Citation Nr: 0206846 Decision Date: 06/25/02 Archive Date: 07/03/02 DOCKET NO. 95-42 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for osteoporosis and residuals of a compression fracture of the thoracic spine. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Associate Counsel INTRODUCTION The veteran served on active duty from November 1962 to August 1985. This case comes before the Board of Veterans' Appeals (Board) from a March 1994 rating decision rendered by the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA) in which entitlement to service connection for degenerative arthritis of the thoracic spine was denied. In his notice of disagreement, filed in April 1994, the veteran also mentioned fracture of T-8 and T-9. The February 1995 statement of the case listed the issue as service connection for compression fracture of T-8 with traumatic arthritis, thoracic spine. At his hearing before the undersigned Member of the Board in December 1996, the veteran broadened the issue on appeal to include the general issue of service connection for thoracic spine disability, and this was the issue listed in the Board's March 1997 remand. A July 2001 rating decision partially granted the veteran service connection for the issue on appeal and awarded the veteran a 10 percent rating for degenerative joint disease of the thoracic spine effective from March 1993. The RO also specifically denied service connection for osteoporosis and for residuals of a compression fracture of the thoracic spine, and issued a supplemental statement of the case concerning these issues during that same month. Consequently, these are the remaining issues on appeal before the Board. FINDINGS OF FACT 1. All evidence requisite for equitable disposition of the veteran's claim for service connection has been obtained and examined, and all due process concerns as to the development of the claim have been addressed. 2. Thoracic spinal disabilities, osteoporosis and residuals of a compression fracture, of unspecified etiology are first shown many years after the veteran's separation from service, and are not shown to be related to that service. CONCLUSION OF LAW Thoracic spinal disabilities, osteoporosis and residuals of a compression fracture, were not incurred in or aggravated by wartime service, nor may any such disabilities be presumed to have been incurred during such service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1137 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection is granted for a disability resulting from an injury suffered or disease contracted while in active duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. § § 1110, 1131 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303 (2001). In addition, certain disorders may be presumed to have been incurred during service when manifested to a compensable degree within a specified time (usually one-year) following separation from service. See 38 C.F.R. §§ 3.307, 3.309 (2001). Service connection is also warranted where the evidence shows that a disability is proximately due or the result of an already service-connected disability. See 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp. 2001); 38 C.F.R. § 3.310(a) (2001); Allen v. Brown, 7 Vet. App. 439 (1995). The Board must also determine if there is competent evidence to show that the claimed disability is in fact a secondary result of a service-connected disability. The veteran contends that he currently suffers from thoracic spinal disabilities, osteoporosis and residuals of a compression fracture, as a result of his activities during service and that service connection for his thoracic spinal disabilities is appropriate. The veteran also contends that his service connected degenerative arthritis disability caused a compression fracture of the thoracic spine and also contributed to osteoporosis. After a review of the evidence, the Board finds that his contentions are not supported by the record, and that his claim for service connection for thoracic spinal disabilities, osteoporosis and residuals of compression fracture, must fail. I. Entitlement to Service Connection for Thoracic Spinal Disability The veteran claims that part of his service medical records are unavailable, including clinical treatment records and a radiology report from a back injury occurring in 1977. The National Personnel Records Center reported in 1997 that they did not have such records for the veteran, as did the VA Records Management Center. The record of evidence includes service medical records starting with an enlistment examination report from October 1962, VA outpatient treatment records, independent medical opinions procured by VA, and statements by the veteran to support his claim. The veteran's service medical records indicate that he suffered a back injury in December 1977. The examination report classified the injury as lumbosacral strain. The veteran's May 1985 retirement examination report noted that he had suffered arthritis, swollen painful joints, and joint deformity in his right hip. The veteran's service medical records do not contain a diagnosis of osteoporosis or of a compression fracture of the thoracic spine. In a January 1992 VA examination report, the examiner stated that a recent fall caused a compression fracture in the veteran's thoracic spine. A March 1993 VA examination report stated that after a motor vehicle accident injury, the veteran had no evidence of an acute fracture but a chronic compression fracture in his thoracic spine. The examiner also noted that mild osteopenia was evident in the veteran's thoracic spine. Both of these incidents occurred after service and neither examiner linked these injuries to the veteran's active military service. Two statements from Dr. Isales addressed the nature of the veteran's thoracic spinal disability. Dr. Isales stated that the veteran has marked degenerative changes in his spine with multiple osteophyte formations. When asked to elaborate on his statement, Dr. Isales provided the opinion that the veteran's degenerative arthritis is worsened by osteoporosis; he identified osteoporosis and arthritis as separate disabilities. Dr. Isales did not, however, relate the veteran's osteoporosis to his active military service. VA also obtained an independent medical opinion from Dr. Young. He stated in his January 2001 report that osteoporosis caused the veteran's bones to fracture with a fall, not arthritis. Dr. Young also reiterated that the veteran's medical records did not contain evidence of compression fractures prior to 1992. The Board acknowledges that the veteran, at his personal hearing, testified that he has degenerative arthritis of the thoracic spine. The veteran's DD Form 214 indicates that he served as a medical NCO and as a practical nurse. Other information of record indicates that the veteran mainly served in medical administration, except when he was in Vietnam. This medical background, however, does not demonstrate that the veteran has the medical expertise that would render competent his statements as to the relationship between an injury in service, his service-connected disability of degenerative arthritis of the thoracic spine, and his current thoracic disabilities of osteoporosis and residuals of a compression fracture. Therefore, his opinion alone cannot meet the burden imposed by 38 C.F.R. § 3.303 with respect to the relationship between his current disability and his service-connected arthritic disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veterans' statements qualify, however, as competent lay evidence. Competent lay evidence is any evidence not requiring that the proponent to have specialized education, training, or experience. Lay evidence is considered competent if it is provided by a person who has knowledge of facts or circumstances and who can convey matters that can be observed and described by a layperson. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159(a)(1)). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159(a)(2)). Competent medical evidence is considered more probative than competent lay evidence. In brief, the record does not show that the veteran's thoracic spinal disabilities, osteoporosis and residuals of compression fracture, were incurred in or aggravated by service. Since evidence of these thoracic spinal disabilities did not occur until years following the veteran's separation from service, it cannot be presumed that any osteoporosis or residuals of a compression fracture now present in the thoracic spine were incurred during service. See 38 C.F.R. §§ 3.307, 3.309. A medical opinion by Dr. Young identifies osteoporosis -- not degenerative arthritis - - as the cause of the veteran's compression fracture of the thoracic spine. The veteran was not diagnosed with osteoporosis or compression fractures until after service, and neither of these disabilities was otherwise shown during the veteran's active military service. The veteran is already service connected for degenerative arthritis of the thoracic spine. However, no medical evidence demonstrates any relationship linking the veteran's osteoporosis and/or compression fractures with disease or injury during his active military service, including his service connected disability of degenerative arthritis. The Board finds that the veteran's claim for service connection of thoracic spinal disabilities, osteoporosis and residuals of a compression fracture, must be denied. II. Duty to Assist A change in the law, on November 9, 2000, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits. See Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100 et. seq. (West Supp.). Implementing regulations for VCAA have been published. 66 Fed. Reg. 45,620 (Aug. 29,2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). Except for amendments not applicable, these provisions of the regulations merely implement the VCAA and do not provide any rights other than those provided by the VCAA. 66 Fed. Reg. 45,629 (Aug. 29, 2001). The Board notes that the RO notified the veteran concerning the VCAA in April 2001. The RO advised the veteran of the evidence necessary to support his claim for entitlement to service connection for thoracic spinal disabilities, osteoporosis and residuals of compression fracture. The veteran has not indicated the existence of any pertinent evidence that has not already been requested, obtained, or attempted to be obtained. As discussed above, the RO made all reasonable efforts to obtain relevant records adequately identified by the veteran. Except for the possible additional service medical records related to the 1977 injury, all evidence identified by the veteran relative to this claim has been obtained and associated with the claims folder. As for the possible additional service medical records from 1977, neither the Eisenhower Army Medical Center, nor the National Personnel Records Center, nor the VA Records Management Center have any such records. Consequently, the Board concludes that it is reasonably certain that such records do not exist and that further efforts to obtain these records would be futile. Moreover, the veteran is aware of VA's unsuccessful attempts to obtain these records. He was so notified in the July 2001 rating decision and supplemental statement of the case. In fact, the veteran himself had made earlier, unsuccessful attempts to obtain these records. The veteran was scheduled for several VA examinations and independent medical opinions. Nonetheless, the record does not contain competent evidence that indicates that the claimed disability may be associated with the reported injury during the veteran's military service. The Board finds that VA's duty to assist the claimant under applicable provisions has been satisfied. ORDER Entitlement to service connection for osteoporosis and residuals of a compression fracture of the thoracic spine is denied. MARY GALLAGHER Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.