Citation Nr: 18142274 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-19 860 DATE: October 15, 2018 ORDER Entitlement to service connection for a thoracic spine disability, to include degenerative joint disease, is denied. FINDINGS OF FACT 1. The Veteran served on active duty from January 1951 to January 1953, and his service treatment records are missing and are unavailable. 2. The Veteran sustained an injury to his mid, and lower, back in active service. 3. A thoracic spine disability, to include degenerative joint disease, was not manifested in active service and did not manifest to a degree of 10 percent within a year of service separation, and the current thoracic spine disability, to include degenerative joint disease, is not related to disease or injury or other event in active service. CONCLUSION OF LAW The criteria for service connection for a thoracic spine disability, to include degenerative joint disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1951 to January 1953. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated in January 2016 of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Service connection for lumbar strain has been granted in an April 2016 rating decision and this issue is no longer on appellate review before the Board. Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). 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. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptoms after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. The Veteran contends that he incurred a thoracic spine disability after injuring his back in active service when playing football. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of thoracic spine degenerative joint disease, the preponderance of the evidence weighs against finding that this disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The record shows that the Veteran’s service treatment records were not located and are not available. A November 2015 RO letter to the Veteran sets forth the efforts VA made to locate the service treatment records. The RO concluded that the service treatment records were unavailable and any additional efforts to locate such records would be futile. The Board finds that any additional efforts to obtain the records would be futile. Where service treatment records are missing, VA has a duty to search alternate sources of service records. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board finds that VA has met this duty. The Veteran was notified that his service treatment records were missing and he was informed of other types of evidence he could submit to substantiate his claim for service connection. The Board finds that the Veteran was notified of alternative forms of evidence to submit in lieu of the service treatment records. In this regard, the Board notes that the destruction of service medical records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). The Veteran contends that he injured his back in active service when playing football and he was hospitalized for a week at Fort Benning. The Board notes that VA searched for the inpatient treatment records and was unable to locate these records. The Veteran is competent, as a layperson, to describe a firsthand event such sustaining an injury and to describe observable symptoms such as pain. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board finds the Veteran’s lay statements to be credible as they have been consistent and are supported by evidence of record, including evidence showing that the Veteran played football in active service. For this reason, the in-service injury of to the back is established. However, the Board finds the weight of the competent and credible evidence shows that the current thoracic spine degenerative joint disease first manifested decades after active service and is not related to disease or injury or other event in active service. The Veteran separated from active service in January 1953. The first evidence of degenerative joint disease of the thoracic spine substantiated by X-ray was in 2002. The Board notes that a lengthy time interval between service and the earliest post service clinical documentation of the disability is of itself a factor for consideration against a finding that the disability is related to service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no competent evidence of record showing a diagnosis of degenerative changes or arthritis of the thoracic spine compensable to 10 percent within one year from service separation. The weight of the competent and credible evidence shows that the first X ray evidence of arthritis of the thoracic spine was decades after service separation. Thus, presumptive service connection pursuant to C.F.R. § 3.307(a) is not warranted. The Board also finds that the weight of the competent and credible evidence shows that the Veteran did not experience chronic and continuous symptoms of the thoracic spine disability in active service or since service separation. As discussed in detail below, the more probative evidence shows that the current thoracic spine disability is not related to the injury or symptoms in active service. Thus, continuity of symptoms is not shown. Presumptive service connection under the provisions of 38 C.F.R. § 3.303 (b) is not warranted. The Board finds the weight of the competent and credible evidence shows that the current thoracic spine disability is not related to injury or event in active service. The Veteran was afforded a VA examination in December 2015. The Veteran reported that he injured his back playing football at Fort Benning, Georgia and was hospitalized for over a week in the fall of 1952. He stated that he was kneed in the back after throwing a body block. The Veteran reported that he had bilateral low back pain without radiating lower extremity symptoms, and he had chronic back problems after this incident. The Veteran indicated that he has been evaluated and treated by a chiropractor for his back condition and he had an epidural steroid injection with pain relief for 1 day only. The Veteran reported that he had injured his back while golfing in Florida in February 2009; his back pain was in the low back area and radiated to his right rib area in February 2009 and did not resolve after the incident in February 2009. He stated that his back pain is constant and continues to radiate from the low back area to his right rib area, the pain was sharp and dull, and it is typically 5/10. He reported that he takes Lyrica for pain control. He denied any radiating lower extremity symptoms but he indicated that he had pain radiating down his right leg when he played football at Florida State University in 1953. The Veteran stated that he had a football scholarship and he played football at college for 1 month and he had back pain and was unable to continue playing football. The VA examiner reviewed the Veteran’s medical records and medical history. The VA examiner noted that a February 2002 X ray examination revealed degenerative joint disease of the thoracic spine. It was noted that medical records dated May 20, 2009 revealed a history of mid back pain that radiated to the right side ribs. The onset of back pain was sudden in February 2009 while the Veteran was golfing in Florida and he over-swung causing a sharp pain. The Veteran indicated that he had this back discomfort in the past, but it always resolved on its own. Examination revealed tenderness to the lower thoracic spine and the diagnosis was thoracic radiculopathy and thoracic spinal stenosis. Medical records dated in December 2014 revealed a prior medical history of a back injury which has continued to trouble the Veteran throughout his life. The VA examiner concluded that Veteran’s thoracic degenerative joint disease was less likely as not incurred in or caused during service because, although he noted a history of a back injury incurred in service in 1952, his thoracic degenerative joint disease was more likely than not a result of normal aging process. The VA examiner sited http://www.webmd.com/osteoarthritis/guide/osteoarthritis-causes. The VA examiner noted that the Veteran’s thoracic degenerative joint disease was incidentally noted on routine chest X rays in February 2002. The first medical documentation of his chronic back condition was noted in May 2009, when the Veteran indicated that he was golfing in Florida in February 2009 and over-swung causing a sudden, sharp pain in his back area radiating to his right rib area. He indicated that he had this prior back discomfort always resolved on its own. The Veteran was afforded another VA examination in March 2016. The VA examiner set forth the Veteran’s history as to the back disability as reported by the Veteran. The VA examiner opined that it was as likely as not that the lumbar strain was related to active service. The VA examiner further opined that it was less likely than not that the thoracic spine degenerative joint disease was the result of aging, with the onset of current symptoms in 2009. The VA examiner stated that it was more likely that the degenerative joint disease of the thoracic spine was the result of normal aging. The VA examiner noted that there is no evidence of degenerative joint disease of the thoracic spine from 1953 to 2000, and the degenerative joint disease of the thoracic spine was first noted on a X ray examination in 2002. The VA examiner further stated that based on the medical records and the Veteran’s testimony, the current thoracic spine condition began in February 2009. The VA examiner noted that the May 2009 medical records note that the Veteran’s reported having mid back pain that started in February 2009 when he overswung when golfing. The Board finds that the VA medical opinions are probative because the VA examiners reviewed the Veteran’s claims file and medical history, considered the Veteran’s lay statements, and provided a rationale for the opinion. The VA medical opinions state that the claims file was available and reviewed. The Board finds that the opinions are based upon sufficient facts and data and that these opinions are probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran submitted a March 2016 statement from his chiropractor’s office in support of his claim. In the statement, the chiropractor’s medical records custodian indicated that the Veteran had been a patient of the chiropractor’s office for 40 to 50 years and he began treatment in the late 60’s or early 70’s and his treatment was primarily for mid and lower back pain. The office did not have any records older than 10 years. The Board finds that this evidence is not sufficient to establish a nexus between the thoracic spine disability and active service. This statement relates the back symptoms to approximately the late 60’s which is over a decade from when the Veteran separated from active service. This statement does not provide an etiology for the back pain. The Veteran himself has related his claimed thoracic spine disability to active service. Although lay persons are competent to describe observable symptoms and provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the etiology and onset of arthritis or other orthopedic disability falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. Neither the Veteran nor his representative has produced a medical opinion or identified medical evidence that establishes a medical nexus between the claimed disability and active service. The Board finds the weight of the competent and credible evidence shows that the thoracic spine disability did not manifest in service, first manifested decades after active service, and is not related to active service. The Board finds that a preponderance of the evidence weighs against the claim for service connection for a thoracic spine disability and the claim for service connection is denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board notes that service connection for lumbar strain has been granted in an April 2016 rating decision, and a 10 percent rating is assigned under Diagnostic Code 5237. The Veteran is being compensated for the thoracolumbar symptoms and impairment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel