Citation Nr: 1325384 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-22 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for back disability, asserted as scoliosis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant & N.W. ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant served on active duty from April 16, 2001 to May 24, 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in July 2012 when it was reopened and remanded for additional development on the merits FINDINGS OF FACT 1. The appellant's scoliosis was noted at service entry. 2. Clear and unmistakable evidence demonstrates that the appellant's scoliosis was not aggravated by service and underwent no increase in severity during service. CONCLUSION OF LAW The criteria for service connection for back disability, to include scoliosis, have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expect to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the VCAA duty to notify was satisfied by way of an October 2006 letter. The October 2006 letter was sent prior to the initial RO decision in this matter. The October 2006 letter informed the appellant of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content as to the appellant's claim. The October 2006 letter also provided the appellant with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). In any event, the appellant has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption 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). VA also has a duty to assist a veteran in the development of a claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment records and post-service private treatment records. The appellant had a VA examination in June 2013. As the June 2013 VA examination report was based upon an accurate understanding of the disability at issue, as well as the appellant's documented medical history, based upon review of his claims file, the Board finds it is adequate for the purposes of deciding his claim for service connection for scoliosis decided herein. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim and no further assistance to develop evidence is required. As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the appellant has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Dingess/Hartman, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). B. Legal Criteria, Factual Background, and Analysis The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her 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 evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and address the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by the veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodrigues, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 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; Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). "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). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). The clear and unmistakable evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)). Service connection may also be granted for congenital diseases. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). The law provides that a veteran who served during a period of war, or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. § 1111. In the present case, the Board finds that the preponderance of the evidence is against a grant of service connection for scoliosis. The Board further finds that clear and unmistakable evidence demonstrates that the appellant's scoliosis was both preexisting and not aggravated by service. The appellant's service treatment records include a January 2001 Report of Medical Examination at service entry that shows the appellant was noted to have scoliosis that was not considered disqualifying. As such, there is no presumption of soundness at service entry with respect to this condition. 38 U.S.C.A. § 1111; see also Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004); Crowe v. Brown, 7 Vet. App. 238 (1994). The evidence also shows that the appellant's scoliosis was not aggravated by service is clear and unmistakable. Specifically, the most probative evidence in this matter, a May 1, 2001 service clinical record and the June 2013 VA examination opinion, show that there was no increase in disability during service. The May 1, 2001 service clinical record found that the appellant had significant scoliosis and should never have made it through the service entry examination. The physician's findings are probative because the physician discussed the appellant's medical history, noting he was involved in a car accident in 1999 (prior to service), conducted a physical examination of the appellant, including radiographs (which revealed a 45 degree detroscoliosis at T8-T10 with a secondary levoscoliosis of 48 degrees at L1-L2), and provided an unequivocal and definite opinion that the appellant should not have been allowed entry into service. On June 2013 VA examination, it was opined that the appellant's scoliosis was less likely than not incurred in or caused by his service. The examiner noted the appellant's contention that he should never have been allowed entry into active service, and that his basic training aggravated his back (resulting in surgery in March 2002 when he underwent T4-L3 posterior spinal fusion). The examiner stated that the activities in basic training did bring his back disability to the attention of the service medical staff, but that it was just a matter of time that he would get back problems and need the surgery, inferring that the disability is progressive and would worsen. At the present, his back disability is one where one would expect scoliosis with a 45 degree curve following surgery. However, the surgery was successful in correcting the curve from 45 degrees to 12 degrees (as found on examination). The examiner opined that the severity of the appellant's scoliosis since the surgery is due to the natural progression of the disease. The Board notes that the June 2013 VA examiner's opinion is supported by the March 2002 operative report that provided a diagnosis of progressive adult scoliosis (emphasis added). There is no medical evidence to the contrary regarding this matter. Therefore, the Board concludes that there is clear and unmistakable evidence the appellant's scoliosis was not aggravated by service, as there was no increase in the disability during service beyond natural progression. The Board finds the appellant's own statements to the effect that his scoliosis was aggravated in service are outweighed by the more probative opinions of the June 2013 VA examiner, which are supported by the May 1, 2001 service clinical record and the March 2002 operative report, because the opinions were provided by a medical expert, an area of expertise the appellant is not shown to possess, and because the opinions are based on review of the appellant's claims file, elicited medical history on interview, and physical evaluation of the appellant. Whether the appellant's scoliosis was aggravated by his active service beyond the natural progression of the condition is a complex medical question beyond incapable of resolution by lay observation. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (lay evidence is not always competent evidence of a diagnosis or nexus, particularly where complex medical questions or the interpretation of objective medical tests are involved); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In sum, the Board finds that the most probative evidence demonstrates that there is clear and unmistakable evidence that the appellant's scoliosis existed prior to service and was not aggravated due to service beyond normal progression. Accordingly, service connection for scoliosis is not warranted. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for back disability, claimed as scoliosis, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs