Citation Nr: 1237647 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 08-26 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a thoracolumbar spine disability. 2. Entitlement to service connection for a thoracolumbar spine disability. 3. Entitlement to service connection for right and left hip disabilities. 4. Entitlement to service connection for right and left elbow disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from April 1970 to September 1974 and from September 1976 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In July 2010 and March 2012, the Board earlier remanded the appeal. A Travel Board hearing was held before Veterans Law Judge (VLJ) John Ormond in May 2010. After VLJ Ormond retired, another Travel Board hearing was held before the undersigned in May 2012. Transcripts of both hearings were associated with the Veteran's claims file. FINDINGS OF FACT 1. A December 1992 rating decision denied the Veteran's claim of entitlement to service connection for a thoracolumbar spine disability; the Veteran did not appeal that decision or submit new and material evidence within the one year appeal period. 2. Evidence received since the time of the final December 1992 rating decision is new, related to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a thoracolumbar spine disability. 3. The most competent and credible evidence of record does not show the Veteran being diagnosed with a right and/or a left elbow disability at any time during the pendency of the appeal. 4. The most competent and credible evidence of record does not show that the Veteran's thoracolumbar spine disability is related to service, nor is there evidence of compensable arthritis of the thoracolumbar spine within one year of service separation. 5. The most competent and credible evidence of record does not show that the Veteran's right and left hip disabilities are related to service, nor is there evidence of compensable arthritis of either hip within one year of service separation. CONCLUSIONS OF LAW 1. The December 1992 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. Evidence submitted to reopen the claim of entitlement to service connection for a thoracolumbar spine disability is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Right and left elbow disabilities were not incurred in or aggravated by active service and they may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1112, 1113, 1116, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2012). 4. A thoracolumbar spine disability was not incurred in or aggravated by active service and it may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1112, 1113, 1116, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2012). 5. Right and left hip disabilities were not incurred in or aggravated by active service and they may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1112, 1113, 1116, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See 38 U.S.C. § 5103(a). In the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). But see Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007) ( "§ 5103(a) requires only that the VA give a claimant notice at the outset of the claims process of the information and evidence necessary to substantiate the claim, before the initial RO decision and in sufficient time to enable the claimant to submit relevant evidence. This notice may be generic in the sense that it need not identify evidence specific to the individual claimant's case (though it necessarily must be tailored to the specific nature of the veteran's claim). It need not describe the VA's evaluation of the veteran's particular claim."). Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status. As to the claim to reopen, given the fully favorable decision with respect to the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a thoracolumbar spine disability, the Board finds that discussion of the VCAA notice provided to the Veteran is unnecessary, since any deficiency in the timing or content of such notice would constitute harmless error. As to the service connection claims, the Board finds that the RO's letters dated in February 2007 and April 2007 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra. Moreover, the Board finds that even if the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice in the above letters, that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above letters as well as the rating decision, the statement of the case, the supplemental statements of the case, and the Board remands. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c) (2) (2010) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearings, the Veteran was assisted at the hearings by an accredited representative and the representative and the VLJ or the Acting VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disabilities are related to his service. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or the representative. The hearings focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ and Acting VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment, as well as the Veteran's own statements in support of his claims. The Veteran has been examined by VA in connection with his thoracolumbar spine, bilateral hip, and bilateral elbow disabilities. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding these issues and substantially comply with the Board's July 2010 remand instructions. See 38 U.S.C.A. § 5103A(d); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board has reached this conclusion because the examination reports contain all the findings needed to evaluate the Veteran's claims, including the Veteran's history and physical evaluations to determine the nature and etiology of any thoracolumbar spine, hip, and elbow disabilities. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims and what the evidence in the claims folder shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The New and Material Evidence Claim Legal Criteria In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2011). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a Veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured since the last final disallowance of the claim is "new and material." As relevant to this appeal, the Board may not consider a previously and finally disallowed claim unless new and material evidence is presented. The Veteran filed his application to reopen his previously denied claim for a thoracolumbar disability in January 2007. Under the applicable version of 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as evidence not previously submitted to agency decision- makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). Analysis With the above criteria in mind, the Board notes that a December 1992 rating decision denied the claim of service connection for a thoracolumbar spine disability because, while the Veteran was treated for back pain in service, there was no current evidence of record that he had a current thoracolumbar spine disability because his August 1971 VA examination was negative for such a disability. The Veteran did not appeal the December 1992 rating decision. Moreover, the record does not show that the Veteran, following the rating decision, submitted medical documentation, lay statements, or other evidence constituting new and material evidence within the one-year appeal period. 38 C.F.R. § 3.156(b) (2012). Therefore, the Board finds that the rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). However, since the December 1992 rating decision, the Veteran was afforded a VA examination in August 2010 and at that time he was diagnosed with thoracolumbar spine degenerative joint disease. In this regard, the Board notes that in order to establish service connection for a thoracolumbar spine disability, there must be, among other things, medical evidence of a current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Therefore, the Board finds the VA examination which provided for the first time such a diagnosis is both new and material evidence as defined by regulation. See 38 C.F.R. §§ 3.156(a), 3.303; Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). The claim of entitlement to service connection for a thoracolumbar spine disability is therefore reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Service Connection Claims Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). In this case, the Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. It is noted, however, that although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. §3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is required to show this secondary cause-and-effect relationship; mere lay opinion will not suffice. See Lanthan v. Brown, 7 Vet. App. 359, 365 (1995). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. at 57. The Facts The Veteran's service treatment records show complaints of back pain secondary to muscle spasm in 1970. He also reported recurrent back pain on his military service examinations in 1970 and 1974, as well as prior to separation in 1991. The May 1991 separation examination was normal. The Veteran's service treatment records do not show any treatment for elbow or hip complaints. The Veteran's March 1970, August 1974, August 1976, and May 1991 Reports of Military History all show that the Veteran denied experiencing a painful or "trick" elbow and painful joints, as well as denied experiencing bone or joint deformities. The February 1978 Report of Physical Examination indicate that evaluation of the Veteran's spine, musculoskeletal system, and extremities was normal. His October 1992 VA examination report also indicated that the Veteran's x-rays were normal and physical examination was negative for postural abnormalities, deformity, and muscle spasm; the Veteran had pain on motion and the diagnosis was low back ache, etiology unknown. VA treatment records dated 1999 through 2007 show diagnoses of degenerative changes and osteoarthritis of multiple joints, but do not show any specific complaints related to his back, elbows, and hips. The Veteran was afforded a VA examination in August 2010 wherein he complained of back pain since 1970, but denied a history of injury or trauma. Physical examination was normal and x-rays were normal except for tiny osteophytes and minor levoscoliosis. The diagnosis was minimal degenerative changes of the lumbar spine, without loss of function. The VA examiner opined found that the Veteran's mild degenerative changes were due to aging and were not related to his complaints of back pain in service because his complaints in service were acute and resolved and his separation examination was normal. The Veteran was afforded another VA examination in November 2011. According to the report, the Veteran reported a history of elbow and hip pain since service, but denied a specific injury or trauma. He denied a history of surgery or use of braces or other assistive devices. Physical examination of both his elbows and hips was negative for painful motion, weakness, spasm, limitation of motion, or tenderness; there was no evidence of functional loss or fixed deformities. X-rays of the elbows were normal. X-rays of the hips showed degenerative joint disease bilaterally. The VA examiner concluded that the Veteran had normal elbows. The examiner also opined that the Veteran's bilateral hip disability was not caused or aggravated by his military service because his joints examinations at exit from the military was normal, he did not make any complaints during service. Lastly, the examiner opined that that the Veteran's degenerative changes of the hip were age-related. The Veteran testified that he began experiencing pain of the back, hips, and elbows during his service, but denied history of any injuries to his back, elbows, and hips during or after service. He testified that he began experiencing back pain during training, elbow pain in 1983 or 1984, and that he began experiencing hip pain while running in 1986. He denied that any x-rays were performed, and asserted that the pain in these joints has been continuous, but stated that his back pain would subside with physical therapy, muscle relaxers, and pain medication. The Right and Left Elbow Disabilities As to the elbow disabilities, the Board finds that the Veteran is competent and credible to report on what he sees and feels such as pain and lost motion in his elbows while on active duty and since that time. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, service treatment records, including the many examinations, are negative for complaints, diagnoses, or treatment for an elbow disability. In fact, at the in-service examinations it was specifically reported that examination of his upper extremities was normal. Likewise, while the post-service medical record documents the Veteran's complaints and treatment for multiple joint pains, they are likewise negative for a diagnosis of a chronic disease process of either elbow and pain alone is not a disability. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (holding that pain alone, without a diagnosed related medical condition, does not constitute a disability for which service connection may be granted). Moreover, at the November 2011 VA examination which was held for the express purpose of ascertaining if the Veteran had a current elbow disability, it was opined after a review of the record on appeal and an examination of the claimant that he did not have any chronic disease process of either elbow. This opinion is not contradicted by any other medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Board acknowledges that the Veteran is competent and credible to report that he had problems with pain and lost motion in his elbows since service. See Davidson, supra. However, the Board finds that the Veteran is neither competent nor credible to diagnosis a chronic disease process of either elbow because he does not have the required medical expertise. Id. Additionally, the Board finds more competent and credible the service and post-service medical records, which are negative for a diagnosis of an elbow disability than the Veteran's claims to the contrary See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Likewise, the Board finds the opinion by the medical expert at the November 2011 VA examination that did not find a chronic disease process of either elbow more competent and credible than the Veteran's lay claims. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (noting that in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). In light of the above, the Board must conclude that the preponderance of the competent and credible evidence of record does not show the Veteran being diagnosed with a right and/or left elbow disability at any time during the pendency of his appeal. See Hickson, supra; McClain, supra. Where there is no disability, there can be no entitlement to compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability"). Therefore, entitlement to service connection for a right and left elbow disability must be denied. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The Thoracolumbar Spine and Hip Disabilities As to the thoracolumbar spine and hip disabilities and service incurrence under 38 C.F.R. § 3.303(a), the Veteran is both competent and credible to report on what he can see and feel while on active duty, such as symptoms of a back and hip disability (i.e., pain and limitation of motion) even when not documented in his service treatment records. See Davidson, supra. Moreover, service treatment records, including examinations dated in 1970, 1974, and 1991, documented the Veteran's complaints and/or treatment for thoracolumbar problems. However, service treatment records, including all examinations, are negative for complaints or treatment for symptoms of or a diagnosis of hip disabilities. Similarly, subsequent service treatment records, including the 1991 examination, are negative for a diagnosis of a chronic thoracolumbar spine disability. In fact, at the VA examination conducted shortly after the Veteran's separation from his second period of military service, dated in October 1992, it was likewise opined that he did not have a current thoracolumbar disability despite the complaints of pain. As to Veteran assertions, the Board finds that diagnosing chronic thoracolumbar spine and hip disabilities requires special medical training and equipment that the Veteran does not have and therefore it is a determination "medical in nature" and not capable of lay observation. Davidson, supra. Therefore, since layperson are not capable of opining on matters requiring medical knowledge, the Board finds that the lay claims regarding the Veteran having the thoracolumbar spine and hip disabilities while on active duty is not competent evidence. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); See also Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board also finds more compelling the service treatment records and post-service records which are negative for a diagnosis of chronic thoracolumbar spine and negative for complaints and/or treatment for or a diagnosis of hip disorders while on active duty and for many years later, than any lay claims found in the record regarding the claimant having symptoms off and/or a diagnosis of the disorders while on active duty. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Accordingly, entitlement to service connection for thoracolumbar spine and right and left hip disabilities based on in-service incurrence must be denied despite the documented in-service thoracolumbar spine problems. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As to the presumptions found at 38 C.F.R. §§ 3.307, 3.309(a), the post-service record does not contain any evidence of the Veteran having compensable degenerative joint disease of the thoracolumbar spine or either hip within one year of separation from either period of active duty. Accordingly, entitlement to service connection for thoracolumbar spine and right and left hip disabilities must be denied on a presumptive basis. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the length of time between the Veteran's separation from his second period of active duty in 1992 and the first diagnosis of a thoracolumbar spine disability in 2010 and hip disabilities in 2011, despite the earlier non specific claims of multiple joint pain found in the VA treatment records starting in 1999, to be compelling evidence against finding continuity. Put another way, the many year gap between the Veteran's discharge from his second period of active duty and the first diagnosis of the claimed disorders weighs heavily against his claims. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). The Board acknowledges, as it did above, that the Veteran is competent to give evidence about what he sees and feels; for example, the claimant is competent to report that he had problems with pain and limitation of motion of his thoracolumbar spine and hips since service. See Davidson, supra. The Board also acknowledges, as it did above, that the Veteran's representative is competent to give evidence about what he sees; for example, the claimant appearing to be stiff and be in pain. Id. However, upon review of the claims file, the Board finds that any claim by the Veteran and his representative regarding the appellant having his current thoracolumbar spine and hips disorders since service are not credible. Such claims are contrary to what is found in the post-service medical records including the 1991 in-service examination and the 1992 VA examination. In these circumstances, the Board gives more credence and weight to the medical evidence, which only shows diagnoses for the claimed disorders years after his separation from his second periods of active duty, than any claims by the Veteran and his representative to the contrary. Therefore, entitlement to service connection for thoracolumbar spine and right and left hip disabilities based on post-service continuity of symptomatology must be denied. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(b). As for service connection based on the initial documentation of the disabilities after service under 38 C.F.R. § 3.303(d), the record is negative for a competent and credible opinion finding a causal association or link between the Veteran's thoracolumbar spine and hip disabilities and an established injury, disease, or event of service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(d); Rabideau, supra. In fact, when examined by VA in 2010 and 2011 for the express purpose of determining the origins of his disorders it was opined after a review of the record on appeal and examination of the claimant that they were not caused by his military service for the reasons outlined above. These opinions are not contradicted by any other medical opinion of record. See Colvin, supra. As to any claim by the Veteran and his representative regarding the appellant's current thoracolumbar spine and hip disabilities being caused by his military service, the Board finds that these particular disabilities may not be diagnosed by their unique and readily identifiable features because special training and equipment is required to diagnose them and that the presence of the disorders is therefore a determination "medical in nature" and not capable of lay observation. See Davidson, supra. Therefore, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that any such opinions that his thoracolumbar spine and hip disabilities were caused by service are not competent evidence. Routen, supra; See also Bostain, supra. Moreover, the Board finds more probative, competent, and credible the expert opinions by the VA examiners that the Veteran's disorders were not caused by his military service than these lay claims. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Based on the discussion above, the Board also finds that service connection for thoracolumbar spine and right and left hip disabilities are not warranted based on the initial documentation of the disability after service because the weight of the more probative, competent, and credible evidence is against finding a causal association or link between the post-service disorders and an established injury, disease, or event of service origin. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(d); Rabideau, supra. As for service connection based on elbow and hip disabilities being secondary to the thoracolumbar spine disability under 38 C.F.R. § 3.303(d), as explained above, the appellant is not entitled to service connection for a thoracolumbar spine disability. Therefore, any secondary service connection claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). Accordingly, the Board must conclude that the weight of the evidence is against the claims of service connection for thoracolumbar spine and right and left hip disabilities. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claims; the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Having presented new and material evidence, the claim of entitlement to service connection for a thoracolumbar spine disability is reopened. Entitlement to service connection for right and left elbow disabilities is denied. Entitlement to service connection for a thoracolumbar spine disability is denied. Entitlement to service connection for right and left hip disabilities is denied. ____________________________________________ NEIL T. WERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs