Citation Nr: 1318550 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 07-11 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a thoracic spine disorder. 3. Entitlement to service connection for a lumbosacral spine disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1969 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran has relocated during the course of this appeal, and jurisdiction of his claims has been transferred to the RO in Seattle, Washington. In March 2009, the Veteran testified before a VA Decision Review Officer (DRO) seated at the RO. A written transcript of that hearing has been added to the claims file. The issues on appeal were previously presented to the Board in June 2011, at which time they were remanded for readjudication considering additional evidence in the form of a Social Security Administration May 2007 disability determination decision letter. These issues were again presented to the Board in February 2013, at which time the Board reopened the service connection claim for a thoracic spine disorder based on the receipt of new and material evidence, and remanded the issues of service connection for disorders of the cervical, thoracic, and lumbosacral spine to the agency of original jurisdiction (AOJ) for additional development and consideration. Specifically, the AOJ was requested to afford the Veteran a VA medical evaluation and opinion. Such an examination and opinion was accomplished in March 2013. The required action has thus been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran sustained back and neck injuries as a result of a motor vehicle accident during service in June 1970, and was treated for neck and back pain and related symptoms. 2. Symptoms of a neck or back disorder were not chronic in service. 3. Symptoms of a neck or back disorder have not been continuous since service separation. 4. Arthritis of the cervical, thoracic, or lumbosacral spine did not manifest during service or within a year thereafter. 5. The Veteran's current disorders of the cervical, thoracic, and lumbosacral spine are not related to active service. CONCLUSIONS OF LAW 1. A chronic disability of the cervical spine was not incurred in service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. A chronic disability of the thoracic spine was not incurred in service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 3. A chronic disability of the lumbosacral spine was not incurred in service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. With respect to the Veteran's claims decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions under the VCAA. In February 2005, July 2011, and March 2013 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Additionally, an August 2012 supplemental statement of the case provided him with the general criteria for the assignment of an effective date and initial rating. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Finally, initial VCAA notice was provided the Veteran prior to the rating determination on appeal, and therefore no timing issue exists with regard to the notice provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). During the March 2009 RO hearing, a RO Decision Review Officer asked questions to help direct the Veteran's testimony to the claimed in-service back and neck injuries, and asked the Veteran if there were any additional records or other pertinent evidence of his in-service and post-service treatment. These actions fulfilled the duties under 38 C.F.R. § 3.103 (2012). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board is also satisfied 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, private treatment records, Social Security Administration records, the Veteran's lay statements, and RO hearing testimony. The RO has made additional efforts to obtain private treatment records from Alaska Regional Hospital, but no response was received from this private facility, and the Veteran was so informed in December 2009. Finally, the Veteran was afforded a VA medical examination and opinion in March 2013. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and is adequate for purposes of this appeal. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection for Disorders of the Cervical, Thoracic, and Lumbosacral Spine The Veteran seeks service connection for disorders of the cervical, thoracic, and lumbosacral spine. He contends that he injured these segments of the spine as the result of an in-service motor vehicle accident while serving overseas and, because these disorders continue to the present, service connection is warranted. Additionally, because these disorders are alleged to have arisen from a common etiology, the Board will discuss them together herein. 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; 38 C.F.R. § 3.303(a). Service connection may 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). 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). In this case, arthritis is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 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). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from 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 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. After a review of all the evidence, the Board finds that the Veteran sustained various injuries during a motor vehicle accident during service in 1970, and was treated for pain and other symptoms, but did not experience chronic symptoms of back or neck disorders during service or experience continuous symptoms of back or neck disorders since service. The service treatment records contain an October 1967 ROTC entrance examination which was negative for any spinal abnormalities. Likewise, a May 1969 active duty entrance examination was negative for any spinal abnormalities. The Veteran initially sought treatment in March 1970 for chronic low back pain. On physical examination in March 1970, the back was normal in appearance, with good range of motion. An X-ray of the lumbosacral spine indicated the fifth lumbar vertebrae was asymmetrically sacralized, but was otherwise negative for abnormalities. A lumbosacral strain was diagnosed, and he was referred for physical therapy. In June 1970, he sought treatment following a motor vehicle accident, although he did not report back pain at that time. He did report chest pain, but X-rays were negative for any abdominal fracture. In July 1970, he underwent an X-ray of the cervical spine following reports of neck pain. No abnormalities or other significant pathology of the cervical spine were diagnosed. A December 1971 service separation examination was negative for any abnormalities of the cervical, thoracic, or lumbosacral spine. On the question of whether the symptoms were chronic in service, the Board notes that, while the Veteran was treated in March 1970 during service for back pain, he responded to initial treatment and did not seek further treatment for his symptoms, according to the service treatment records. Furthermore, while the Veteran's involvement in a June 1970 motor vehicle accident is confirmed within the service treatment records, he did not report neck or back pain at that time, and an X-ray of the neck taken the next month was within normal limits. Additionally, he did not report chronic disorders of either his neck or back on his subsequent service separation examination, or otherwise seek treatment for the same. Such evidence shows that the in-service symptoms had resolved following treatment, and were not chronic in service. Where the 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). The Board next finds that the weight of the evidence demonstrates that the Veteran did not experience continuous spine disorder symptoms since service separation. On the question of whether symptoms were continuous after service, the Veteran did not seek treatment for a back or neck disorder for many years following service separation. This lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The earliest post-service treatment records of the spine are dated in 1986, more than 10 years after service separation. 1986 treatment records from a private hospital confirm reports of, and subsequent lumbar laminectomy surgery for, back pain that clinical testing at that time confirmed as degenerative changes and a herniated disc at L4-5. Several months later, due to continued marked instability of the spine, a Watkins fusion was performed at L4. Thereafter, an uneventful post-operative recovery was noted, and treatment included physical therapy. VA treatment records have indicated degenerative disc disease of the cervical, thoracic, and lumbosacral spines, all confirmed via X-ray studies. As such, current disabilities of the cervical, thoracic, and lumbosacral spine are acknowledged by VA as having been established in the record by competent evidence. Recent VA treatment records also confirm the Veteran's involvement in a post-service motor vehicle accident in 2004, after which he reported neck pain. At that time, he gave a history of "several other variable injuries, motor vehicle and otherwise, over the years." According to an August 2004 clinical notation, the Veteran gave a history of a back injury while playing tennis in the late 1970's. The Veteran has himself asserted, within his written contentions and hearing testimony, that he has experienced post-service pain of the neck and back following the motor vehicle accident in service. For example, in a May 2007 statement made in support of obtaining VA compensation, the Veteran has asserted that, since the in-service motor vehicle accident, he has been plagued with back problems. At the March 2009 personal hearing before a Decision Review Officer, the Veteran stated that he mentioned his back pain to his private general practitioner on several occasions in the 1970s; however, he was unable to obtain any records of this treatment. Such recent assertions, however, are inconsistent with, and outweighed by, other lay and medical evidence of record, including the service separation medical examination that was negative both for complaints or findings of back or neck symptomatology, post-service history beginning in 1986 for a back disorder (Providence Hospital records), the multiple post-service motor vehicle accidents the Veteran sustained (reported during VA treatment) that were reported for treatment purposes, the Veteran's November 2000 claim for service connection and related findings showing only thoracic complaints and findings, and an absence of complaints, findings, or treatment for many years after service. The Providence Hospital records dated in 1986 show a history of treatment only from 1986. The November 2000 claim form reflects that the Veteran only claimed service connection for a back injury, although his complaints at that time were of pain in the upper and lower back, and findings pertained to the thoracic spine. The Veteran filed the claim for service connection for a back disorder in November 2000, soon after a post-service injury during which the Veteran believed that he may have fractured a rib. VA treatment records in (post-service) December 2000 reflect a history of recent possible broken rib, and findings of thoracic spine disability. A November 2004 post-service VA treatment entry also reflects a history of recent motor vehicle accident a few months prior, as well as several other variable motor vehicle injuries over the years. Thus, the Board does not find the Veteran's more recent assertions of continuous post-service back symptoms since service, which were made for VA compensation purposes and in the context of omission of reporting the various post-service motor vehicle injuries since service, to be credible. Cromer v. Nicholson, 19 Vet. App. 215 (2005) (upheld Board's denial of service connection and finding that a veteran's recent post-service account of in-service events was not credible because the veteran had previously given other histories and theories that did not mention the alleged in-service event, and first "came up with the story" years after service and in connection with the compensation claim). Notably, when reporting for compensation purposes, the Veteran does not mention the possible rib fracture or multiple post-service motor vehicle accident injuries, instead asserting generally that he has experienced back problems since service. As the Board does not find the Veteran's lay statements made within the record regarding continuous symptoms of spine disorder since service to be credible, they are afforded no probative weight. These statements are vague in details, and are inconsistent with more contemporaneous medical records and the Veteran's own, more contemporaneous histories, including histories made for treatment purposes. See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder). Thus, they neither establish a nexus between the Veteran's in-service motor vehicle accident and any current spinal disorders, nor establish a continuity of symptomatology following service. The Board next finds that the weight of the evidence demonstrates that the Veteran's current back and neck disorders are not related to active service. The Veteran was afforded a VA medical examination and opinion in March 2013. The claims file was reviewed in conjunction with this examination. Such review included the service treatment records as well, and the in-service motor vehicle accident was explicitly noted by the examiner. Upon reviewing the claims file and examining the Veteran, the VA examiner diagnosed the following spinal disorders: thoracic compression fracture, with onset in 1998; degenerative disc disease of the lumbar spine, with onset in 1986; a lumbar spinal fusion in 1986, and; degenerative disc disease of the cervical spine, first diagnosed in approximately 1998. Regarding the onset of these disorders, the examiner opined it was less likely than not than any of the cervical or thoracolumbar spinal disorders noted on examination had their onset during service, or for many years thereafter. According to the examiner, the Veteran's reported symptoms following the motor vehicle accident were typical of cervical and thoracic/lumbar muscle strains which could have resulted from this incident. The examiner reasoned that, while such traumatic events could lead to arthritis in the future, typically such trauma involves injuries more significant than muscle strains, such as vertebral fractures or ruptured discs, which were not diagnosed in the present case immediately following the accident. Thus, the examiner concluded, because the Veteran's injuries immediately following his in-service motor vehicle accident were not of sufficient severity, it is less likely than not that such injuries resulted in his current disorders of the cervical and thoracolumbar spine. As this opinion was rendered by a competent medical expert after physical evaluation of the Veteran and review of his claims file, including his service treatment records, it is considered highly probative by the Board. The Board is also cognizant that the medical records associated with the Veteran's May 2007 award of Social Security Disability benefits have been obtained and associated with the claims folder. These records, however, consists essentially of the Veteran's VA treatment records, and serve only to verify current disorders of the cervical, thoracic, and lumbosacral spine; they do not provide any additional information regarding the Veteran's in-service injuries or the etiology of the current spine disorders. The Board finds the Veteran is not competent to testify regarding the etiological basis of his current disorders of the neck or back, as this question is of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and a veteran's statements therein cannot be accepted as competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Lay testimony is not competent in the present case, because neither the Veteran nor the other lay persons are competent to state that arthritis of the back or neck was incurred in service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4 (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). The Board does find the Veteran competent to report the chronicity of such observable symptomatology as neck and back pain; but, in light of the normal findings of the back and neck at service separation and the dearth of evidence within the record of treatment or complaints of such symptoms in the period following service, this testimony is considered less probative and less credible than the VA medical examination report and the other evidence of record. The Veteran has stated that he was treated by his private physician following service; but, by his own admission, this treatment did not occur until several years after service, and no records of this treatment are available. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for disorders of the cervical, thoracic, and lumbosacral spine, and the claims for these disabilities must be denied. The benefit-of-the-doubt doctrine is, therefore, not for application, and the claims must be denied. ORDER Service connection for a cervical spine disorder is denied. Service connection for a thoracic spine disorder is denied. Service connection for a lumbosacral spine disorder is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs