Citation Nr: 1317219 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 10-25 342 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a thoracolumbar spine disability. REPRESENTATION Veteran represented by: Marine Corps League ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from March 1958 to March 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by which the RO, in pertinent part, denied entitlement to service connection for a back disability. In a March 2007 rating decision, the RO denied entitlement to service connection for a cervical spine disability. As such, the Board has recharacterized the issue on appeal, which was formerly listed as entitlement to service connection for a back disability, to reflect the specific portion of the spine that is at issue. In January 2013, the Board remanded this matter to the RO so that a Board hearing could be scheduled. In March 2013, the RO sent notice to the Veteran's latest address of record advising him that a hearing was scheduled for April 16, 2013. The Veteran failed to appear for the hearing and neither furnished an explanation for his failure to report nor requested a postponement or another hearing. Pursuant to 38 C.F.R. § 20.704(d) (2012), when an appellant fails to report for a scheduled hearing and has not requested a postponement, the case will be processed as though the request for a hearing was withdrawn. FINDING OF FACT Degenerative joint disease of the thoracolumbar spine was not present during the Veteran's period of active service or for many years thereafter, it did not manifest to a compensable degree within one year of service separation, and the record does not show that any thoracolumbar spine disorder is causally related to his active service or any claimed incident of service. CONCLUSION OF LAW A disorder of the thoracolumbar spine was not incurred in active service, and arthritis may not be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely May 2006 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice also included provisions for disability ratings and for the effective date of a claim. Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. The record contains the service treatment records, post-service VA and private medical records, records from the Social Security Administration (SSA), and the Veteran's statements. The Board acknowledges that the Veteran has not been afforded VA medical examinations regarding his claimed thoracolumbar spine disability. However, the Board finds that a VA examination is not necessary in order to decide the matter on appeal. Two pivotal Court cases exist that address the need for a VA examination. Those are Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the Veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. Regarding the claim herein, because the weight of the evidence demonstrates no thoracolumbar spine injury or disease in service, and that the onset of a thoracolumbar spine disability did not occur until years after separation, no examination is required. Duenas, supra; McLendon, supra; see also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). In the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's claimed thoracolumbar spine disability would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion, which purported to provide a nexus between the Veteran's claimed disability and his military service, would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). The Board notes that evidence, to include VA and non-VA treatment records, was received after the RO issued its June 2010 statement of the case. Normally, a supplemental statement of the case is issued when new evidence is received at the RO. No corrective action need be taken by the Board to include a remand for the preparation of a supplemental statement of the case, as such action would be a useless exercise. The additional evidence is essentially duplicative of evidence already of record in that it shows a present thoracolumbar spine disability but does not indicate any relationship to service. Thus, RO consideration would not be of benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran should be avoided). The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, the Veteran's statements, private medical records, VA clinical records, and SSA records. For the foregoing reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Standard of Review 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. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). The Board notes that 38 C.F.R. § 3.303(b) applies herein because the Veteran's claimed disability (degenerative joint disease) entails a "chronic disease" within the meaning of 38 C.F.R. § 3.309(a). See generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where a Veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309(a). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 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. 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. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on a Veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background The Veteran appears to contend that he has a thoracolumbar spine disability that is related to service, to include as a result of being ejected from a vehicle that rolled over in Guantanamo Bay. The service treatment records are silent as to the thoracolumbar spine. On service separation, the spine was found to be normal. The record contains no evidence of treatment or complaints regarding the thoracolumbar spine dated before the 1980's. The first mention of the lumbar spine after service is in July 1983 records of treatment received after the Veteran injured his low back when a seat in which he was seated collapsed. At that time, acute aggravation of chronic lumbar disc degeneration was noted. In a July 1998 letter to SSA judge, the Veteran's attorney detailed the Veteran's medical history. Regarding the Veteran's back, the attorney noted that the Veteran sustained an injury in a March 1982 when, as a pedestrian, he was struck by a truck. He sustained another back injury in July 1983 when the bus he was driving was struck causing his seat to break and an ensuing fall to the floor. The Veteran apparently sustained a third back injury in October 1992 when he slipped on oil at work. Finally, the attorney recounted a fourth back injury that occurred in April 1995 when the Veteran slipped on a soapy surface at the bus depot where he worked. In February 2007, the Veteran was afforded a VA medical examination. In the examination report, the examiner indicated that the Veteran was suffering from degenerative joint disease of the spine. The examiner indicated that the date of onset of the disability was 1962, as the Veteran apparently reported back and neck pain since that time. Regarding a history of trauma, the examination report reflects a fall causing a neck injury in 1975 and a low back injury at work in 1986. The examiner did not provide an opinion regarding the origins of the Veteran's current low back disability, as the examination was apparently intended for an opinion regarding a claimed cervical spine disability. Nonetheless, the examiner observed that the service treatment records contained no mention of the thoracolumbar spine. In his June 2010 substantive appeal, the Veteran asserted that while stationed in Guantanamo Bay, he was ejected from a pickup truck that rolled over and that he suffered a back injury as a result. Discussion At the outset, the Board observes that no degenerative joint disease of the thoracolumbar spine was shown in service or in the first post-service year. Indeed, there is no evidence of degenerative joint disease of the thoracolumbar spine until years after service. The Board is aware that a VA examiner suggested an onset of back pain in 1962. VA, however, does not generally grant service connection for symptoms alone without an identified basis for those symptoms. Here, an actual diagnosed disability of the back was not noted in service or in the first year following discharge. Indeed, years had elapsed between service separation and the diagnosis of degenerative joint disease of the thoracolumbar spine, as no mention of the low back disability is apparent until the early 1980's. Consequently, service connection for the Veteran's thoracolumbar spine degenerative joint disease cannot be granted based upon chronicity in service, continuous symptoms of degenerative joint disease from service separation to the present, or presumptively based upon diagnosis of a chronic disease (in this case an arthritic disability) within one year of discharge. 38 C.F.R. §§ 3.303(b); 3.307, 3.309(a); see also Walker, supra. Because the facts in this case do not warrant service connection based on chronicity in service, continuity of symptomatology from service separation to the present, or based upon diagnosis within a year of discharge, the only way in which service connection for the Veteran's current thoracolumbar spine degenerative joint disease can be established herein is if the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The record contains no credible medical opinion regarding the etiology of the Veteran's current thoracolumbar spine degenerative joint disease. As stated, the Veteran contends that his current thoracolumbar spine disability is related to a motor vehicle accident injury sustained during service at Guantanamo Bay. The service treatment records appear to be complete, yet they contain no mention of such an accident. The Board finds that the Veteran's assertions on a back injury in Guantanamo Bay are not credible, as medical attention would normally be sought pursuant to motor vehicle accident injuries, and the service treatment records are silent as to a motor vehicle accident and/or an ejection from a vehicle at Guantanamo Bay or elsewhere. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (VA may use silence in the service treatment records as evidence contradictory to the Veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). Thus, the Board finds that the February 2007 examiner's opinion the degenerative disc disease began in 1962 is based on an inaccurate predicate and so is not credible. The Board next notes that had there been any injury to the low back in service, it would likely have been mentioned in pursuit of SSA disability benefits. As outlined above, the Veteran's attorney at the time listed four back injuries beginning in March 1982. Presumably, he would have noted any in-service back injuries had the Veteran reported any, as the attorney appears to have made an attempt to offer a comprehensive history of back injuries. See Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability). There being no credible evidence, either lay or medical, of any thoracolumbar spine injury in service or of a nexus between the current thoracolumbar spine degenerative joint disease and service, the preponderance of the evidence is against the claim, and service connection for the Veteran's claimed disability must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102, 3.303; Alemany, supra. ORDER Service connection for a thoracolumbar spine disability is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs