Citation Nr: 1339591 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 04-28 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a thoracic spine disorder. 2. Entitlement to service connection for an acquired psychiatric disorder to include as secondary to his back disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to August 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In September 2005, the Veteran testified before the undersigned Veterans Law Judge at the RO. The transcript of the hearing has been associated with the claims folder. In a June 2006 decision, the Board remanded the claims on appeal for further VA medical examinations. In a September 2008 decision, the Board denied the Veteran's claims. The Veteran appealed and the Court of Appeals for Veterans Claims (Court) remanded the claims in accordance with a Joint Motion for Remand (JMR). The Board remanded the claims in October 2009, August 2011 and December 2012. The requested development has been complete and the case has returned to the Board for appellate review. The Board remanded this matter for further development most recently in December 2012. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Following the development requested by the Board was complete, the AMC granted entitlement to service connection for a lumbar spine disorder in a May 2013 rating decision. As this grant of service connection represent a full grant of benefits on appeal with respect to this issue, it is no longer in appellate status or before the Board. The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claim currently on appeal. The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A thoracic spine disorder existed prior to the Veteran's service as it was documented in the February 1964 pre-induction examination. 2. The Veteran's preexisting thoracic spine disorder did not increase in severity during or as a result of service. CONCLUSION OF LAW A thoracic spine disability preexisted service and was not aggravated by active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 With respect to the appellant's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and 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 expected to provide. 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); 38 C.F.R. §§ 3.102, 3.56(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In August 2002, the agency of original jurisdiction (AOJ) provided the notice required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claims for service connection; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. In a July 2006 notice letter, the Veteran was provided with the notice pursuant to Dingess. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as 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. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, private and VA medical records, and Social Security Administration (SSA) records are in the file. As stated above, the Veteran's records within the Virtual VA electronic system have been reviewed in conjunction with the adjudication of this appeal. Moreover, the Board finds that any underlying records in connection with the denial of benefits are irrelevant as the central question here is a nexus one which has been addressed by the medical evidence already of record. Furthermore, the Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran was afforded a VA examination in March 2007, May 2010, September 2011 and in April 2013 and the results of which have been included in the claims file for review. Regarding the March 2007 VA examination, the Court in August 2009 found, after a review of the report of that examination, that the examiner failed to provide adequate rationale for the findings reached in the report. A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to his opinion. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); cf. Miller v. West, 11 Vet. App. 345, 348 (1998) (a bare conclusion, even one written by a medical professional, without a factual predicate in the record is not sufficient to meet that burden). As such, a new VA examination was provided to the Veteran in May 2010. However, the Veteran and his representatives argued that the May 2010 VA medical examination report was not in substantial compliance with the Board's October 2009 remand order for numerous reasons. The Board agreed in the August 2011 Remand. As such a new VA examination was provided in September 2011. This examination involved s summary of the history from a review of the record and from reports by the Veteran, a thorough clinical examination in compliance with regulations and protocols, and opinions on the relationship of the disability to active duty service. The Board concludes that the examination was performed by s qualified physician with appropriate consideration of the history and clinical observations. Therefore, the Board finds that the September 2011 is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. Furthermore, an Outside Medical Opinion (OMO) was conducted in April 2013. The Board, however, finds this examination inadequate as the VA examiner fails to acknowledge the February 1964 pre-induction examination noting an "accented dorsal kyphosis." Specifically, the Board notes that this OMO opinion addresses the Veteran's claim for entitlement to service connection for a lumbar spine disorder, not for the thoracic spine. As such, this OMO will not be addressed in this decision. In March 2012, the Veteran had the opportunity to testify at a Board hearing at the RO over which the undersigned presided. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the Board hearing, the undersigned clarified the issue on appeal, inquired as to the etiology of the Veteran's asserted symptoms, and asked questions that ensured no evidence was overlooked. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Byrant. The Board also finds there has been substantial compliance with its December 2012 remand directives as additional treatment records have been associates with the record on the Virtual VA records system. In addition, as previously stated, SSA records have been associated with the claims file as instructed by the December 2010 remand instructions. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remands. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted arguments and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. II. Merits of the Claim Service connection may be granted if it is shown a veteran suffers from a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. At the time of the service entrance examination, 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 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. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). If a pre-existing disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Independent medical evidence is needed to support a finding that the pre-existing disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe, 7 Vet. App. at 246 (1994). 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)(1); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Where the pre-service disability did undergo an increase in severity during service, clear and unmistakable evidence (obvious or manifest, with the burden on VA) is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306(b). In rendering a decision on appeal, the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board has reviewed all of the lay and medical evidence in the Veteran's claims file. The Board finds that the Veteran is competent to report the symptoms and impairments associated with the thoracic spine disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation). The Board has not discounted lay evidence regarding the Veteran's hearing loss disorder because it is lay evidence or because it was reported by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that a history given by a veteran that has not been found by the Board to be inaccurate is not a basis for discounting an opinion based on that history). That being said, the Board has an obligation to determine the credibility of all evidence, lay and medical. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not always accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran essentially contends that he injured his back in service and that the injuries resulted in his current disability. The Board does not dispute the Veteran has a current disability as evidence by the record. Specifically, the September 2002 VA examiner diagnosed the Veteran's condition as "moderate kyphosis and minimal degenerative and disc disease involving mid and lower thoracic spine." In addition, at the March 2007 VA examination, the Veteran was diagnosed with "[d]orsal spine kyphosis with minimal degenerative changes." Having considered all the evidence of record, lay and medical, in light of the regulations noted above, the Board finds that service connection is not warranted for the Veteran's thoracic spine disorder. In this case, the evidence shows that the Veteran had preexisting thoracic spine disorder that was noted at entrance into service that did not increase in severity during service. A February 1964 pre-induction examination reflects that the Veteran's spine and other musculoskeletal systems were abnormal with an "accented dorsal kyphosis." Therefore, the February 1964 service examiner noted a preexisting thoracic spine abnormality upon entrance into service. 38 C.F.R. § 3.304(b). In this case, because the preexisting thoracic spine disorder was noted entrance into service, the presumption of soundness did not attach at service entrance. See 38 U.S.C.A. § 1111. As the Veteran's pre-existing thoracic spine disorder was noted at the time of entry into service, service connection may be granted only if it is shown that the thoracic spine disorder was aggravated beyond its natural progression during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. If any in-service aggravation of a preexisting disorder noted at service entrance is shown, the in-service evidence of aggravation is considered sufficient to allow for service connection unless there is clear and unmistakable evidence that the disorder was not permanently aggravated beyond the natural progression of the condition during service. See 38 C.F.R. § 3.306. In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase, permanent in nature, in the disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). The primary question then is whether the preexisting thoracic spine disorder is shown to have increased in severity during active service. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). On the question of aggravation of the Veteran's preexisting thoracic spine disorder during service, in this case, the Board finds that the weight of the evidence shows that the Veteran's thoracic spine disorder noted at entrance into service did not in fact increase in severity during service. The Veteran's in-service treatment records reveals that the Veteran presented for treatment of low back pain beginning in August 1965, when x-rays of the Veteran's lumbar were negative, and the findings were of an acute back strain. The Veteran continued to complain of pain of the low back through September 1965, and thereafter is an absence of any complaints until March 1966. In March 1966, the Veteran was admitted to a military hospital for one day, where the diagnosis was low back strain. Later that month, it was noted that the Veteran had full range of motion, no muscle spasm, neural and sensory were intact, but with increased lumbar curvature, and the impression was a postural back pain. Additional x-ray evidence reveals that the Veteran's lumbar spine in March 1966 was normal. Although there are several clinical record cover sheets on file (Forms 8-275-3), and these forms include a place for adding any prohibition or limiting of physical activity because of a medical condition, none of these physical profile reports were ever completed. The record reveals that the Veteran's profile was noted as unchanged and he was returned to duty on each occasion. The Veteran was seen in May 1966 in follow up to the March 1966 exam and the only notation was "negative." The physical examination for service separation in June 1966 noted that the spine and other musculoskeletal functions were normal. In the accompanying report of medical history, the Veteran replied in the negative to questions as to whether he had any arthritis or rheumatism, bone, joint or other deformity or recurrent back pain. In short, the Board finds that there is no evidence of complaints of an injury to the Veteran's thoracic spine, nor is there any evidence of aggravation of the pre-existing "accented dorsal kyphosis" condition. Indeed, it appears that the Veteran's thoracic spine was uninvolved during service. According to Michigan worker's compensation records, the Veteran contended that he slipped on a conveyor and fell in a pit in February 1996, and that the injury was the basis for his compensation. A similar injury was described in a June 1977 report. The Board notes that the Veteran testified in the September 2005 hearing that his family doctor "suggested" that his back condition was related to his military service. However, there is no statement or opinion from the doctor in the Veteran's VA claims folder. According to the September 2011 VA examination, the examiner confirmed the Veteran had degenerative disc disease and thoracic kyphosis. The examiner noted the Veteran stated he was diagnosed with "scoliosis" on this entry exam and had no prior back pain before. The Veteran reported low back pain in service was progressive during service duties. However, no one traumatic episode or incident injured the back. The Veteran reported flare-ups in the back twice a month lasting 2-3 days and that the pain was in the low back. A physical examination revealed the Veteran had the following range of motion: 60 degrees forward flexion with pain at 30 degrees; 20 degrees extension with pain at 10 degrees; 25 degrees right lateral flexion with pain at 20 degrees; 25 degrees left lateral flexion with pain at 20 degrees; right and left lateral rotation with pain at 30 degrees or greater. The Veteran was able to perform repetitive-use testing with three repetitions with forward flexion at 50 degrees; extension at 20 degrees; right and left lateral flexion at 25 degrees; and right and left lateral rotation at 30 degrees or greater. There was additional limitation of range of motion of the thoracolumbar spine following repetitive-use testing and with evidence of functional loss/impairment. There was no evidence of intervertebral disc syndrome. The examiner noted the May 2010 x-ray revealed moderate thoracic kyphosis with multilevel degenerative disc disease on the thoracic spine. Upon review of the evidence of record, the Veteran's lay statements, and the physical examination, the VA examiner determined that the thoracic spine disorder, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness, including the injuries documented on August 1965 and March 1966, as the June 1966 separation examination reported a negative physical examination. The examiner determined that the August 1965 and March 1966 injuries are not an indication of an increased in severity beyond the natural progression, but of normal progression, consistent with the increased thoracic kyphosis. The examiner noted that the condition would predispose an individual to chronic back pain that is exacerbated with physical activities. While the Veteran's condition was occasionally flared during service, it was not permanently aggravated beyond normal, natural progression as evidence by the normal physical examination at the June 1966 separation examination. Regarding the injuries noted in May 1977 and February 1996, the examiner was "unable to form an opinion on whether it [was] more likely as not that the injuries noted in May 1977 and [February] 1996 caused or [permanently] [aggravated] the Veteran's currently manifested back disorder. There is insufficient documentation of these events and [he] would be resorting to mere speculation to form an opinion." In addition, the VA examiner opined that the Veteran's September 2002 and March 2007 VA examination diagnoses were supported by the medical evidence available in the Veteran's medical records. As such, for the above reasons, aggravation of preexisting thoracic spine disorder has not been established, either through the clinical evidence of record or through the reports of medical history/statements provided by the Veteran. When evaluating the weight of medical evidence, the Board is guided by the principle that the probative value of a medical opinion largely rests upon the extent to which such opinion is based upon a thorough evaluation of the Veteran's medical history, including but not limited to the medical evidence contained in the claims file. See, e.g. Miller v. West, 11 Vet. App. 345, 348. The Board may examine the factual foundation of a medical opinion, including whether the physician had access to relevant information of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In this regard, the Board notes that the evidence does not include medical evidence demonstrating that the pre-existing thoracic spine disorder was aggravated by (worsened during) service. The Board further observes that the September 2011 VA examiner provided an opinion that the Veteran's pre-existing thoracic spine disorder was less likely than not to have been permanently worsened as a result of service. The Board is placing great probative weight on this opinion. The VA examiner's opinion was based upon a thorough review of the claims folder and a comprehensive examination of the Veteran. The examiner provided a detailed rationale to support his opinion. The Veteran's entire claims file, which at the time included his service treatment records, private and VA treatment records, and statements from the Veteran along with other lay statements, was reviewed and considered. Based on all of the evidence, the examiner rendered an opinion that was supported by detailed and complete rationale. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Thus, the Board finds this examiner's opinion to be the most probative evidence of record. The only evidence of record in support of the Veteran's claim consists of his own lay statements. The Board acknowledges the Veteran contentions that his current thoracic spine disorder is related to his military service. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). His assertions that he experiences symptoms of pain are also credible. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's preexisting thoracic spine disorder was aggravated by his military service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer) In sum, the preponderance of the evidence of record is against a finding that the Veteran's preexisting thoracic spine disorder, which was noted at entrance into service, underwent any increase in severity during service. For these reasons, the Veteran's appeal as to this issue must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a thoracic spine disorder is denied. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). In the December 2012 remand, the Board requested that the Veteran undergo a VA examination to obtain a medical opinion as to whether his claimed acquired psychiatric disorder was etiologically related to his thoracic and/or lumbar spine disorders. As explained below, however, the requested opinion has not been obtained. As the Board is required to ensure compliance with the instructions of its remands, the matters on appeal must again be remanded. Stegall v. West, 11 Vet. App. 268 (1998). As stated earlier, the Veteran has been granted service connection for his claim of lumbar spine disorder. The Veteran underwent a VA examination in July 2013. The VA examination report indicated the Veteran did not have a current mental health diagnosis, and that a diagnosis of adjustment disorder was considered. The examiner also acknowledged that the Veteran was diagnosed with dysthymia at the September 2002 VA examination. However, it appears that the examiner did not provide an etiological opinion because he found that the Veteran was not currently suffering from any manifestations of mental health disorders and/or that he currently does not have a current diagnosis of a mental health disorder. However, the record clearly reflects manifestations of dysthymia, during the pendency of the Veteran's claim following. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of the existence of a current disability for the purpose of a grant of service connection is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim.) Given the holding in McClain, the requirement to ensure compliance with the instructions of its remands (Stegall, supra), and the inadequacy of the medical opinion evidence currently of record (McLendon v. Nicholson, 20 Vet. App. 79 (2006)), a remand is required to obtain an addendum opinion from the July 2013 VA examiner as to whether, at any time since the claim was filed in March 2002, the Veteran had any mental health disorder to include dysthymia is etiologically related to service, namely his service-connected lumbar spine disorder. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion to the July 2013 VA mental disorder examination regarding the whether the Veteran's dysthymia, diagnosed in the September 2002 VA examination, is related to service. After a review of the record on appeal and an examination of the Veteran, the examiner must provide an opinion regarding whether it is at least as likely as not (i.e., 50 percent or greater probability) that any diagnosed acquired psychiatric disorder, including those previously diagnosed during the pendency of the claim, is directly related to service, to include whether it is secondary to his service-connected lumbar spine. If the April 2009 VA examiner is unavailable, or another examination of the Veteran is deemed warranted, the RO should arrange for the Veteran to undergo VA examination, by an appropriate physician, at a VA medical facility, to obtain an opinions responsive to the questions and comments noted above. The entire claims file must be made available to and reviewed by the examiner in conjunction with the examination and this fact should be acknowledged in the report. All testing deemed necessary by the examiner should be performed and the results reported in detail. Furthermore, a complete rationale, including a discussion of the Veteran's documented medical history (private and VA) and lay assertions, should be given for all opinions and conclusions expressed. If an opinion cannot be medically determined without resorting to mere speculation, this should be thoroughly explained in the report. 2. Upon completion of the foregoing, review the examiners' reports to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any needed corrective action. 38 C.F.R. § 4.2. 3. After completion of the above, the claim should be readjudicated, with consideration given to any new evidence and all appropriate laws and regulations. If the claim is not granted, the Veteran and his representative should be furnished an appropriate Supplemental Statement of the Case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs