Citation Nr: 1309912	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO.  10-44 105	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to service connection for scoliosis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel


INTRODUCTION

The Veteran served on active duty from August 1996 to November 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied service connection for scoliosis.  The Veteran submitted a notice of disagreement in October 2007, within the one year period following notification of the adverse decision.  He subsequently perfected an appeal to the Board.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDINGS OF FACT

1.  Thoracic spine scoliosis is noted on a July 1996 enlistment examination and shown by x-ray study dated in October 2005.

2.  Scoliosis was not permanently aggravated by active service.


CONCLUSION OF LAW

Scoliosis was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act (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.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" 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 articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VA satisfied its duty to notify.  VA sent to the Veteran all required notice in a May 2006 letter, prior to the rating decision on appeal.
VA further satisfied its duty to assist the Veteran.  VA obtained the Veteran's service treatment records (STRs) along with all other relevant medical treatment records identified by the Veteran.  These records have been associated with the claims file.  VA afforded the Veteran a hearing on appeal; a copy of the transcript is associated with the record.  VA further afforded the Veteran an appropriate VA medical examination.  Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim; the Board is also unaware of any such evidence.

Accordingly, the Board will address the merits of the claim.

II.  Service Connection for Scoliosis

The Veteran filed a VA claim in March 2006 for "severe upper back pain, complications; scoliosis."  At this time, he reported that his disability began in May 2004.  He reported treatment from May 2004 to November 2005.

At his January 2012 hearing, the Veteran testified that he sought service connection for scoliosis as this condition was aggravated by active service.  Specifically, he argued that, although his condition preexisted service, it was worsened by the repetitive lifting/carrying/loading of heavy missiles and from the wearing of heavy body armor while stationed in Bosnia.  He reported that he had no back problems prior to service, or during basic training, but that he began to experience back problems during his deployment to Bosnia when he started to wear flack armor and carry a weapon over one shoulder.  He reported a few sick call visits due to back spasms.  He reported that he received massage and heat therapy for what was believed to be muscle spasms or strain of the back.  Post service, the Veteran indicated that he first sought medical attention roughly 5 years after service separation, but that his back had continually hurt since service.  He reported treatment with a private chiropractor.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  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, 1 Vet. App. at 54.

Legal Criteria

As an initial matter, the Board notes that the Veteran has not alleged that the claimed disability was incurred in combat.  Therefore, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b).  However, recently, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a).  Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).  In this case, scoliosis is not a condition explicitly recognized unlike arthritis.

A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012).

To rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  VAOPGCPREC 3-03 (July 16, 2003).  The clear and unmistakable evidence standard requires that the result be undebatable.  Cotant v. West, 17 Vet. App. 116, 131 (2003).  In considering the effect of section 1111 on claims for service-connected disability, VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition.  Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153).  The cited statute provides that aggravation by service is presumed where there is an increase in disability during service, unless there is a specific finding that the increase is due to the natural progress of the disease.

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Arthritis shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a).

It is noted that VA regulations state that congenital or developmental defects "are not diseases or injuries within the meaning of applicable legislation."  Quirin v. Shinseki, 22 Vet.App. 390, 394 (2009) (quoting 38 C.F.R. § 3.303(c)).  On the other hand, "congenital diseases ... may be service connected."  Id.  "[A] defect differs from a disease in that the former is "more or less stationary in nature" while the latter is "capable of improving or deteriorating."  Id. (quoting VA Gen. Couns. Prec. 82-90 at 2).  Thus, congenital defects and conditions resulting from them are not compensable, whereas congenital diseases and conditions resulting from them are compensable.  For this reason, "[t]he presumption of soundness does not ... apply to congenital defects, because such defects "are not diseases or injuries" within the meaning of 38 U.S.C. §§ 1110 and 1111, the statutes governing basic entitlement to VA benefits and the presumption of soundness.  Id. at 397.

Although service connection may not be granted for congenital or developmental defects, "[i]f, during an individual's military service, superimposed disease or injury does occur, service-connection may indeed be warranted for the resultant disability."  VA Gen. Couns. Prec. 82-90 at 3.

The Board notes that scoliosis is "an appreciable lateral deviation in the normally straight vertical line of the spine."  Dorland's Illustrated Medical Dictionary 1706 (31st ed.2007) [Dorland's].  The Board further notes here that while scoliosis may be congenital, it can also be caused by certain diseases or events.  For example, scoliosis can be caused by, among other things, the development of hip disease, improper posture, muscle paralysis, and rheumatism of the dorsal muscles.  Dorland's at 1706-07.

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that 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 determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995).

Analysis

Having carefully reviewed the evidence of record, the Board finds that the claim must be denied.

First, the Board finds that the evidence effectively rebuts the presumption of soundness upon service entry.  38 C.F.R. § 3.304(b).  The Veteran's service enlistment examination dated in July 1996 shows abnormality of the spine, other musculoskeletal system, and there was the notation of "scoliosis, thoracic, mild symptoms."  As scoliosis was recorded in the examination report at the time the Veteran was accepted and enrolled for service, there is no requirement to rebut the presumption of soundness with clear and unmistakable evidence.  Id.  Although the Veteran testified that he had no knowledge of any spine deformity on service entry, scoliosis was noted at service entry and, by x-ray, again just prior to service separation.  The Board believes that the evidence is undebatable in that scoliosis preexisted the Veteran's active duty.

Second, having determined that scoliosis preexisted the Veteran's active service, the Board has considered whether this condition was aggravated in service.  38 C.F.R. §  3.306.  In this regard, the Board finds preexisting scoliosis did not undergo an increase in disability during active service.  Therefore, there is no aggravation of scoliosis in service.  38 C.F.R. § 3.306(a).  Also, there is no indication that the Veteran has any superimposed disease or injury.  See VA Gen. Couns. Prec. 82-90 at 3.

Service treatment records reflect that the Veteran presented in March 2002 for complaints of upper back and neck pain.  Moderate scoliosis was noted on exam and the Veteran was advised on strengthening exercises.  The provisional diagnosis was scoliosis and back pain.  X-ray confirmed scoliosis of the thoracic spine, 20 degrees to the right.  The Veteran denied back pain and muscle aches on post deployment examination dated in December 2004.  Although the Veteran had a profile for light duty, this was apparently due to residuals of ankle fracture.  The examiner indicated that no referrals were indicated based on the interview/exam.  X-ray dated in October 2005 reflects scoliosis of the thoracic spine, 34 degrees.  A VA examiner opined in February 2008 that the Veteran's current back pain was not caused by or related to scoliosis.  The rationale was that there were no findings for degenerative disease on the current examination; that scoliosis appeared to be moderate; and that the pain was attributed to the natural disease progression.  This evidence is highly probative as it was prepared by a neutral, skilled and trained medical professional after examination of the Veteran and review of his service treatment records.

The Board has considered the post service medical evidence indicating treatment for chronic neck and low back pain.  However, none of this evidence reflects any medical opinion on whether the Veteran's condition was permanently worsened by active service.  Therefore, this evidence has limited probative value.

The Board has further considered the statement of the Veteran's wife.  She reported that the Veteran had back pain since 2003.  This evidence is competent and credible.  However, it has limited probative value as it does not establish that the Veteran's scoliosis was the cause this back pain or that scoliosis was permanently worsened on active duty.  It is noted that 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).

The Board has considered the Veteran's statements and sworn testimony.  The Board finds that the Veteran is competent to report his symptoms and treatment.  Layno, 469 (1994); see also Falzone v. Brown, 8 Vet.App. 398, 405 (1995).  Furthermore, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006).  However, to the extent that the Veteran suggests that a scoliosis was incurred in or aggravated by service, the Board finds that he is not competent to provide this opinion since he lacks any medical expertise and because such is not susceptible to lay observation.  See Jandreau supra.; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Therefore, his medical opinion in this regard has no probative value.

The Board acknowledges the Veteran's argument that scoliosis began in service or was aggravated by service because he had no back pain until he was in service and because he has continued to have back pain since service.  However, the Board finds that this argument lack merit because, per the Veteran' s sworn testimony, his in-service back symptoms with spasm were attributed to muscle strain rather than scoliosis.  Also, the Veteran has not presented competent evidence showing that either the back pain in service or since service is the result of a permanent worsening of scoliosis.

The Board assigns greater probative value to the February 2008 VA medical examination and opinion, which indicated that there was no causation or aggravation of scoliosis by active service.  Because the examiner provided a clear rationale for this opinion, the Board assigns it significant probative value.

The weight of the evidence is against the claim.  As the evidence of record is not in equipoise, there is no doubt to resolve.  Gilbert, supra.



ORDER

Service connection for scoliosis is denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs