Citation Nr: 21010068 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-07 536 DATE: February 24, 2021 ORDER New and material evidence sufficient to reopen a claim for entitlement to service connection for a lumbar back disability has been received, and to that extent only, the claim is granted. Entitlement to service connection for a lumbar back disability is granted. FINDINGS OF FACT 1. An October 2009 rating decision denied a claim for a lumbar back disability. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. For the lumbar back disability, evidence received since October 2009 is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a lumbar back disability. 3. The Veteran has a lumbar back disability that is, as likely as not, causally related to the Veteran’s active service. CONCLUSIONS OF LAW 1. The October 2009 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2007); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). 2. New and material evidence sufficient to reopen the claim of service connection for a lumbar back disability has been received since October 2009, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 3. The criteria for service connection for a lumbar back disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1118, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to December 1968. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2002 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The RO in Boise, Idaho now has jurisdiction of the claim. By way of background, the Veteran originally filed a claim for service connection for a lumbar back disability in February 2001, and that claim was eventually denied in an October 2009 rating decision. That decision was not appealed within one year, and thus became final. As such, then, the last final denial for the lumbar back claim is the October 2009 rating decision. In March 2013, the Veteran filed a claim to reopen the lumbar back disability, and this is the appeal stream now active before the Board. The Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge (VLJ) in January 2021; a transcript of that hearing is associated with the claims file. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). With respect to claims to reopen, VA is further required to provide notice of the definition of new and material evidence. Kent v. Nicholson, 20 Vet. App. 1 (2006). However, VA is no longer required to provide notice of the element or elements that were found insufficient or the information and evidence necessary to substantiate the insufficient element or elements. See 38 U.S.C. § 5103(a)(1); VAOPGCPREC 6-2014 (Nov. 21, 2014); see also Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Petition to Reopen In October 2009, VA denied the original claim of entitlement for service connection for the right shoulder and lumbar back disabilities. The claims were originally denied because the evidence did not show an incident or injury in service. The RO reviewed the Veteran’s available service treatment records (STRs), VA treatment records, and his statements regarding the disability. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following those decisions. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(c) (2007); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). The Veteran sought to reopen the claim in March 2013. The RO reviewed the Veteran’s available service treatment records (STRs), VA treatment records, and his statements regarding his right shoulder and lumbar back disabilities. The RO denied the claim in June 2014, and the Veteran was notified on July 1, 2014. The Veteran filed a notice of disagreement (NOD) in September 2014. VA issued a statement of the case (SOC) in February. The Veteran perfected an appeal to the Board in February 2016 and the appeal was certified before the Board in March 2016. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as 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) (2020). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). The Board considers the last, final denial to be the October 2008 rating decision for the lumbar back disability and the February 2012 rating decision for the right shoulder disability. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Claim Reopened The evidence of record in October 2009 consisted of service records, including personnel and medical records, and VA treatment records. The evidence of record at that time did establish diagnoses of a lumbar back disability, but it did not establish a nexus back to service for either. Since the October 2009 rating decision, the Veteran’s file has additional VA and private medical records that have been attached to the claims file. Also, the Veteran provided testimonial evidence during his January 2021 hearing with the undersigned Veterans Law Judge. These VA medical records show continuing treatment for the Veteran’s lumbar back disability through to the present. This new evidence is not cumulative or redundant of the evidence previously of record. The Board is reminded in this regard that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade. And further, that consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. This newly received evidence basically provides a more complete picture as to the nature of the Veteran’s lumbar back disability in question, and under the low threshold standard could reasonably trigger the Secretary’s duty to assist. Id. at 118. Therefore, assuming its credibility for the purpose of the threshold question of whether the claim can be reopened, the newly received evidence raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a lumbar back disability. As new and material evidence has been received, reopening of the previously denied claims of entitlement to service connection for a lumbar back disability is warranted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). To that extent only, the claim to reopen for service connection for a lumbar back disability is granted. Service Connection for a Lumbar Back Disability Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis for Lumbar Back Disability The Veteran asserts he has a chronic lumbar back disability dating back to active service as a sailor working in aircraft maintenance and weapons loading aboard an aircraft carrier, to include in combat service ashore from Vietnam during that conflict. The Veteran has a history of lumbar back problems continuing into the present day documented in the claims file including chronic back pain, degenerative osteoarthritis of the lumbar spine, sacroiliac dysfunction/muscle spasms, and spondylolisthesis. The records also reflect the Veteran had a L4-5 lumbar laminotomy and microdiskectomy in December 1995. The Board thus considers the requirement of a current disability to be satisfied. The Veteran’s service treatment records do not show any complaints of or treatment for any kind of lumbar or low back pain or other injury. The Veteran does state that he injured his back in 1968 while loading heavy munitions onto naval fighter aircraft while on the USS Enterprise during the Vietnam conflict for combat operations. The service records indicate the medical person in 1968 who saw the Veteran after complaints of low back pain that it was assessed as a hernia and not a lumbar-area back injury. The second requirement is to establish in-service incurrence or aggravation of a disease or injury. Here, the Board notes 38 U.S.C. § 1154(b), which provides that for any veteran who engaged in “combat” with the enemy, VA shall accept lay or other evidence as proof of a disease or injury being incurred in or aggravated by such service even if there is no official record of such incurrence, so long as the evidence is consistent with the circumstances of such service. Sizemore v. Principi, 18 Vet. App. 264 (2004). Despite the lack of in-service documentation of a back injury, given the fact that the veteran was awarded the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and that his service personnel records indicate that he may have performed duties involving heavy labor while in a combat situation, and consistent with a 2004 VA examiner’s comment, the Board will concede that the veteran incurred a low back injury during active military service. The Board thus finds that the second prong of service connection, an in-service incurrence or aggravation of a disease or injury, and in this case pursuant to the combat presumption language of 38 U.S.C. § 1154(b), to be satisfied. The third requirement of service connection is a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The Board notes that section 1154(b) deals with the question of whether a particular disease or injury was incurred or aggravated in service – that is, what happened then – and not the questions of either current disability or nexus to service, as to both of which competent medical evidence is generally required. Caluza v. Brown, 7 Vet. App. 498 (1995). Although a Veteran is competent to testify as to the symptoms he has experienced since his active service, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with. Clyburn v. West, 12 Vet. App. 296 (1999). Likewise, section 1154(b) does not relieve the Veteran of submitting competent medical evidence suggesting a nexus between the current disorder and the claimed combat service. Id. Private clinical records include a report of an April 1995 neurological evaluation in which it was noted that in 1988 and 1989 the Veteran had pain that radiated down his left leg due to spinal disc herniation for which he had had spinal surgery. It was reported that, six (6) months prior to the current evaluation, he had fallen off of a horse “and subsequently fell off a curb.” He began developing pain in his right buttock which radiated down the posterior aspect of the right thigh and downward. Additional private clinical records show that in December 1995 the Veteran had a right L4-5 lumbar laminotomy and microdiskectomy. On VA spinal examination in June 2002 the Veteran reported not having sought inservice treatment for back pain which resulted from lifting heavy objects. The back pain got worse after service and by 1988 he had pain that radiated down the left leg to the foot for which he had an L5-S1 microdiscectomy, and two years later he had the same surgery on the right side. He complained of continued low back pain which radiated down his legs to his heels. After a physical examination the assessment were chronic back pain, degenerative osteoarthritis of the lumbar spine without radiculopathy on current examination, and sacroiliac dysfunction/muscle spasms and spondylolisthesis. Private physician Dr. K. stated in June 2004 that he had treated and performed back surgery on the Veteran in 1989; however, records of treatment were not available. On VA examination in July 2004 the claims file was available for review and it was reported that the Veteran had been in sales since leaving military service, although there was no available work history documentation. The question presented was whether the Veteran’s low back disorder was related to his occupation as a weapons bomb loader during service. The Veteran again stated that he had not sought inservice treatment for back pain which resulted from lifting heavy objects. The examiner indicated that it should be conceded that the Veteran probably sustained an inservice back injury because he had sustained a left inguinal hernia due to lifting heavy objects during service. The examiner noted that there was no documentation of any back issues, injuries or symptoms from 1968 to 1995 (the time of the veteran’s second back surgery). The records of the Veteran’s first back surgery in 1988 were not available. He had documented diagnoses of lumbar spondylolysis, lumbar degenerative disc disease (DDD), and had had two laminectomies for herniated nucleus pulposi. The veteran’s current complaints were recorded. No physical examination was performed. The Veteran and his spouse each provided a statement in November 2007. The Veteran noted in extensive detail his service aboard the aircraft carrier Enterprise and how his duties involved serving on ordnance-loading crews, even from awkward squatting body positions that induced extreme pain in his back. The Veteran reported he told his supervisor at one point and that he was ordered to sick bay. The back pain was related to an inguinal hernia, thought the treating doctor at the time, and surgery for the hernia was ordered and performed aboard ship. The Veteran then reported that hernia surgery repair did nothing to mitigate the continuing back pain. When approaching the end of his service, the Veteran was told the back pain, which was still a problem, would improve in time. The Veteran explained that he went to a VA hospital shortly after discharge from service in December 1968 but the examiner at the time was rough in the examination and was lectured by the VA physician that he did not really need help. The Veteran then noted the pain would continue, making it difficult to sleep or spend long distances in the car. The Veteran noted the unsuccessful treatment from Dr. K., referenced above, but nothing relieved the persistent back pain. An unsuccessful back surgery occurred in 1968, and the Veteran noted he had no intervening events or causes of his back pain, to include any work-related injuries. The Veteran’s spouse also provided a statement, noting she had married the Veteran in May 1969, six months after the end of his active service, and that she had accompanied him the day he went to the VA hospital after service with the unpleasant and unprofessional experience the Veteran received there. She noted his continuing complaints of back pain that continued through the years and that after a long car trip in 1988 the back pain became so great the Veteran could hardly walk. The Veteran’s spouse also noted that she could not recall any other possible cause of the Veteran’s chronic back pain. She noted the pain continued through the second surgery in 1995, and into the present day, despite the surgeries. The Veteran received a VA examination in September 2009 for his lumbar back. The Veteran noted constant pain that wakes him at night along with morning back stiffness and difficulty getting out of bed due to pain. Radiating pain and numbness into the bilateral lower extremities was also noted. This examiner noted a diagnosis of status post L4-L5 laminectomy and microdiscectomy with mild to moderate degenerative changes of the lumbar spine with stable grade 1 anterior listhesis of L5 on S1 with findings suggestive of spondylosis. This September 2009 examiner provided a negative opinion for service connection, stating the Veteran’s service treatment records do not have any complaints for or treatment of back pain, and noted the 1989 and 1995 back surgeries. The examiner then noted the Veteran’s history, to include his service aboard an aircraft carrier off the coast of Vietnam loading weapons and munitions aboard fighter aircraft engaged in combat operations over Vietnam. The Veteran’s back pain in service was noted through and past separation, and the examiner also mentioned how the Veteran’s back pain continued on and off while he was working as a salesman. The Veteran’s stated that he often did not have health insurance coverage, and that he would not then seek medical attention for his painful back, choosing to take analgesics instead. The examiner also stated that he had no reason to doubt the Veteran’s statements, but concluded with no further rationale beyond silent service treatment records that the Veteran’s low back condition was less likely related to service. The Veteran’s brother provided a statement in January 2013. He noted that he served as a sailor on active duty assigned to the same ship as his younger brother, the Veteran, and reported that he observed his brother, as part of a 3-man crew, tasked with the uploading and securing of bombs and munitions on the fighter aircraft aboard the carrier. The brother noted the Veteran’s complaints of back pain from their time in service, to include conversations held at the time of the incidents involving complaints from loading weapons and munitions on to combat aircraft. In February 2013, the Veteran’s physician, Dr. G.W., provided a comprehensive statement and opinion for service connection. The physician first noted he had reviewed the Veteran’s records going back to his service on the USS Enterprise in April 1968, noting the December 1968 inguinal hernias, and the subsequent medical history regarding the Veteran’s lumbar back. Dr. G.W. noted he had treated the Veteran since 1993, and discussed the evolution of the Veteran’s back complaints. In April of 1995, after Dr. G.W. began treating the Veteran on a regular basis, the Veteran’s persistent pain in the lower back as well in the right leg in the L-5 distribution was noted. The December 1995 back surgery involving an L4/5 lumbar laminotomy and microdiscectomy was noted as performed by Dr. M.M., but was regarded as only partially successful based on the Veteran’s continued reports of pain. This physician also noted that in his medical opinion, based on his long observation of the Veteran and a review of his records going back to 1968 and active service, that the Veteran’s lumbar back problems originated from his service as a weapons loader aboard the aircraft carrier USS Enterprise in 1968. The physician there were other stressors over the years but it was more likely than not that the original injury derived from active service and has been the cause of the persistent and unrelenting pain in spite of both conservative treatment and two surgeries. The Veteran testified before the undersigned VLJ in January 2021. The Veteran testified under oath as to his active service experience as a weapons loader aboard the USS Enterprise and how his duties involved great physical strain as he worked on load crews to mount extremely heavy munitions aboard fighter aircraft that would then launch on combat operations over Vietnam. The Veteran relayed that after complaining about back pain that he was told to report to a doctor, with the subsequent inguinal hernia treatment, but that also that his back pain continued unabated after that. The Veteran then testified that his one-time visit to a VA hospital in Long Beach, California was not only unsuccessful in treating his back pain but that the experience was deeply humiliating with the VA examiner who reportedly told the Veteran he had more important uses for his time. The Veteran then reiterated his three different back surgeries over time, in 1988, 1995, and in September 2019, and how his back pain remained chronic, causing difficulties sleeping, lifting heavy objects, driving long distances, without any definitive relief. The Board notes the mix of opinion but finds the VA examiner’s July 2004 and September 2009 examinations and opinions for service connection to be of lower probative value. While the examinations themselves were satisfactory, neither the July 2004 and September 2009 VA examiners who conducted the actual examination indicated they responded to the Veteran’s statements regarding his own history. While the Board notes case law that an examiner need not review the claims file to include pertinent statements prior to providing as opinion, it does require that the examiner is aware of all pertinent facts from the Veteran’s history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (Vet. App. 2008). Furthermore, and critical to this case, the Veteran has a complex set of medical diagnoses, to include other orthopedic and neurological maladies that relate to the Veteran’s lumbar back. Other VA examiners in different appeal streams discussed the lumbar back conditions and their relatedness to other body systems, some of which are already service connected. Here, neither the July 2004 nor September 2009 VA examiners did that, indicating perhaps a limited purview of medical records beyond those that pertained only to the lumbar back. The Board finds here that the Veteran’s statements of his incidents in service were discounted, the resulting opinions by the different examiners were conclusory, and thus considers the probative value of this opinion to be low because of that. Additionally, even though the July 2004 examiner notes the claims file had been reviewed, he did not note the earlier private treatment records regarding the lumbar back injuries. The Board notes both the July 2004 and September 2009 examiners’ opinion relied only on an observed lack of evidence to determine that there was no nexus of the diagnosed lumbar back conditions back to active service. Each of those two examiners noted the one lumbar back complaint during active service in 1968. The September 2009 examiner noted the Veteran’s complaints and history and stated he found no reason to doubt the Veteran’s statements, but still noted a negative opinion for service connection based solely on the lack of records after service. A VA opinion is inadequate where a VA examiner ignores the Veteran’s lay statements of an injury/event during service unless the Board expressly finds that no such injury/event occurred. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In order for the Board to rely on an examiner’s conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board’s review of the evidence; the Board should ensure any such finding was well supported by the facts and data and reflects that the examiner has considered “all procurable and assembled data,” by obtaining all tests and records that might reasonably illuminate the medical analysis. Jones v. Shinseki, 23 Vet. App. 382 (2010). In contrast, the Board gives substantial probative weight to the Veteran’s longtime private physician, Dr. G.W., who had over 20 years observation and treatment of the Veteran and who considered the Veteran’s lumbar back disability to be more likely than not related to his active service as a weapons loader aboard an aircraft carrier during the combat deployments off the Vietnam coast. Dr. G.W.’s statement, made in February 2013, recounted the diagnosis and history with the Veteran’s lumbar back problems. This physician had treated the Veteran on continuously for over 20 years at the time of the February 2013 opinion, and was thoroughly familiar with all of the Veteran’s back pain complaints, the conservative treatments, and the surgeries. This physician had over 23 continuous years of treating the Veteran, and his positive opinion for direct service connection were based on his own medical examinations of the Veteran and medical history from service, to include the service treatment records. This physician also had access to the Veteran’s VA medical examinations and opinions, and in his opinion of February 2013, pointed out the differences between his own opinion regarding etiology, using positively observed medical evidence, vice the mere absence of information used by the VA examiners in their negative opinions. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Board finds the lay statements of the Veteran, his spouse, and his brother to be highly credible and probative, to include the January 2021 hearing before the undersigned VLJ and the November 2007 and November 2013 statements from the spouse and brother. Importantly, there is no reason to doubt the credibility of the Veteran’s self-reported history of his service lumbar back injuries. The Board notes especially the detailed consistency of the Veteran’s statements regarding his lumbar back complaints and treatment experiences over time. The Board also finds very credible the explanation by the Veteran as to why he didn’t seek medical treatment after service in 1968 because of his concerns regarding employability and the lack of health insurance, and also the extremely negative experience with a VA hospital in Long Beach in 1969. See 38 C.F.R. § 3.159(a)(2) (lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility determinations are within the purview of the Board). See also 38 U.S.C. § 1154(a) (reflecting that due consideration is to be given to the places, types, and circumstances of a claimant’s service). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also notes the more recent precedential case of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), where the Federal Circuit held that pain alone can qualify as a disability for VA purposes if it amounts to a functional impairment of earning capacity. Id. at 1367-68. The Board certainly acknowledges that the latter April 2018 Saunders decision came out after the last statement of the case of March 2016, but the Board notes that both the July 2004 and September 2009 VA examiners had documented in their examinations and opinions the functional impacts of the Veteran’s lumbar back complaints and the continuing negative impact on the Veteran’s occupation and his activities of daily living. In Saunders, the Federal Circuit noted 38 C.F.R. § 4.10 defines functional impairment as the inability of the body or a part of it “‘to function under the ordinary conditions of daily life including employment’” and found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability.” Saunders, 886 F.3d at 1363. In other words, “pain alone can serve as a functional impairment and therefore qualify as a disability,” even if there is no identified underlying diagnosis. Id. at 1367. Here, VA and private physicians have diagnosed the Veteran’s lumbar disabilities, and thus the Board considers the precedential holding of Saunders to be pertinent and supportive of this Board decision. The Board finds evidence of a current disability of a lumbar condition, as shown by recent VA and private treatment records as noted earlier in this decision. Thus, the first element of service connection is established. The second requirement is to establish in-service incurrence or aggravation of a disease or injury. Here, the claims file contains documentation of the Veteran’s lumbar back injuries through lay statements of the Veteran and his service treatment records, plus a highly credible and probative statement from his long-time treating physician who knew the Veteran and had treated him over time for over two decades. For service connection claims, lay or medical evidence can establish an in-service injury or disease or chronicity of symptoms in service. A current disability and nexus to service is generally established by medical evidence. However, the Federal Circuit has held that lay evidence is sufficient to show certain current disabilities. Although medical evidence is generally necessary for a nexus to service, lay evidence can be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, or to link chronic in-service symptoms to the same diagnosed current disability, or as a substitute for a nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Additionally, the Board notes the guidance of the Federal Circuit with regard to lay evidence and proof of a claim for service connection, that examiners and adjudicators are required to address whether lay statements present sufficient evidence of the etiology of a claimant’s condition such that his claim of service connection could be proven without contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 fn. 1 (Fed. Cir. 2006). The Board notes the greater weight of the February 2013 opinion from his private physician, Dr. G.W., in favor of service connection over the July 2004 and September 2009 VA examiners’ negative conclusory opinions regarding possible nexus. Also, a lay person is competent to report observable symptomatology of an injury or illness. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Here, the Board finds the Veteran’s statements as to the continuity of his symptoms in and since service regarding his lumbar back disability to be highly credible, and thus a continuity of symptoms since service satisfactory establishes the nexus requirement for service connection. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Thus, resolving any doubt in favor of the Veteran, the Board finds that his lumbar back is related to service. As such, service connection for a lumbar back disability is warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.