Citation Nr: 1616918 Decision Date: 04/27/16 Archive Date: 05/04/16 DOCKET NO. 12-33 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for a thoracic spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from December 1948 to January 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing. Additional evidence consisting of a May 1951 letter written by the Veteran to his parents during service was received at the Board hearing and accompanied by waiver. 38 C.F.R. §§ 19.9, 20.1304(c) (2015). A transcript of the hearing is of record. In September 2015, the Board remanded the issue on appeal for a supplemental VA medical opinion that assumes that the Veteran sustained an in-service back injury during a motor vehicular accident (MVA) that occurred in April 1951 despite the lack of documentation of the MVA or back injury in the service treatment records, and subsequent readjudication of the appeal. Pursuant to the Board's remand directives, the November 2015 supplemental VA medical opinion, which assumed an in-service back injury during an April 1951 MVA, was obtained. In consideration of the foregoing, the Board finds that there has been compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2015). FINDINGS OF FACT 1. There was a thoracic spine injury during a motor vehicle accident in service in April 1951. 2. There was no thoracic spine disease during service and chronic symptoms of thoracic spine arthritis were not manifested during service. 3. Symptoms of thoracic spine arthritis have not been continuous since service separation, and thoracic spine arthritis did not manifest to a compensable degree in the year following separation from service. 4. The thoracic spine disability was manifested many years after service and is not causally or etiologically related to service, to include any event or incident therein. CONCLUSION OF LAW The criteria for service connection for a thoracic spine disability are not met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the December 2010 notice letter sent prior to the initial denial of the claim, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The complete service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. At the August 2015 Board hearing, the VLJ identified the issue on appeal and posed several questions in order to elicit testimony regarding the in-service back injury resulting from the April 1951 MVA during service. At the hearing, the Veteran presented a May 1951 letter to his parents written contemporaneous to service wherein he referenced a back injury due to a recent MVA. In light of the hearing testimony and the additional evidence received at the hearing (i.e., the May 1951 letter noting an in-service back injury), the Board remanded the appeal for a supplemental VA medical opinion and instructed the VA reviewer to assume as fact that a back injury occurred as the result of an April 1991 MVA during service because the only evidence missing from the record was evidence of a relationship between the in-service back injury and the currently diagnosed back disability. In consideration of the foregoing, the Board finds that the duties under 38 C.F.R. § 3.103(c)(2) were met. The RO provided the Veteran with a VA examination with a medical opinion in May 2011. Pursuant to the Board's prior remand directives, a supplemental VA medical opinion was obtained in November 2015. The collective medical examination reports include all relevant findings and medical opinions needed to decide the appeal. The November 2015 VA reviewer considered an accurate history of the thoracic spine disability as provided through prior interview and examination of the Veteran and review of the record, which included the Veteran's subjective complaints as it related to the current symptomatology and its effects on daily life. For the purposes of providing the medical opinion, the November 2015 VA reviewer assumed that there was an in-service back injury resulting from an April 1951 MVA. The May 2011 VA examiner performed a thorough examination. The November 2015 VA reviewer had adequate facts and data regarding the history and condition of the thoracic spine disability when providing the supplemental VA medical opinion. For these reasons, the Board finds that the collective VA examination reports are adequate, and there is no need for further VA examination or medical opinion. The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed, and no further development is required. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with thoracic spondylosis and degenerative disc disease. Spondylosis is defined as ankylosis of a vertebral joint or degenerative spinal changes due to osteoarthritis. See Dorland's Illustrated Medical Dictionary 1743 (30th ed. 2003). Because the evidence shows no ankylosis of the thoracic spine in this case, it is reasonable to infer that the Veteran's thoracic spondylosis diagnosis refers to degenerative spinal changes due to osteoarthritis. Arthritis is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the Board finds that the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service Connection Analysis The Veteran contends that the current thoracic spine disability, which has been diagnosed as thoracic spondylosis and degenerative disc disease, is causally related to service. He asserts that he suffered a thoracic spine injury during an in-service motor vehicular accident (MVA) that occurred approximately in April 1951 and believes that the current thoracic spine disability is related to the in-service back injury. He seeks service connection on this basis. After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether there was a thoracic spine injury during service. Service treatment records are absent of any report of, complaint of, diagnosis of, or treatment for a thoracic spine injury, to include as the result of a MVA during service; however, the Veteran has presented a contemporaneous letter written to his parents after an in-service MVA that is dated in May 1951 wherein he reports having sustained a back injury in a recent MVA. There is no indiction that the May 1951 letter reporting back injury contemporaneous to service is not authentic or credible. In consideration thereof, and resolving reasonable doubt in favor of the Veteran, the Board finds a back injury due to an April 1951 MVA occurred during service. The weight of the evidence is against a finding of thoracic spine disease during service or chronic symptoms of thoracic spine arthritis during service. There was no complaint of, report of, diagnosis of, or treatment for thoracic spine disease or chronic symptoms of thoracic spine arthritis during service. On the January 1953 service report of medical history, the Veteran handwrote that his health was "good" and answered "No" when asked if he then had or had ever had swollen or painful joints, arthritis or rheumatism, or bone, joint, or other deformity. On the January 1953 service separation examination report, the spine and musculoskeletal system were clinically evaluated as normal. The Board notes that, in January 1952, a service x-ray for the dorsal spine was performed and showed no old fracture, minimal anterior narrowing of T5, and a small hypertrophic spur at the anterior superior lip of T7. After considering the January 1952 radiographic findings, the Veteran's assertion that the T7 hypertrophic spur was related to the current thoracic spine disability, and post-service treatment records, including x-ray reports, the November 2015 VA reviewer opined that the in-service notation of a small hypertrophic spur at T7 in January 1952 was an over read of the x-ray. See also May 2011 VA examination report (opining that the small spur on T7 was of no clinical significance per the medical literature). The November 2015 VA reviewer reasoned that there was no documentation of thoracic spine problems at the time of the August 1952 MVA that occurred after the in-service April 1951 MVA and thoracic spine injury, the spine was noted to be normal at the time of the January 1953 service separation physical, and there were no complaints of back problems until many years after service separation. The November 2015 VA reviewer added that, if a thoracic spine condition had been present in service, the current thoracic spine condition would be more advanced and would not be consistent with the Veteran's age. Thus, the January 1952 radiographic findings do not show thoracic spine disease or thoracic spine arthritis. Because the service treatment records are complete, show treatment of right wrist pain following the August 1952 MVA (i.e., after the in-service thoracic spine injury) and the Veteran denied having any other pain at that time, the spine and musculoskeletal system were clinically evaluated at the January 1953 service separation examination and determined to be normal, and the Veteran reported a history of appendicitis and rupture while simultaneously denying any arthritis or joint pain on the January 1953 service separation report of medical history, the Board finds that a thoracic spine disease and thoracic spine arthritis, to include chronic symptoms related thereto, are conditions that would have ordinarily been recorded during service had they been present; therefore, the lay and medical evidence generated contemporaneous to service, which shows no thoracic spine disease and no chronic symptoms of thoracic spine arthritis during service, is likely to reflect accurately the Veteran's physical condition, so is of significant probative value and provides evidence against a finding of thoracic spine disease or chronic symptoms of thoracic spine arthritis during service. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). As the weight of the evidence demonstrates no thoracic spine disease or "chronic" symptoms of thoracic spine arthritis during service, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) based on "chronic" symptoms in service are not met. The weight of the evidence is against a finding of continuous symptoms of thoracic spine arthritis since service, including to a compensable degree within one year of service separation. The earliest credible evidence of thoracic spine disability included in the record is in 2008, approximately fifty five years after service. Considered together with the Veteran's denial of any pain other than right wrist pain at the time of the August 1952 MVA, the Veteran's denial of arthritis or joint symptoms at service separation, a normal spine and musculoskeletal system at service separation, the Veteran's denial of joint pain or swelling and myalgia while simultaneously reporting atrophy of the left fifth finger during the course of VA treatment in October 2004, a normal musculoskeletal examination in October 2004, and the Veteran's report of having only intermittent (i.e., not continuous) back symptoms at the May 2011 VA examination, the gap of approximately fifty five years between service and the onset of thoracic spine symptoms is another factor that tends to weigh against a finding of continuous symptoms of thoracic spine arthritis after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and evidence of a claimed disability is one factor to consider as evidence against a claim of service connection). As the weight of the evidence demonstrates no "continuous" symptoms of thoracic spine arthritis since service, including to a compensable degree within the first post-service year, the criteria under 38 C.F.R. § 3.303(b) for presumptive service connection based on "continuous" symptoms of arthritis manifested to a degree of ten percent within one year of service separation are not met. 38 C.F.R. §§ 3.307, 3.309. The Board has considered the Veteran's competent lay account of thoracic spine pain during and since service, to include being denied a job in 1953 due to a bad back; however, because the account is inconsistent with, and outweighed by, the lay and medical evidence contemporaneous to service showing no thoracic spine disease or symptoms after the April 1951 MVA and back injury or at service separation, and the post-service lay and medical evidence showing an onset of thoracic spine problems approximately fifty five years after service, it is not deemed credible, so is of no probative value. The weight of the evidence is against a finding that the thoracic spine disability, which was manifested many years after service, is otherwise related to service. After reviewing the record, the November 2015 VA reviewer opined that the thoracic spine disability was less likely as not that the thoracic spine disability had its onset during service or was otherwise causally or etiologically related to service. As noted above, the November 2015 VA reviewer reasoned that there was no documentation of thoracic spine problems at the time of the August 1952 MVA, the spine was normal and the Veteran was in good health at the time of the January 1953 service separation physical, and there were no complaints of back problems until many years after service separation. The November 2015 VA reviewer noted that, in February 2013, a VA neurosurgeon opined that the Veteran's thoracic spine disability was consistent with the age of the Veteran. The November 2015 VA reviewer noted that, if a thoracic spine condition had been present in service, the current thoracic spine condition would be more advanced and would not be consistent with the Veteran's age. The November 2015 VA reviewer had adequate facts and data on which to base the medical opinion and provided a sound rationale for the medical opinion; therefore, the November 2015 VA medical opinion is of significant probative value. There is no competent medical opinion to the contrary of record. Although the Veteran has asserted that the current thoracic spine disability is causally related to service, he is a lay person and, under the specific facts of this case, does not have the requisite medical expertise to be able to diagnose the thoracic spine disability or render a competent medical opinion regarding its cause where the facts show an in-service thoracic spine injury, no in-service thoracic spine disease, and no thoracic spine arthritis symptoms manifested until many years after service. Arthritis and degenerative disc disease are complex and involve unseen systems processes and disease processes, only some of which are observable by the five senses of a lay person, and includes various possible etiologies, only one of which involves trauma to a joint and/or vertebra, and is diagnosable only by X- ray or similar specific specialized clinical testing; therefore, under the facts presented in this case, the Veteran is not competent to diagnose thoracic spine arthritis or degenerative disc disease or to opine as to its etiology, where in this case there is an absence of in-service thoracic spine disease or symptoms, and the thoracic spine arthritis and degenerative disc disease symptoms began many years after service. Thus, while the Veteran is competent to relate symptoms of thoracic spine pain that he experienced at any time, in the absence of in-service thoracic spine disease or chronic arthritic symptoms as in this case, he is not competent to opine on whether there is a link between the thoracic spine arthritis and degenerative disc disease, which was manifested many years after service separation, and active service because such diagnosis and nexus require specific medical knowledge and training. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Kahana, 24 Vet. App. at 438 (holding that ACL injury is "medically complex" for lay diagnosis); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). The competent medical opinion evidence of record has attributed the current thoracic spine disability to the aging process. For these reasons, the Veteran's purported opinion that the current thoracic spine disability is the result of service is of no probative value. Thus, in consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against service connection for a thoracic spine disability; therefore, the appeal must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a thoracic spine disability is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs