Citation Nr: 1343389 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 11-07 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a thoracolumbar spine disorder. 2. Entitlement to service connection for a right hip disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from August 2005 to August 2009. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of October 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran does not have a current thoracolumbar spine disorder; an undiagnosed illness pertaining to the thoracolumbar spine has not been shown. 2. The Veteran does not have a current right hip disorder; an undiagnosed illness pertaining to the right hip has not been shown. CONCLUSIONS OF LAW 1. The criteria for service connection of a thoracolumbar spine disorder have not been met. 38 U.S.C.A. §§ 1110, 1117 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.317 (2103). 2. The criteria for service connection of a right hip disorder have not been met. 38 U.S.C.A. §§ 1110, 1117 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.317 (2103). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's service personnel records indicate he is a Persian Gulf veteran. Service connection may be established for a Persian Gulf veteran who exhibits objective indications (e.g., objective evidence perceptible to an examining physician and other non-medical indicators capable of independent verification) of a qualifying chronic (i.e. existing six months or more, to include by exhibiting intermittent episodes of improvement and worsening over a six month period) disability which cannot be attributed to any known clinical diagnosis, but which instead resulted from an undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117 (West 2002 & Supp. 2013); 38 C.F.R. § 3.317(a)(1) (2013). There are three types of "qualifying chronic disabilities" for the purposes of 38 C.F.R. § 3.317: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome); or (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service-connection. An "undiagnosed illness" is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R § 3.317(a)(1)(ii). In the case of claims based on undiagnosed illness, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). A "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Service connection is not warranted on a direct basis for either claim. Although the evidence reflects the Veteran's competent and credible histories of pain involving the thoracolumbar spine and right hip and stiffness and spasm of the thoracolumbar spine, direct service connection will not be granted for symptoms such as pain, spasm, or stiffness alone; there must be a diagnosed or identifiable underlying malady or condition. Sanchez-Benitez v. West, 13 Vet. App. 283, 285 (1999). The evidence does not establish that the Veteran has an identifiable underlying thoracolumbar spine or right hip disorder. Treatment records reveal no diagnoses of a thoracolumbar spine or right hip disorder, the June 2009 examination record reveals that clinical and radiographic evaluation of the thoracolumbar spine and right hip was normal, and there is no evidence, to include allegation, of outstanding diagnoses of the thoracolumbar spine or right hip. In the absence of proof of current disability, the claims of service connection may not be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is also not warranted on a presumptive basis under 38 C.F.R. § 3.317 for either claim because the record includes no objective evidence of the reported symptoms perceptible to an examining physician or capable of independent verification; rather, examination of the thoracolumbar spine and right hip is normal. The Board acknowledges that the Veteran believes he has thoracolumbar and right hip disorders. Although the Veteran is competent to report symptoms, he is not competent to attribute those symptoms to a service-connectable disorder of the thoracolumbar spine or right hip. The Board is mindful that medical evidence is not necessarily required where the determinative issue in a case involves the existence of a disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, the Veteran is not providing statements related to the diagnosis of a simple disorder or even symptomatology but is instead rendering an opinion as to whether he has a service-connectectable disorder of the thoracolumbar spine or right hip. The existence of such a disorder is not a disorder capable of lay diagnosis. Davidson, 581 F.3d at 1316; see also Jandreau, 492 F.3d at 1377. In this regard, the determination of the existence of such an abnormality requires medical evaluation and is a matter of medical complexity. Thus, the Board concludes that the Veteran's statements regarding the existence of a current disability do not constitute competent evidence on which the Board can make a service connection determination. The preponderance of the probative evidence is against the claims; there is no doubt to be resolved, and service connection is not warranted for either claim. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159; 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). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letter dated in May 2009. Thus, the duty to notify has been satisfied. VA's duty to assist has also been satisfied. VA has obtained service treatment records and VA treatment records; assisted the appellant in obtaining evidence; and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file, and the appellant has not contended otherwise. VA afforded the appellant an examination to determine whether the Veteran had a service-connectable disability of the thoracolumbar spine or right hip. The Board acknowledges the Veteran's contention that the examination was inadequate because the Veteran has symptoms involving the thoracolumbar spine and right hip, the examiner did not treat him regularly, and magnetic resonance imaging (MRI) was not performed. Review of the examination record indicates that all necessary testing was performed and all necessary findings reported Although MRIs were not performed, there is no probative evidence indicating such testing was necessary: other radiographic imaging and examination was normal, the treatment record do not contain any findings or referrals suggesting a need for MRI evaluation, and the record does not suggest that the Veteran is competent to determine that MRIs are needed for diagnostic purposes. Based on the examiner's status as a medical professional, the Board gives deference to the examiner's determination that only x-ray imaging and clinical examination were needed for diagnostic purposes. As such, the Board finds the examination was adequate. VA has complied with the notice and assistance requirements, and the appellant is not prejudiced by a decision. ORDER Service connection for a thoracolumbar spine disorder is denied. Service connection for a right hip disorder is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs