Citation Nr: 1715744 Decision Date: 05/10/17 Archive Date: 05/22/17 DOCKET NO. 10-27 639A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a thoracolumbar disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which, in pertinent part, denied the Veteran's claim for entitlement to service connection for an upper back disability and declined to reopen the Veteran's claim for entitlement to service connection for a lower back disability on the basis that no new and material evidence had been received. To that end, the Board notes that the Veteran's original July 1972 claim for entitlement to service connection for a back disability was recharacterized as a claim for service connection for a lumbar spine disability during the course of this appeal. The issue was recharacterized because a later claim for entitlement to service connection for an upper back disability was considered by the RO as a new and separate claim, and not as part of the original June 1972 claim. Thus in a February 2014 decision, the Board reopened the Veteran's claim for entitlement to service connection for a lumbar spine disability, and remanded the lumbar and upper back service connection claims for additional development. These claims were further remanded by the Board in August 2016. These claims have since been returned to the Board for further consideration. As both these claims engage the thoracolumbar spine, the Board finds it appropriate to merge the two issues at this time. Accordingly, the issue has been recharacterized as stated on the title page. In doing so, the Board further notes that the RO separately considered a claim for entitlement to service connection for a neck disability. As the Veteran did not appeal a January 2011 rating decision denying this claim, that issue is not before the Board at this time. FINDINGS OF FACT 1. The Veteran has been diagnosed with a current thoracolumbar spine disability, to include degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbar spine. 2. The Veteran injured his back during service. 3. The most probative evidence of record fails to demonstrate that it is at least as likely as not that the Veteran's thoracolumbar disability was incurred in or is otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a thoracolumbar disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159(b) (2016). Per the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the veteran and his or her representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2016); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The United States Court of Appeals for Veterans Claims (Court) has interpreted this to mean that VA must inform the veteran 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 veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Here, VA has satisfied its duty to notify the Veteran. In two letters dated February 2008 and April 2008, the Veteran was notified of the information and evidence necessary to substantiate a service connection claim; the information and evidence that VA would seek to provide; and the information and evidence that he was expected to provide. A subsequent July 2010 Statement of the Case (SOC) provided further notice regarding the issue of entitlement to service connection. At no time has the Veteran alleged that notice in this case was less than adequate. Further, VA has satisfied its duty to assist the Veteran. The claims file includes the Veteran's service records and VA and private treatment records, and the Veteran has not identified any additional evidence to be obtained. Additionally, the Veteran has undergone multiple VA examinations in connection with this claim. The accompanying reports reflect that the VA examiners reviewed the Veteran's claims file, recorded his current complaints, conducted appropriate examinations, rendered appropriate diagnoses and opinions consistent with the evidence of record, and provided rationales in support of the opinions expressed. As such, the Board finds that the VA examination reports and opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted above, the formerly separate issues of entitlement to service connection for upper and lumbar spine disabilities were most recently remanded by the Board in August 2016. At that time, the RO was instructed to identify and obtain copies of the Veteran's private treatment records, to include updated files from St. Croix Orthopaedics. Upon the completion of said development, the RO was to readjudicate the claims and issue a Supplemental Statement of the Case (SSOC) if the claims remained denied. A claimant has the right to substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Appeals for Veterans Claims Court (Court) or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see also D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). Here, the RO undertook appropriate efforts to obtain the Veteran's identified private treatment records. Those records that were obtained have since been associated with the claims file, to include updated files from St. Croix Orthopaedics. An SSOC was subsequently issued in December 2016. Accordingly, the Board finds that there has been substantial compliance with its August 2016 remand directives. As such, the Board finds that VA has satisfied its duties to notify and assist the Veteran under governing laws and regulations. The Board will thus review the merits of the Veteran's claim. Legal Criteria and Analysis The Board now turns to the Veteran's claim that service connection is warranted for a thoracolumbar disability. Generally, service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). Service connection may also be granted for any disease initially diagnosed after service when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). To establish service connection, there must be competent evidence of: (1) The current existence of the disability for which service connection is being claimed; (2) a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) a nexus or connection between the disease, injury, or event in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (2004). In applying these standards to the Veteran's claim, the Board first finds competent evidence of a current disability. During an April 2010 VA examination, the Veteran was diagnosed with DDD of the lumbar spine. Similarly, during an April 2014 VA examination, the Veteran was diagnosed with DJD of the lumbar spine, post-fusion. Said diagnoses are supported by the additional evidence of record, to include extensive private treatment records and Social Security Administration (SSA) records. Accordingly, the Board finds that the first Shedden element has been met. Further, the Board finds competent and credible evidence of an in-service back injury. To that end, the Veteran has cited multiple examples of back injuries during service, to include: serving on the ammunition line aboard the USS Manley, which required the Veteran to frequently bend and twist his back while carrying heavy ammunition; serving as an electrician during service, which required frequent overhead work; additional service handling ammunition, supplies, and food aboard the USS Owens; and one incident when the Veteran was carrying a motor and hit his back against a hatch. See, e.g., March 2008 lay statement; July 2008 lay statement; March 2014 lay statement The Board finds the Veteran's testimony to be competent and credible evidence of the reported events. A veteran is competent to report that which he perceives through the use of his senses, including events capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). The Veteran's reports are well-documented and unvarying throughout the record, and are largely corroborated by the additional evidence. To that end, the Veteran's Certificate of Release or Discharge from Active Duty (DD-214) confirms both his in-service occupation as an electrical repairman and his assignment to the USS Owens. Further, the Veteran's Enlisted Performance Record confirms his assignment to the USS Manley from approximately September 1967 to December 1968, and his subsequent transfer to the USS Owens from approximately April 1969 to March 1971. An undated Meritorious Unit Commendation indicates that between December 1967 to May 1968, during the Veteran's period of service aboard the vessel, the USS Manley provided gunfire-support while firing over 24,600 rounds of main-battery ammunition. Accordingly, the Board finds that the second Shedden element has been met. However, the Board does not find that a causal nexus exists between the reported in-service injuries and the Veteran's current disability. There are several medical opinions of record in this regard. First, an April 2010 VA examiner opined that it was more likely than not that the Veteran's disability was not related to his time in service. In doing so, the examiner noted that the Veteran's DDD did not develop until later in life, and after many years working as a plumber. Additionally, there was no history of back problems during service. While it would not be unusual to have occasional back pain given the Veteran's in-service duties, the Veteran exhibited a normal examination upon discharge and was well enough to work as a plumber for more than 20 years before the onset of his DDD. Similarly, an April 2014 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the Veteran's military service. Here, the examiner noted that the Veteran was diagnosed with DJD or arthritis of the lumbar spine, post-fusion. Unless a back injury involves severe joint damage, it is highly unlikely that the injury would result in DJD. Instead, DJD or arthritis is often related to aging. In this case, there was no documented evidence in-service or within one year of military discharge of severe joint injury, such as a fracture crossing the joint line, which would have significantly increased the likelihood of eventual joint DJD. The Board affords significant probative value to the April 2010 and April 2014 VA examiners' opinions. Taken in conjunction, the examiners assert definitive nexus opinions as supported by detailed rationales. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). Said rationales consider the full scope of the Veteran's relevant history, including his reported in-service back injuries; related injuries as due to his civilian employment; and the onset, progression, and nature of his current disability. Thus in relying on these opinions, the Board finds that a nexus is not present in this case. In making this determination, the Board acknowledges the significant body of private treatment records available for review. Several such records seemingly allude to a nexus between the Veteran's back disability and his military service. For example, a March 2009 record from Dr. B. Bartie indicates that the Veteran has had "several documented accounts of moving 2.9 million pounds of ammunition and supplies over the course of 88 days several times in his career. [The Veteran] notes that he had significant . . . back pain after those prolonged periods of labor and likely those accounts significantly increased the concentrated wear and tear on his neck and back from the start." However, the Board finds that these private records do not overcome the competency and credibility of the April 2010 and April 2014 VA examiners' nexus opinions, for several reasons. First, the private practitioners fall short of offering definitive nexus opinions regarding the Veteran's current back disability. Further, their statements regarding etiology are derived from the Veteran's own assessments regarding the onset of his disability. However, without appropriate medical training and expertise, which he has not demonstrated, the Veteran is not competent to provide an opinion regarding etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999)(where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). It is also unclear whether these private practitioners were provided with a complete understanding of the Veteran's relevant history, to include his decades-long career as a manual laborer. Thus in comparing the weight of the available evidence, the Board lends greater probative value to the April 2010 and April 2014 VA examiners' opinions. In doing so, the Board finds that no nexus exists between the Veteran's current disability and his military service, such that service connection is not warranted in this case. In reaching this conclusion, the Board acknowledges that certain diseases, including arthritis, qualify for presumptive service connection if the disease came to manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 C.F.R. § 3.309(a) (2016). Here, certain evidence of record establishes that in July 1972, the Veteran once suffered from back pain so severe as to prevent him from getting out of bed or traversing stairs. See, e.g., July 1972 buddy statements. However, the Board finds that this event does not support the application of presumptive service connection in this case, as the reported July 1972 incident occurred more than one year following the Veteran's exit from service. Moreover, the April 2014 VA examiner noted that it was not possible to fully ascertain the nature and extent of the back injury sustained in 1972, after the Veteran's discharge from service, as there are no related treatment records. As such, the Board cannot properly assert that the Veteran's 1972 injury stems from a diagnosis of arthritis, thus precluding the application of presumptive service connection in this case. Thus, although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107 (2016). Accordingly, the Veteran's claim for entitlement to service connection for a thoracolumbar disability is hereby denied. ORDER Entitlement to service connection for a thoracolumbar disability is denied. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs