Citation Nr: 1310267 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-05 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a middle spine disability. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from May 1953 to April 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the RO which, in pertinent part, denied service connection for a middle spine disability. The Board remanded this matter for additional development in September 2011, March 2012, and September 2012. In December 2011, the Veteran testified at a hearing before the undersigned via video teleconference. A complete transcript of the hearing has been associated with the record. FINDINGS OF FACT 1. The Veteran sustained a back injury in service in a jeep accident. 2. The Veteran has a current middle back disability manifested by moderate osteoarthritic degeneration of the thoracic spine at T6 to T10. 3. The Veteran's thoracic spine disability first manifested many years after service separation and is not causally or etiologically related to service, to include any injury or event therein. 4. A chronic thoracic spine disability was not diagnosed in service or within one year from service separation and was first diagnosed many years after service separation. 5. The Veteran did not have chronic thoracic spine symptoms in service and continuously after service. CONCLUSION OF LAW The middle back disability manifested by moderate osteoarthritic degeneration of the thoracic spine at T6 to T10 was not incurred in active duty service and may not be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA duty to notify was satisfied by way of a letter sent to the Veteran in January 2009 that fully addressed all three notice elements and was provided prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, notice consistent with the Court's holding in Dingess was provided in January 2009. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained all available service treatment records; of record is a copy of the Veteran's separation examination dated in April 1955. The RO was unable to locate complete copies of the Veteran's service treatment records and the Board finds that any additional efforts to find such records would be futile. The record shows that a search for the Veteran's service treatment records was made in February 2009. In February 2009, the National Personnel Records Center (NPRC) indicated they were unable to locate the records and it was believed that the records were destroyed in a fire. The record shows that in January 1998, the NPRC contacted the National Archives for a search of the Veteran's service treatment records. In March 1998, the National Archives responded and indicated that they were furnishing all available service treatment records. The National Archives furnished a copy of the Veteran's separation examination. In an August 2009 letter to the Veteran, the NPRC informed the Veteran that they did not have the requested records in their facility and the records may have been destroyed in the 1973 fire. The NPRC also indicated that they did not have any clinical or inpatient treatment records for any Army or Air Force facilities for treatment prior to 1960. VA notified the Veteran of the unsuccessful searches in January 2009 and he was advised of additional or other evidence he may submit to substantiate his claim. VA also notified the Veteran of the unsuccessful searches in April 2009 and December 2009. VA advised the Veteran to submit any copies of the service treatment records that he may have in his possession and VA advised the Veteran of other types of evidence he could submit to substantiate his claim. The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claim. Therefore, the Board finds the duty to notify provisions of VCAA have been fulfilled. The RO scheduled the Veteran for a VA examination in order to obtain medical evidence of the nature and etiology of the claimed back disability. The VA examination was scheduled for April 2012. The Veteran was notified of the examination and he failed to report without cause. The Board notes that, pursuant to applicable law and regulation, where a Veteran, without good cause, fails to report for an examination scheduled in conjunction with an original compensation claim, the claim is to be rated based on the evidence of record. 38 C.F.R. § 3.655 (2012). In the case at hand, the evidence of record fails to document a medical nexus between the claimed back disability and the injury in service. The Veteran was scheduled for a VA examination in an attempt to clarify the etiology of the Veteran's claimed disability and any relationship to service. However, the Veteran failed to report to the scheduled evaluation. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under VA regulations, it is incumbent upon the Veteran to submit to a VA examination if he or she is applying for, or in receipt of, VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). When necessary or requested, the Veteran must cooperate with the VA in obtaining evidence. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). This matter was remanded in September 2011 to afford the Veteran a Board videoconference hearing. The Veteran was afforded a videoconference hearing December 2011. This matter was remanded in March 2012 and November 2012 and the RO was directed to contact the Veteran and ask him to submit completed releases so that the RO could make an attempt to obtain private medical records identified by the Veteran. The record shows that in March 2012 and November 2012, the RO sent the Veteran letters and asked the Veteran to submit completed authorizations so that the RO could make an attempt to obtain the pertinent private medical records. The Veteran did not respond to the letters and did not provide the releases. The Board notes that "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). When necessary or requested, the Veteran must cooperate with the VA in obtaining evidence. The Board finds that the RO complied with the remand action and this matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Law and Regulations Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also 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). Service connection may also be granted for certain chronic diseases such as arthritis if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The condition at issue is osteoarthritis of the thoracic spine is a "chronic disease" listed under 38 C.F.R. § 3.309(a), and the provisions of 38 C.F.R. § 3.303(b) are applicable. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 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 C.F.R. § 3.303(d). A claim of service connection must be accompanied by medical evidence establishing that the claimant currently has the claimed disability. Absent proof of a present disability, there can be no valid claim. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38 U.S.C. § 1110 requires current symptomatology at the time the claim is filed in order for a veteran to be entitled to compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (38 U.S.C. § 1131 requires the existence of a present disability for VA compensation purposes); Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability); Chelte v. Brown, 10 Vet. App. 268 (1997) (observing that a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of 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; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Discussion The Veteran asserts that he sustained an injury to his back in service and that injury caused his current middle back disability. In a July 2009 statement, the Veteran stated that when he was stationed in Germany in 1954, he was in a jeep accident. He stated that the jeep flipped over and he was injured. The Veteran stated that he ended up on the hospital and he continued to endure pain and muscle spasm. He stated that as a result of his back injury, he has considerable muscle spasm and pain in his middle spine area. At the videoconference hearing before the Board in December 2011, the Veteran stated that after he was hospitalized in service for the back injury, he did not go on sick call for his back. The Veteran stated that he had muscle spasms in his back since the injury in service and he sought treatment for the back two years after service separation. There is evidence of a current middle back disability. In a December 2011 statement, Dr. F.U. indicated that the Veteran had moderate osteoarthritic degeneration of the thoracic spine at levels T6, T7, T8, T9, and T10. Dr. F.U. indicated that the Veteran related a history of an acute traumatic injury earlier in his life while serving in the Armed Forces. Dr. F.U. indicated that the Veteran's degenerative arthritis was confined to a particular region of the spine and was not systemic which was consist with the Veteran's past history. The Board finds that the weight of the competent and credible evidence establishes that the Veteran's middle back or thoracic spine disability first manifested many years after active service and is not related to injury or event in service. As such, service connection for a middle back or thoracic spine disability is not warranted. The Veteran has testified that he sustained a back injury in a jeep accident in service in 1954. The Veteran is competent to state that he has an observable symptom such as back pain or spasm. He is also competent to report first hand events such as an injury. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Board finds that the Veteran is not competent to render a medical nexus opinion that relates the current back disability to the injury in service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the etiology and onset of thoracic spine osteoarthritis and whether this disease was caused by the injury in service falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 (lay persons not competent to diagnose cancer). There is no evidence that the Veteran has the appropriate medical training and expertise to offer an opinion on the relationship between the current thoracic spine disability and the injury in service. See Bostain v. West, 11 Vet. App. 124, 127 (1998). The question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While there is competent evidence of a back injury in service, there is no competent evidence of a diagnosis of osteoarthritis of the thoracic spine or other spine disability in service or within one year of service separation. The service separation examination report dated in April 1955 indicates that examination of the spine was normal. A middle back or thoracic spine defect or diagnosis was not noted. There is no competent evidence of a diagnosis of osteoarthritis of the thoracic spine within one year of a service separation in April 1955. As such, service connection for osteoarthritis of the thoracic spine cannot be granted on a presumptive basis. 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Review of the record shows that the first evidence of a diagnosis of osteoarthritis of the thoracic spine is in 2011, which is over 50 years after service. The lapse in time between service and the first diagnosis of osteoarthritis of the thoracic spine weighs against the Veteran's claim. The passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in the assessment of the claim of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The weight of the competent and credible evidence establishes that the thoracic spine disability first manifested many years after the Veteran's period of active service and is not related to any event or incident in service. In a December 2011 statement, Dr. F.U. indicated that the Veteran had moderate osteoarthritic degeneration of the thoracic spine at levels T6, T7, T8, T9, and T10. Dr. F.U. indicated that the Veteran related a history of an acute traumatic injury earlier in his life while serving in the Armed Forces. Dr. F.U. indicated that the Veteran's degenerative arthritis was confined to a particular region of the spine and was not systemic which was consistent with the Veteran's past history. With regard to that specific evidence, the Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) citing Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). The Board finds the December 2011 opinion by Dr. F.U. to have little or no probative value. The Board does not question Dr. F.U.'s competence as a medical doctor. However, the Board fins the medical opinion to have limited probative value. It is not clear whether Dr. F.U. reviewed the entire claims folder including the April 1955 service separation examination report before rendering the opinion. Dr. F.U. does note that he considered the Veteran's own report of the injury in service. However, there is no indication that Dr. F.U. reviewed the service separation examination dated in April 1955 which indicates that examination of the spine was normal. Further, the statement by Dr. F.U. is inconclusive. Dr. F.U. indicates that the Veteran's diagnosis of osteoarthritis of the thoracic spine is "consistent with" the reported injury in service, but he does not opine on the likelihood that the osteoarthritis of the thoracic spine was caused by the injury in service. Medical opinions based upon insufficient facts and data or based upon an inaccurate premise have no probative value. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court found that guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. Id. In the present case, the Board finds that the opinion by Dr. F.U. was not based upon sufficient facts and data, specifically review of the April 1955 separation examination. Thus, this medical opinion had little probative value. The Veteran was scheduled for a VA examination in April 2012 in an attempt to clarify the etiology of the Veteran's claimed disability and to obtain medical evidence as to any relationship between the claimed disability and active service. However, the Veteran failed to report to the scheduled evaluation. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under VA regulations, it is incumbent upon the Veteran to submit to a VA examination if he or she is applying for, or in receipt of, VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). When necessary or requested, the Veteran must cooperate with the VA in obtaining evidence. In the present case, the Veteran did not report to the VA examination without explanation and any additional medical evidence in support of the claim was not obtained. Service connection for the thoracic spine disability based upon continuity of symptoms is not warranted. The Board finds that there is not sufficient evidence of a chronic disease in service and the weight of the competent and credible evidence establishes that the Veteran's spine was normal upon separation from service. As discussed above, arthritis of the thoracic spine was not diagnosed in service. The April 1955 separation examination report indicates that examination of the spine was normal. There is not sufficient evidence of "continuity of symptoms" of the osteoarthritis of the thoracic spine after service. The Veteran stated that he has had back pain and muscle spasm due to the back injury in service. The Board notes that these statements were made in connection with the January 2009 claim for compensation benefits and these statements were first made over 50 years after active service. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). In the present case, the Board finds that Veteran's statements to have limited credibility. As indicated above, there is comtemporaneous evidence contained in the April 1955 separation examination report that the clinical evaluation of the spine was normal. The first time the Veteran made such statements were 50 years after service and the statements were made in connection with his claim for disability benefits. The Board finds that the statements are biased and were made with a desire for monetary gain. The Veteran has not submitted any lay or medical evidence to support his assertions that he has had these symptoms in service and since service. He has not submitted any lay or medical evidence that is more contemporaneous to his time in service and the onset of symptoms. He did not submit any medical evidence to support his contentions other than the conclusory statement by Dr. F.U. The Board also finds the Veteran's statements to be too general to establish a continuity of symptoms in service and since service. Lastly, there is no competent evidence that relates the reported symptoms of spasm and pain over the past 50 years to the current diagnosis of osteoarthritis of the thoracic spine. The weight of the competent and credible evidence establishes that the osteoarthritis of the thoracic spine first manifested many years after active service and there is no competent evidence that relates the osteoarthritis of the thoracic spine to injury or event in service. The competent and credible evidence establishes that the Veteran had a normal spine upon service separation in April 1955. A such, service connection for osteoarthritis of the thoracic spine is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER Service connection for osteoarthritis of the thoracic spine is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs