Citation Nr: 1329316 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 08-16 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for degenerative disc disease of the thoracic spine. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1973 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In March 2009, the Veteran testified before the Board at a hearing held at the RO. A transcript of that hearing is associated with the claims file. The Veterans Law Judge (VLJ) who presided over the March 2009 hearing is no longer employed by the Board. The law requires the VLJ who conducted the hearing to participate in the decision on appeal. 38 C.F.R. § 20.707 (2012). In May 2010, the Board notified the Veteran of this regulation and his right to another hearing. As neither the Veteran nor his representative have requested a new hearing, the Board will proceed with review of the record as it now stands. The Board remanded the Veteran's claim in September 2009, September 2010, and December 2012 for additional development. The claim has been returned to the Board for further appellate review. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The evidence does not demonstrate that degenerative disc disease of the thoracic spine is causally or etiologically related to active military service. CONCLUSION OF LAW The criteria for service connection for degenerative disc disease of the thoracic spine have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). The record shows that a December 2006 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was also notified of regulations pertinent to the establishment of an effective date and disability rating in the December 2006 letter. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds that the duty to assist the Veteran has been satisfied in this case. The record includes service treatment records, VA examination reports, VA treatment records, private treatment records, and lay evidence. In the September 2009 remand, the Board requested that the RO obtain all outstanding records regarding treatment for the Veteran's thoracic spine disorder. Once all necessary steps were completed, the VA examiner who performed the December 2008 VA examination was asked to review the Veteran's entire claims file, to include the private treatment records submitted in December 2009 and copies of any additional records procured, and provide an addendum to the original opinion. Accordingly, the VA examiner provided an addendum opinion in February 2010. However, as it was unclear whether the VA examiner reviewed the private treatment records from December 2003 to May 2004 prior to completing the addendum, and the Veteran had reported that he felt uncomfortable with the December 2008 VA examiner, the Board remanded the Veteran's claim for further development, to include the provision of an additional VA examination performed by a qualified examiner other than the December 2008 VA examiner. As a result, the Veteran was scheduled for an additional VA examination in January 2011, and notice was sent to his last address of record. The Veteran was also notified that he should submit any additional records of treatment received since February 2010. However, the Veteran did not report for the scheduled examination or respond to the request for information. As a result, the RO issued a Supplemental Statement of the Case (SSOC) in November 2011, which continued the denial of service connection for degenerative disc disease of the thoracic spine. The record demonstrates that the November 2011 SSOC was returned as not deliverable as addressed. In December 2011, the Veteran's representative submitted a written statement asserting that the Veteran had not received notice of the January 2011 examination. Therefore, the Veteran requested that the examination be rescheduled. The Veteran also reported that he had submitted a change of address a few years ago but the address had not been changed in the system. In a November 2012 Informal Hearing Presentation, the Veteran's representative repeated the assertions and stated that the Veteran had been genuinely unaware of the information request and examination. After review, the Board remanded the Veteran's claim in December 2012 for additional development. First, the Board instructed that the RO request that the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for his thoracic spine disability since February 2010. The record demonstrates that the appropriate notice was sent to the Veteran's address of record on February 2013 and was not returned as undeliverable. In addition, the Board directed that the RO schedule the Veteran for an additional examination for the purpose of determining the nature and etiology of any thoracic spine disability. The evidence shows the Veteran was scheduled for the requested examination in April 2013. However, the Veteran did not report for the examination or respond to the request for information. 38 C.F.R. § 3.159(c)(4). As such, the RO issued a SSOC in June 2013 continuing the denial of service connection. In July 2013, the Veteran's representative submitted an informal hearing presentation acknowledging that the Veteran did not report for the examination and requesting that the Board review the Veteran's case based on the record. The record does not demonstrate that the Veteran requested to have the examination rescheduled. As such, scheduling another examination in this matter is not required. 38 C.F.R. § 3.655 (2013); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street."). Therefore, the Board finds the AMC substantially complied with all of the remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran was assisted at the hearing by an accredited representative from Veterans of Foreign Wars of the United States. The representative asked the Veteran specific questions regarding his in-service injury and his symptoms during and following separation from service. The VLJ noted the Veteran's specific statements and indicated she would seek to obtain any other pertinent documentary evidence not currently associated with the claims file that might substantiate the claim. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). There is no indication in the record that any additional evidence relevant to the claim is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The Veteran asserts that his current degenerative disc disease of the thoracic spine had its onset during active duty. He contends that in May 1975 he fell onto a tank hatch and was treated for his back at a hospital in Frankfurt, Germany. The Veteran reports that physicians diagnosed degenerative disc disease at that time. He states that he has had continuous symptoms since the in-service injury, although he did not receive treatment immediately following separation from service because he was unable to afford health insurance. Service connection may be established for a disability resulting from a disease or injury incurred in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). As degenerative disc disease of the thoracic spine is not listed as a chronic disease under 38 C.F.R. § 3.309, the provisions of 38 C.F.R. § 3.303(b) are not applicable in this case. 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 prior to acceptance and enrollment and was not aggravated by service. 38 U.S.C.A. § 1111 (West 2002). This presumption of sound condition attaches only where there has been an induction examination in which a disease or injury was not noted but which manifested or was incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48, No. 11- 2355, 2012 WL 5233422 (Vet. App. Oct. 24, 2012) ("Once the presumption of soundness is applied, if the Secretary is unable to rebut the presumption, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established."); see also Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed.Cir. 2009). The term "noted" in section 1111 of the statute denotes only such conditions as are recorded in examination reports. History provided by a veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 C.F.R. § 3.304(b)(1) (2013); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). The Board is to consider all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. § 7104(a) (West 2002) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"). 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran denied a history of recurrent back pain on a November 1973 report of medical history, and his spine and musculoskeletal system were normal on examination in November 1973. A May 1975 service treatment record shows the Veteran complained of lower back ache or sharp pain, with limited range of motion. An additional May 1975 service treatment record from the orthopedic clinic in Frankfurt, Germany shows the Veteran had a history of increasing back pain for four years. He denied a history of trauma and indicated pain in the mid-thoracic region, midline over the spine. Flexion was to 40 degrees with tenderness over T9-10 area. There was a notation that X-ray examination showed narrowing of disc space at T9-10, although a question mark followed the word "X-ray." The assessment was narrowing disc space at T9-10 and early degenerative changes. The Veteran's June 1975 discharge examination indicates that the Veteran's spine and musculoskeletal system were normal. The Veteran reported a history of recurrent back pain on a June 1975 report of medical history. A December 2003 private treatment record shows the Veteran had chronic, recurrent low thoracic pain that dated back to a fall while in service. The Veteran reported that he fell onto a TC hatch in 1974 and that he had progressive, worsening back pain ever since. X-ray examinations of the C-spine, thoracic spine, and lumbar spine failed to show any significant problems. There were no significant changes noted, especially in the area of point tenderness in the low thoracic spine and thoracolumbar junction. The impression was thoracic facet syndrome versus disk disruption versus popping rib syndrome with regional myofascial pain. The private physician indicated that notes from Dr. J. Johnson's office referenced chronic back pain for 20 years or more, and there was a reference for physical therapy as well as Paxil. A January 2004 private treatment record reflects an assessment of chronic, recurrent thoracolumbar strain, possible facet syndrome, and a March 2004 private treatment record shows an impression of thoracolumbar facet syndrome versus regional myofascial pain versus thoracic disk protrusion. An April 2004 magnetic resonance imaging scan (MRI) of the thoracic spine without contrast was performed. The findings were normal thoracic kyphosis, and vertebral body height and marrow signal appeared maintained. Discogenic endplate changes/Schmorl's nodes were identified involving T9, T10, and T11. There was no evidence of vertebral body malalignment, and there was some disc space narrowing in the mid thoracic spine. At T8-T9, there was minimal disc bulge eccentric to the left which indented the ventral aspect of the thecal sac without causing spinal stenosis or neural foraminal narrowing. At T9-T10, there was minimal posterior disc/osteophyte complex bulge eccentric to the right which indicted the ventral aspect of the thecal sac without causing spinal stenosis or neural foraminal narrowing. Similar findings were identified on the left at T10-T11. The impression was mild degenerative changes involving the disc from T8-T9 to T10-T11 without spinal stenosis or neural foraminal narrowing. In June 2007, the Veteran underwent VA examination in connection with his claim. The Veteran reported medical management of chronic pain in the thoracic spine for over 30 years, and the record reflects that the Veteran claimed that his thoracic spine condition at T10-T12 had its onset in 1974. The Veteran reported that in 1974 he slipped in the rain and landed on a TC Hatch on top of a track while serving in the Army in Germany. He stated that he injured his thoracic spine and was hospitalized for a disc injury at T-12. He reported that he had been seeing chiropractors for years and that he recently had several trigger point injections for worsening back pain. He denied subsequent trauma to his spine. There was a history of stiffness, spasms, and pain noted, and the location and distribution of the pain was T-10, T-11, and T- 12. A July 2007 MRI of the lumbosacral spine showed mild rotoscoliosis with generative change, minimal wedging of L1, and multiple level early degenerative disc disease. A July 2007 MRI of the thoracic spine demonstrated mild rotoscoliosis with minimal degenerative change and no specific vertebral body, disc interspace, or posterior element abnormality. The VA examiner diagnosed degenerative disc disease of the thoracic spine at T-10-T-12 but did not provide a medical opinion concerning the etiology of the Veteran's diagnosis. The record indicates the Veteran did not report for a scheduled VA examination in November 2008. In December 2008, the Veteran was provided an additional VA examination to determine the nature and etiology of any thoracic spine disability. The Veteran reported that while stationed in Germany he fell back against a tank hatch, injuring his middle back in 1974 or 1975. He stated he was taken to the military hospital and told he had disc wedging in the spine. Two years later he noticed pain in the middle of the back to the low back and had been to chiropractors for manipulation. It was noted that the Veteran also had a lumbar spine condition and neck condition. The VA examiner provided a diagnosis of thoracic spine, with subjective report of mid and lower thoracic pain. When asked whether the Veteran's thoracic spine disability was related to his military service, the VA examiner stated the issue could not be resolved without resorting to mere speculation. Specifically, the VA examiner cited the lack of medical records demonstrating treatment for a thoracic spine disability since service. In addition, the VA examiner noted that a 2007 X-ray examination did not report any wedging of the thoracic vertebra. The VA examiner noted that although the Veteran reported having back pain for four years in May 1975, there was no mention of a traumatic event to the spine, and that two months later physical objective findings on the June 1975 examination report showed the spine was normal. The VA examiner also commented that there were no objective records to support that the Veteran's mid low back pain incident documented in service was a chronic thoracic spine condition. In March 2009, the Veteran testified that he had not injured his back before service; rather, he had first injured his back when he slipped and fell onto a TCX in May 1975. He stated that he had landed straight on his back and complained of a back problem the following day. The Veteran asserted that he had not filed a claim for benefits sooner as he did not have much knowledge of the process; however, he had experienced continuous pain since the injury. He reported that he had been treated by chiropractors in the 1980s. In a February 2010 addendum, co-signed by the December 2008 VA examiner, a VA physician stated that, as the Veteran had not provided any treatment records suggesting a link between his current thoracic spine disorder and service, the Veteran's thoracic spine disorder was less likely than not related to service. Pursuant to the Board's December 2012 remand, the Veteran was scheduled for an additional VA examination in April 2013. However, the Veteran did not report for the examination. Service treatment records show the Veteran reported a history of back pain dating back prior to his entrance into service. However, as the Veteran's spine and musculoskeletal system were normal on his November 1973 entrance examination and no back disability was noted on the examination report, the Veteran is presumed sound upon entrance into service. With respect to a current disability for purposes of service connection, X-ray examination in July 2007 showed mild rotoscoliosis with minimal degenerative change, and the VA examiner diagnosed degenerative disc disease of the thoracic spine at T-10-T-12. As such, the evidentiary requirement of demonstrating a current disability has been satisfied. Hickson v. West, 12 Vet. App. 247, 253 (1999). Concerning an in-service injury, service treatment records show the Veteran complained of lower back pain in May 1975, and a May 1975 service treatment record reflects an assessment of narrowing disc space at T9-10 and early degenerative changes. As a result, the Board finds the Veteran has established an in-service injury for the purpose of service connection. With evidence of a current disability and an in-service injury, the remaining element required to establish service connection is a nexus between the current disability and the in-service injury. In this case, the medical evidence of record does not include an etiological opinion relating the Veteran's current degenerative disc disease of the thoracic spine to his active duty service. The Board previously found that the VA medical opinions of record were inadequate for purposes of establishing service connection and therefore remanded the Veteran's claim for additional VA examination. However, the Veteran did not report for the examination, nor does the record contain any medical opinion linking the Veteran current DDD to service. As a result, the only evidence of record indicating an association between degenerative disc disease of the thoracic spine and active duty service are the Veteran's own assertions. The Veteran is competent to describe symptoms such as back pain, which he is able to perceive through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge). However, it is well established that a layperson without medical training, such as the Veteran, is not qualified to render medical opinions regarding the etiology of disorders and disabilities, such as degenerative disc disease. See 38 C.F.R. § 3.159(a)(1). In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As the origin or cause of degenerative disc disease is not a simple question that can be determined based on mere personal observation by a lay person, the Veteran's lay testimony is not competent to establish medical etiology or nexus. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. It is not shown that the Veteran or his representative is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of degenerative disc disease. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the Veteran's lay opinion does not constitute competent medical evidence and lacks probative value. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for degenerative disc disease of the thoracic spine. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine does not suffice to establish entitlement to the benefit sought, and service connection must be denied. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55-56. ORDER Entitlement to service connection for degenerative disc disease of the thoracic spine is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs