Citation Nr: 0813251 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 05-03 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a thoracic spine disability to include thoracic pain and residuals of fractures of the thoracic spine. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Horrigan INTRODUCTION The veteran, who is the appellant, served on active duty from January 1954 to November 1957 and from March 1959 to December 1960. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2003 of a Department of Veteran's Affairs (VA) Regional Office (RO). In August 2006, the veteran appeared at a hearing before a Veterans Law Judge, who is no longer at the Board. A transcript of the hearing is in the record. In February 2008, the veteran waived the right to have another Board hearing. In August 2006, the Board remanded the claim for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). In an unappealed rating decision in February 1958, the RO denied service connection for a disability of the lumbosacral spine. As the current claim of service connection involves the thoracic segment of the spine, it is a new claim, which is not subject to finality of the rating decision of February 1958. Boggs v Peake, 07-7137 (Fed. Cir. Mar. 26, 2008). FINDING OF FACT The current thoracic pain and residuals of fractures of the thoracic pain are unrelated to an injury, disease, or event of service origin. CONCLUSION OF LAW Service connection for a thoracic spine disability to include thoracic pain and residuals of fractures of the thoracic spine was not incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and implemented in part at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in his possession that pertains to a claim. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post- adjudication VCAA notice by letters dated in October 2002 and in September 2006. The VCAA notice included the type of evidence needed to substantiate the claim of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during active service; evidence of current disability; evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during active service. The veteran was also notified that VA would obtain service records, VA records, and records from other Federal agencies, and that he could submit private medical records or authorize VA to obtaining private medical records on his behalf. The veteran was asked to submit any evidence that would include that in his possession. The notice included the provisions for the effective date of the claim and for the degree of disability assignable. As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of a claim for service connection). To the extent that the VCAA notice was provided after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided substantial content-complying VCAA notice the claim was readjudicated as evidenced by the supplemental statement of the case, dated in July 2007. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service records and VA records and afforded the veteran a VA examination and obtained a VA medical opinion. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Factual Basis The service medical records show that on a report of a Medical Board in March 1960 it was noted that in January 1960 the veteran was diagnosed with herniated discs at thoracic (T) vertebrae 6 and 7. At the time, the veteran complained of radicular pain in the left chest extending to the scapula with onset in 1954 on active duty. On evaluation by the Medical Board, the neurological examination was negative except of tenderness to the left of the T6 vertebra. X-rays were negative except for scoliosis of the thoracic spine. A myelogram of the cervical region was negative. The Medical Board changed the diagnosis to left, chronic radiculoneuritis, T6, of unknown cause. The Physical Evaluation Board found the veteran unfit for duty and placed him on the Temporary Retired List. In August 1960, the veteran's case was reviewed by the Physical Review Council. The Physical Review Council found that the diagnosis of radiculoneuritis, T6, was not substantiated by the Medical Board and therefore the veteran could not be considered unfit because of it. In October 1960, the Physical Evaluation Board reconvened and found the veteran unfit for duty due to inadequate personality, and the veteran was subsequently administratively discharge from the service. After service, private medical records disclose that in August 1967 the fell 40 to 50 feet from a scaffold, resulting in fractures of several ribs and of the thoracic spine. In May 1968, a private physician reported that the injury involve a fracture of the left scapula. On VA examination in September 1968, the diagnosis was residuals of compression fractures of T-9, 10, and 11 with spinal fusion, which was associated with the fall in August 1967. In August 2006, the veteran testified that during his first enlistment he slipped on ice in a freezer while carrying a hind quarter of beef and he hurt his back and it felt like a pinched nerve. He stated that later he injured his back, playing football and he was sent home to await discharge. He also stated that after service in 1967 he fell about 40 feet, landing on his back, and crushed two vertebrae in the thoracic spine. On VA neurological examinations in January and May 2007 by the same examiner, the veteran gave a history of sustaining an injury to the upper back in 1956 while working as a butcher's aid during service. Thereafter he experienced tingling and pain in the left lower scapula without associated weakness. The veteran stated that the symptoms subsided until a football injury in 1960, resulting in left scapula pain which radiated into the thoracic area, which has persisted and progressed ever since. After a review of the record, the VA examiner found no clear evidence of thoracic radiculitis. The examiner stated that the veteran had thoracic pain in the distribution of the injury in 1967, which was unrelated to service. The examiner noted that a bone scan in April 2006 did not show activity in the area of the T6 and T7. The impressions were history of compression fracture at T8-T9 with chronic pain with recent exacerbation unrelated to military service and chronic mid left thoracic pain with anterior radiation of unclear etiology. Principles of Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. § 1131. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required 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 or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Analysis Although the veteran asserts that he injured his back twice during service, neither injury is documented. The service medical records do show that in January 1960 the veteran was diagnosed with herniated discs at thoracic (T) vertebrae 6 and 7. At the time, the veteran complained of radicular pain in the left chest extending to the scapula with onset in 1954 on active duty. On evaluation by the Medical Board, the neurological examination was negative except of tenderness to the left of the T6 vertebra. The Medical Board changed the diagnosis to left, chronic radiculoneuritis, T6, of unknown cause. The Physical Evaluation Board found the veteran unfit for duty and placed him on the Temporary Retired List. In August 1960, the veteran's case was reviewed by the Physical Review Council, which found that the diagnosis of radiculoneuritis, T6, was not substantiated by the Medical Board and therefore the veteran could not be considered unfit because of it. Although thoracic pain was document during service as the service medical records do not have the combination of manifestations sufficient to identify a chronic disability as the Physical Review Council found that the diagnosis of radiculoneuritis, T6, was not substantiated by the Medical Board and sufficient observation to establish chronicity at the time, then a showing of continuity after discharge is required to support the claim. After service, the veteran suffered fractures of the thoracic spine and left scapula in 1967. Thereafter, the next pertinent documentation of a thoracic pathology was in February 2000 when VA noted a history of crush injury of the thoracic spine in 1967. The period without documented complaints, specific to the complaints the veteran had in service, that is, from 1960 is evidence against continuity of symptomatology. 38 C.F.R. § 3.303(b); Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). And the Board finds the absence of medical evidence of continuity of symptomatology outweighs the veteran's statements and testimony of persisted and progressed thoracic symptoms since service. To the extent that lay evidence can be competent to establish a diagnosis of a medical condition, a layperson is competent to identify a medical condition where the condition is a simple one. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, residuals of any thoracic trauma is not a condition under case law, where lay observation has been found to be competent and the determination as to the presence of the disability is medical in nature, that is, not capable of lay observation. See Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical evidence unless it relates to a condition as to which, under case law, lay observation is competent); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Where as here, the medical diagnosis of a thoracic trauma is not capable of lay observation, the lay evidence as to the presence of such a disability is not competent evidence. And while the veteran had some thoracic pain during service, pain, alone, without a sufficient factual showing that the pain is derived from an in-service disease or injury is not a disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001)). As the Board may consider only independent competent evidence to support its finding on a question of a medical diagnosis or medical causation, which are not capable of lay observation, and as there is no favorable competent medical evidence to support the claim, the preponderance of the evidence is against the claim, and the reasonable-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). (The Order follows on the next page.). ORDER Service connection for a thoracic spine disability to include thoracic pain and residuals of fractures of the thoracic spine is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs