groin during service. The Veteran sought service connection for genitourinary complaints in 1991. No report of back pain was recorded. Service connection for epididymitis was granted. The Veteran underwent VA examination in September 1992. At that time, he did not report back pain or treatment for a back disorder. The Veteran did not report treatment during service for an accident incurred in his duties as a lineman. VA outpatient treatment records dated in January 1993 reflect that the Veteran sought treatment for left back pain after he heard a "popping" sound when lifting a heavy computer at work, many years post-service, providing highly probative evidence against his current claim. In 1994, the Veteran submitted a statement indicating that he had groin pain, back pain, leg pain, and left hand pain. In February 1995, the Veteran indicated that his groin, back, and leg disabilities started in 1966 when he fell about 30 feet down a telephone pole before his safety harness caught him, while stationed in Korea. The claim for service connection for a "back condition" was denied in 1995. In January 1995, the Veteran reported substernal pain. He was admitted to a VA Hospital. In his admission history and physical, the Veteran reported that illnesses treated during his adulthood included carpal tunnel syndrome, alcoholic neuropathy, and hypertension. The Veteran did not report chronic back pain since service. The Board finds that lack of report of a back injury during active service, or report of an accident with a partial fall down a telephone pole while in service, is significant, since it would be expected the Veteran would have reported any injury he thought might be relevant to his treatment. In October 1995, the Veteran underwent lumbar and cervical myelogram and computed tomography (CT) examination. A myelogram of the spine demonstrated no evidence of mass or extradural defect. Computed tomography (CT) images from the cervical spine through the sacral spine (S1) disclosed no evidence of a herniated disc or spinal stenosis. The fact that radiologic examination conducted in 1995, nearly 30 years after the Veteran's service, failed to disclose degenerative arthritis of the spine is significant evidence which establishes, by a preponderance, that a disorder defined as chronic for VA purposes was not present in 1995 is significant evidence that the disorder was not present within one year after the Veteran's service discharge and chronically thereafter. In 1998, the Veteran reported that he had injured his back when he fell from a telephone pole in service. Private clinical records reflect that the Veteran reported back pain of 10 years' duration. Radiologic examinations disclosed lumbar disc protrusion. The provider indicated that the Veteran's left groin pain was a symptom of his back disorder rather than being a symptom of epididymitis. The Veteran contends that this evidence is favorable to his claim. However, the sequence of events, that is, the fact that no degenerative disease of the lumbar spine was present in 1956, followed by an abnormal 1998 x-ray conducted after the Veteran reported an injury at work, is significantly unfavorable to the Veteran's claim. The Veteran underwent lumbar discectomy in September 1998. The provider stated that the Veteran was unable to return to his job as a diesel mechanic for 2 to 3 months. In 2002, the Veteran submitted a request to reopen the claim for service connection for a lumbar disorder. In support of the claim, the Veteran submitted letters from WJ and JC, who both stated that the Veteran injured his back in service after falling down a telephone poll while in Korea. Both former fellow service members stated that the Veteran was hospitalized while stationed in Korea. There is no record that the Veteran was hospitalized while in Korea. The Veteran contends that the records are missing. However, the report of the 1967 separation examination, which is associated with the record, is unfavorable to the claim, since there were no findings related to an injury sustained in a fall on that physical examination; the Veteran did not report such injury on the history he completed or report a fall while on a telephone pole to the provider who reviewed his medical history for separation purposes. The lack of report of such an incident in 1967, when the events would have been fresh in the Veteran's mind, is significant evidence against the claim. In effect, some of the Veteran's own prior statements provide evidence against this claim. At a personal hearing conducted by the RO in October 2007, the Veteran again reiterated that his back pain and groin pain began in service when he fell part-way down a telephone pole in Korea. The Veteran testified that his gear caught him before he fell to the ground, but the fall wrenched his back. October 2007 Personal Hearing Transcript (Tr.) 2. The Veteran testified that he sought VA evaluation of his back soon after service and regularly thereafter. Tr. 3. The Veteran submitted statements from two former fellow servicemembers, who reported seeing the Veteran fall part-way down a telephone pole and be caught by his safety gear. The witnesses also stated that the Veteran was hospitalized thereafter. The statements of the former fellow servicemembers support the Veteran's account that he suffered an accident in service. However, the evidence provided by the fellow former service members is competent only to establish what they recall observing. The former servicemembers are not competent to provide opinion as to the Veteran's medical diagnoses following the fall, and they are not competent to link an accident in 1965 or 1966 to a current back disability. The Veteran is competent to describe what happened, and to describe symptoms he experienced during service, but the probative value of his current assertions that he has a current back disability as a result of an accident that occurred in service is diminished by the many years that have elapsed since the incident. The probative value of the Veteran's belief that he has a current back disability as a result of an incident in service is diminished by the fact that there is no reference during the remainder of the Veteran's service to the accident or to any residual of the accident. The probative value of the Veteran's assertion that he continued to have back pain after service is diminished by the fact that the available records of the Veteran's medical treatment include no report of back pain or treatment of back pain until at least two decades elapsed after the Veteran's service, and the fact that the Veteran incurred intercurrent injuries before any notation regarding an accident or injury in service. Following the 2012 Remand of the reopened claim for service connection for back disability, additional development was conducted. A September 1999 private consultation note from ADS, MD, was obtained. Dr. ADS stated that the Veteran sustained an injury at work in early 1998, and had been under treatment for recurrence of back pain since that time. This private evidence is wholly unfavorable to the claim. An October 2004 decision of the Social Security Administration (SSA) reflects that the Veteran became disabled in November 2001 and has not engaged in substantially gainful activity since that time. At the outset, the Veteran was granted 31.5 weeks of worker's compensation benefits but remain unable to return to his work as a truck driver or diesel mechanic. SSA determined that the Veteran's limitations of spinal motion, and his restriction to light duty, as well as limited range of motion of several other joints, precluded the Veteran's past work, but the SSA decision did not include an opinion as to the cause or onset of the orthopedic injuries or a back disability. In 2008, the Veteran's treating VA provider submitted a written "diagnosis clarification." The provider opined that the Veteran's multiple orthopedic problems prevented him from working, but the provider did not opine as to the cause or onset of the orthopedic injuries. The unfavorable evidence of record includes an August 1990 VA outpatient treatment note which reflects that the Veteran provided a comprehensive report of orthopedic complaints, including complaints of bilateral ankle pain, left knee, left hip, and left elbow pain. Radiologic examination of the left knee was conducted. The provider stated that the Veteran had no prior history of "similar pain." The report of this examination is persuasive evidence that the Veteran had not been experiencing chronic back pain since 1967, because he reported pain of several joints but did not report back pain. Since the Veteran was reporting pain of several joints, although not the back, it would have been expected that the Veteran would have reported a significant accident, such as a partial fall down a telephone pole or an incident in which he was caught by his safety gear while up on a telephone pole, which might be related to later joint pain. The Board also finds extremely persuasive the 1995 radiologic and CT examinations of the lumbar spine. Those reports reflect that DJD was not manifested. Since the 1995 radiologic examinations of the spine were conducted some 25 years post-service, the fact that radiologic examinations at that time disclosed no abnormality establishes that the Veteran did not manifest abnormalities of the back (spine) at that time, in 1995, is competent and highly persuasive evidence that the Veteran did not manifest chronic residuals of an injury to the back incurred in service. The Board acknowledges that a provider who treated the Veteran in 2011 considered whether the Veteran's neurogenic bladder disorder was due to service-connected epididymitis or to a chronic back disorder. However, since the Veteran had undergone surgical treatment of his back twice since 1998, the fact that the provider referred to chronic back pain does not imply that the chronic back pain had an onset or etiology during the Veteran's service prior to 1967, some 45 years earlier. Finally, the Board notes that the 2004 SSA decision, which was favorable to the Veteran for purposes of an award of SSA disability benefits, is unfavorable to the Veteran's claim for service connection for a back disorder. In particular, the SSA evidence list does not include VA or private records prior to 1997. The SSA decision references injuries sustained by the Veteran at work (post-service), but does not reference any injury during service or proximate to service. The Board acknowledges the Veteran's contention that he sought VA treatment and evaluation of his back soon after his 1967 service discharge, indicating that he sought such treatment at the Atlanta, GA, VA Medical Center. However, no records of treatment of the Veteran for back pain at the Atlanta VAMC or any other VA facility prior to 1987 have been located. The Veteran has not identified any other VA facility from which records proximate to service could be obtained. The Veteran has also set forth his belief that providers misdiagnosed complaints of groin pain as epididymitis or other genitourinary disorders. The Veteran contends that providers should have recognized that groin pain was a symptom of a back disorder rather than of epididymitis. The Board notes that the earliest medical notations that the Veteran complained of groin pain were in 1987, when the Veteran reported onset of such pain in August 1986. See January 1987 VA outpatient Medical Certificate. This evidence does not reference any event or symptoms prior to 1986, when 19 years had elapsed after the Veteran's service discharge. Therefore, accepting as accurate the Veteran's assertion that groin pain was caused by a back disability, the evidence establishes that such pain was not chronic until at least 19 years elapsed after the Veteran's service. Thus, accepting as accurate the Veteran's lay assessment of the cause of his groin pain, the evidence that the Veteran had chronic groin pain since 1986 establishes that the Veteran did not have chronic and continuous back pain after service until at least 19 years had elapsed, at best. The evidence is against a finding that Veteran had a chronic back disability which began prior to his 1967 discharge or until nearly 20 years elapsed after his service. The Board acknowledges the Veteran's contention that his current back pain and inguinal pain was caused by an incident of his active service. However, the questions of causation involve complex medical issues that the Veteran is not competent to address, since a lay individual cannot readily observe the onset of arthritis until pain begins. The lay Veteran may competently report when he began to experience pain in his back, but the lay individual is not competent to opine as to the underlying etiologic cause of pain, unless the pain is related to an observable injury or observable disease. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran lacks the medical training/qualification to establish that his current back disability, that is, to establish that back pain he has experienced since he submitted his 2006 request to reopen, is the same back pain he experienced in service prior to his 1967 service discharge. There is significant evidence against this claim. Since the Veteran contends that he experienced an injury in service that caused back pain, also reported as groin pain, the Board must first consider direct service connection. As noted above, after the incident in Korea which the Veteran claims led to his current groin and back pain, the Veteran was treated at Womack Army Hospital, Fort Bragg, North Carolina, in September 1966. The discharge clinical record cover sheet, which appears to show that the Veteran was treated at a hospital facility, also shows that the Veteran was not admitted as an inpatient on September 28, 1966, as it shows that the Veteran was released back to his quarters on September 28, 1966, after zero days in the hospital or infirmary. The September 1966 record reflects that the established diagnosis was urethritis, acute, due to gonococcus; service treatment records reflect that laboratory examination of the Veteran's urine was conducted on that date, but there is no record that radiologic or other examination of the back was conducted. It would be expected that, if the Veteran experienced continuing pain in September 1966 as a result of an accident or fall while in South Korea, he would report that pain and would undergo or be referred for evaluation not limited to laboratory examination of the urine. No service treatment record during or after the September 1966 treatment at Womack Army Hospital reflects that the Veteran complained of back pain, reported an incident related to performance of duties as a lineman, or required evaluation of back pain. The fact that the Veteran reported (for example) an injury to the left 4th finger "while de-boarding truck" in Korea (Camp Red Cloud) in May 1965, but there is no notation that the Veteran sustained an accident or injury while on a telephone pole, is adverse to the claim (the Veteran clearly was able to report problems, and the Board has a detailed report of this record). The fact that the Veteran was treated in November 1965 for pain in the lower left side and inguinal adenopathy (lymph node swelling (Dorland's Illustrated Medical Dictionary 1098 (31st ed. 2007)), which resolved with treatment and confinement to quarters for 48 hours, is also somewhat adverse to the claim. The fact that there are notations in January and March 1965 for additional medical evaluation at Camp Red Cloud, and then treatment in May 1966 at Fort Bragg, on the same page of treatment notes, tends to show that no records are missing. These facts, considered in light of the absence of any reference to an accident or injury related to duties as a lineman, and the fact that there is no notation that the Veteran reported back pain or prior back pain or injury at the time of an April 1967 separation examination, are adverse to the claim. Assuming the credibility of the statements of the Veteran and his witnesses as to an accident in service, the service treatment records establish that the Veteran did not reports residuals of that incident or continuing back pain thereafter. However, for reasons noted above, the evidence of record clearly indicates a back problem that began many years after service. Since arthritis is a chronic disease, the Board has considered whether there is evidence of chronicity of symptoms of back pain or residuals of an accident involving a fall part-way down a telephone pole. Although the Veteran reports that he did seek treatment of back pain proximate to service, no records of a report of back pain or a notation that the Veteran sought treatment for or was diagnosed as having a back disability prior to 1987 have been located. The first record of a report or medical evaluation of back pain post-service is noted when more than 20 years had elapsed following the Veteran's service discharge. There is no reference to chronic or longstanding back pain until after the Veteran reported post-service intercurrent injury. The Veteran's statements do not establish that back pain reported in 1990 was chronic and continuous sine his service discharge in 1967. This lengthy gap in the records, considered together with lack of reference in the earliest available records to any prior treatment for back pain, is significant adverse evidence. Most significant, however, is the 1995 radiologic examination report which reflects that there was no abnormality of the Veteran's back at that time. This evidence establishes that the back disability for which the Veteran now seeks service connection was not objectively confirmed during the first 25 years after the Veteran's service, and may not be presumed service-connected. 38 C.F.R. § 3.309(a). The preponderance of the competent and probative lay and medical evidence establishes that the Veteran has a current chronic back disability which was not diagnosed or treated during the Veteran's service or confirmed on radiologic examination until more than two decades after the Veteran's 1967 service separation. There is no reasonable doubt. The claim must be denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice as to the request to reopen underlying this appeal was issued in 2007, and the claim has been reopened; The Veteran was also notified of the criteria for service connection service connection claim addressed in this decision was provided by a letter dated in October 2009. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). As to VA's duty to assist, the Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical records, and all available private treatment records identified by the Veteran have been obtained and associated with the claims files. More than 1,600 pages of VA and private treatment records have been obtained and associated with the claims files and electronic records since the Board's 2012 Remand. Some private records identified by the Veteran could not be located, and the Veteran has been so notified. VA requested SSA records several times. In July 2013, SSA advised VA that the SSA records had been destroyed. The Veteran was notified of the unavailability of the SSA records. The Veteran then submitted the favorable October 2004 decision and the list of medical evidence SSA considered. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and and (4) whether there otherwise is sufficient competent medical 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, as the only evidence that the Veteran's claimed disability is related to military service is the conclusory generalized lay statements, which are unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for a VA medical examination is not warranted. As set forth in detail above, the Veteran was not treated for back pain in service, his service treatment records contain no reference to the accident in which the Veteran contends he incurred an injury to his back, no diagnosis of a back disorder or injury was noted at separation, and no history of back injury or back pain was reported at separation. The post-service medical evidence establishes that the Veteran did not report back pain or a history of chronic back pain until more than 20 years elapsed after the Veteran's service discharge. The service and post-service records provide extensive highly probative evidence against this claim. There is sufficient competent medical evidence and factual evidence, including the Veteran's own prior statements to address this claim at this time. The Veteran has set forth a lay theory that his complaints of pain in service, which were medically attributed to service-connected epididymitis, were actually manifestations of a back disorder, and that assignment of those complaints to a genitourinary disorder was misdiagnosis. The Veteran has provided no medical or lay basis for his belief, other than his own assertion. The Veteran has not provided any basis for his contention that a current back disability may be linked to the Veteran's service from 1964 to June 1967 even though the current disorder was not objectively confirmed on radiologic examination until more than 25 years elapsed after the Veteran's service discharge. Thus, no criterion which requires VA to provide additional medical examination has been met. See 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating the issues addressed in this decision. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal for service connection for a back disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs