Citation Nr: 21023463 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-09 318 ATE: April 20, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for the residuals of a traumatic brain injury (TBI), also claimed as headaches, is denied. FINDINGS OF FACT 1. The Veteran’s degenerative disc disease of the cervical spine was not incurred in service and is not otherwise due to a qualifying period of military service. 2. The Veteran’s degenerative disc disease of the lumbar spine was not incurred in service and is not otherwise due to a qualifying period of military service. 3. The Veteran’s right hip disability was not incurred in service and is not otherwise due to a qualifying period of military service. 4. The record does not reflect that the Veteran sustained a head injury during a qualifying period of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for the residuals of a TBI, also claimed as headaches, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to October 1990, with National Guard service from September 1986 to May 1989. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) July 2011 rating decision of the Agency of Original Jurisdiction (AOJ). In September 2017 the Veteran appeared before the undersigned Veterans Law Judge at a Board hearing. A transcript of that hearing has been reviewed by the Board, and has been associated with the claims file. In a January 2019 decision, the Board, in pertinent part, denied the Veteran’s claims for service connection for a lumbar spine disability and a cervical spine disability; the issues of service connection for a right hip disability and service connection for the residuals of a TBI, also claimed as headaches were remanded. The Board decision was appealed to the United States Court of Appeals for Veterans Claims (Court) and in July 2019, pursuant to a Joint Motion for Remand (JMR), the Board decision as to the issues of service connection for a lumbar spine disability and a cervical spine disability was vacated and remanded for action consistent with the terms of the JMR. In December 2019, the Board then remanded the case to the AOJ for additional development in compliance with the Court order. A Board remand confers upon the appellant the right to a certain degree of compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review, the Board finds that the AOJ conducted additional development pursuant to the December 2019 remand directives, and that there has been substantial compliance with the remand. Service Connection Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including organic diseases or the nervous system and arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran had active duty from September 1989 to October 1990 and was also a member of the National Guard from September 1986 to May 1989 with periods of inactive duty training (INACDUTRA) and periods of active duty for training (ACDUTRA). Active military service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a), (c), (d). The presumption of soundness, the presumption of aggravation, and presumption of in-service incurrence for certain chronic disabilities do not generally apply to periods of ACDUTRA and INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991); see also 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304 (b); but see Hill v. McDonald, 28 Vet. App. 243, 250 (2016) (“once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, veteran status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA”). While service on active duty alone is sufficient to meet the statutory definition of veteran, service on ACDUTRA or INACDUTRA without more will not suffice. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Therefore, consideration of these presumptions for any ACDUTRA/INACDUTRA period is not appropriate. The described presumptions do not attach unless and until “veteran” status is established for any such period. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a cervical spine disability 2. Entitlement to service connection for a lumbar spine disability The Veteran claims that his current cervical (neck) and lumbar (low back) spine disabilities, diagnosed as degenerative disc disease (DDD), are the result of an in-service accident. The Veteran has diagnoses of DDD of both his cervical and lumbar spine. Therefore, the first Shedden element necessary to establish service connection has been met. The Veteran alleges that an April 1988 in-service motor vehicle accident (MVA) while on ACDUTRA is the cause of his current disabilities. The Veteran’s service treatment records (STRs) show treatment for injuries to his right hip stemming from a MVA. The Board finds that the Veteran’s testimony, combined with his STRs, are sufficient to show that the Veteran was involved in an MVA while on a period of ACDUTRA. The second Shedden element necessary to establish service connection has been met. What is left for the Board to determine is whether there is a link, or nexus, between his current diagnoses and the claimed in-service event. In a March 2013 Form 9, the Veteran stated that his in-service injuries from the April 1988 MVA healed and he had no pain at the time. As such, an opinion regarding the etiology of the conditions from a qualified medical professional will be necessary to establish whether the Veteran’s in-service MVA is as likely as not the cause of his current disabilities. In the immediate aftermath of the April 1988 MVA the Veteran complained of a right hip injury. The Veteran’s STRs note a bruise on the Veteran’s right hip; the Veteran did not complain of any back or neck pain. X-rays taken of the Veteran after the accident were “neg[ative].” In the two weeks after the accident the Veteran was seen three times for follow-up visits. Only once did the Veteran complain of residual pain in his right hip, and at no point did the Veteran note that he had any neck or back pain. In a January 2020 VA examination, the Veteran stated that the reason he did not complain of any back or neck pain was that “going to the medic was something we didn’t do.” However, a review of the Veteran’s STRs show that he frequently presented himself to sick call for numerous issues of varying severity. In September 1989 the Veteran went to sick bay three times: for a “foot problem,” a sinus issue, and a rash on his arms. In January 1990 the Veteran sought treatment twice: once for an injured foot (x-rays were negative), and once for treatment of hemorrhoids. In March 1990 the Veteran sought treatment for a cold sore, for which he returned in August 1990. In June 1990 the Veteran went to sick bay to follow-up on his previously injured ankle, and in July 1990 the Veteran presented to sick bay for a sore throat. In September 1990 the Veteran was seen at sick bay because he was “exposed” to oil and grease. Finally, the Board notes that the Veteran routinely sought treatment for an ongoing asthma condition, which predated his military service. Again, the Board finds that this evidence indicates a willingness to seek treatment for an ongoing condition or injury. Despite the numerous times he sought treatment in service, there are no complaints of neck or back pain after his April 1988 MVA. In a March 1990 special physical, which the Veteran underwent for diving qualifications, the Veteran stated he was “in excellent health,” and specifically denied any neck, back, or joint problems. The examining physician noted several health issues at the time of the examination, including sinusitis and rectal bleeding, but found no concerns regarding the Veteran’s neck and back. After separating from the military, the Veteran was involved in two MVAs in 1993 and one in 1995. In May 1993, imaging of the Veteran’s cervical and lumbar spines was “unremarkable.” The Veteran complained of neck and back pain, but the imaging was “negative,” and he was diagnosed with a cervical strain. In December 1993 the Veteran was in another MVA, and complained of back pain, and was diagnosed with an “L-S strain,” which the Board is interpreting as a lumbosacral strain. X-rays taken later in June 1994 showed no abnormalities. After his September 1995 MVA, the ER treatment notes show that the Veteran “denies and specific neck, back, chest, or abdominal” pain. X-rays of the Veteran’s spine were “unremarkable,” and the Veteran was diagnosed with facial trauma, right hip dislocation, dislocation of several of his right metatarsal bones, and hematuria. The Veteran also complained of sinus issues following the accident, but did not complain of neck or back pain. It is not until June 2005 that the Veteran’s medical record shows objective evidence of spinal pathology. In late June 2005, after about three weeks of pain, the Veteran went to the ER with “acute … lower back pain.” While at the ER, the Veteran stated there was “no known” injury to his back, and that the pain had only been going on for the prior three weeks. Examination of the Veteran’s neck was “normal,” and there was “painless” range of motion. However, medical imaging showed that the Veteran’s lumbar spine had DDD, and “mild degenerative spinal stenosis.” Physical therapy treatment notes from June and July 2005 show that the Veteran’s back injury was due to “doing alot[sic] of lifting at work.” At his physical therapy for the June 2005 injury the Veteran specifically denied any previous history of injury to his back or neck. In August 2010 the Veteran was seen for an annual examination, where he specifically denied any back or neck pain. While recounting his medical history to his physician, the doctor noted that “while in service while riding in hum-vee[sic] had accident and injured hip.” There is no mention of any injury or complaints of neck or back issues after his 1988 MVA, nor did the Veteran mention his 2005 ER visit for lower back pain. However, the Veteran did mention his prior treatment for blisters. In March 2011 the Veteran was seen for a VA examination to determine the etiology of any neck and back disability. Based on radiological imaging, the examiner diagnosed the Veteran with DDD of the lumbar spine but found “no objective evidence of [cervical] spine condition.” The examiner noted “no objective evidence” of pain on motion of the Veteran’s spine, and that a review of the medical records combined with the examination found “no history of … spine trauma; spine neoplasm; spine condition flare-ups.” In conclusion, the examiner opined that the Veteran’s neck and back conditions were “less likely as not (less than 50/50 probability) caused by or a result of military service.” The examiner came to this conclusion because “the Vet[eran] was injured in an accident while on active duty in 1988 without any [complaints of] any low back problems at the time,” that that in 1990 he stated he was in “excellent health and denied any back problems and his physical exam was negative for any spine conditions.” As the Veteran was involved in multiple MVAs since separating from service, in which he specifically complained of low back pain, the examiner concluded that “it is therefore less likely than not that the Veteran’s current DDD of his l[ower] spine was caused by the accident in the military in 1988 … and most likely due to the trauma of his multiple MVAs with c/o low back pain after the Veteran’s discharge from active duty.” The examiner cited to an Ortho Journal article as one of the sources used to come to their decision. A May 2011 statement from the Veteran’s father states that in the 1988 MVA the Veteran had an “injury to his beck and back.” The Veteran’s father continued, stating that the Veteran has “suffered from neck and back problems since this happened.” The Board, again, notes that the Veteran’s STRs and medical records, which include statements from the Veteran himself, show no injury to the Veteran’s neck or back due to the 1988 MVA specifically or other in-service injury or accident in general. In March 2012 the Veteran sought treatment for “chronic” headaches. The Veteran reported to the physician that he had no other ongoing issues or complaints. In a June 2012 “deployment examination” the physician found that the Veteran was “doing well and not having any concerns,” and that he “denies symptoms of muscle cramps, joint pain, or stiffness.” In September 2017 the Veteran testified at a Board hearing. At the hearing, the Veteran, through his representative, testified that x-ray imaging after his MVAs in 1993 and 1995 were “normal.” However, the Veteran also stated that he had back and neck pain since service, and his post-service accidents “just made them worse.” In November 2017 the Veteran submitted a statement from Dr. P., a practicing chiropractor. Dr. P. found that the Veteran’s conditions are “at least as likely as more likely than not related to” his military service. Dr. P. came to this conclusion after “utilizing goniometric assessment” as well as a review of the Veteran’s claims file. Dr. P. claimed that after the April 1988 MVA the Veteran was diagnosed with a “massive headache,” as well as a “sprain of the cervical spine,” neither of which the Board notes were diagnosed by the physicians treating the Veteran immediately after the accident nor for years afterwards. Furthermore, the Board notes that Dr. P. did not provide a rationale as to why the Veteran’s in-service MVA was a more proximate cause of his current conditions rather than the multiple post-service MVAs, nor did Dr. P. address the fact that the Veteran’s STRs show no complaints of back or neck pain after the 1988 MVA, and that the Veteran specifically denied back or neck pain while in-service on multiple occasions. Dr. P. also did not address the Veteran’s post-service treatment records, specifically the numerous times the Veteran denied back and neck issues, how radiological imaging did not show DDD until around 2005, and that the Veteran did not seek treatment for, or complain of, chronic back and neck issues until recently with the filing of these claims. Finally, when providing a review of the Veteran’s medical history, Dr. P. fails to note the diagnoses of cervical strain in 1993, 1994, and 1995, nor does he discuss the fact that after the 1988 MVA the Veteran was not diagnosed with either a neck or back condition. Also in November 2017, the Veteran submitted a “VAE Nexus Opinion” from Dr. B., a licensed neuro-radiologist. Dr. B. opined that the 1988 MVA “would have likely caused an injury to both [the Veteran’s] head and neck as there is a high associated between head injuries and neck injuries.” Dr. B. does not explain how he came to this conclusion, as the Veteran’s STRs only show an injury to his right hip, and that the Veteran denied any head, neck, or back injuries at the time of the accident specifically and while in service generally. Dr. B. does note that the Veteran’s “out of service auto accidents could have also caused his head, neck, lumbar, and hip injuries but it is impossible (without x0rays[sic] and fill records from those accidents) to tell.” However, Dr. B. erred, as there is radiographical imagining from the time of his post-service accidents, and as discussed above the findings were negative. Continuing, Dr. B. states that “the benefit of the doubt should prevail, and he should be assigned [service connection] … as his disabilities are out of portion to his age without antecedent injuries.” Dr. B. provides no explanation for this conclusion. Dr. B. also states that “it is clear that the patient has these two medically recorded accidents in his service records (1960’s).” Dr. B. does not expand on that claim, and the Board notes that it runs counter to the Veteran’s STRs and his own statements. The Veteran himself has only alleged one in-service accident, which is corroborated by his STRs. Dr. B. also stated that his opinion is “consistent with the patient’s subjective lay statements.” However, Dr. B. does not address the fact that the Veteran did not complain of any neck or back pain after his 1988 MVA, that several times while in-service the Veteran denied any neck or back pain, and that in 1990 the Veteran described his health as “excellent.” Continuing, Dr. B. claims that “no other physician has made a conflicting opinion,” which is objectively inaccurate as a review of the medical evidence shows that the March 2011 VA examiner came to a conflicting opinion. Dr. B. also puts forward the argument that his argument is “much more probative … than any nurse practitioner or physician assistant” for several reasons. Dr. B. claims that his opinion is both competent “new/material and credible,” as well as being based on a review of the Veteran’s file, “literature,” and examination of the Veteran. However, the determination of the probative value to be assigned a particular piece of evidence including the weighing the evidence of one medical professional against the evidentiary record, is the purview of the Board. Given the numerous factual inaccuracies in Dr. B.’s nexus opinion, and that fact that Dr. B. does not sufficiently address the Veteran’s post-service accidents, nor the numerous times the Veteran denied chronic neck and/or back pain until around 2005, the Board assigns little probative value to his statements. In May 2018, the Board obtained a medical opinion from the Veterans Health Administration (VHA). The VA medical examiner found that it was less likely than not that the Veteran’s cervical spine and lumbar spine disabilities were related to the Veteran’s 1988 MVA. The examiner noted that the initial notes after the in-service injury did not document a cervical or lumbar spine injury, and subsequent more serious injuries in 1993 and 1995 explain the injuries to those areas. However, the JMR noted that the Board’s prior reliance on this opinion as the most probative evidence of record was misplaced as the August 2018 examiner noted that the type of impact injury the Veteran sustained in service could result in a cervical or lumbar spine disability and the examiner noted that the records were limited and insufficient to conclude that the in-service injury is not the etiology of some of the current symptoms. In January 2020, pursuant to the Court JMR and subsequent Board remand, the Veteran was seen for another VA examination to determine the etiology of his neck and back disabilities. The examiner, after interviewing the Veteran and reviewing the evidentiary file, including the statements provided by Dr. P. and Dr. B., concluded that the Veteran’s back and neck conditions are “less likely than not … incurred in or caused by the claimed in-service event.” The examiner based their opinion on the fact that “there is no evidence” of a neck or back injury while in service. The examiner stated that even after the post-service MVAs, imaging of the Veteran’s spine was “normal” and “unremarkable.” The examiner concedes that it is possible, after the 1988 MVA, that injuries to the Veteran’s neck and back could have been overlooked. However, the examiner found that, based on the Veteran’s tendency to report to sick bay frequently as well as the fact that he had several follow-up visits after his MVA, he “would have either reported the back pain throughout anytime of his remaining service or at least have mentioned the back pain on separation exam.” Instead, as has been noted above, the Veteran continued to specifically deny any neck or back pain while in service, going so far as to describe his health as “excellent.” In December 2020 the Veteran, through his representative, stated that greater weight should be accorded the medical opinions submitted on the Veteran’s behalf by Dr. B. than the January 2020 opinion of the VA examiner who is a family nurse practitioner since she has no training or expertise in orthopedic or complex injuries and disability such as the Veteran. The Board acknowledges that the VA examiner does not appear to be an orthopedic specialist. However, the Board rejects this general challenge to the VA examination. The challenge is not that the examiner was not a medical professional; and the assertion that because the examiner was a nurse practitioner instead of some other medical professional is insufficient to find any defect in the examination or lack of qualifications of the examiner to provide an adequate opinion or conduct an adequate examination. The representative has failed to raise sufficiently specific challenge to either the competency of the January 2020 VA examiner individually or to the competency of nurse practitioners generally in the context of rendering an orthopedic examinations and opinion. See Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010) (explaining that a veteran challenging the qualifications of a VA-selected physician must set forth specific reasons why the veteran believes the expert is not qualified to give a competent opinion). There is no specific challenge to the qualifications of the VA examiner to offer medical diagnoses, statements, or opinions generally and the representative has not articulated why a more specialized opinion at this juncture would be required here. See Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). The crux of the Veteran’s representative’s argument appears to be that the January 2020 examiner is a nurse practitioner with no “highly specialized training,” such as that of Dr. B. VA has a duty to assist, which includes providing competent and credible medical professionals to conduct disability examinations. This duty to assist is satisfied where a nurse practitioner has performed a VA examination, meaning that an examination by a specialist is not required. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). This was accomplished in this case. The Veteran’s representative also asserts that the January 2020 examiner “relied on an absence of records” when making their decision. The Board notes that the absence of evidence is not necessarily evidence of absence. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); See also Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Buchanan v. Nicholson, 451 F.3d 1331,1336-37 (2006) Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) However, to demonstrate that such silence tends to prove or disprove a relevant fact, 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. As discussed in-depth above, the Veteran has repeatedly denied injuring his back, or experiencing back pain while in service. The Veteran sought frequent treatment for acute conditions such as blisters, rashes, and hemorrhoids, as well as long-term issues such as asthma, during which time he explicitly denied back pain until around June 2005, almost 15 years since he separated from the military. Therefore, the Board finds that the January 2020 examiner’s findings to be consistent with the relevant caselaw and statutes, and their rationale is well supported by a thorough and detailed explanation. The Veteran’s representative states further that the January 2020 examiner’s opinion is “not adequate for rating purposes as the examiner relied on the lack of documentation to render her opinion.” However, as discussed throughout, the examiner thoroughly and properly examined almost thirty years of medical treatment records before rendering her opinion. The Board finds that the competent and credible evidence on file weighs against the Veteran’s claims. The Veteran’s STRs show no injury to the Veteran’s neck or back, and as noted above, the Veteran denied having neck or back problems in service multiple times. Additionally, the Veteran’s post-service medical records are absent complaints of chronic neck and back pain until about 2005. As such, the Board finds that the Veteran’s post-service lay statements regarding the onset of his neck and back pain to not be credible as they are inconsistent with, and outweighed by, other, more contemporaneous lay statements (including his own) and the medical evidence of record. His statements alleging continuous back and neck pain from the time of the 1988 MVA contradict his own contemporaneous statements wherein he denied having neck or back pain. The Board notes that Veteran’s current statements regarding the chronicity of his pain were submitted to the record many years after the in-service incident. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010); Curry v. Brown, 7 Vet. App. 59 (1994). The Veteran’s statement to the January 2020 VA examiner that “going to the medic was something we didn’t do” is not corroborated by his STRs, which show frequent trips to sick call. As such, it stands to reason that had the Veteran been experiencing ongoing neck or back pain in service he would have sought treatment for it during service or soon thereafter, and he would have included such symptoms in his later physical examinations. However, the medical evidence clearly shows no chronic condition diagnosed until 2005, and no complaints of chronic neck or back pain until around 2011, over 20 years after separating from service. As such, the Board finds it is prudent to assign the Veteran’s statements made at the time seeking medical treatment more probative value than his current assertions. The Board also finds that the March 2011 and January 2020 VA examiners’ opinions to be more probative and credible than the statements provided by Dr. P. and Dr. B. The Board has not relied on the August 2018 VHA opinion in rendering this decision given the inadequacies of that opinion as outlined in the JMR and which the Board sought to resolve in obtaining the January 2020 medical opinion. Both the March 2011 and January 2020 examiners addressed the Veteran’s lay statements, his contemporaneous statements made for the purposes of seeking medical treatment, and his STRs as well as his post-service medical treatment records. As Dr. P. did not provide a rationale as to why the Veteran’s in-service MVA was a more likely cause for his current conditions rather than his post-service MVAs, nor did Dr. P. address statements in the record made by the Veteran that run counter to his conclusion, Dr. P.’s opinions regarding the etiology of the Veteran’s conditions have less probative value than the March 2011 VA examiner, the January 20202 VA examiner, and the contemporaneous statements made by the Veteran for the purposes of seeking medical treatment. As discussed above, the factual inaccuracies and lack of rationale provided by Dr. B. are such that the Board finds this opinion to have less probative value as well for the purposes of determining the etiology of the Veteran’s neck and back conditions. Given the lack of competent and credible evidence in support of the claim, the evidence is against a finding of a nexus between the Veteran’s current cervical and lumbar spine disabilities are due to his 1988 in-service accident. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107 (b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 3. Entitlement to service connection for a right hip disability The Veteran claims that his current right hip disability is caused by, or due to a period of ACDUTRA in 1988. As discussed above, the Veteran was involved in an April 1988 in-service MVA. Currently, the Veteran has residuals of a post-service right hip dislocation. Therefore, the first two Shedden elements necessary to establish service connection have been met. In April 1988 the Veteran was involved in an in-service MVA, where he bruised his right hip. X-rays taken at the time were “negative” for any damage to the joint, and no fractures or dislocation to the hip, pelvis or femur was present. Treatment notes in the aftermath, such as on April 15, 1988, show that the Veteran reported a decrease in pain and tension. Less than two weeks later, the Veteran reportedly had no more complaints of pain in his hip. In a May 1989 physical examination, the Veteran denied any hip problems, and none were noted by the physician. In March 1990, the Veteran told a physician that he was in “excellent health” and denied any health problems generally and hip problems specifically. In December 1993 the Veteran was in an MVA, where he complained of neck and right-leg pain in the aftermath. However, the Veteran’s treatment records are silent of complaints of, or treatment for, any right hip issues until his September 1995 MVA, at which time the Veteran suffered a dislocated right hip. However, other than treatment of the immediate aftermath, the Veteran’s medical record is remarkably silent for any right hip complaints. In September 2017, the Veteran was examined by Dr. P. After reviewing the Veteran’s STRs, Dr. P. concluded that the only in-service injury to the Veteran’s right hip was a “hematoma contusion” as a result of his April 1988 MVA. In effect, Dr. P.’s findings show that the Veteran suffered a bruise to his right hip after the April 1988 MVA. Dr. P. noted that the Veteran had follow-up visits to treat the bruise in April 1988, and then nothing until a “flare-up” in June 2005, after the Veteran’s numerous post-service MVAs in 1993 and 1995. Dr. P. offers no discussion on the effect, if any, of the post-service MVAs on the Veteran’s current hip condition, nor does Dr. P. address the fact that in 1995 the Veteran dislocated his right hip. Despite this, opined that the Veteran’s right hip disability is “more likely than not” related to the Veteran’s military service. As with the evaluations of the Veteran’s back and neck disabilities, Dr. P.’s opinion is inadequate for adjudication purposes as it does not address the Veteran’s in-service assertions that his health was “excellent,” nor does he discuss the impact of the Veteran’s post-service injuries to his right hip. In November 2011 the Veteran submitted a “VAE Nexus Opinion” from Dr. B. In Dr. B.’s opinion, the Veteran’s right hip “degenerative joint disease” is “likely due to his accidents in service.” The Board notes that the Veteran has no diagnosis of “degenerative joint disease” regarding his right hip, and Dr. B. does not provide an explanation as to how he arrived at that diagnosis. A right-hip x-ray from March 2011 showed no degenerative changes. Dr. B. continued, stating that “There are similar associations between low back inquires[sic] and hip injuries,” but does not provide any additional explanation or evidence to support his conclusion. As with his opinions regarding the Veteran’s neck and back injuries, Dr. B. concedes that the Veteran’s post-service MVAs “could have also caused his … hip injuries, but it is impossible (without x0rays[sic] and fill records form[sic] those accidents) to tell.” As noted previously, there is medical imaging performed of the Veteran’s hip after his post-service MVAs as well as treatment records. Again this opinion contains some important factual inaccuracies and unsupported diagnosis, and does not adequately address the Veteran’s post-service right hip injuries. A such, the Board finds that it has little probative weight. In December 2019 the Veteran was seen for a VA examination to determine the etiology of the Veteran’s current right hip disability. The examiner noted that the Veteran’s “right hip injury due to MVA [April 1988] was an acute injury only,” and that there is no “chronicity of care,” since the “records were further silent for the right hip condition after April 1988.” The examiner opined that the Veteran’s “current right hip condition is related to the post service right hip dislocation.” This opinion was based on a review of the Veteran’s STRs and post-service medical treatment records, including imaging done after the April 1988 MVA, the 1995 MVA, and March 2011. As noted above, the Veteran sought no treatment for a right hip condition until his 1995 post-service MVA, prior to which the explicitly denied any right hip issues. The Board finds that the Veteran’s contemporaneous statements made to treatment providers, such as when he declared himself in “excellent health,” to be more probative than his current statements regarding the onset of his right hip pain. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010); Curry v. Brown, 7 Vet. App. 59 (1994). The Board also finds that the December 2019 VA examiners’ opinions to be more probative and credible than the statements provided by Dr. P. and Dr. B. The VA examiner addressed the Veteran’s lay statements, his contemporaneous statements made for the purposes of seeking medical treatment, and his STRs as well as his post-service medical treatment records. As Dr. P. did not provide a rationale as to why the Veteran’s in-service MVA was a more likely cause for his current conditions rather than his post-service MVAs, nor did Dr. P. address statements in the record made by the Veteran that run counter to his conclusion, Dr. P.’s opinions regarding the etiology of the Veteran’s conditions have less probative value than the December 2019 VA examiner, and the contemporaneous statements made by the Veteran for the purposes of seeking medical treatment. As discussed above, the factual inaccuracies and lack of adequate rationale provided by Dr. B. are such that the Board does not find his opinion to sufficient probative value for the purposes of determining the etiology of the Veteran’s right hip condition. Given the lack of competent and credible evidence in support of the claim, the evidence is against a finding of a nexus between the Veteran’s current right hip disability and his 1988 in-service accident. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107 (b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 4. Entitlement to service connection for the residuals of a traumatic brain injury, also claimed as headaches The Veteran claims his current condition, alleged to be the residuals of a TBI, and in the alternative claimed as chronic headaches, is the result of his active duty military service. The Veteran currently has no diagnosed TBI, but the Veteran has been diagnosed with a headache condition, and therefore the first Shedden element has been met. There is no competent or credible evidence to show that the Veteran injured his head while he was in the military. As noted above, the only injury the Veteran suffered in the April 11, 1988 MVA was an acute bruise to his right hip. The Veteran explicitly denied injuring his head at the time. The Veteran did not complain of any headaches or head injury in his follow up appointments on the 15th, 19th, 20th, and 29th of April, 1988. In a May 1989 enlistment examination, the Veteran specifically denied any previous head injuries. In a treatment note, dated after September 1989, the Veteran described his own health as “good.” In a March 1990 medical evaluation, the Veteran denied having “frequent or severe headaches,” specifically denied any head injury, nausea, or vision issues. Other than noting a history of rectal bleeding, the March 1990 doctor found no evidence of health issues. A March 2011 VA examination found that “the reports from 1988 do not reference a head injury in associated with an MVA,” nor could they “find any documentation of treatment for headache in the STR’s.” The Board concedes that a February 2020 VA examination shows that the Veteran had an “acute” TBI that has since “resolved.” However, the VA examiner’s diagnosis is based solely on the Veteran’s own reporting of his medical history. As stated in the examiner’s report, “the Veteran stated he had a TBI in March 1989” when he was in an MVA, and afterwards complained of “having headaches, nausea, and seeing flashlights.” As discussed in-depth above, the Veteran was not diagnosed with a TBI after his in-service MVA, nor was he diagnosed with a TBI after his numerous post-service MVAs. The Veteran specifically denied injuring his head while in the military on multiple occasions, and also denied experiencing nausea, headaches, and vision problems. The Board finds that the Veteran’s contemporaneous, in-service statements regarding the fact that he did not suffer any head injury during his military service to be more probative than the recent statements regarding the MVA made almost 33 years after the fact. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010; Curry v. Brown, 7 Vet. App. 59 (1994). For the reasons set forth above, the Board finds that there is no competent or credible evidence to show that there was an in-service event, accident, or injury wherein the Veteran injured his head. Therefore, the second Shedden element necessary to establish service connection has not been met, and the Veteran’s claim must be denied. (Continued on the next page)   In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107 (b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, Associate 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.