Citation Nr: 1622297 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 11-29 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an effective date prior to July 6, 2010, for the grant of a 70 percent evaluation for posttraumatic stress disorder. 2. Entitlement to an effective date prior to July 6, 2010, for the grant of entitlement to a total disability rating for compensation purposes based on individual unemployability. 3. Entitlement to an effective date prior to July 6, 2010, for the award of basic eligibility for Dependents' Educational Assistance under Chapter 35, Title 38, United States Code. 4. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: James G. Fausone, Esq. ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The Veteran had active service from December 1965 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2010 and February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDINGS OF FACT 1. In a July 2009 rating decision, the RO granted entitlement to service connection for posttraumatic stress disorder (PTSD) with an initial rating of 50 percent, effective February 5, 2009. In a December 2009 rating decision, following the receipt of new evidence, the RO found a rating in excess of 50 percent for PTSD was not warranted. New and material evidence was received by VA pertaining to the rating assigned for PTSD in August 2010, within one year of the December 2009 rating decision. 2. Prior to July 6, 2010, PTSD was manifested by symptoms consistent with moderate symptoms causing occupational and social impairment with reduced reliability and productivity. 3. The evidence does not show that the Veteran filed a claim for an increased rating or entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU), or that his service-connected disabilities prevented him from securing and maintaining substantially gainful employment consistent with his level of education and occupational experience, prior to July 6, 2010. 4. Prior to July 6, 2010, a permanent and total disability rating was not in effect. 5. The probative evidence of record does not show the Veteran has a low back disorder related to his military service. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to July 6, 2010, for the grant of a 70 percent disability rating for PTSD have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.400, 4.130, Diagnostic Code 9411 (2015). 2. The criteria for an effective date prior to July 6, 2010, for TDIU have not been met. 38 U.S.C.A. § 5110(b)(2) (West 2014); 38 C.F.R. §§ 3.400, 4.16 (2015). 3. The criteria for an effective date prior to July 6, 2010, for the award of basic eligibility for Dependents' Educational Assistance benefits have not been met. 38 U.S.C.A. §§ 3500, 3501, 3510 (West 2014); 38 C.F.R. § 21.3021 (2015). 4. A low back disorder was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Earlier Effective Date Generally, the effective date of an award of compensation for an increased evaluation is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). Procedural History In a July 2009 rating decision, the RO granted entitlement to service connection for PTSD with an initial rating of 50 percent, effective February 5, 2009, the date of the Veteran's claim. In a December 2009 rating decision, the RO continued the Veteran's PTSD rating of 50 percent. The RO noted that the issue of entitlement to a higher rating was not specifically claimed by the Veteran, but was placed at issue because a new VA psychiatric examination was completed on August 20, 2009. Based on the VA examination, the RO found a rating in excess of 50 percent for PTSD was not warranted. The Veteran did not appeal the rating assigned in the December 2009 rating decision. In a claim received by VA on July 6, 2010, the Veteran requested entitlement to a TDIU. He noted that he was "Applying for unemployability for reasons: (1) Disability granted for PTSD, (2) Disability granted for TBI, and (3) Re-evaluation of disability for back, neck and shoulders problems." A February 2012 Report of General Information indicates the RO called to clarify the Veteran's claims. The Veteran stated that he was claiming TDIU and entitlement to service connection for his back only. At a November 2011 VA examination, the VA examiner found the Veteran's PTSD symptoms were worse than were documented in his last exam. The examiner found the Veteran had moderate to severe PTSD symptoms. The VA examiner opined that the Veteran's PTSD symptoms left him unable to maintain gainful employment. In a February 2012 rating decision, the RO granted a 70 percent disability rating for PTSD, effective July 6, 2010. The RO also granted entitlement to a TDIU and basic eligibility to Dependents' Educational Assistance, effective July 6, 2010. The effective date of July 6, 2010, for the grants of entitlement to a TDIU, eligibility for Dependents' Educational Assistance, and a higher rating for PTSD, is based on the date of the Veteran's claim for entitlement to a TDIU. The Veteran filed a notice of disagreement with the effective date assigned for TDIU. The Veteran's representative has asserted that the Veteran should be entitled to a TDIU from February 2009 or December 2008, as the Veteran's claim for entitlement to service connection for PTSD was received in February 2009. The Veteran's representative argued that an effective date of February 2009 for the grant of a 70 percent rating for PTSD was warranted. The representative further contended that entitlement to a TDIU effective December 2008 was warranted on an extraschedular basis, based on the date of the Veteran's claim for entitlement to service connection for traumatic brain injury. PTSD Based on a thorough review of the evidence, the Board finds that the Veteran is not entitled to an effective date prior to July 6, 2010, for the grant of entitlement to a 70 percent rating for PTSD. The Veteran did not file a notice of disagreement with the rating assigned for his service-connected PTSD in the July 2009 or December 2009 rating decision. The Veteran did not file a separate claim for an increased rating for PTSD. However, following the Veteran's claim for entitlement to a TDIU, new and material VA treatment records were received. The records were received in August 2010, during the one year appeal period for the December 2009 rating decision relating to the Veteran's PTSD. As the VA treatment records were received within one year of the previous rating decision in December 2009, the decision did not become final. Although the RO adjudicated the issue of entitlement to an effective date prior to July 6, 2010 for the grant of a 70 percent rating for PTSD, the Veteran's representative only specifically filed a notice of disagreement with the effective date assigned for the grant of a TDIU. As the issue was adjudicated in the August 2014 statement of the case and the Veteran completed a substantive appeal in August 2014, the Board is adjudicating the issue. However, the Veteran never specifically filed a claim for a higher rating for PTSD. Therefore, the Board has considered whether the new evidence shows that an increased rating of 70 percent was warranted for PTSD prior to July 6, 2010. See 3.400(q)(1) (2015). After reviewing the evidence, the Board finds that it is not factually ascertainable that the VA treatment records the Veteran's PTSD symptoms warranted a 70 percent rating prior to July 6, 2010. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2015). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). Prior to July 6, 2010, the Veteran's PTSD was rated as 50 percent disabling. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2014). A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when the psychiatric condition produces occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A maximum 100 percent rating is assigned when there is total occupational or social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place, memory loss for names of close relatives, own occupation, or own name. In evaluating the evidence, the Board will also consider the various Global Assessment of Functioning (GAF) scores that clinicians have assigned. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240 (1995). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by replacing references to DSM-IV with the fifth edition of the DSM (DSM-5). See Diagnostic and Statistical Manual of Mental Disorders (DSM); see 38 C.F.R. § 4.125, amended by 79 Fed. Reg. 45099 (effective Aug. 4, 2014). Although DSM-5 does not use the GAF Scale to assess functioning, the DSM-IV was in effect at the time the GAF scores were assigned. Thus, the Board will consider the various GAF scores of record in evaluating the Veteran's occupational and social functioning. A GAF score between 31 and 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed adult avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). A GAF score between 41 and 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score between 51 and 60 indicates moderate symptoms or moderate difficulty in social, occupational or school functioning. Id. A GAF score between 61 and 70 is indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Id. However, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is not determinative of the VA disability rating to be assigned. See Carpenter, 8 Vet. App. at 242. The percentage evaluation is to be based on all of the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126 (2015); VAOPGCREC 10-95, 60 Fed. Reg. 43186 (1995). In a March 2009 letter, a VA psychologist stated that the Veteran met the criteria for a diagnosis of PTSD, moderate, with anxiety and depression. A May 2009 VA examination report indicated the Veteran had PTSD, chronic, moderately severe, with a Global Assessment of Functioning (GAF) score of 55, indicating moderate symptoms. A January 2010 VA treatment record noted having poor short term memory, poor concentration and lack of focus. He denied having hypervigilance, or suicidal or homicidal thoughts, plans, or intent. The Veteran did not note a depressed mood, but he had a loss of interest in activities. A GAF score of 50 was assigned, indicating serious symptoms. In February 2010, a VA treatment record reflects that the Veteran's psychomotor activity and speech were within normal limits. He denied suicidal and homicidal ideation. There was no evidence of psychosis. Thought processes were linear and logical. The Veteran reported memory impairment. He was alert and oriented in the session, with fairly good judgment and fair insight. The Veteran reported having intrusive thoughts. The VA treatment record noted that the Veteran had a GAF score of 55, indicating moderate symptoms. The Veteran was evaluated at VA in March 2010. A March 2010 VA treatment record notes that the Veteran reported ongoing anxiety as well as feeling "tired and mentally drained" at times. He continued to have nightmares. On examination his thought processes were linear and logical. The Veteran had fair judgment and insight. The record indicates the Veteran had a GAF score of 55, indicating moderate symptoms. Another March 2010 VA treatment record indicates the Veteran's mood was "so so." His affect was somewhat constricted. He denied suicidal and homicidal ideation. There was no evidence of psychosis. Thought processes were linear and logical. Memory was impaired per the Veteran. He was alert and oriented in the session with fair judgment and insight. The Veteran had a GAF score of 55, indicating moderate symptoms. The Veteran reported he had completed exposure exercises. An April 2010 VA treatment record indicates the Veteran had a confrontation with two men and he had noted heightened anxiety and arousal since. A June 2010 VA treatment record indicates the Veteran reported that he was a little better. He noted slight reduction in anxiety and arousal with initiation of Citalopram. He had been able to remain in certain social settings longer since starting the medication. He continued to have frequent intrusive thoughts and feelings about combat. Based on the evidence prior to July 6, 2010, the Board finds that it is not factually ascertainable that the Veteran's PTSD warranted a 70 percent rating. The symptoms noted in his VA treatment records are consistent with moderate symptoms causing occupational and social impairment with reduced reliability and productivity. The Veteran reported having short term memory impairment, and sleep problems. The evidence showed he had impaired judgment and thinking at times, but not normally. The overall new evidence did not show the Veteran had occupational and social impairment with deficiencies in most areas. The Veteran reported that his symptoms improved. He consistently denied having suicidal or homicidal ideation. Although the Veteran had one GAF score of 50, the majority of the VA treatment records from that time indicate that he had a GAF score of 55, indicating moderate symptoms, consistent with the prior VA examination. Accordingly, the Board finds that is not factually ascertainable that the Veteran's PTSD symptoms met the criteria for a 70 percent rating prior to July 6, 2010. Consequently, the Board finds that an effective date earlier than July 6, 2010, for the increased rating of 70 percent for PTSD is not warranted. TDIU In regard to the Veteran's claim for an earlier effective date for TDIU, the Veteran initially filed a claim for TDIU on July 6, 2010. Generally, the effective date of an evaluation and award of compensation for an increased rating, including TDIU, is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). TDIU may be assigned where the schedular rating is less than total, when it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2015). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any disabilities that are not service-connected. 38 C.F.R. §§ 3.341, 4.16; see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). In a February 2016 statement, the Veteran's representative argued that the Veteran be granted entitlement to an earlier effective date for the increase in his PTSD symptomatology to 70 percent disabling retroactive to the date of claim in February 2009. The representative asked that the Veteran's entitlement to TDIU be moved retroactive to February 2009 even in the absence of the earlier date for the PTSD increase, as the Veteran was just as unemployable. The representative contends that TDIU be made retroactive to the date of the claim for service connection for traumatic brain injury in December 2008 on an extraschedular basis as allowed by 38 C.F.R. § 4.16(b) as the gunshot wound to the head continues to be the root disability impeding employment. Prior to July 6, 2010, two service-connected disabilities were in effect, PTSD and traumatic brain injury, both related to a common etiology, a combat gunshot wound. The Veteran's PTSD was rated as 50 percent disabling from February 5, 2009, and his traumatic brain injury was rated as 40 percent disabling from December 22, 2008. The Veteran's combined disability rating was 70 percent from February 5, 2009. As the two disabilities had a common etiology, they counted as one disability for purposes of determining whether the schedular criteria were met. 38 C.F.R. § 38 C.F.R. § 4.16(a). As noted above, the Veteran did not file a claim for TDIU or a claim for an increased rating for PTSD or traumatic brain injury prior to July 6, 2010. Therefore, the Board finds that an effective date based on the effective date for the initial claims for service connection for PTSD or traumatic brain injury is not warranted. See Rice v. Shinseki, 22 Vet. App. 449 (2009) (holding that a TDIU claim is part and parcel of an increased rating claim when such claim is raised by the record). The Board has considered whether the Veteran's claim for a TDIU was a part of the Veteran's original claim for service connection for PTSD and traumatic brain injury. However, although the claim for entitlement to a TDIU is a component of an increased rating claim, the Veteran did not file a claim specifically for an increased rating for PTSD or traumatic brain injury. The Veteran only filed a claim for a TDIU, on July 6, 2010. Prior to that date, the Veteran had not specifically appealed the initial ratings assigned for PTSD and traumatic brain injury, and the issue of entitlement to a TDIU was not raised by the record. Moreover, the evidence does not show the Veteran was unemployable due to his service-connected disabilities prior to July 6, 2010. The May 2009 VA examination report indicated the Veteran retired from a job in maintenance in 2003. The Veteran did not indicate that he stopped working due to his service-connected disabilities. On examination, the Veteran was oriented. There was no evidence of impaired thought processes or communications, or delusions or hallucinations. He denied having panic attacks. There were no ritualistic or obsessive thoughts or behaviors. He had feelings of depression and anger. He had intrusive thoughts and memories of his active service. The Veteran denied current frequent nightmares. He managed his own finances and was capable of doing so. He engaged in pleasurable activities including working in the yard, reading, and photography. The August 2009 VA examination report noted that the Veteran reported he had been unable to work because of the injuries to his neck, shoulder, and back. He had had multiple surgeries. Although the Veteran met the schedular criteria for a TDIU prior to July 6, 2010, the evidence did not show that he was unable to work due to his service-connected PTSD and traumatic brain injury prior to the date. The first evidence of record indicating that the Veteran's PTSD left him unable to maintain gainful employment was the November 2011 VA examination report, dated after the claim for entitlement to a TDIU. Evidence prior to that date indicated the Veteran's physical disabilities, which are not service-connected, affected his ability to work. The May 2009 and August 2009 VA examination reports indicated the Veteran had moderate symptoms of PTSD. Therefore, even if the Veteran's TDIU claim was raised by his claim for entitlement to service connection for PTSD, the Board finds that entitlement to an effective date prior to July 6, 2010, is not warranted for TDIU. Dependents' Educational Assistance Benefits Dependents' Educational Assistance benefits may be paid to dependents of a veteran whose has a service-connected disability that is rated permanent and total. 38 U.S.C.A. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807(a), 21.3021 (2015). A total disability may be assigned where a veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. In the instant case, the effective date for the award of Dependents' Educational Assistance benefits is July 6, 2010, the same date as the award of TDIU. As discussed above, the Board finds that the Veteran is not entitled to an earlier effective date for the award of TDIU. Dependents' Educational Assistance benefits may not be awarded prior to the effective date of an award of a permanent and total disability rating. Therefore, the Veteran is not entitled to an effective date earlier than July 6, 2010, for entitlement to Dependents' Educational Assistance benefits. 38 U.S.C.A. §§ 3501, 3510. As the disposition of this claim is based on the law as applied to undisputed facts, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). III. Service Connection The Veteran seeks service connection for a low back disability, which he states is related to an in-service injury. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish direct service connection for a disability, there must be: (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury incurred, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). A January 2010 reflects that the Veteran had degenerative disc disease and degenerative joint disease of the lumbar spine with radiculopathy. The Veteran believes his current low back disorder is related to an in-service injury. The Veteran stated that he complained of low back pain in 1973, but his back started hurting when he was in Vietnam from 1966 to 1968. September 1963, February 1965, January 1966, December 1969, October 1970, June 1972, and June 1973 service examination reports indicated the Veteran's spine was normal. In a December 1969 report of medical history, the Veteran denied having back trouble of any kind. In October 1970 and June 1972 reports of medical history, the Veteran denied having recurrent back pain. A June 1973 service treatment record indicates the Veteran stated he was lifting up the corner of a washing machine and pulled his low back muscles. The record noted muscle strains of the low back. The Veteran was prescribed Roboxin and whirlpool treatment and put on light duty for three days. An October 1973 service treatment record reflects that the Veteran reported that he pulled muscles in his low back the day before. The record noted the Veteran had a "history of sore problem." The impression was muscle sprain. He was prescribed Roboxin and whirlpool treatment. A December 1973 separation examination report noted that the Veteran's spine was normal. No back symptoms were noted. On the report, the Veteran signed a statement that indicated that he was informed that he had been found to be fit and that if he felt that he had any serious medical problems he should so inform the examining physician. See Real vs. U.S., 906 F.2d 1557, 1559 (Fed. Cir. 1990). An August 1983 VA treatment record noted the Veteran had a one year history of generally worsening low back pain with radiation down both legs. A September 1983 VA treatment record indicates the Veteran reported having chronic low back pain. The report noted lumbar spine film was within normal limits. In an October 1983 statement to the VA, the Veteran stated that "During August 1982, I injured my back on a camping trip." In an October 1983 letter, a private physician noted that the Veteran was referred to him in May 1983 for a pain complaint as a result of an injury resulting in low back and leg pain. The physician stated that Veteran incurred his chronic pain complaint in August 1982. The physician diagnosed lumbar disc degeneration, with irritation of spinal nerves and myofasciitis of the involved muscles. An August 1989 private surgery report reflects that the Veteran had a L4-5 laminotomy, with excision of intervertebral lumbar disc, right side. The report noted that the Veteran had a long standing history of sciatic-type leg pain with low back pain. An August 1989 private discharge summary noted that at the time of the surgery there was an incidental finding of an old fracture through the inferior aspect of the L4 lamina. The Veteran related "some history of injury some years back." A January 1997 private consultation report noted that the Veteran had a past medical history with lumbar degenerative disc disease and degenerative joint disease. The report noted the Veteran had a previous history of a right-sided L4-L5 herniated nucleus pulposus in the early 1980s. An October 1997 private emergency department record indicated the Veteran complained of low back pain after a box hit him in the back. In an April 2008 new patient history for a private provider, the Veteran noted he had two back surgeries in the late 1980s and late 1990s. The Veteran was afforded a VA examination in January 2010. The January 2010 VA examiner opined that: . . . in light of the 10 year gap between the 2 discrete episodes of low back pain in the service and his onset of severe low back pain in the early 80s, in addition because of the description of the onset of back pain in 1982, it is my opinion that his current low back problems are much less likely than yes related to those 2 discrete episodes of muscular low back pain in the military service. The January 2010 VA examiner provided a full rationale for the opinion based on a thorough review of the claims file, including the Veteran's private treatment records from the 1980s and 1990s. Therefore, the Board finds the opinion to be highly probative. Based on a review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for a low back disability. Although the medical evidence of record reflects a diagnosis of degenerative disc disease and degenerative joint disease of the low back, the preponderance of the evidence is against a finding that the back disability was caused by or is related to his military service. The Veteran had complaints of low back strain in service. However, the December 1973 separation examination report did not note any low back symptoms. There is also no record of any complaints of back pain until 1982. The Board finds the January 2010 VA examiner's opinion to be highly probative evidence against the Veteran's claim that his back disability is related to his military service. The Veteran has asserted that his current low back disability is related to service. Although a lay person may be competent to report the etiology of or diagnose a disability, a low back disorder is not the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As the Veteran's statements are not competent evidence sufficient to provide an opinion as to the etiology of his back disability, the Board finds the January 2010 VA opinion to be more probative. The Veteran has asserted that he has had symptoms of a low back disability since service. In a June 2010 statement, the Veteran stated that he continually had trouble with his back since his discharge from service in 1974. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran's private treatment records and statements from his physicians from the 1980s and 1990s indicate the Veteran did not report having chronic back problems prior to the August 1982 injury. The records consistently noted the Veteran's 1982 back injury and did not note any treatment or complaints prior to the date. The August 1983 VA treatment record specifically noted that the Veteran reported a one year history of back pain. In his October 1983 statement to VA, the Veteran specifically stated that he had back problems due to an August 1982 back injury. He did not note having had prior back problems. The Veteran's 1997 private treatment records also note that the Veteran's back problems dated to the early 1980s. Thus, the Board finds the Veteran's assertion that he has had symptoms of a low back disability since service inconsistent. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (finding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). Additionally, the evidence does not show that the Veteran's degenerative disc disease or degenerative joint disease of the lumbar spine manifested to a degree of 10 percent or more within one year of discharge. Therefore, service connection is not warranted on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's service connection claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date prior to July 6, 2010, for a 70 percent evaluation for PTSD is denied. An effective date prior to July 6, 2010, for the grant of entitlement to a TDIU is denied. An effective date prior to July 6, 2010, for the award of basic eligibility for Dependents' Educational Assistance under Chapter 35, Title 38, United States Code, is denied. Service connection for a low back disability is denied. ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs