Citation Nr: 18157115 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 17-27 720 DATE: December 11, 2018 ORDER Entitlement to service connection for thoracic spine disability, diagnosed as degenerative disc disease (DDD) of the thoracic spine is denied. FINDING OF FACT The Veteran has a thoracic spine disability that is not caused by or otherwise etiologically related to service. CONCLUSION OF LAW A thoracic spine disability was not incurred in or caused by active duty service. 38 U.S.C. §§ 1110, 1111, 1112,1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to July 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board acknowledges receipt of correspondence dated in November 2018 from both the Veteran and his representative, requesting a hearing by live videoconference. However, the Board notes that the request is untimely because it was received more than 90 days following notification of certification and transfer of records, and there is no indication of good cause to justify the delayed request. See 38 C.F.R. § 20.1304 (2017). As such, the request is denied. Entitlement to service connection for thoracic spine disability Duty to Notify and Assist VA provided the Veteran with a 38 U.S.C. § 5103(a)-compliant notice in August 2014. The duty to assist the Veteran has also been satisfied in this case. Neither the Veteran nor his representative has identified any other deficiency in VA’s notice or assistance duties. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may also be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. 49 (1990). Factual Background The relevant evidence of record consists of the Veteran’s service treatment records (STRs), military personnel records (MPRs), service department records (SDRs), post-service VA and private treatment records, including a September 2017 VA examination report, and lay statements by the Veteran and other sources. The Veteran’s STRs dated September 1970 to July 1972, do not show a diagnosis and/or treatment for a thoracic spine disability. On the Veteran’s enlistment Report of Medical History dated in July 1970, the examiner noted a “lower spine dislocation and tight muscle.” The examiner also noted occasional back pain as a defect. A July 1972 separation examination shows the Veteran’s spine as normal and does not indicate that a thoracic spine disability was present. Private treatment records from Edina Medical Pain Clinic, dated February 2011 to June 2011, show that the Veteran was treated for mid-back pain. According to the medical records, the pain started in January 1991 and a motor vehicle accident was noted as the precipitating cause. The records also show that the Veteran had mid-back surgery in November 1991. The Veteran was diagnosed with thoracic degenerative disc disease in February 2011. Private treatment records from the Twin Cities Pain Clinic, dated October 2013 to January 2015, show that the Veteran complained of, and was treated for, mid-back pain. Specifically, the Veteran complained of increased thoracic pain that started in 1991. The Veteran’s lay statement dated in February 2015, indicates that he was a passenger involved in a jeep accident while he was in service. Specifically, the Veteran stated that he injured his back and spine, and an ambulance arrived at the scene, but he was not examined by medical personnel and was not taken to a hospital. He stated that after the accident, his “… back spine was bent into an excessive, forced, flexed position.” The Veteran also stated that he was told he would be on bed rest for the next 10 days, and then put on light duty work. The Veteran’s spouse submitted a lay statement dated in February 2015, attesting to the functional impact of the Veteran’s thoracic spine disability. The Veteran submitted a series of emails dated April 2016 to October 2017, that he sent to the National Archives, Smithsonian libraries, and other institutions, seeking evidence and documentation that the jeep accident occurred, but he was unable to obtain such evidence. The Veteran’s cousin, who is a licensed psychologist, submitted a lay statement dated in August 2016. He stated that the Veteran shared details of the jeep accident via a tape recording about a month after it occurred. He also stated that the Veteran experienced post-concussive symptoms after sustaining back and shoulder injuries. Further, he stated that the Veteran did not receive neurological or neuropsychological assessment, and soon returned to duty. He also indicated that neither he nor the Veteran kept the tape recordings. In a September 2017 VA examination, the examiner opined that the Veteran’s spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that a review of the Veteran’s STRs did not show any evidence of a diagnosis or treatment for a thoracolumbar disability while in service. The examiner acknowledged the July 1970 STR note about a “lower spine dislocation,” but noted that it is clearly an error and that if the Veteran had a lower spine dislocation, he would have been paraplegic, which is not the case. The examiner further noted that no nexus can be established with the Veteran’s degenerative disc disease that was diagnosed more than 40 years after his military service. A private medical opinion dated in November 2017, from Dr. J. L. E., MD, states that he initially evaluated the Veteran for his thoracic spine injury in April 2016. Dr. J. L. E. stated that the Veteran reported to him that he was involved in a jeep accident that occurred in 1971, while he was in the military, and that he did not require any surgery until 20 years later in 1991. Dr. J. L. E. also stated that the Veteran had no intervening back injury between 1971 and his surgery in 1999. Further, Dr. J. L. E. stated that after reviewing the Veteran’s thoracic MRI images, it is apparent that the degree of degenerative changes that the Veteran had present are highly unlikely to be simply the result of aging. He stated that the degenerative changes were almost certainly precipitated by significant trauma. Dr. J. L. E. stated that since the Veteran has no other significant history of trauma in his back, it does appear certain that his injuries resulted from his jeep rollover accident that occurred while he served in the military. Dr. J. L. E. opined that the clinical exam and imaging findings noted on the Veteran’s MRI are directly related to this accident. He also opined that it would not be unusual or unexpected that, initially, the Veteran’s pain would be manageable, but due to trauma, the incident would lead to early and significant degenerative changes, which is what he saw on the imaging and was a major contributing factor to his 1991 surgery. Lay statement from the Veteran’s friend, dated in November 2017, states that he and the Veteran have been friends since they were teenagers and that he heard about the Veteran’s jeep accident, but did not think much of it until twenty years later, when the Veteran had constant back pain and subsequent surgery. He also stated that he believes the Veteran’s back injury resulted from the jeep accident. In a letter dated in January 2018, a professional researcher hired by the Veteran states that even though he located a fairly large number of documents pertaining to traffic accidents involving military personnel in Okinawa in 1971, he was unable to locate evidence of any such accident involving the Veteran, based on how it was described to him by the Veteran. Lay statement from the Veteran’s spouse, dated in April 2018, states that she has known the Veteran since she was 14 and he was 16 years of age. She wrote about the functional impact and symptoms of the Veteran’s back injury, but also stated that she heard about the Veteran’s in-service jeep accident for the first time in 1991. Analysis The Veteran contends that he developed a thoracic spine disability due to an injury he sustained during active service. Specifically, he reported that while serving in 1971, he was involved in a jeep crash in which he injured his spine. As a preliminary matter, the Board notes the evidence of record clearly reflects the Veteran had a recent diagnosis of a thoracic spine disability prior to filing a claim for benefits. In particular, private treatment records dated in February 2011 reflect that the Veteran was examined and diagnosed with thoracic degenerative disc disease. As such, the Board finds that the current disability requirement is satisfied in this case. As for an in-service occurrence, the Board finds that there is no medical evidence or credible lay evidence indicating that there was an in-service injury or event that caused the Veteran’s thoracic spine disability. In making this determination, the Board notes that the Veteran’s STRs are silent for complaints of, or treatment for, a mid-back or thoracic spine injury. The Veteran’s July 1972 separation report of medical examination shows that his lower extremities, spine, and other musculoskeletal system were noted as normal. MPRs are absent of any reference to the Veteran’s involvement in a jeep accident. Further, a search of relevant repositories revealed that such an accident involving the Veteran, or any other service member, was not reported by the Veteran’s unit during the reported time frame. Presumably, if in fact such an accident occurred, it would be reasonable to expect that it would have been recorded or documented. Based on the above, the Board finds that the Veteran’s STRs and MPRs do not demonstrate that the Veteran suffered the alleged thoracic spine injury while in service; nor do they reflect that the Veteran was in an accident involving a rollover jeep that resulted in a thoracic spine disability. To use the Veteran’s STRs to contradict his allegations of in-service thoracic spine injury, the Board must determine that (1) the STRs appear to be complete, at least in relevant part, and (2) that the injury, disease, or related symptoms at issue would ordinarily have been recorded had they occurred. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, as opposed to cases in which there is evidence that is relevant either because it speaks directly to the issue or allows a reasonable inference to be drawn by the Board as factfinder). With respect to the first Kahana component, the Board notes that the claims file contains examination reports and medical history records from the Veteran’s entrance into, and separation from service, as well as records of his medical treatment throughout service. There is no indication that any portion of the Veteran’s STRs is missing from the claims file. The Veteran has also not alleged that he sought treatment for a back or spine injury during his active military service. Therefore, the Board finds that the Veteran’s STRs are complete. Regarding the second Kahana component, the Board finds that the thoracic spine injury, as described by the Veteran, is the type of injury for which the Veteran would have sought treatment, had it occurred. Here, the Board acknowledges that the Veteran has reported he was not evaluated for his injuries. For instance, in his February 2015 lay statement, the Veteran reported that after the accident, which caused his “back spine to be bent into an excessive, forced, flexed position,” an ambulance arrived at the scene, but he was not examined or taken to a hospital. The Board finds that if the Veteran received the type of injury that he described, he would have sought or received treatment. The Board further finds that the accident described by the Veteran of a truck crashing into a jeep, causing the jeep to flip several times and eject its passengers, and resulting in serious injuries, including the death of the jeep’s driver, is the type of accident that would have been recorded or documented in an official capacity. Here, however, no record was found of the reported incident. The Veteran hired a professional researcher who submitted evidence of other accidents that occurred around the same time and in the same vicinity as the Veteran described, but was unable to locate this particular accident. In addition, the Veteran submitted emails showing that he has reached out to various organizations that keep military records, but none was able to produce evidence of the jeep accident that occurred in 1971. As such, the Board does not find it credible that this accident occurred. Concerning the Veteran’s post-service statements about his injury, the Board notes that the Veteran, as a layperson, is competent to report having suffered a back injury in service and to have had symptoms of this injury since service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, while the Veteran is competent to describe having injured his back in service, the Board considers the Veteran to be an inaccurate historian in attributing his current back symptoms to an in-service injury that is demonstrated in the STRs not to have occurred, and an in-service accident that has been demonstrated by SDRs not to have occurred. For instance, the Veteran stated that he was put on bed rest for 10 days after the accident, but was not examined or taken to a hospital, even though an ambulance arrived at the scene. The Board does not find it credible that the Veteran was put on bed rest for 10 days, but there is no notation of it in his STRs. As such, the Board finds that this statement is not accurate and, therefore, is not probative in establishing the incurrence of a spine or back injury in service. The Board notes that an absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) (“Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms”). Here, the Board finds that the absence of evidence of back and spine complaints in the Veteran’s STRs, and the absence of evidence in the SDRs that the reported accident that caused the Veteran’s injury occurred, serves as affirmative evidence that this injury did not, in fact, occur. In reaching its conclusion, the Board is not asserting that the Veteran is lying. Rather, the Board has determined that such statements of an in-service accident resulting in a thoracic spine injury, represent an inaccurate recollection of a history that occurred approximately two decades earlier, when compared against the STRs and SDRs, and are thus unreliable and entitled to no probative value. The Board also acknowledges the Veteran’s spouse’s April 2018 lay statement that the Veteran has had back pain since 1991. Again, the Veteran’s spouse is competent to testify that she witnessed the Veteran’s complaints of back pain since 1991. Such statement establishes post-service pain, but it does not establish an in-service origination of the post-service back pain. As such, the Board assigns it no probative value. Furthermore, the Veteran’s spouse has not asserted that she witnessed the in-service accident, but rather that she did not hear about the accident until 1991 – approximately 20 years after it occurred. Therefore, she is not competent to testify to the in-service injury. To the extent that the Veteran’s spouse has relied on the Veteran’s reports of his in-service injury, recitations of which have already been rejected by the Board as inaccurate, unreliable, and thus not credible, such statements from the Veteran’s spouse are entitled to no probative value. Additionally, lay statements submitted from both the Veteran’s cousin and friend, indicating that the Veteran informed them of the jeep accident shortly after it occurred, appear to be inconsistent with other evidence of record. When assessing the credibility of lay testimony, the Board must consider factors such as facial plausibility, internal consistency, consistency with other evidence, and self-interest or bias. See Caluza v. Brown, 7 Vet. App. 498 (1995). Here, the Board finds it unlikely that the Veteran’s cousin recorded conversations about the jeep accident, but chose not to keep any of those taped recordings. The Board also finds it unlikely that the Veteran would relay details of the accident to his friend and to his cousin, but not to his wife, with whom he has had contact prior to entering military service. Therefore, the Board finds that these lay statements are biased, inconsistent, and lacking in credibility. Based on the above, the Board has determined that the medical evidence and lay statements do not support a finding of an in-service injury or event. The Board also finds that there is no causal relationship, i.e., a nexus, between the claimed in-service injury and the current disability, to warrant entitlement to service connection for the Veteran’s thoracic spine disability. In making this determination, the Board finds that the medical evidence does not show a nexus, and the Veteran’s statements regarding onset and continuity of symptoms are not supported by the evidence of record. As noted above, the Veteran’s STRs are silent for complaints of, or treatment for, a mid-back or thoracic spine injury. The earliest reference of record to a thoracic spine disability or associated symptomatology, other than the lay statements by the Veteran, are private treatment records dated in February 2011, indicating that the Veteran’s thoracic pain started in January 1991 – almost two decades after service. The absence of post-service findings, diagnoses, or treatment for decades after service is one factor that tends to weigh against a finding of continuous symptoms after separation. See Buchanan, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). The Board finds that the September 2017 VA examiner’s opinion is very probative. The examiner thoroughly reviewed the Veteran’s claims file and considered the Veteran’s report of symptoms and medical history, which is silent for a diagnosis of and/or treatment for a thoracic spine injury while the Veteran was in service, before concluding that no nexus can be established. While acknowledging the July 1970 note on the Veteran’s entrance examination, indicating a “lower spine dislocation,” the examiner opined that it is clearly an error because the Veteran would have been paraplegic and unable to enter military service, if this were the case. The VA medical opinion is probative, because it is based on an accurate medical history and provides an explanation that contains a clear conclusion and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that the Veteran has asserted his personal belief that there exists a medical relationship between his thoracic spine disability and service, this provides no basis for allowing the claim. The etiology of DDD of the thoracic spine is a complex medical question not capable of lay observation. In the Veteran’s case, the question is additionally complicated by significant passage of time since service. The Veteran has not demonstrated that he has the knowledge or skill to assess a complex medical condition that requires consideration and interpretation of clinical tests, X-rays or imaging studies, and an understanding of the musculoskeletal systems and related disorders. Accordingly, he is not competent to provide an opinion as to the etiology of his current thoracic spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. 428, 435 (2011). The Board finds that Dr. J. L. E’s private medical opinion is both competent and credible, but does not afford it much weight, because it is largely based on what the Veteran believes to be the cause of his injury. As noted above, the Board finds that the Veteran’s lay statement about the occurrence of the jeep accident lacks credibility. Therefore, the Board cannot use Dr. J. L. E.’s medical opinion to grant the Veteran service connection for his thoracic spine disability. Additionally, the Board finds that the Veteran has not presented a continuity of symptomatology associated with his thoracic spine disability, since the record contains no complaints relating to the Veteran’s spine problems until January 1991, approximately 18 years after the Veteran separated from service. There is also no competent evidence of record showing a diagnosis of degenerative changes in the spine compensable to 10 percent within one year from service separation. Thus, presumptive service connection pursuant to C.F.R. § 3.307 (a) is not warranted. Presumptive service connection under the provisions of 38 C.F.R. § 3.303 (b) is not warranted because there is no competent lay or medical evidence of chronic back or spine symptoms in service and since separation from service. (Continued on the next page)   Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for thoracic spine disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for entitlement, that doctrine is not helpful to him. See 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 53-56 (1990). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Trowers, Associate Counsel