Citation Nr: 1300646 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 05-07 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for arthritis of the cervical spine has been received. 2. Entitlement to service connection for residuals of an injury of the thoracolumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to October 1962. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2005, the Veteran testified at a RO hearing before a Decision Review Officer. In October 2007, he testified at a Board hearing before a Veterans Law Judge in Washington, DC. Transcripts of both hearings are of record. In December 2007, January 2009, and March 2010, the Board remanded the claims for additional development. In June 2012, the Board requested a Veteran's Health Administration (VHA) opinion, which was received in September 2012. FINDINGS OF FACT 1. In a September 1975 decision, the Board denied service connection for cervical spine arthritis because a nexus with service was not established. 2. None of the new evidence associated with the claims file since the September 1975 decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for cervical spine arthritis, or raises a reasonable possibility of substantiating the claim. 3. A thoracolumbar spine disability, including arthritis, did not manifest in service or for many years thereafter, and the currently diagnosed thoracolumbar spine disability is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for reopening a previously denied claim of service connection for cervical spine arthritis have not been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. A thoracolumbar spine disability was not incurred in or aggravated by service, nor may arthritis be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to requests to reopen previously denied claims, a claimant must be notified of both what is needed to reopen the claim and what is needed to establish the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In the case at hand, the record reflects that the originating agency provided the Veteran with the requisite notice by letters mailed in May 2004, June 2005, February 2008, and April 2009. To the extent the notice was provided after the initial adjudication of the claims, the Board notes that the claims were readjudicated most recently in a January 2012 supplemental statement of the case (SSOC). Therefore, there is no prejudice to the Veteran regarding the timing of notice. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claims herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, and all identified post-service treatment. In the Board's most recent March 2010 remand, the agency of original jurisdiction (AOJ) was directed to request a privacy release from the Veteran so that it could obtain his records from his place of employment (i.e., Crosby-Lebus Manufacturing). The AOJ was also directed to request that the Veteran submit the original copy of a letter he purportedly wrote to his girlfriend in July 1971. These requests were made in an April 2010 letter, however, the Veteran indicated that he would not submit an original cop of the letter and would not submit information for his employer because records from Dr. Gordon were already on file. (See April 2010 Report of Contact). The Board notes that the Veteran has a duty to cooperate fully with VA's efforts to obtain relevant records. 38 C.F.R. § 3.159(c)(1)(i). As he has refused to cooperate, VA owes no further duty to assist him in this regard. The Board also notes that the Veteran has been afforded multiple VA examinations and VA medical opinions regarding his claimed thoracolumbar spine disability. Most recently, the Board requested a VHA opinion. For the reasons discussed below, the Board finds that evidence is adequate to make a determination on these claims. During the hearing, the Veterans Law Judge clarified the issues on appeal and asked questions designed to elicit information about any additional evidence that may have been overlooked. These actions supplement the VCAA and comply with 38 C.F.R. § 3.103 (2012). The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Claim to Reopen - Cervical Spine An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Board decisions are generally final as of the date of issuance and mailing. 38 U.S.C.A. § 7103; 38 C.F.R. § 20.1100. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Service connection for cervical spine arthritis was initially denied because no nexus to service was established; arthritis was not noted in service or within one year of service and the evidence of record did not establish a relationship to service based on medical opinion or continuity of symptomatology. At the time of the Board's September 1975 denial of service connection, the evidence consisted of an October 1961 service treatment record showing that the Veteran complained of pains in his arms while lifting. An X-ray of the cervical spine was negative. At his October 1962 discharge examination, his spine was normal and no cervical spine complaints were noted on his corresponding report of medical history. Private treatment records from Dr. Wensley and Lebus Manufacturing pertained to the thoracolumbar spine. During a March 1975 VA examination, X-rays of the cervical spine revealed some narrowing of the disc space between the C5 and C6 vertebrae, but was otherwise normal. Additionally, the record reflected several statements from the Veteran, alleging that his back problems were related to an injury in service. Since September 1975, the evidence that has been associated with the claims file pertains to the Veteran's thoracolumbar spine and not to the cervical spine. During the October 2007 Board hearing, the Veteran clarified that he was only seeking compensation for problems of the mid-back - specifically, in the T12, L1, and L2 area. (See Hearing Transcript, pgs. 9-11). While this evidence may be considered new in the sense that it was not previously before agency decisionmakers, the evidence is not material because it does not relate to an unestablished fact necessary to substantiate the claim for service connection for cervical spine arthritis (i.e., nexus with service) and does not raise a reasonable possibility of substantiating the claim. As no new and material evidence has been received, reopening of the previously denied claim of service connection for cervical spine arthritis is not warranted. The preponderance of evidence is against the claim, and there is no doubt to be resolved. Service Connection- Thoracolumbar Spine Initially, the Board notes that the evidence does not reflect that the Veteran claims that his thoracolumbar spine disability was incurred in combat. Thus, the provisions of 38 U.S.C.A. § 1154(b) do not apply. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection or service-connected aggravation for a present disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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 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, a showing of continuity after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). In this case, the Veteran asserts that he has a current disability of the thoracolumbar spine that is related to an injury he sustained during military service. Specifically, he claims that he sustained an injury when a JATO (jet assisted take off) bottle fell while being loaded onto a plane and hit him in mid back. For the reasons discussed below, the Board finds that the preponderance of the evidence is against his claim for service connection. The Veteran's service treatment records are unremarkable for an injury to his back in service. At his August 1960 enlistment examination, his spine was normal. In September 1960, he complained of back pain and sore feet. On examination, he had full range of motion. The impression was lumbar strain. He was given muscle relaxers for 5 days. The following year, a June 1961 note reflects that the Veteran complained of back pain and said that he had had this back pain all his life when standing or working standing up. On physical examination, his spine was unremarkable. X-rays showed sacralization of the L-5 vertebra and spina bifida occulta. The remainder of the intervertebral spaces were not felt to be abnormal. A July 1961 surgical clinic note from Dr. Bright reflects that the Veteran complained of pain in his lower back and had no history of injury. The Veteran reported that he had had difficulty with pain for many years. It was noted that an X-ray showed sacralization of the L-5 vertebra but was otherwise negative. The impression was possible lumbosacral strain. He was given APC tablets and Robaxin. In August 1961, Dr. Bright noted that the Veteran had a structural deformity of the back and had been under treatment for a lumbosacral strain. It was noted that he had no improvement on APC and Robaxin. In October 1961, He continued to complain of pain in the lower back. In February 1962, he reported some improvement since the last visit and that his discomfort was now mainly at night. At his October 1962 discharge examination, his spine was normal and he denied bone, joint, or other deformity. He reported that he was in good health and did not report any ongoing back problems. In January 1975, the Veteran filed an original claim for service connection for a back injury that he asserted occurred in August 1961. In February, he submitted some medical records along with an accident report. The accident report indicates that the Veteran injured his back lifting a steel billet at Lebus Manufacturing in July 1971. On August 1971 examination, he denied prior back disorders except when lifting equipment for his job 11/2 years prior and for the previous two days. The only previous injury he reported was related to appendicitis. The assessment was acute muscle sprain and he was given parafone forte. An X-ray from Good Shepard Hospital was interpreted as showing mild accentuation of the lordotic curve with mild scoliosis with old hypertrophic arthritic change presumably secondary to injures seen along the bodies of T12, L1, and L2 with moderate anterior wedging of L2 and L1 without other significant abnormality of the lumbar spine. A September 1971 X-ray was interpreted as showing minimal anterior wedging of the body of the L1 vertebra, which was essentially unchanged, and "view of small anterior corner spur formation in the area as well as mild sclerosis the configuration considered to represent old obsolete trauma rather than recent fracture defect." A note attached to the accident report is somewhat unclear but appears to note that the Veteran reported that he injured his back in the Air Force, was seen several times, and was told he had arthritis. He said he had had intermittent pain since then. Eight or nine months prior, he hurt his back at Lebus when an object hit his back" and had persistent pain since. A September 1971 note reflects that spot films were made and there was no evidence of fracture noted. A January 1975 statement from Dr. Wensley reflects that the Veteran was seen at Good Shepherd Hospital after a blow to the back at Lebus Manufacturing. Dr. Wensley stated that X-rays revealed hypertrophic changes of arthritis at the T12 and L1 levels with mild wedging of L1 and L2. It was noted that he gave a history of back injury in the Air Force in 1961 and had intermittent mid back pain since. During a March 1975 VA examination, the Veteran reported that he injured his back while loading bottles in 1960. AP and lateral X-rays of the thoracic spine noted that the lumbosacral junction was transition with sacralization of the L5 vertebra. Otherwise alignment and curvature appeared normal and bones and joints were intact. Current records reflect that the Veteran has degenerative arthritis of the lumbar spine from the L3 to the T12 level. (See March 2009 VA examination). At issue, is whether his current arthritis is related to the claimed injury in service. The Board notes that the Veteran also has a congenital defect (sacralization of the L5 vertebra) and foraminal stenosis at the L5-S1 level, status post lumbar laminectomy and fusion; however, the Veteran does not assert and the evidence does not otherwise show that these conditions are related to service. To the extent sacralization of the L5 vertebra was shown in service, the evidence indicates that it is a congenital defect and is not a disease or injury within the meaning of VA regulations. See 38 C.F.R. §§ 3.303, 4.9. Furthermore, as will be explained below, the defect was not subject to a superimposed disease or injury during service that caused additional disability. As an initial matter, the Board notes that the Veteran is competent to report that which he has personally experienced, including an injury during service and chronic back pain. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, competency is a separate and distinct determination from credibility. In this case, there are several inconsistencies in the record that brings the Veteran's credibility into question. First, the contemporaneous record in service specifically notes that the Veteran had no history of injury. The Veteran testified during his hearings that when the JATO bottle hit him, he was knocked to the ground and was taken to the hospital emergency room by ambulance; however, there is absolutely no mention an injury or any emergency room treatment in the record. In light of the seriousness of the reported injury, which supposedly required an ambulance and emergency treatment, such a notation would be expected to be in the record. Furthermore, during the March 1975 VA examination, the Veteran mentioned that he sustained bruising as a result of the injury, yet there is no mention of any contusions in the record. Rather, physical examinations of the spine were normal throughout service. Although the Veteran submitted a copy of a letter that he purportedly wrote to his girlfriend in July 1971 describing the treatment he was receiving for the bottle injury, he refused to submit the original document for closer inspection. Under these circumstances, the Board finds the contemporaneous medical evidence much more probative. Second, the Veteran has been inconsistent in his reports as to when (and even how) the claimed injury actually occurred. In his original claim for service connection, he stated that the injury occurred in August 1961. During the March 1975 VA examination, he said the injury occurred in 1960. The letter to his girlfriend indicates the injury occurred sometime before July 1961. During a January 2005 VA examination, he indicated that he was diagnosed as having a lumbosacral strain in service after he slipped and fell down. During a March 2009 VA examination, he reported that the injury occurred prior to seeing the physicians for back pain in June, July, and October 1961. Third, the Veteran has denied having an injury in civilian life, despite clear evidence to the contrary. In a February 2006 statement, he said that he had not had a back injury at any time since 1965. In support of assertion, he submitted a March 2005 letter from his co-worker (B.M.). His co-worker said that the Veteran did not sustain a back injury at Lebus Manufacturing, but, rather, complained of an injury he had had while serving in the Air Force. Despite these assertions, the accident reports dated in 1971 clearly indicate that the Veteran injured his back either lifting equipment or being struck by equipment at work. This injury was also reported by Dr. Wensley in January 1975. Based on the foregoing, the Board does not find the Veteran's statements regarding the in-service injury credible. In this regard the contemporaneous medical evidence is much more probative. The Board acknowledges that history of an in-service injury was noted in a record in 1971, at the time of the injury at Lebus Manufacturing; however, another record noted that he denied any prior back disorders. Again, because of the numerous post-service contradictions, the Board must rely heavily on what was actually reported in service. The Veteran's service treatment records do show that he was treated for a lumbosacral strain; however, the evidence reflects that this was not a chronic condition. At the time of his discharge examination, his spine was normal, he reported no back problems, and indicated he was in good health. Furthermore, to the extent the Veteran asserts that he sustained a compression fracture of the L-1 vertebra, the X-ray evidence does not support this. The X-rays only showed evidence of sacralization of the L5 vertebra. His lumbar spine was otherwise normal. In this case, the first indication that the Veteran had arthritic changes at the T12, L1, and L2 levels is the August and September 1971 X-rays - 9 years after service. The weight of the evidence does not indicate that arthritis manifested in service or for many years thereafter. Therefore, the only remaining issue is whether there is a nexus between the Veteran's current arthritis and service. See 38 C.F.R. § 3.303(d). With regard to the question of nexus with service, the Board acknowledges that competing competent evidence has been presented. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board, however, may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). Here, as explained below, the Board finds that the opinions that the Veteran's current arthritis is not related to service are more probative than the opinions to the contrary. The evidence in support of the Veteran's claim consists of the following: a September 1971 X-ray noting that the changes represented old obsolete trauma rather than recent fracture; Dr. Rosenfield's July 2000 opinion that he suspected that the Veteran's Schmorl's node deformity at the T12 and L1 levels was the result of an injury he sustained while working in service; Dr. Fletcher's March 2004 letter noting that the JATO bottle injury would have caused a flexion injury and fracture of the L1 area and that X-rays showed he had an old compression fracture of the L1 vertebra body; and Dr. Gordon's opinions (August 2005 and May 2006) that that the Veteran had an "old injury" (X-ray changes and fracture in the L1 area) that was related to his injury in service. The September 1971 X-ray report, while noting that the changes were consistent with old trauma, does not relate the changes to a specific injury or to service. The Board notes that the X-ray was taken 9 years after service and it is unclear whether he sustained any injury during this time period. There is some reference to an injury occurring 1 1/2 years prior and an object striking his mid back while working in civilian life. As discussed at length above, the most probative evidence does not indicate the Veteran sustained an injury during service. Hence, the extent the Veteran is attempting to link the 1971 X-ray findings to an injury in service, the X-ray report has little probative value. For similar reasons, the opinions of Dr. Rosenfield, Dr. Fletcher, and Dr. Gordon have little probative value. Each of these opinions is based an inaccurate factual history. Although the Veteran was treated for a lumbosacral strain, there is no evidence that he was treated for an injury involving an object striking his mid-back. Furthermore, even assuming such an injury occurred in service, the X-rays taken at that time did not show evidence of a compression fracture. Furthermore, it does not appear that Dr. Rosenfield or Dr. Fletcher reviewed the Veteran's claims file, had access to his service treatment records, or had knowledge of the injury the Veteran sustained while working at Lebus Manufacturing. Dr. Gordon indicated in May 2006 that he reviewed the Veteran's "old medical records" but then stated that "it is very clear ... you have a back injury that you suffered in the Air force in 1961, that you have had back pain since that time, and that you have x-rays that confirm that the fracture we see in your back is at least 35 years old." As noted above, this is inconsistent with the contemporaneous medical record. The service medical records do not indicate he had an injury in service; he did not complain of pain since service - rather, he said he was in good health at discharge and did not note any back problems; and the Board finds it improbable that a radiologist could review an X-ray and know the precise age of a fracture (i.e., at least 35 years old). For these reasons, the Board finds the above evidence has little, if any, probative value. The evidence against the Veteran's claim consists of the following: a January 2005 VA examiner's opinion that it was less likely than not that the compression fracture of the L1 vertebra was caused by or the result of injury or disease while on active duty; an August 2008 VA examiner's opinion that there was no evidence of an injury to the lower thoracic spine in service; the May 2010 VA examiner's opinion that the degenerative arthritis of T12 to L3 was from the aging process and two prior surgeries; the December 2011 VA examiner's opinion that much of the degenerative processes within the facet joints was most likely due to aging and attrition and that it would be speculative to relate them to a trauma or event in service; and the September 2012 VHA opinion that it is "not as likely (less than 50% likelihood) that any of the Veteran's back problems are related to the in-service injury that he described. The Board finds the above opinions more persuasive. The September 2012 VHA opinion is especially probative. In this regard, the Veteran's entire claims file and history, including the Veteran's lay assertions and the private physicians' opinions mentioned above, were reviewed by the physician. The physician is an orthopedic surgeon who is a trained spine surgeon. Therefore, he has the type of specialized training and esoteric knowledge necessary to provide an opinion on this particular matter. Furthermore, the physician provided a detailed rationale for his opinion that is consistent with the contemporaneous medical record. For these reasons, the opinion is afforded substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In addition to the medical evidence, the Board has considered the Veteran's contentions that his current thoracolumbar spine arthritis is related to an injury he sustained during military service. The Board acknowledges that to the extent these statements are supported by the opinions of Drs. Rosenfield, Fletcher, and Gordon, they are competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, such assertions are only as probative as the underlying medical opinions by Drs. Rosenfield, Fletcher, and Gordon. Here, as explained above, these opinions have been afforded little, if any, probative value. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim for service connection for a thoracolumbar spine disability. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. In the absence of competent and persuasive evidence to support the claim, however, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER As new and material evidence to reopen the claim of service connection for cervical spine arthritis has not been received, the appeal is denied. Service connection for a thoracolumbar spine disability is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs