Citation Nr: 1313187 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 09-14 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a thoracolumbar spine disorder. 2. Entitlement to service connection for a cervical spine disorder. ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had service with the National Guard from February 1999 until June 2005, including periods of active duty from May 1999 until August 1999, August 2001 until March 2002, January 2003 until June 2003, and December 2003 until March 2005. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In September 2012, the Board remanded this claim for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's thoracolumbar spine disorder is not causally or etiologically due to service. 2. A cervical spine disorder is not demonstrated by the evidence of record. CONCLUSIONS OF LAW 1. Service connection for a thoracolumbar spine disorder is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2012). 2. Service connection for a cervical spine disorder is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify was satisfied through a June 2008 letter to the Veteran. The duty to assist has also been satisfied. The RO obtained service treatment records, VA outpatient medical records, private medical records, and the Veteran was afforded a VA examination in June 2008. The claim was specifically remanded in September 2012 to afford the Veteran an examination, but he failed to report to the VA examination requested in October 2012. When a Veteran fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record unless good cause is demonstrated for the failure to report. See 38 C.F.R. § 3.665. The Veteran was notified of consequences of failure to appear to VA examinations in a letter dated in October 2012. The Veteran has provided no information as to why he failed to report to the examination. As such, the Board finds that the Veteran failed, without good cause, to report to his scheduled VA examination. Therefore, his claims will be rated based on the evidence of record. See 38 C.F.R. § 3.665. Virtual VA records have also been reviewed. Therefore, the available medical evidence and records have been obtained in order to make an adequate determination. Neither the Veteran nor his representative has identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of the claims. The VA's duty to assist in the development of the claims is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Service Connection Claims Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his 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). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). 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 are service connected, unless clearly attributable to intercurrent causes. 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. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). Arthritis is included in 38 C.F.R. § 3.309. Lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; see also Davidson, 581 F.3d at 1313. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). A. Entitlement to Service Connection for a Thoracolumbar Spine Disorder The Veteran contends that, while in service, he had to wear and carry a battle kit that weighed over 100 pounds daily for a year, that he was in a stryker vehicle that was struck by a roadside improvised explosive device (IED) in August 2004, and that he was engaged in a combat mission in November 2004. He maintains that these in-service events were precipitating factors that caused injury to his back and has resulted in the back disability that he now has. The Veteran's service treatment records include a February 1999 enlistment examination report, which reveals no indication of a back disorder. A November 2003 service department examination revealed a normal spine, indicating no symptoms, treatments, or diagnoses of a back disorder. A Statement of Medical Examination and Duty Status, dated December 2004, indicates that in August 2004 the vehicle the Veteran was traveling in was struck by an IED on the rear driver's side. According to the examination section of this report, the Veteran sustained ringing in the ears, headaches, and possible hearing loss as a result of this incident, and these identified aliments were the nature and extent of the Veteran's injury or disease from this incident. According to the Duty Status section of this report, a formal line of duty determination was not required, and the Veteran's injury (identified as ringing in the ears, headaches, and possible hearing loss) was considered to have been in the line of duty. In a February 2005 Report of Medical Assessment for the purpose of separation from active duty, the Veteran reported that his overall health was worse, as compared to his last medical assessment/physical examination. He reported that since his last medical assessment/physical examination, he was seen or treated by a health care provider for a sprained ankle. Also, he reported that he hurt his knees dismounting from vehicles and had ringing in the ears, which he identified as an injury or illness that he suffered while on active duty for which he did not seek medical care. He denied having any conditions that currently limited his ability to work in his military specialty or required geographic or assignment limitations; and he also denied having any other questions or concerns about his health. According to the medical assessment by the health care provider, the Veteran had ringing in the ears and decreased hearing from an August 2004 IED explosion, a right ankle sprain in January 2004 (which the examiner described as "better'), and an injury to his knees from vehicle dismounting in June 2004 (which the examiner also described as "better"). The service health care provider referred the Veteran for further audiology evaluation. The Board notes that although these numerous physical disorders were noted during service, there was no indication in the records that the Veteran suffered from any type of back injury. The service personnel records show that the Veteran served as a combat engineer, and received the Combat Action Badge for actively engaging or being actively engaged by the enemy. Pursuant to 38 U.S.C.A. § 1154(b), combat Veterans may establish service incurrence of a disease or injury through satisfactory lay or other evidence which is consistent with the circumstances, conditions or hardships of such service, notwithstanding the fact that there is no official record of such incurrence and provided that there is not clear and convincing evidence to the contrary. See also 38 C.F.R. § 3.304(d). Here, there is an official record of the circumstances surrounding the Veteran's combat mission. A Statement of Medical Examination and Duty Status, dated December 2004, details the circumstances of the August 2004 incident. According to the examination section of this report, the Veteran sustained ringing in the ears, headaches, and possible hearing loss as a result of this incident, and these identified aliments were the nature and extent of the Veteran's injury or disease from this incident. According to the Duty Status section of this report, a formal line of duty determination was not required, and the Veteran's injury (as identified as ringing in the ears, headaches, and possible hearing loss) was considered to have been in the line of duty. No injuries to the back were noted or claimed by the Veteran at the time. Additionally, in the February 2005 Report of Medical Assessment, the Veteran reported that his overall health was worse, as compared to his last medical assessment/physical examination; however, he reported that since his last medical assessment/physical examination, he was seen or treated by a health care provider for a sprained ankle. Also, he reported that he hurt his knees dismounting from vehicles and had ringing in the ears, which he identified as an injury or illness that he suffered while on active duty for which he did not seek medical care. He denied having any conditions that currently limited his ability to work in his military specialty or required geographic or assignment limitations; and he also denied having any other questions or concerns about his health. The Veteran clearly listed multiple medical problems he experienced during service. The Board notes that if he were suffering from a back disorder, it would have been noted at the time; however, the Board cannot say that the fact that he did not is clear and convincing evidence that a back injury did not occur. See 38 U.S.C.A. § 1154(b). The Veteran also asserts that he hurt his back lifting heavy objects during service. The post-service medical evidence consists of VA and private treatment records. An x-ray from January 2008 revealed degenerative disc disease of the inferior thoracic and inferior lumbar spine, as well as mild anterior wedging of the T11 vertebral body. The Veteran was afforded a VA examination in June 2008 during which he reported that the condition had existed since March 2005. He reported stiffness and weakness of the spine, as well as constant, localized, pain located at mid-back, thoracic/lumbar spine for three years. Examination revealed no evidence of radiating pain on movement. Muscle spasm was absent. There was no tenderness noted. There was negative straight leg raising, bilaterally. Flexion was limited by pain. A thoracic x-ray was within normal limits, but it was noted that an x-ray of the lumbar spine demonstrated degenerative arthritis of T12-L1. The Veteran was diagnosed with degenerative arthritis of the lumbar spine, but no medical opinion regarding etiology was provided. Pursuant to the Board remand, the Veteran was scheduled for an additional VA examination in October 2012 to obtain an opinion. As stated previously, the Veteran failed, without good cause, to report to his scheduled VA examination. Therefore, his claim will be rated based on the evidence of record. See 38 C.F.R. § 3.665. The Board finds that the claim must be denied. There was no back injury noted during service, and as such, the issue of continuity of symptomatology is not applicable under 38 C.F.R. § 3.303(b). Post service, the earliest medical evidence of a back disorder is dated in 2008, which coincides with the year the Veteran filed this disability claim. The Veteran's lay statements in support of his claim have been considered. He is competent to comment on any symptoms, such as pain and lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. See Jandreau, 492 F.3d at 1372; Buchanan, 451 F.3d at 1331. However, although laypersons 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, a thoracolumbar spine disorder falls outside the realm of common knowledge of a layperson. See Jandreau, 492 F.3d at 1377 n.4. The Board does not dispute the fact that the Veteran is diagnosed with degenerative arthritis of the lumbar spine. The in-service medical records do not support his assertion of a specific back injury; however, he also asserts back pain as a result of heavy lifting during service. Considering his combat service and competent assertions, and affording him the benefit of the doubt, he injured his back in service. At issue is whether he has a current back disability related to those in-service incidents, and because he failed to report to the VA examination, there is no competent evidence addressing that question. In summary, the Veteran developed his current degenerative arthritis of the lumbar spine several years after his discharge from service. As such, service connection may not be granted on a presumptive basis for a chronic disability. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). To date, there is no medical evidence demonstrating that the Veteran's current back disorder is related to service. Consequently, the Board finds that the preponderance of the evidence is against entitlement to service connection for a thoracolumbar spine disorder. As the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the appeal is denied. B. Entitlement to Service Connection for a Cervical Spine Disorder The Veteran seeks entitlement to service connection for a cervical spine disorder. He states he was injured by a roadside IED and by having to carry a heavy battle armor kit for a year. The Veteran's service treatment records were reviewed. The enlistment examination from February 1999 did not note any cervical spine disorders. A record from August 2004 indicates the vehicle the Veteran was traveling in was struck by an IED on the rear driver's side. It was noted that the Veteran sustained ringing in the ears, headaches, and possible hearing loss as a result of the incident. There was no mention of a cervical spine injury. A November 2003 examination noted a normal spine. There were no other symptoms, treatments, or diagnoses of a cervical spine disorder during service. As for the post-service medical evidence, it consists of a few private treatment records; however, there is no indication that the Veteran has sought treatment for his cervical spine. The Veteran was afforded a VA examination in June 2008. The Veteran reported that the condition had existed since March 2005. He reported stiffness and weakness of the spine, as well as constant, localized, pain located at mid-back, thoracic/lumbar spine for three years. Examination revealed no evidence of radiating pain on movement with no evidence of muscle spasm. There was no evidence of tenderness. X-rays were normal. The Veteran was not diagnosed with any cervical spine disorder. The Veteran was scheduled for an additional VA examination in October 2012. As stated previously, the Veteran failed, without good cause, to report to his scheduled VA examination. Therefore, his claim will be rated based on the evidence of record. See 38 C.F.R. § 3.665. As with the claimed back disability, the Veteran's lay statements have been considered. See Jandreau, 492 F.3d at 1372. However, the specific issue in this case, whether the Veteran has a cervical spine disorder, falls outside the realm of common knowledge of a layperson. Kahana, 24 Vet.App. at 435. There is no current diagnosis of a cervical spine disorder. In the absence of medical evidence of a current diagnosis, the claim for service connection for a cervical spine disorder must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). In light of the foregoing, the preponderance of the evidence is against the claim of entitlement to service connection for a cervical spine disorder, there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a thoracolumbar spine disorder is denied. Entitlement to service connection for a cervical spine disorder is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs