Citation Nr: 21066064 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-41 416 DATE: October 28, 2021 ORDER Petition to reopen a claim of entitlement to service connection for a low back disability based on the receipt of new and material evidence is granted. Entitlement to service connection for a low back disability is denied. FINDINGS OF FACT 1. The Veteran's claim seeking entitlement to service connection for a low back disability was previously denied in a June 2008 decision issued by the Board of Veterans' Appeals (Board), which has become final. Evidence received since then is new and material sufficient to reopen the previously disallowed claim. 2. The evidence fails to probatively establish that the Veteran's current low back disability is etiologically or presumptively related to the Veteran's active duty service. CONCLUSIONS OF LAW 1. The Board's June 2008 decision denying entitlement to service connection for a low back disability is final. 38 U.S.C. § 7104 (2018); 38 C.F.R. § 20.1100. 2. New and material evidence sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for low back disability has been received; the claim is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1974 to February 1976. These matters come before the Board on appeal from a March 2013 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In May 2019, the Veteran presented sworn testimony at a Board videoconference hearing before a Veterans Law Judge. A copy of that Board hearing transcript has been associated with the electronic claims file. The law provides that a Veterans Law Judge who conducts a hearing must participate in any decision made on that appeal. 38 U.S.C. § 7107(c) (2018); 38 C.F.R. § 20.604 (formerly 20.707 (2018)). In July 2021, the Board sent a letter to the Veteran explaining that the Veterans Law Judge who conducted his May 2019 Board videoconference hearing was no longer available to participate in the appeal, and the Veteran was offered the opportunity to request a hearing before a different Veterans Law Judge. In September 2021, the Veteran responded that he did not wish to appear at another Board hearing on these matters. The undersigned Veterans Law Judge has been assigned to consider these matters pursuant to 38 C.F.R. § 20.106(a) (formerly 19.3(a) (2018)). These matters were last considered by the RO in a July 2016 Statement of the Case. In a July 2021 letter, the Board solicited waiver of initial RO review of all evidence received since July 2016. In September 2021, the Veteran responded and agreed to waive initial RO consideration of all evidence received since the July 2016 Statement of the Case. As such, the Board may proceed with its appellate consideration. The Veteran has perfected legacy Board appeals regarding a petition to reopen entitlement to service connection for a right heel disability, and the separate claim of entitlement to service connection for a right leg disability. In the September 2019 Substantive Appeal, the Veteran requested a Board videoconference hearing for these claims. These claims remain in appellate status awaiting the scheduling of a Board videoconference hearing, and will be the subject of a future legacy Board decision, if otherwise in order. Neither the Veteran nor his attorney has raised any issues with the duty to notify, the duty to assist in obtaining documentary evidence (such as medical or service records), or the conduct of his May 2019 Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. 1. Petition to reopen a claim of entitlement to service connection for a low back disability based on the receipt of new and material evidence is granted. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2018). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed solely for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a June 2008 decision, the Board denied entitlement to service connection for a low back disability. The Board found the Veteran's allegations that he injured his low back during a fall from a loading dock while on active duty to lack credibility, and there was no probative evidence otherwise linking the Veteran's low back disability to his active duty service. The Veteran did not appeal the June 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court), and thus, the June 2008 Board decision became final. At the May 2019 Board hearing, and in a subsequent August 2019 brief, the Veteran's attorney argued that the Veteran lacked the mental capacity to appeal the June 2008 Board decision to the Court. Essentially, the attorney argued that the 120-day period to file a Court appeal should have been equitably tolled due to the Veteran's claimed incompetence, and if tolled, the June 2008 Board decision would be rendered non-final. The United States Court of Appeals for the Federal Circuit has held that the 120-day period to appeal a Board decision to the Court may be equitably tolled in limited circumstances, where an untimely filing "was the direct result of a mental illness that rendered [a claimant] incapable of rational thought or deliberate decision making, or incapable of handling [a claimant's] own affairs or unable to function in society." Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004) (internal quotations omitted). In contrast to what is required to warrant equitable tolling, the Veteran presents only bald assertions that his mental illness prevented him from filing a timely Court appeal in 2008, without any supporting evidence to demonstrate that he was incapable of functioning or making decisions due to mental illness, or that his mental illness prevented him from filing an appeal or seeking the assistance of counsel within the time allotted. At the March 2003 VA psychiatric examination, the Veteran was deemed competent for the purposes of his financial relationship with VA, and the record is devoid of any probative evidence between March 2003 and the 120-day period following the issuance of the June 2008 Board decision showing that the Veteran's mental illness rendered him incompetent of rational thought, deliberate decision making, handling his affairs, or functioning in society. Neither the Veteran, nor his attorney have indicated that they have ever attempted to appeal the June 2008 Board decision to the Court through the filing of an untimely notice of appeal. As no such appeal has ever been filed, the provisions of 38 C.F.R. § 20.1100 are for application and dictate that the June 2008 Board decision became final as of the date stamped on the face of the decision. In light of the above, the Board rejects the attorney's argument that the Veteran was unable to appeal the June 2008 Board decision to the Court due to mental illness, and for the purposes of this decision, concludes that the June 2008 Board decision is final. There is no evidence in the electronic claims file showing that any new service department records were received after the June 2008 Board decision. Any service department records uploaded to the electronic claims file after June 2008 were duplicative of evidence already of record at the time of the June 2008 Board decision. Neither the Veteran nor his attorney has provided any argument or cited to any evidence indicating that 38 C.F.R. § 3.156(c) should apply to this issue. As such, the provisions of 38 C.F.R. § 3.156(c) are not for application, and the Board shall proceed with its new and material evidence analysis in accordance with 38 C.F.R. § 3.156(a). Following the final June 2008 Board decision, the Veteran filed an October 2013 statement from Dr. RBB which, in relevant part, stated that "if the [Veteran] indeed has spondylolysis this would be consistent with a fall such as he experienced in 1975." The corresponding clinical records from Dr. RBB contained a diagnosis of lumbar spondylolysis. This evidence is new, as it was not available, and thereby considered, at the time of the June 2008 Board decision, and it is material, as it pertains to the unestablished fact of whether the Veteran experiences a current low back disability that is etiologically related to the Veteran's active duty service. The credibility of the October 2013 statement/record from Dr RBB is presumed credible solely for the purposes of reopening the claim. As the low threshold requirement of new and material evidence has been received, the Veteran's claim seeking entitlement to service connection for a low back disability is reopened. The Board has considered whether remand of this appeal is necessary to afford the Veteran full due process as the RO did not reopen the claim in its July 2016 Statement of the Case. See Bernard v. Brown, 4 Vet. App. 384 (1993). However, the Board finds that the Veteran was afforded adequate notice regarding the criteria necessary to prove entitlement to service connection for a low back disability in the July 2016 Statement of the Case, where the Veteran was provided a copy of relevant regulations, and where it was discussed how the available evidence did not satisfy the criteria for entitlement to service connection. The Veteran also had the opportunity to discuss the merits of his claim at the May 2019 Board videoconference hearing, where he and his attorney provided substantive argument as to why they believe service connection for a low back disability is in order. Moreover, in September 2021, the Veteran waived his right to have the matters remanded for the RO to initially consider any additional evidence received since the July 2016 Statement of the Case. Despite the RO's failure to reopen the claim in the July 2016 Statement of the Case, the Veteran has been provided sufficient due process notice regarding the elements necessary to substantiate the claim seeking entitlement to service connection for a low back disability. Accordingly, the Board finds that the Veteran will not be prejudiced if the Board proceeds with adjudicating the merits of the claim, and a remand for the RO to initially adjudicate the underlying merits of the reopened claim would serve no useful purpose and would unduly delay the matter further. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). 2. Entitlement to service connection for a low back disability is denied. Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, a veteran must show: (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved. Additionally, service connection may be achieved if any applicable presumptive service connection regulations apply to a veteran's circumstances. In the present matter, the Veteran alleges that his current low back disability was incurred during active duty service. He asserts that he initially injured his low back in January 1975 when he fell 6 to 8 feet from a loading dock while trying to empty a waste barrel and lost consciousness. He alleges that this accident was the genesis of his current low back disability, and he further contends that he has experienced persistence of low back symptoms since this claimed injury. There is no dispute regarding the current disability element of a service connection claim. The Veteran's private and VA treatment records confirm the presence of a low back disability, variably diagnosed, during the appellate period. See e.g., November 2011 magnetic resonance image confirming multilevel lumbar degenerative disc disease. As such, the first Shedden element is satisfied. Regarding in-service incurrence of disease or injury, the Veteran's service treatment records are entirely negative for complaints, symptoms, treatment, findings, or diagnoses of a low back disability. On January 26, 1975, the Veteran was seen for a contusion on the right heel, where he was prescribed crutches and told to elevate the foot. Service treatment records from January 27, 1975 document that the Veteran fell from a loading dock and injured his right heel. A radiograph was negative for fractures. January 29th and January 31st follow-up assessments documented a radiograph of the foot/ankle, which was negative for fractures and showed "no significant abnormalities." At a February 3, 1975 recheck visit, it was noted that the Veteran still had mild discomfort in the lateral heel. The records related to the January 1975 fall from a loading dock contain no reference to a low back injury or loss of consciousness. On July 31, 1975, the Veteran was found unconscious with bubbles coming out of his mouth, and he was rushed to the hospital. His admitting diagnosis was asthma, but following physical examination and assessment, he was diagnosed with acute bronchitis. At the February 1976 exit examination, the Veteran's spine was listed as clinically normal. Having fully reviewed the Veteran's service department records, the Board finds no probative evidence that the Veteran experienced a low back disability during his active duty service. As noted above, the Veteran has alleged that he injured his low back and experienced loss of consciousness subsequent to a fall from a loading dock while on active duty and he has alleged continuity of low back symptoms since service. The Veteran is competent to report his recollection of injuring his back during service and experiencing symptoms since then, as this is within the realm of his personal knowledge and perception. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran is not competent to diagnose his historical back pain symptoms as the clinically significant medical condition of degenerative disc disease of the lumbar spine, and the Veteran is not competent to opine on the etiology of his current disability, as he is without the medical training and expertise to address such medically complicated topics. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). Furthermore, the Board does not find the Veteran's assertions regarding in-service incurrence of a low back disability and continuity of symptoms since then to be credible based on the current evidentiary record, as discussed below. To the extent that the Veteran's service treatment records fail to corroborate his contentions of experiencing a low back injury related to falling off a loading dock in January 1975, the Board notes that the absence of evidence does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). In order to find that silence in the record contradicts lay testimony, the Board "must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation." Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231, 239, n.7 (2012) for the proposition that "the absence of evidence cannot be substantive negative evidence without 'a proper foundation to demonstrate that such silence has a tendency to prove or disprove a relevant fact.'"). That foundation may be laid by a finding that the fact at issue would ordinarily have been recorded, in which case the Board may legitimately infer from the absence of such a record that it did not occur. See id.; Buczynski, 24 Vet. App. at 224 (noting that under Federal Rule of Evidence 803(7), "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"); cf. AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (noting that the Federal Rules of Evidence, including section 803(7), while not controlling in the adjudication of VA benefits claims, provide "useful guidance," and quoting federal case law to the effect that "[t]he absence of a record of an event which would ordinarily be recorded gives rise to a legitimate negative inference that the event did not occur." (internal citation omitted)). Here, the Veteran's service treatment records confirm his statements that he fell off a loading dock in January 1975, but the treatment records stemming from the accident are entirely silent for low back complaints or treatment, despite the Veteran's allegations that he injured his low back at the same time that he injured his right heel. The records connected to the accident document only right heel/foot complaints and treatment. Had the Veteran actually injured his low back coincident in time with his right heel in the January 1975 loading dock fall, it is not unreasonable to conclude that this injury would have been documented and included in the January 1975 and February 1975 service treatment records assessing the Veteran's post-fall injuries. The Board considers the absence of such expected evidence probative, especially because the Veteran was being treated and observed for other musculoskeletal injuries incurred during the same accident, to include a right heel injury. The lack of medical evidence of low back complaints in the January 1975 and February 1975 service treatment records, particularly when such evidence would be typically recorded by medical personnel if the Veteran reported such complaints or if such an injury existed, is persuasive evidence that the Veteran did not experience a low back injury at the same time as his right heel injury during the January 1975 loading dock fall, which outweighs his present recollections to the contrary. Additionally, the Veteran's service treatment records contain no reference to low back complaints for the remainder of his active duty service following the January 1975 injury. The Veteran's service treatment records do not indicate any hesitancy from the Veteran to seek medical treatment when health complaints arose, as they document treatment for mental health complaints, asthma, allergies, and left foot orthopedic complaints. Given the Veteran's propensity to be seen for chronic illnesses and routine medical complaints, including musculoskeletal complaints, it is most reasonable to assume that if the Veteran experienced chronic and continuous debilitating low back complaints during and after the January 1975 loading dock accident, as he now alleges, he would have reported such symptoms and issues to in-service medical personnel, and such complaints would be documented in the service treatment records. The Board is most persuaded by May 1975 service treatment records, where the Veteran was seen for pain in the anterior side of the left foot. If the Veteran was willing to report left foot symptoms and seek left foot treatment due to pain, the Board finds it reasonable that the Veteran would have sought treatment for similar complaints in the low back, had such symptoms actually existed. The absence of this expected evidence weighs against the Veteran's allegation of in-service incurrence of continuous low back complaints. As it currently stands, the electronic claims file does not document post-service complaints of low back symptoms until 1982, approximately 6 years after his separation from active duty service. The July 1982 University of California treatment records document that the Veteran was working as an engineering aide, which entailed a lot of bending. The records indicated that 6 months prior, the Veteran fell on a staircase and injured his coccyx, resulting in pain for two weeks. Subsequent private treatment records from March 1983 indicated that the Veteran had a history of "herniated disc" treated by the University of California in July 1982. Despite this evidence, the Veteran testified at the May 2019 Board videoconference hearing that "the only documented incident that supports what's going on in the spine...is that 1975 falling injury. No auto accidents. No other known injuries." This statement from the hearing is patently untrue when viewed against the other evidence of record, including the July 1982 University of California treatment records, and renders the Veteran an unreliable and non-credible medical historian. See 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). Furthermore, the Veteran's lay reports are impeached by his own admissions of fabricating facts and engaging in pathological lying. For instance, his VA clinical records in November 2001 and December 2001 include his admissions of lying to obtain jobs, and that "he often 'manipulates and uses' his colleagues." At a December 2001 VA treatment visit, the Veteran admitted to being a "pathological liar." The clinician noted that the Veteran was unable to provide any information without referring to documents including pictures generated by a computer. This is similar to the present matter, where the Veteran has provided computer images documenting the January 1975 in-service loading dock injury. Undated records received from the Social Security Administration stated that the Veteran is "an accomplished liar" who has described himself as a "pathological liar to medical personnel" at VA. In July 2003, the Veteran submitted a statement from a former social worker at the Guadalupe Home for Boys, who fostered the Veteran as an adolescent. The statement was heavily redacted and blacked out by the Veteran. However, a later unredacted copy of the statement was submitted into evidence and demonstrates that the Veteran redacted the portion of the statement where the social worker recalled the Veteran's history of embezzling funds from an employer and her opinion that the Veteran was "quite a liar and fairly manipulative." The fact that the Veteran initially engaged in efforts to hide this unfavorable information from VA undermines his credibility in these proceedings. In support of his allegation of in-service incurrence of a low back injury, the Veteran cites August 1983 treatment records from the University of California, which document "a history of back pain in the military, approximately 7 years ago." These notes are largely illegible and difficult to read. It is unclear from the treatment record whether the transcribing physician was referring to the Veteran's current allegations of sustaining a low back injury in the January 1975 loading dock fall or whether he was referring to the Veteran's claimed in-service injury documented in the July 1982 University of California records, where the Veteran reported that he experienced low back pain when serving in Vietnam, where he was thrown by a landmine and required 3 weeks of hospitalization. Regardless, the August 1983 University of California treatment record is not probative on the issue of whether the Veteran experienced an in-service low back injury. In this regard, the Board affords greater weight to the Veteran's in-service documents and the absence of in-service low back complaints/diagnosis than post-hoc statements rendered years after service, especially given the Veteran's self-admitted propensity to engage in misrepresentations and fabricate information. See generally Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). Additionally, the Veteran's service department records do not support the allegation that the Veteran was ever injured by a landmine in Vietnam. The Veteran's DD Form 214 confirms that the Veteran's military occupational specialty was a personnel clerk, and he has not been awarded the Purple Heart, or any other awards or decorations indicative of combat service. Despite treatment for routine complaints, the Veteran's service treatment records show no treatment for any type of landmine injury during active duty service. Most importantly, the Veteran's personnel records, which contain a record of his assignments, do not reflect that he ever served in the Republic of Vietnam. The Veteran's reports of injuring his low back in a Vietnam landmine accident, as told to the July 1982 University of California providers, are implausible and noncredible when viewed in the context of the entire record. See Caluza, supra. In August 2019, the Veteran submitted argument where he alleged that the July 1982 University of California treatment record documenting his lay reports of suffering a landmine injury to the low back while in Vietnam was erroneous. The Veteran stated that when the provider asked why he did not seek VA care following a claimed in-service back injury, the Veteran responded by describing a separate veteran's experiences with VA following an in-service landmine explosion in the Republic of Vietnam. He now states that he was referring to this other veteran's experiences "to affirm what was common knowledge in those days that veterans avoid the VA medical system at all costs." The Board is not persuaded by this post-hoc rationale, first provided to VA more than 37 years after the creation of the medical record, and during the Veteran's second attempt to secure VA compensation benefits for his current low back disability. If the Veteran truly explained to the University of California provider that he did not seek VA care after the military due to a separate veteran's negative experiences dealing with VA after a Vietnam-related landmine injury, it is nonsensical that the medical provider would have attributed such an injury to the Veteran, with particular details, such as the length of hospitalization. Given the Veteran's history of self-admitted pathological lying and misrepresentation of facts, the Board finds the Veteran's arguments to be incredulous, and declines to accept his revisionist history regarding the July 1982 University of California treatment record. Next, the Veteran cites a contemporaneous March 1986 letter, where he explained that he could not continue his schooling because he "experienced a mild, but long-term back injury" as evidence "implying" that he injured his low back in the January 1975 loading dock fall. See August 2019 argument. He further argues that the "traumatic amnesia" he experienced during his claimed period of unconsciousness following the January 1975 loading dock fall inhibited his ability to explicitly reference this discretely claimed accident in his post-service claims for education benefits between 1978 and 1986. There is no evidence that the Veteran suffered unconsciousness or traumatic amnesia in relation to the January 1975 loading dock fall. While the Veteran's service treatment records document an acute episode of unconsciousness in July 1975, it was related to an issue with asthma/bronchitis and entirely unconnected to the January 1975 loading dock fall. Regarding the March 1986 letter, the Board finds the statements therein to be of null probative value in relation to the Veteran's argument that his low back disability originated in January 1975. By the time this letter was drafted, the record shows that the Veteran was already experiencing long-term low back complaints, as such was documented in 1982 and 1983 University of California treatment records. This March 1986 letter did not reference the January 1975 loading dock injury or otherwise explain that the Veteran's back injury first began during his active duty service. As such, the Board finds this letter to be of no probative value in this determination. In light of the foregoing analysis, the Board finds no probative evidence that the Veteran actually incurred a low back injury during his active duty service, to include in relation to his documented January 1975 loading dock fall. His service treatment records are negative for any reference to low back complaints, treatment, or diagnosis during his active duty service, and his lay allegations of in-service incurrence and continuity of symptoms have been determined to lack credibility based on the current evidentiary record. In the absence of the in-service incurrence element, the Veteran's claim seeking service connection for a low back disability necessarily fails. See Shedden, supra. To the extent that the record contains any medical nexus evidence linking the Veteran's current low back disability to the Veteran's January 1975 loading dock fall, such evidence is not probative, as it is based on the inaccurate factual premise that the Veteran's low back was injured in the January 1975 loading dock accident. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based upon an inaccurate factual premise has no probative value."). Additionally, many references to the Veteran's claimed 1975 in-service low back injury in the post-service VA and private treatment records were merely the result of medical professionals recording the Veteran's non-credible lay reported medical history, and these records do not service as probative evidence substantiating the Veteran's appeal. See LeShore v. Brown, 8 Vet. App. 406 (1995); see e.g., July 2004 VA primary care record, December 2010 VA anesthesia record, July 2018 VA nursing admission record. The Veteran has argued extensively that Dr. RAB told him that the low back disability documented in March 2002 "was consistent with falling from or being thrown from heights." See e.g., lay reported annotation on the March 2002 magnetic imaging results. The Board has already deemed the Veteran's self-reports of experiencing a low back injury when falling from a loading dock in January 1975 to lack credibility, and thus any nexus statement based on this reported in-service injury lacks probative value. Furthermore, a statement from Dr. RAB in March 2002 does not corroborate the Veteran's allegations that he provided a nexus linking the Veteran's low back disability to the Veteran's active duty service. Instead, Dr. RAB charted the Veteran's lay reports that the Veteran sustained numerous assaults and injured his spine on several occasions "in his youth." Given the above adjudicative determinations and evidentiary issues, the Board finds Dr. RAB's alleged nexus statement to be of no probative value in this appeal. Additionally, the Veteran's attorney has argued that the October 2013 statement of Dr. RBB is entitled to significant evidentiary value because he diagnosed the Veteran with lumbar spondylolysis and opined that if the Veteran had spondylolysis, it "would be consistent with a fall such as he experienced in 1975." Of course, this statement is contrary to the evidence of record which fails to probatively establish that the Veteran actually suffered an injury to his low back in the January 1975 loading dock fall. Additionally, there is no indication that Dr. RBB reviewed the electronic claims file or was otherwise aware of the documented post-service fall and coccyx injury the Veteran sustained in 1982. As Dr. RBB's statement was based on an inaccurate factual premise and was not fully informed by an accurate assessment of the Veteran's medical history, it is entitled to no probative value in this determination. The Board acknowledges that while the Veteran was afforded a March 2003 VA examination to verify the presence of a current low back disability, no VA medical opinion has ever been obtained to address the etiology of the Veteran's current low back disability. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court set forth the criteria considered when determining whether a VA opinion is necessary to assist in establishing service connection. The Court held that a VA opinion is warranted when there is: (1) competent evidence of a current disorder or persistent or recurrent symptoms of a disorder; and, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and, (3) an indication that the disorder, or persistent or recurrent symptoms of a disorder, may be associated with the Veteran's active military service...; but, (4) there is insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. Id. at 81. As the Board has determined that the Veteran's reports regarding in-service incurrence of a low back disability are not credible, and the record does not otherwise establish the presence of a qualifying event, injury, or disease relevant to the low back during the Veteran's active duty service, the second McLendon element has not been satisfied, and VA's duty to assist in obtaining a medical opinion has not been triggered. Further, there is no basis upon which to seek a medical opinion, as the record is without probative evidence establishing that the Veteran ever experienced a low back injury during his active duty service. Lastly, the Board has considered whether the Veteran can achieve service connection on a presumptive basis under 38 C.F.R. §§ 3.303(b), 3.307(a)(3), and 3.309(a), as lumbar degenerative disc disease is arguably considered "arthritis." After a complete review of the electronic claims file, there is no probative evidence that the Veteran experienced a low back disability during service, to a compensable degree within one year from separation from service, or on a continuous basis since service. The Board has determined the Veteran's lay reports of in-service incurrence and continuity of symptoms thereafter to lack probative value. The first reference to low back complaints in the file are from 1982, approximately 6 years after the Veteran's separation from service. Given the above, the Veteran is not entitled to presumptive service connection for a low back disability based on the current evidentiary record. In sum, the greater weight of the evidence is against a finding that the Veteran's current low back disability was incurred in or is otherwise etiologically related to the Veteran's active duty service. The necessary elements of service connection have not been satisfied. As the evidence preponderates against the claim, the benefit-of-the-doubt doctrine is not for application, and the Veteran's appeal seeking service connection for a low back disability must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.