SPINAL FUSION

Summary

The Veteran, who served from June 1999 to December 2005, with subsequent periods of service, appeals the denial of service connection for thoracic strain, claimed as a thoracic spine condition. The Veteran contends the condition is related to service, citing an in-service injury for back pain in June 2003. However, the Board found that the evidence persuasively weighs against a service connection. The Veteran's current diagnosis of thoracic strain was not made until November 2020, many years after service. The Board noted that while the Veteran is competent to report pain, determining the etiology of thoracic versus cervical or lumbar pain requires medical expertise. The VA examiner in November 2020 opined that the thoracic strain was not at least as likely as not related to service, citing a lack of continuing thoracic problems post-service, pain radiating from the cervical spine, and subsequent private treatment focusing on low back strain. The Board found this opinion probative and well-reasoned. The Board also addressed the representative's argument regarding later VA treatment notes for lumbar strain, concluding these did not contradict the VA examiner's findings and did not establish a pre-decisional duty to assist error. The Board gave more weight to the VA examiner's opinion, finding the evidence persuasively weighed against a service connection, thus the benefit of the doubt doctrine did not apply. Service connection for thoracic strain was denied.

Rationale

Current diagnosis of thoracic strain; No diagnosis until many years after service; VA examiner opined condition not related to service; Evidence persuasively weighs against service connection

Full Decision Text

Citation Nr: A26028472
Decision Date: 03/30/26	Archive Date: 03/30/26

DOCKET NO. 210218-144968
DATE: March 30, 2026

ORDER

Service connection for thoracic strain (claimed as thoracic spine condition) is denied.

FINDING OF FACT

1. The Veteran was treated during service for back pain in June 2003.

2. The Veteran has a current diagnosis of thoracic strain.

3. The evidence of record persuasively weighs against finding that thoracic strain began during active service or is otherwise related to an in-service injury or disease.

CONCLUSION OF LAW

The criteria for service connection for thoracic strain (claimed as thoracic spine condition) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran, who is the appellant, had service from June 1999 to December 2005, from September 2010 to November 2010, and from January 2012 to April 2012.

In the February 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On July 8, 2024, the Veteran withdrew the hearing request.

In October 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of service connection for thoracic strain most recently addressed in a July 2006 rating decision.  In November 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision.  Therefore, the Board may only consider the evidence of record at the time of the November 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value.  

The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A claimant is entitled to the benefit of the doubt when the evidence is not in equipoise, but nevertheless is in approximate balance.  An approximate balance of the evidence includes, but is not limited to equipo
, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value.  

The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A claimant is entitled to the benefit of the doubt when the evidence is not in equipoise, but nevertheless is in approximate balance.  An approximate balance of the evidence includes, but is not limited to equipoise. Evidence is not in "approximate balance" or "nearly equal" when the evidence persuasively favors one side or the other. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

1. Service connection for thoracic strain (claimed as thoracic spine condition).

The Veteran contends that her thoracic strain is related to service. 

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. § 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).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000).


 evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007).

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 strain and evidence shows that an inservice injury occurred, the evidence persuasively weighs against finding that the Veteran's thoracic strain began during service or is otherwise related to an inservice injury, event, or disease.

Treatment records show the Veteran was not diagnosed with thoracic strain until November 2020, many years after separation from service. The Veteran is competent to report upper back pain; however, she is not competent to determine whether such symptoms represent chronic thoracic pathology, as this is a medically complex question requiring clinical expertise and interpretation of musculoskeletal and neurologic findings. Jandreau v. Nicholson, 492 F.3d at 1377 n.4.

The November 2020 VA examiner opined that the Veteran's thoracic strain is not at least as likely as not related to service, including the 2003 upper back/neck strain. The examiner reasoned that there is little evidence of continuing thoracic problems after service, that pain on examination radiated from the cervical spine into the trapezius (a pattern typical of cervical rather than thoracic pathology), that there was only one episode of upper back treatment in 2014, and that subsequent private treatment addressed a low back strain rather than thoracic symptoms. The opinion is probative because it is based on an accurate medical history and provides a clear rationale supported by data, consistent with Nieves Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The representative argues that the VA examination did not consider later VA treatment notes showing lumbago and lumbar strain and asserts the Veteran should receive a new examination. However, the cited records concern lumbar pathology, not thoracic involvement, and do not contradict the VA examiner's findings. Additionally, the VA examiner did review and consider other records that noted lumbar spine symptoms. Under the AMA, the Board may remand only for pre decisional duty to assist errors, and the November 2020 examination was adequate at the time it was provided. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The mere submission of later evidence that does not change the underlying medical picture does not establish that the AOJ committed such an error.

The Veteran believes her thoracic strain is related to an in service injury. She is not competent to provide a nexus opinion because determining the etiology of thoracic versus cervical or lumbar pain requires medical knowledge regarding musculoskeletal anatomy and disease processes. See Jandreau at 1377 and Kahana at 428. Accordingly, more probative weight is given to the November 2020 VA examiner's opinion.

In sum, the most probative evidence shows that the Veteran's current thoracic strain is not related to service. As the evidence persuasively weighs against the claim, the benefit of the doubt doctrine does not apply.

 

 

H. SEESEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Connally, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.