Citation Nr: 1321482 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 08-04 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for scoliosis. 2. Entitlement to service connection for pectus excavatum. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1998 to January 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which, in pertinent part, denied the current appellate claims. The record reflects the Veteran initially requested a Board hearing in conjunction with this appeal, and such a hearing was scheduled for October 2010. However, the Veteran failed to report for this hearing, and no good cause has been shown for this failure. Consequently, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.702(d) (2012). This case was previously before the Board in November 2010 and September 2012, at which time the current appellate claims were remanded for further development to include a VA medical examination to address the nature and etiology of the claimed disabilities. Such an examination was accomplished in December 2012, and, as detailed below, the Board finds it is adequate for resolution of this case. All other development directed by the Board's prior remands appears to have been substantially accomplished. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The competent medical and other evidence of record clearly and unmistakably reflects the Veteran's scoliosis pre-existed active service and was not aggravated therein. 2. The competent medical and other evidence of record clearly and unmistakably reflects the Veteran's pectus excavatum pre-existed active service and was not aggravated therein. CONCLUSIONS OF LAW 1. The requirements for a grant of service connection for scoliosis are not met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306, 4.9 (2012). 2. The requirements for a grant of service connection for pectus excavatum are not met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306, 4.9 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the Veteran 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, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent pre-adjudication notice via letters dated in February and March 2006, both of which were clearly prior to the April 2006 rating decision that is the subject of this appeal. He was also sent additional notification via letters dated in January 2011 and October 2012. This case was last adjudicated below by a February 2013 Supplemental Statement of the Case which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. In pertinent part, these letters informed the Veteran of what was necessary to substantiate his current appellate claims, what information and evidence he must submit, what information and evidence will be obtained by VA, and the information and evidence used by VA to determine disability rating(s) and effective date(s) should service connection be established. In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, and nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified any outstanding evidence which demonstrates his current scoliosis and/or pectus excavatum was incurred in, aggravated by, or otherwise the result of his active service. As noted in the Introduction, his hearing request has been deemed withdrawn. Moreover, he was accorded a VA medical examination in December 2012 which included opinions that addressed the nature and etiology of his claimed scoliosis and pectus excavatum. As these opinions were based upon both a medical evaluation of the Veteran, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation. No competent medical evidence is of record which specifically refutes the findings of the December 2012 VA examiner, and the Veteran has not otherwise identified any prejudice therein. Accordingly, the Board finds that this examination is adequate for resolution of this case. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. 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 appellant 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Legal Criteria and Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Veteran essentially contends that pectus excavatum and scoliosis were first diagnosed during service and are a result of his military service. The RO has denied this claim stating that both conditions are congenital and pre-existed service. The Board notes that congenital or developmental defects are not diseases or injuries within the meaning of the applicable law and regulations for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. A defect is a structural or inherent abnormality or condition which is more or less stationary in nature. VAOPGCPREC 82-90 (1990). A disease may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. Id. Service connection may be granted for diseases of congenital, developmental, or familial origin, but not for defects, unless such defect was subject to superimposed disease or injury during military service. Id. Such a disease, by its very nature, preexists a claimant's military service, and typically, entitlement to service connection turns on the question of whether manifestations of the disease in service constituted "aggravation" of the condition. Id. The Board further notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. History provided by a veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In this case, neither the Veteran's scoliosis nor his pectus excavatum were noted at the time of his August 1997 enlistment examination, nor did he indicate any such conditions on the concurrent Report of Medical History. His service treatment records reflect that he had sought treatment for back and chest pain in December 2004, which was ultimately diagnosed as scoliosis and pectus excavatum. When no preexisting medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096. "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing to Wagner, 370 F.3d at 1096). If the government fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation. Wagner, supra. Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Likewise, temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a veteran to show increased disability for the purposes of determinations of service connection based on aggravation unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). The Board notes that the matter of whether the Veteran's scoliosis and/or pectus excavatum are congenital diseases or defects, and, if so, whether such pre-existed and/or were aggravated by service involves complex medical issues. Further, while the Veteran is competent, as a lay person, to describe visible symptoms such as pain, his scoliosis involves the spine which is internal and generally not subject to lay observation. The record also reflects that specific medical testing (i.e., CT scan) was necessary to attribute the Veteran's complaints of chest pain to the diagnosed pectus excavatum. Therefore, the Board finds that competent medical evidence is required to determine the nature and etiology of the claimed conditions. Moreover, this finding is consistent with the fact that the Court has held that in determining whether a disorder pre-existed service all medically accepted evidence can be considered, including a recorded medical history and a medical opinion acquired several years after service. Harris v. West, 11 Vet. App. 456 (1998) Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions do not constitute competent medical opinions. 38 C.F.R. § 3.159(a)(1). In this case, the only competent medical opinion to address the matter is that of the December 2012 VA examiner. Following evaluation of the Veteran, the examiner confirmed the diagnoses of pectus excavatum and thoracic scoliosis. Further, the examiner opined that both of the claimed conditions clearly and unmistakably existed prior to service; and were clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In support of this opinion, the examiner noted that both conditions were congenital defects, and that review of the claims folder did not show either condition was worsened beyond its natural progression as a result of military service. The examiner also noted that both conditions were currently asymptomatic. In a February 2013 addendum, the examiner noted that the claims folder had been reviewed. In this case, the December 2012 VA examiner is identified as a physician, and is presumed to be qualified to provide a competent medical opinion in this case. Further, the examiner indicated that he was aware of the Veteran's medical history from review of the VA claims folder. The examiner also noted relevant findings regarding both of the claimed conditions in the examination report itself. The examiner's opinions are not expressed in equivocal or speculative language. In fact, the opinion is unequivocal in finding that both the scoliosis and pectus excavatum clearly and unmistakably pre-existed service and were not aggravated therein. Moreover, the examiner supported the opinions by stated rationale which, in pertinent part, noted that both conditions are congenital defects, and that the record did not reflect either worsened beyond natural progression during active service. As such, the Board finds that the opinions expressed by the VA examiner are persuasive and entitled to significant probative value in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board also reiterates that no competent medical opinion is of record which contradicts/refutes the findings of the VA examiner; i.e., the opinion is uncontradicted. The Court has held that a physician's "unequivocal and uncontradicted opinion" can itself serve as clear evidence to rebut the presumptions of soundness and aggravation. Harris, 11 Vet. App. at 461 (The physician found that a veteran's medical condition, which was not noted at enlistment, preexisted service, and that the worsening during service was commensurate with the natural progression of the condition.). In view of the foregoing, the Board finds that the competent medical and other evidence of record clearly and unmistakably reflects the Veteran's scoliosis and pectus excavatum pre-existed active service and were not aggravated therein. No other basis for establishing service connection for the claimed disabilities is demonstrated by the evidence of record. Therefore, his claims must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for scoliosis is denied. Service connection for pectus excavatum is denied. ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs