Citation Nr: 0306201 Decision Date: 04/01/03 Archive Date: 04/10/03 DOCKET NO. 98-13 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for degenerative arthritis of the lumbar and thoracic spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his wife, his son ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran served on active duty from November 1942 to March 1943. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) at Muskogee, Oklahoma. In a May 2002 decision, the Board reopened the claim on the basis of new and material evidence. Pursuant to its authority under 38 C.F.R. § 19.9(a)(2) (2002), the Board carried out the development of additional evidence pertinent to the claim. Both medical evidence dated shortly after the time of the veteran's service and current medical evidence indicates that the arthritis disability in concern in this case affects the thoracic, as well as the lumbar, segments of the spine. The Board has revised the description of the issue on appeal to reflect what the evidence shows. FINDINGS OF FACT 1. The veteran has been notified of the evidence and information needed to substantiate his claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. Current x-rays have disclosed advanced degenerative arthritis in the lumbar and thoracic segments of the veteran's spine. 3. X-rays taken within one year after the veteran's separation from service disclosed chronic, slight hypertrophic arthritis of the 12th dorsal (thoracic) and 1st lumbar vertebra. CONCLUSION OF LAW The degenerative arthritis of the lumbar and thoracic spine currently exhibited by the veteran is related to the arthritis that he was found to have within one year after his separation from active service and is therefore presumed to be of service onset. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION i. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000), see 38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2002), (the VCAA), enacted November 9, 2000, contains extensive provisions potentially affecting the adjudication of claims pending before VA as of that date. The statute significantly heightens what were the duties of VA under former law to assist the claimant in development of evidence, and to provide the claimant with certain notices, pertinent to the claim, and it requires that these duties be fulfilled before the claim is adjudicated. Regulations implementing the VCAA have been promulgated. See 66 Fed. Reg. 45,620-32 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002)). The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical and lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must indicate which evidence the claimant is finally responsible for obtaining and which evidence VA will attempt to obtain on the claimant's behalf. Id. Specific guidelines concerning the content of this notice are found in the implementing regulations. 38 C.F.R. § 3.159(b). The VCAA and the implementing regulations require VA to make reasonable efforts to obtain records pertinent to the claim and to notify the claimant if the records could not be secured. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1)-(3). The implementing regulation prescribes the content of the notice that VA must give to a claimant if it is unable to obtain records pertinent to the claim. 38 C.F.R. § 3.159(e). Furthermore, when the records are in the custody of a federal department or agency, the VCAA and the implementing regulations require VA to continue to try to obtain them until it has been successful unless it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2). In addition, the VCAA and the implementing regulations require VA to supply a medical examination or opinion when such is necessary to make a decision on a claim for compensation. 38 U.S.C.A. § 5103(A); 38 C.F.R. § 3.159(c)(4). The claim that the Board will decide on this appeal was pending before VA on the effective date of the VCAA. Therefore, it is a claim to which the VCAA and its implementing regulations apply. See Holliday v. Principi, 14 Vet. App. 280 (2001) (the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim). On several occasions, VA has informed the veteran and his representative in writing of the type of evidence that would substantiate this claim. In such notices, it has explained the respective responsibilities of the veteran and VA in the effort to obtain such evidence. VA has secured the medical records and the medical examination and opinion thought necessary to decide the claim. Through these efforts, VA has developed a record that now permits it to decide the claim. In the decision that follows, the claim is granted. Accordingly, its purposes having been fulfilled, the statute calls for no additional action on the part of VA in conjunction with this claim. 38 U.S.C.A. § 5103A(a)(2). ii. Service connection Degenerative arthritis of the lumbar and thoracic spine In general, service connection may be awarded when a veteran has a disability resulting from injury or disease incurred in or aggravated by "active service." 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The conclusion that a disability is service connected always requires proof by competent evidence of three basic propositions: the existence of current disability, the incurrence or aggravation of an injury or disease during service, and a nexus, or causal relationship, between that in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Furthermore, these essential elements of a service connection claim must be shown by competent evidence, which may be lay or medical depending on the proposition in concern. Grottveit v. Brown, 5 Vet. App. 91 (1993). Although lay evidence is considered competent to establish facts subject to lay understanding, medical evidence is required when the proposition to be proven is medical in nature, such as medical nexus, etiology, or diagnosis. Voerth v. West, 13 Vet. App. 117, 120 (1999). The general elements of a service connection claim may be demonstrated in different specific ways. These include proof based on the post-service diagnosis of the disability in concern. Thus, service connection may be granted for any disease diagnosed initially after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Moreover, if a veteran with 90 days or more of continuous active service develops arthritis to a compensable degree within one year of separation from active duty, the disease will be presumed to have been incurred in service even absent evidence to that effect unless there is affirmative evidence to the contrary (including a showing of an intercurrent cause for the disease). 38 U.S.C.A. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2002). Thus, a claim for VA benefits will be granted unless a preponderance of the evidence of record weighs against it. 38 U.S.C.A. § 5107(b). Medical evidence in this case shows that in December 1943, within one year after he was separated from active service on grounds of an arthritis disability of the sacroiliac joints, the veteran was given a VA examination during which x-rays taken disclosed "[a]rthritis, hypertrophic, chronic, slight of the 12th dorsal and 1st lumber [sic] vertebra." The report of the examination also discloses that, while his spine motion was not generally limited, it was limited to the degree that he had difficulty bending over. Thus, the Board finds that the veteran exhibited arthritis not only within one year after his active service but also, at that time, to a compensable degree. See 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5003, 5291, 5292, 5295 (2002). Accordingly, the arthritis of the thoracic and lumbar spine documented in December 1943 is presumed to have been present during the veteran's active service. 38 U.S.C.A. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is supported by service medical records of the veteran showing that from February 1943 until the time of his March 1943 discharge, he was confined to a military hospital with pain from what was diagnosed as arthritis of the sacroiliac joints, of unknown etiology. The presumption is not defeated by any showing in the medical treatment records or citation in any of the medical opinion on file of a cause intervening between the veteran's service and the manifestation of arthritis in December 1943. A nexus between the arthritis presumed to have been present during service and his current degenerative arthritis of the lumbar and thoracic spine is shown to a sufficient degree by the medical findings and opinions of record. In September 1998 and September 1999, respectively, two written opinions were furnished by Clayton Flanary, D.O. Dr. Flanary concluded that it as likely as not that the painful arthritis condition of the spine manifested by the veteran currently was related to the painful arthritis condition of the spine for which he was treated in the hospital during service. Dr. Flanary observed in support of this conclusion that the service medical records of the veteran, including his entrance examination report, which noted no abnormality of the musculoskeletal system, did not support an inference that the painful arthritis for which he was hospitalized during service existed before service or was part of a disease process that had begun before service. The same observation was made by a VA physician in a January 2003 written opinion supplementing a September 2002 examination report. Thus, the Board is persuaded by Dr. Flanary's conclusion. Accordingly, the Board determines that service connection for degenerative arthritis of the lumbar and thoracic spine should be granted. 38 U.S.C.A. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. ORDER The claim of entitlement to service connection for degenerative arthritis of the lumbar and thoracic spine is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, 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.