Citation Nr: 1340913 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-18 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for degenerative arthritis of the thoracolumbar spine. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from December 1952 to December 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified before a Decision Review Officer (DRO) in June 2010. A transcript of this hearing is associated with the claims file. The Board remanded this claim in September 2013 so that additional development of the evidence could be undertaken. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). Review of the Veteran's claims folder shows that compliance has now occurred, to the extent possible, with the Board's remand orders, and that the Board may now proceed with adjudication of the claim. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002 FINDING OF FACT There has been no demonstration by competent medical evidence, or competent and credible lay evidence, that the Veteran has a thoracolumbar spine disorder which is causally or etiologically related to his military service, or that arthritis of the thoracolumbar spine had its onset during active service or was manifest to a compensable degree within one year after discharge from active service. CONCLUSION OF LAW A thoracolumbar spine disorder was not incurred in or aggravated during active service, nor may arthritis be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims folder. 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 of record. Indeed, the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Appropriate notice was provided in September 2008. The duty to assist the Veteran in the development of the claim has also been met. While the Veteran's service treatment records have not been associated with the evidentiary record, this does not, for the reasons discussed below, prevent the Board from here adjudicating the issue now before the Board on appeal. When, as here, the Veteran's service treatment records are unavailable, the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). VA determined that these records were unavailable in September 2009. But having said that, the Board must also point out that the O'Hare precedent does not raise a presumption that the missing records, if available for consideration, necessarily would support the claim. That is to say, missing service treatment (and also personnel records) do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing service treatment records, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367). All identified and available private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. No VA outpatient treatment records are on file, and the Veteran has not indicated that any such records exist. As noted by the Board in its September 2013 remand, the Veteran alerted VA of the existence of other specifically-identified private medical records. As such, as part of the remand, the Veteran was asked to complete authorizations (VA Forms 21-4142) to enable VA to seek these records. He was provided these in September 2013. Unfortunately, he did not return these completed forms to VA. Thus, an effort to obtain these records was not undertaken. The Board notes that, while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). The Veteran is also shown to have been afforded a VA medical examination in October 2013. The Board finds that the VA examination is adequate, as it was predicated on a review of all pertinent evidence of record. The examination report/opinion also is shown to have provided adequate medical information (including rationale) and findings to adjudicate the affected claim. The Board finds that all necessary development has been accomplished, to the extent possible, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Factual Background The Veteran sought service connection for the disorder here being adjudicated in September 2008. See VA Form 21-526. As above noted, the Court has held that in cases where the appellant's service treatment records are unavailable, through no fault of the appellant, there is a "heightened duty" to assist the appellant in the development of the case. See generally McCormick v. Gober, 14 Vet. App. 39, 45-49 (2000); O'Hare, at 367. The Veteran has competently reported that he experienced back pain while in service due to his service as a truck driver. The Veteran has also competently reported that he sought treatment for his back shortly after separation from service. As noted below, post service treatment records reveal that the Veteran has been found to have arthritis of the lumbar spine and has been noted to have mild degenerative changes. His statements are credible as they are supported by the evidence of record and are consistent throughout the record. Post service private medical records include those showing treatment provided the Veteran from J.B., MD. These records are dated from 1990 to 2008. He complained of neck pain in December 2002; he gave a history of being involved in a 2001 auto accident. Neck tenderness was observed on examination. A January 2003 medical record references a finding of lumbar spine degenerative changes shown in June 2002. Physical examination findings dated in April 2003 showed findings of minimal tenderness at L4 and L5. He complained in September 2006 of occasional back pain. In February 2006 the Veteran complained of an abrupt occurrence of back pain, beginning two days earlier. He was also shown to have been involved in a motor vehicle accident in March 2008. He fractured three ribs as a result. He later was provided physical therapy. A March 2008 X-ray report shows mild degenerative changes involving the thoracic and lumbar spine. In May 2008 he indicated his belief that the car accident had caused his back and neck pain. Also in May 2008 some degenerative osteoarthritis was shown to be present in the cervical, lumbar, and thoracic spine segments. Review of the October 2013 VA examination report shows that the examining physician supplied a diagnosis of lumbar spine degenerative changes. The physician specifically commented on medical records which had been reviewed, including those dated from July 1993 to December 2008. These records showed findings reflective of low back pain complaints (1993 and 1998), degenerative changes (2002), and of no electrodiagnostic evidence of acute lumbosacral radiculopathy (2008). The examiner noted that the Veteran had given an onset date of 1952 for his back complaints. The Veteran told the examiner that he was encouraged to have back surgery while he was in the military but he declined. As noted, the Veteran's service treatment records are unavailable. He also denied injuries to his back, such as in association with car accidents. The examiner opined that the Veteran's claimed back disorder was less likely than not incurred in or caused by an in-service injury, event, or illness. As rationale for this supplied opinion, the physician, in observing that the Veteran was in the military from 1952 to 1954, commented that there was no medical evidence available showing that the Veteran was seen for ongoing back problems immediately after his discharge. The first medical evidence of a back disorder was noted to have occurred in 1993, 39 years after his service separation. Lumbar spine degenerative changes were also noted to have been first observed in 2002, some 48 years after his service separation. The examiner added that the Veteran was involved in a motor vehicle accident in 2008, and began to have pain after that. This accident, added the examiner, was unrelated to his military service. The examiner concluded by opining that the Veteran's current back condition was less likely related to his active military service and, rather, was due to the aging process and the post service motor vehicle accident. Laws and Regulations In addition to the laws and regulations already discussed above, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The law provides that, where a veteran served ninety days or more of active military service, certain enumerated disorders, to include arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year following separation from active duty. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Analysis Based on the evidence of record, the preponderance of the competent medical, or competent and credible lay, evidence of record in this case is found to be against the Veteran's claim seeking service connection. Therefore, the claim must be denied. 38 C.F.R. § 3.102. The Board acknowledges the assertions (and offered testimony) by the Veteran in support of his claim. He is competent to testify as to his observable symptoms during and after active duty. The Board finds that his assertions are credible. However, the contentions that the Veteran incurred a back-related disability during active duty does not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case -- whether the Veteran has a thoracolumbar spine disability, to include degenerative arthritis which is related to active duty -- falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the assertions by the Veteran cannot constitute competent medical evidence in support of his claim. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau. The Veteran is competent to state that he observed the claimed back symptoms during or after service. The Board finds them to be credible in this regard. However, they are not competent to attribute the coincidence of symptoms occurring during or after service, or before or after the development of thoracolumbar disorders, as establishing the diagnosis and etiology of his current back disability. Of significant note, even if the Veteran did sustain an injury in service, there is no competent credible evidence that he has a current back disability related to such an injury. As such, the Board finds that the Veteran's assertions are outweighed by the 2013 VA medical opinion addressed above. It is again observed that the claimed disorder was not present during the Veteran's military service, and was not, until, 1993. This claimed disorder was diagnosed many years after the Veteran's period of active military service, and it is not been shown by a competent medical opinion to be etiologically-related to such service, and, concerning the presence of any diagnosed arthritis, none is shown to have been manifested within the first post service year following the Veteran's military separation. In summary, the record contains no competent evidence linking a current diagnosis of any thoracolumbar-related disorder to his military service. While the Veteran claimed that he was treated for such problems after his service separation, the medical evidence of record does not support such a finding. Again, the Veteran had an opportunity to supply additional medical records, and, did not. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, after considering all the evidence under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for his claimed disorder, because the competent evidence does not reveal a nexus between the Veteran's military service and the claimed disorder. Absent such a nexus, service connection may not be granted. 38 C.F.R. § 3.303. Further, as arthritis was not diagnosed within the applicable presumptive period, entitlement to service connection on a presumptive basis, pursuant to 38 C.F.R. §§ 3.307, 3.309, may not be granted. In short, the only evidence supporting a factual finding that an etiological nexus exists between the Veteran's claimed disorder and his military service comes from him personally. As a layperson, the Veteran simply does not have the necessary medical training and/or expertise to diagnose or determine the etiology of a disability in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). The Board is aware of the Veteran's tacit contentions that his currently claimed disorder is related to his military service. The Veteran is competent to provide statements concerning factual matters of which he has firsthand knowledge (i.e., experiencing or observing relevant symptoms during or after service). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson, Jandreau. The Veteran, however, is not competent to diagnose himself with his claimed disorder, as such disability is of such complexity that it does not lend itself to lay diagnosis. Consequently, the Board finds that the competent medical, or competent and credible lay, evidence of record fails to establish that the instantly-claimed disorder is the result of his service for which service connection may be established. Accordingly, the Board finds that the preponderance of the competent medical, or competent and credible lay, evidence of record is against the Veteran's claim for service connection. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Accordingly, for the reasons noted above, the Board concludes that the preponderance of the evidence is against the claim in this case, and service connection for the currently-claimed disorder must be denied. 38 U.S.C.A. § 5107(b. In reaching this determination, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. Gilbert. ORDER Entitlement to service connection for degenerative arthritis of the thoracolumbar spine is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs