Citation Nr: 1317199 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 07-16 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from November 1954 to December 1957. This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Columbia, South Carolina. In August 2007, the Veteran testified before a Decision Review Officer in Columbia, South Carolina. A transcript of that hearing is of record. This matter was previously before the Board in January 2011 and February 2013 and was remanded for further development. It has now returned to the Board for further appellate consideration. The Board finds that the Appeals Management Center (AMC) substantially complied with the mandates of the remands and will proceed to adjudicate the appeal. The issue on appeal was previously styled as entitlement to service connection for a back disability. The Board has restyled the issue to better reflect the Veteran's complaints with regard to the entire spinal column (as noted in the AMC adjudication and VA examination). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is less than credible with regard to chronic symptoms of a spine disability since service. 2. The earliest clinical post service evidence of a spine disability is in 2007, more than 49 years after separation from service. 3. There has been no demonstration by competent medical, nor competent and credible lay evidence of record that the Veteran has a spine disability, casually related to, or aggravated by, service. CONCLUSION OF LAW A spine disability, to include thoracolumbar and cervical spine, was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 2002);38 C.F.R. § 3.303, 3.304, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). Notice was provided to the Veteran in October 2006. VA has a duty to assist the Veteran in the development of the claim. The claims file includes service treatment records (STRs), VA medical records, and the statements of the Veteran in support of his claim, to include his testimony at a DRO hearing. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. The Veteran testified at the April 2007 DRO hearing that he had been to chiropractors after service but records were not available. He could not state when he began seeing the chiropractors or even if it was in the 1970s, immediately after service, or at some other time. He also stated that Dr. G. was dead and "dead Wiley" was dead. In a statement dated in January 2007, the Veteran stated that he saw three different chiropractors over the years but they have all either died or moved elsewhere and he is unable to get records. In sum, the Veteran has not provided names or addresses of treatment providers or approximate dates of treatment, and has indicated that any records are unavailable. Based on the foregoing, the Board finds that it does not have a duty to assist the Veteran in obtaining chiropractor records. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Examinations were obtained in 2003, 2011, and 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the 2013 examination and opinion is the most probative and is more than adequate. The opinion is predicated on a review of the Veteran's claims file, to include his STRs, his reported history, and a clinical examination. It considers the pertinent evidence of record and provides a rationale for the opinion given. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria 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). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), 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 a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. 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 and organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. 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 of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran avers that he has a back disability as a result of active service. An essential element of a claim for service connection is evidence of a current disability. The clinical evidence reflects that the Veteran has degeneration of the spine. A second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. The Veteran's STRs reflect that in June 1957, he was seen for back pain after falling from a five foot pier the previous day. The record reflects that he hit a bench and then hit the ground. It was noted that he had lumbar pain since then. Upon clinical examination, it was noted that he had acute tenderness and muscle spasm over the L2 and L3 area. An x-ray of the spine was negative. A July 1957 STR reflects "back ache for the past 3 days." Heat was applied to the back. The Veteran's December 1957 report of medical examination for separation purposes reflects that upon clinical examination, his spine was normal. In this regard, the Board notes that upon first glance, it would appear that the "x" for the spine is in the abnormal column. However, upon further review, the entire "x" check list is actually moved to the right and up one space. It is actually #39, the identifying body marks category that is marked as abnormal. This is evidenced by looking at the entire clinical evaluation, looking at the highest and lowest "x" marks vertically, looking at the placement of the "x" marks horizontally, looking at the notes section on the front of the form, and looking at the back of the form, block 74, which also lists #39 marks and scars as the defect. In addition, the Board notes that block 76 "physical profile" reflects a "1". A "1" indicates that the Veteran had a high level of medical fitness (e.g. he did not have any limitations). See AR 40-501. In sum, the record reflects that the Veteran had an injury to his back in June 1957, a back ache in July 1957, and a normal spine upon clinical examination in December 1957. A third element for entitlement to service connection is competent credible evidence of continuity of symptoms of a disability or a clinical opinion that there is a nexus between the claimed in-service disease and the present disability. The Board finds, for the reasons noted below, that this element has not been met. An April 2007 VA examination report is of record. The Veteran was diagnosed with degenerative changes at the level of L5-S1. The Board notes that this area does not correspond to the area identified as painful in June 1957, which was the L2 and L3 area. A February 2011 VA examination report is of record. The radiology findings of the thoracolumbar spine were "normal vertebral alignment. There is an early vacuum disk developing at L5-S1 possibly. Mild facet hypertrophy L4 through S1. SI joints are normal. Severe early degenerative changes in the lower lumbar spine". The impression of the thoracic spine was mild scoliosis. The impression of the cervical spine "2 mm retrolisthesis of C2 on 3. The disc space are narrowed with an early vacuum disc." The examiner opined as follows: In my opinion it is as less likely as not (less than 50/50 probability) that the [veteran's] current cervical spine condition is a result of or due to the period of active duty service. There were no entries in the record of any significant cervical spine problems or injuries while on active duty or until just the past few years. In regard to the issue as to whether the thoracolumbar spine current condition is related to his period of active duty status. In my opinion is less likely as not (less than 50/50 probability) that the veteran's current thoracolumbar spine condition is related to a period of active duty status. There was an entry in the C-file dated 6-24-57 after the veteran had the fall from the pier on 6-23-57 and x-rays of the lumbar spine were reported as negative. There was another entry on 7-30-57 of low back pain. There were no entries indicating any thoracolumbar spine condition following that and none until just the past few years. A March 2013 VA examination report is of record. The report reflects the opinion of the examiner that it is less likely than not (less than 50 percent probability) that the Veteran's current back disabilities were caused by service. The examiner noted that the Veteran's x-rays demonstrate no obvious fracture and in the examiner's opinion the x-rays reflect mild degenerative changes. The examiner found that the x-rays are remarkable for their minimal degenerative changes especially considering the Veteran's age of 75 years. The examiner stated that in his experience (orthopedic surgeon), most patients of the Veteran's age have severe degeneration. The examiner also noted that the Veteran did manual labor for 42 years after service, which would cause wear and tear on his spine. The examiner also stated that a review of the Veteran's cervical spine x-rays revealed that the Veteran had a congenital fusion of the C2 and C3 vertebral bodies (Klippel Feil). A congenital defect is not a disability for which service connection can be granted. 38 C.F.R. §§ 3.303(c); 4.9. In addition, there is no competent credible evidence of record that the Veteran's defect was aggravated by service such that a superimposed disease or injury occurred during service. VAOPGCPREC 82-90. The Board finds the March 2013 VA examination report to be most probative of the issue on appeal. The examiner reviewed the entire claims file, to include STRs, and radiology records. In addition, he is a board certified orthopedic surgeon with 38 years of orthopedic surgery experience. The Board finds that that the Veteran is less than credible with regard to back pain since service. Initially, the Board notes that while the Veteran had back pain in June and July 1957, there are no subsequent STRs in the remaining five months of service which reflect that he sought treatment for his back, and his spine was normal upon clinical examination. Thus, the Board finds that any back injury incurred in the summer of 1957 was acute and transitory and had resolved by the time of the Veteran's separation in December 1957. The Veteran separated from service in 1957. In 1971, he filed a claim for entitlement to service connection for hearing loss. The Board finds that if the Veteran had been suffering from back pain, or other back symptoms, since 1957, it would have been reasonable for him to have filed a claim for it when he was filing a claim for entitlement to service connection for hearing loss in 1971; he did not. In 1989, the Veteran filed a claim for entitlement to service connection for a fungal disability. The Board finds that if the Veteran had been suffering from back pain, or other back symptoms, since 1957, it would have been reasonable for him to have filed a claim for it when he was filing a claim for entitlement to service connection for a fungal disability; he did not. It was not until 2006, approximately 49 years after separation from service, that the Veteran filed a claim for a back disability. The earliest clinical evidence of a back disability is in 2007. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran testified at the April 2007 DRO hearing that while in service, he fell and hit a bench. He testified that he was "knocked out" and "woke up when they were working on me." He further testified that his head snapped when he fell. (See DRO hearing transcript page 4.) While the Veteran is competent to state that he felt like his head "snapped", that he was "knocked out", and that he woke up at a hospital or clinic, the Board finds that, based on the records contemporaneous to the fall, any such statement is less than credible. The STRs are entirely negative for the Veteran being rendered unconscious or injuring his head or neck in any way. The Board finds that if the Veteran had been unconscious due to the fall, or complained of a neck injury, the STRs would reflect such. Rather, the STRs reflect that he had injured himself the day prior and had "low back pain" since then. In addition, only x-rays of the spine area of L2 and L3 were performed. If the Veteran had complained of neck pain, it would have been reasonable for x-rays to have been done of the cervical spine; however, they were not. Thus, the Board finds that the Veteran fell in June 1957 and sought treatment the next day for continued low back pain. The competent credible evidence is against a finding that he fell, was rendered unconscious, snapped his neck, and injured his cervical spine. The Board acknowledges the Veteran's testimony at the April 2007 DRO hearing that he had been to chiropractors after service; however, he could not state when he began seeing the chiropractors or if it was in the 1970s, immediately after service, or some other time. He stated "I can't tell you that. I hadn't been out of service long." At the time of the Veteran's testimony, he had been out of service for approximately 50 years; thus, his statement that he had not been out of service for "long" is too broad a time frame, especially as he stated in could have been in the 1970s (twenty years after separation) when he sought chiropractic treatment. Private clinical records from 1965 to 1988 are associated with the claims file. They are negative for any complaints with regard to the spine. They reflect approximately 40 dates of service, and that the Veteran had complaints to include a cold (1965), tonsils (1965), cold (1966), cold (1967), ear infection (1967), knot on the left arm (1967), headache (1969), cold (1969), nervous headache (1970), chest cold (1975), painful hip and leg (1976), foreign object in the ear (1978), cold and sore throat, soreness behind the ear (1980), poison oak and sore throat (1982), and "jock itch" (1988). The Board finds that if the Veteran had complaints of chronic spine pain or symptoms, it would have been reasonable for him to have sought treatment, as he did for numerous other ailments, and for it to have been noted in the records. The absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible; however, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of appellant's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). See also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (noting that lay evidence can be competent to establish a diagnosis when . . . a layperson is competent to identify the medical condition.) In the present case, not only is there a lack of clinical records, but the Veteran's spine was normal upon separation. In addition, the areas complained of in service are not identical to the areas complained of now or indicating degeneration now (i.e. cervical spine, and other than L2 and L3.) Lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); however, the Board finds that the Veteran is not competent to provide an opinion as to the etiology of his current back disabilities. The Veteran has not been shown to have the training, experience, or education necessary to make a diagnosis and etiology determination as to spine disabilities. In the present claim, the Veteran's in-service injury was in 1957. During the subsequent five decades, the Veteran's spine has aged approximately 50 years and he was employed as a laborer (an electrician and/or construction worker). The objective and more probative opinion as to the etiology of his disabilities is that of the orthopedic surgeon who had training and experience reviewing x-rays and actual degenerative changes in the body. In sum, there has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has a current back disability causally related to active service. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a spine disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs