Citation Nr: 0810228 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 04-14 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for a thoracic spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant & her husband ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from November 1979 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the veteran's claims of service connection for hypertension, disabilities of the cervical, thoracic, and lumbar spines, a left elbow disability, a left shoulder disability, a right shoulder disability, a skin rash, a left eye disability, a right eye disability, and gastroesophageal reflux disease (GERD). The veteran disagreed with this decision in July 2003. She perfected a timely appeal in March 2004 and requested a Travel Board hearing which was held at the RO in April 2006. In statements made on the record at her April 2006 Travel Board hearing, the veteran withdrew her claims of service connection for a left elbow disability, a left shoulder disability, a right shoulder disability, a skin rash, a left eye disability, a right eye disability, and GERD. See 38 C.F.R. § 20.204(b)(1). In June 2006, the Board remanded the veteran's claims to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. In an October 2007 rating decision, the RO granted the veteran's claim of service connection for a lumbar spine disability (which it characterized as degenerative disc disease, L4-5, with osteoarthritis of the lumbar spine), assigning a 40 percent rating effective October 23, 2002. This decision was issued to the veteran and her service representative in January 2008. There is no subsequent correspondence from the veteran or her service representative expressing disagreement with the rating or effective date assigned. Accordingly, an issue relating to a lumbar spine disability is no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's service connection claims for hypertension, a cervical spine disability, and for a thoracic spine disability has been obtained. 2. The veteran's currently diagnosed hypertension and cervical spine disability are not related to active service. 3. The veteran's currently diagnosed thoracic spine disability is considered a congenital or developmental defect and is not related to active service. CONCLUSIONS OF LAW 1. Hypertension was not incurred during active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2007). 2. A cervical spine disability was not incurred during active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2007). 3. A thoracic spine disability was not incurred during active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304, 4.9 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In an October 2002 letter, VA notified the veteran of the information and evidence needed to substantiate and complete her claims, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the veteran to submit medical evidence, statements from persons who knew the veteran and had knowledge of her disabilities during service, and noted other types of evidence the veteran could submit in support of her claims. The veteran was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has substantially satisfied the requirement that the veteran be advised to submit any additional information in support of her claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Pursuant to the Board's June 2006 remand, additional notice of the five elements of a service-connection claim was provided in June 2006 and January 2008, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, the Board finds that VA met its duty to notify the veteran of her rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the October 2002 letter was issued to the veteran and her service representative prior to the March 2003 rating decision which denied the benefits sought on appeal; thus, this notice was timely. Since the veteran's service connection claims for hypertension, a cervical spine disability, and for a thoracic spine disability are being denied in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the veteran. See Dingess, 19 Vet. App. at 473. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording her the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issues here on appeal have been obtained and are associated with the veteran's claims file. Pursuant to the Board's June 2006 remand, the RO provided the veteran with VA examinations to determine the nature and etiology of her hypertension, cervical spine disability, and thoracic spine disability. Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and that no further action is necessary to meet the requirements of the VCAA. The veteran contends that she incurred hypertension, a cervical spine disability, and a thoracic spine disability during active service. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. Where a veteran served ninety days or more during a period of war or after December 1, 1946, and certain chronic diseases, including hypertension, become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. A review of the veteran's service medical records indicates that she denied any relevant medical history at her enlistment physical examination in August 1979. Clinical evaluation was completely normal. In April 1981, the veteran complained of low back pain and gradual onset of bilateral shoulder pain radiating occasionally down her arms. X-rays showed cervical syndrome. Objective examination showed slight left thoracic scoliosis, a very flat thoracic area, tenderness to palpation at the interspaces of T12-L2 vertebra, and tenderness to palpation in the paravertebral muscles, low cervical, and mid to upper thoracic area. The assessment was bilateral musculoskeletal pain in the cervical and thoracic area and scoliosis. In March 1982, the veteran complained of low back pain that worsened on lifting, bending, or extensive running or walking. Objective examination showed tenderness to palpation of the vertebral spine and paraspinous muscle spasm. The assessment was lumbar muscle strain. In May 1982, the veteran complained of low back pain after pulling a muscle in her back while lifting weights. Objective examination showed decreased range of motion. The assessment was low back pain with paraspinous muscle spasm. In August 1982, the veteran complained of recurrent low back pain due to heavy lifting. Objective examination showed good standing posture, sitting slouched, flexion and extension were 50 percent of normal, and no significant palpable tenderness. X-rays of the lumbar spine were negative. The assessment was resolving low back strain with limited mobility. The veteran reported a history of recurrent back pain at her separation physical examination in September 1982. The in- service examiner stated that this referred to occasional back pain. Clinical evaluation was completely normal. The post-service medical evidence shows that the veteran went to the emergency room in June 2000 complaining of weakness in her left side and left upper extremity and left-sided facial drooping. Her medical history included hypertension. Physical examination showed blood pressure of 143/98 on admission. The impressions included a history of longstanding hypertension. On private outpatient treatment in July 2000, objective examination showed blood pressure of 136/80. The impressions included hypertension. Following private outpatient treatment in September 2001, the impressions included hypertension. On private outpatient treatment in June 2002, the veteran complained of two weeks of insidious onset mid-back pain which was positional and exacerbated by sitting "in a lazy boy chair." She denied any recent history of trauma. Physical examination showed blood pressure of 150/100, an essentially negative orthopedic evaluation, right paralumbar spasms, and a minimally decreased range of motion in the dorso-lumbar spine. The diagnosis was lumbalgia. A review of private outpatient treatment records from U.N., M.D., shows that the veteran was treated for hypertension between 2003 and 2006. In a March 2006 letter, Dr. U.N. stated that the veteran had been her patient for several years and suffered from chronic hypertension and back pain. Private x-rays of the veteran's thoracic spine in May 2006 were unremarkable. On private computerized tomography (CT) scan of the veteran's neck in July 2006, degenerative changes of fairly prominent cervical spondylosis of the upper cervical spine were noted. In a September 2006 letter, H.P., M.D., stated that the veteran continued to be treated for hypertension "which she has had for over the past twenty-four years." Dr. H.P. stated that the veteran's service medical records "indicate a prior condition of hypertension." On VA spine examination in May 2007, the veteran complained of severe neck pain, constant thoracic spine pain, and pain in her low back that occurred intermittently after prolonged sitting. She reported a history of back pain that started while she was in basic training during active service. The VA examiner reviewed the veteran's claims file, including her service medical records, and noted that there was no pathology for the thoracic spine other than scoliosis and there was no record of any chronic cervical spine injury during or after active service. The veteran denied any flare-ups of back pain. Physical examination showed no objective abnormalities of the cervical or thoracic sacrospinalis except for pain on motion and tenderness to palpation, no abnormal gait, normal posture and head position, no abnormal spinal curvatures, full strength in all muscles, normal sensation in all extremities, and no cervical or thoracic spine ankylosis. Range of motion testing of the cervical spine showed flexion to 20 degrees actively and passively (with normal being 45 degrees), extension to 20 degrees actively and passively (with normal being 45 degrees), lateral bending to 15 degrees in each direction actively and passively (with normal being 45 degrees), and rotation to 40 degrees in each direction actively and passively (with normal being 80 degrees). There was no additional limitation of motion due to pain, fatigue, weakness, lack of endurance, or incoordination following repetitive use. X-rays of the thoracic spine showed levoscoliosis of the low thoracic spine and an otherwise normal thoracic spine. X-rays of the cervical spine showed disc disease at C3-C4 and C5-C6 associated with osteoarthritis and reversed curvature at C3-C4. The VA examiner determined that the veteran's thoracic scoliosis was less likely than not related to active service because this was a congenital or development defect that was unrelated to active service. The VA examiner also determined that the veteran's disc disease at C3-C4 and C5-C6 associated with osteoarthritis was less likely than not related to active service because there was no chronic disability noted in the claims file which would support the cervical spine condition. The diagnoses included disc disease at C3-C4 and C5-C6 associated with osteoarthritis and thoracic scoliosis. On VA hypertension examination in May 2007, the veteran complained of high blood pressure since active service. The VA examiner reviewed the veteran's claims file, including her service medical records. Physical examination showed blood pressure of 138/100, 138/96, and 140/100. The VA examiner determined that the veteran's hypertension was less likely than not related to active service because a review of the claims file showed no diagnosis and treatment for hypertension during active service or within the first post- service year. The diagnosis was hypertension. The Board finds that the preponderance of the evidence is against the veteran's claim of service connection for hypertension. As the VA examiner noted in May 2007, there is no evidence of a diagnosis of or treatment for hypertension during active service or within the first post-service year. Thus, the chronic disease presumptions normally available for hypertension are not applicable. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. It appears that the veteran was first treated for hypertension in June 2000, or nearly 18 years after service separation in November 1982. With respect to negative evidence, the fact that there was no record of any complaint, let alone treatment, involving the veteran's condition for many years is significant. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). The post-service medical evidence shows continuing treatment for hypertension; however, as the VA examiner determined in May 2007, the veteran's currently diagnosed hypertension is less likely than not related to active service because she was not treated for hypertension during active service or within the first post-service year. The Board notes that Dr. H.P. concluded in September 2006 that the veteran's service medical records "indicate a prior condition of hypertension." It appears that Dr. H.P. based his September 2006 opinion solely on the history provided by the veteran which is not supported by the record. For example, the veteran's report of in-service treatment for hypertension is not supported by a review of her service medical records. Thus, it is clear that the September 2006 opinion is merely a recitation of the veteran's own contention; there is no indication that the examiner was rendering a medical opinion as to the date of onset based on the clinical or objective evidence. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Additional evidence in support of the veteran's service connection claim for hypertension is her own lay assertions and April 2006 Travel Board hearing testimony. As a lay person, the veteran is not competent to opine on medical matters such as the etiology of medical disorders. The record does not show, nor does the veteran contend, that he has specialized education, training, or experience that would qualify him to provide an opinion on this matter. Accordingly, the veteran's lay statements are entitled to no probative value. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997). The Board also finds that the preponderance of the evidence is against the veteran's claim of service connection for a cervical spine disability. Although the veteran was treated on one occasion during active service for complaints of musculoskeletal pain in her cervical spine, this condition was resolved by the time of her separation physical examination. Further, the veteran's service medical records show no diagnosis of or treatment for a cervical spine disability at any time during active service. Following service separation, it appears that cervical spine problems were first noted in July 2006, or nearly 24 years after service separation, when a CT scan of the veteran's neck revealed degenerative changes of fairly prominent cervical spondylosis of the upper cervical spine. As the VA examiner noted in May 2007, there is no evidence of post-service chronic disability in the objective medical evidence of record which supports service connection for a cervical spine disability. Additional evidence in support of the veteran's service connection claim for a cervical spine disability is her own lay assertions and April 2006 Travel Board hearing testimony; however, as noted above, the veteran's lay statements are entitled to no probative value. The Board further finds that the preponderance of the evidence is against the veteran's claim of service connection for a thoracic spine disability. The veteran's service medical records show that, although she was treated for musculoskeletal pain in the thoracic area in April 1981, this condition was resolved by the time of her separation physical examination. Following service separation in November 1982, there is no medical evidence of any post-service treatment thoracic spine disability until her most recent VA examination in May 2007. The VA examiner determined in May 2007 that the veteran's thoracic scoliosis was less likely than not related to active service because this was a congenital or development defect that was unrelated to active service. In this regard, the Board observes that congenital or developmental defects such as the veteran's thoracic scoliosis are not considered diseases or injuries within the meaning of VA laws and regulations. See 38 C.F.R. § 4.9 (2007). Accordingly, service connection for a thoracic spine disability is not warranted. As the preponderance of the evidence is against the veteran's claims, the benefit-of- the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a thoracic spine disability is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs