Citation Nr: 1423233 Decision Date: 05/22/14 Archive Date: 05/29/14 DOCKET NO. 09-07 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for residuals of a broken nose. 2. Entitlement to service connection for residuals of a corneal abrasion of the right eye. 3. Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to September 1982. The Veteran also has service with the United States Army Reserves from August 1984 to August 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, a hearing was held before the undersigned Acting Veterans Law Judge (AVLJ) of the Board. Relevant to this proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the AVLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the AVLJ explained the issues that were before the Board. The representative and the AVLJ asked questions to ascertain whether the Veteran had submitted evidence in support of his claims. In addition, the AVLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to service connection for residuals of a corneal abrasion of the right eye and a lumbar spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The competent, credible, and probative evidence of record does not demonstrate the Veteran currently has residuals of a broken nose. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a broken nose have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA provided the Veteran a notice letter in March 2007 that fully addressed all notice elements. The letter informed the Veteran of what evidence was required to substantiate his underlying claim, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. The Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2013); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). A VA examination was not provided in conjunction with the Veteran's service connection claim, and the Board notes that the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4) (2013). VA has a duty to provide a VA examination when the record lacks evidence to decide the veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, there is nothing in the record, other than the Veteran's own lay statements, that he suffers from residuals of a broken nose. As he is not competent to provide evidence of a diagnosis or etiology of a condition, the record is silent for a diagnosis of a current nose disability or residuals of a broken nose. See Waters v. Shinseki, 601 F.3d 1274, 1279 (Fed. Cir. 2010) (the Veteran's conclusory lay statement is insufficient to trigger VA's duty to provide an examination with an opinion). The elements of McLendon have not been met; therefore, VA is not required to provide the Veteran with a VA examination in conjunction with his claim. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Merits of the Claim Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran asserts that entitlement to service connection is warranted for residuals of a broken nose. At the July 2012 Board hearing, the Veteran testified that he suffered a broken nose during his military service. Specifically, in June 1985, the Veteran explained that he was following a fellow soldier up a hill when the soldier in front of him released a tree branch that scratched his eye and broke his nose. The Veteran stated that he was treated for his eye and nose, but since the incident, he has endured sinus problems, especially a sinus drip. The Veteran contends that service connection is warranted for residuals of a broken nose. While the record supports the Veteran's contention that he was injured by a tree branch in June 1985, there is no objective evidence in the service treatment records that this incident caused injury to his nose. Furthermore, and more importantly, there is no objective evidence showing current residuals of a broken nose or a nose-related disability. Private treatment records reflect no complaints, treatment, or diagnosis of residuals of a broken nose or a nose-related disability. Since the competent, credible, and probative evidence of record does not show a current diagnosis of residuals of a broken nose or a nose-related disability, service connection cannot be granted. The Court has held that a condition or injury occurred in-service alone is not enough; there must be a current disability resulting from that condition or injury. See Chelte v. Brown, 10 Vet. App. 268 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim."); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); see Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (symptoms alone, without a finding of an underlying disorder, cannot be service connected). Thus, while the Board does not question the Veteran's assertions of current sinus problems during the course of the instant appeal, without a medical diagnosis of a chronic disability, service connection may not be granted. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for residuals of a broken nose, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). ORDER Service connection for residuals of a broken nose is denied. REMAND Remand is required to obtain VA medical addendum opinions because the December 2007, January 2008, and August 2010 VA medical opinions are inadequate, as the VA examiners failed to acknowledge current disabilities for the Veteran's back and right eye claims contained within the record when rendering the nexus opinions provided. Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the VA examiner who conducted the December 2007 VA eye examination to render an addendum opinion. If the December 2007 examiner is available he may conduct a records review and respond to the questions below. If the December 2007 examiner otherwise finds it necessary, he should conduct further examination of the Veteran to respond to the questions below. If that examiner is not available, schedule the Veteran for a VA eye examination, to be conducted by a qualified examiner. Issue an opinion that specifically addresses the questions below with a full explanation for any conclusions. The following considerations will govern the examination: a. The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b. The examiner must obtain from the Veteran a full in-service and post-service history pertaining to his residuals of a corneal abrasion of the right eye. c. After reviewing the records, examining the Veteran, and identifying all appropriate symptoms and diagnoses, the examiner must provide medical findings or opinions responsive to the following questions: (i) Given the Veteran's account and the current lack of contemporaneous medical documentation of residuals of a corneal abrasion of the right eye from the time of discharge from active service through the present, is there a clinical or medical basis to support the Veteran's assertions? Please provide a fully reasoned explanation. (ii) Was the Veteran's residuals of a corneal abrasion of the right eye, to include blepharitis and hyperopia with presbyopia, caused by or are they a result of the Veteran's active service? d. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. e. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 2. Return the claims folder to the VA examiner who conducted the January 2008 VA spine examination and August 2010 addendum opinion to render an additional addendum opinion. If the examiner is available he/she may conduct a records review and respond to the questions below. If the examiner otherwise finds it necessary, he/she should conduct further examination of the Veteran to respond to the questions below. If that examiner is not available, schedule the Veteran for a VA spine examination, to be conducted by a qualified examiner. Issue an opinion that specifically addresses the questions below with a full explanation for any conclusions. The following considerations will govern the examination: a. The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b. The examiner must obtain from the Veteran a full in-service and post-service history pertaining to his lumbar spine disability. c. After reviewing the records, examining the Veteran, and identifying all appropriate symptoms and diagnoses, the examiner must provide medical findings or opinions responsive to the following questions: (i) Given the Veteran's account and the current lack of contemporaneous medical documentation of residuals of a lumbar spine disability from the time of discharge from active service through the present, is there a clinical or medical basis to support the Veteran's assertions? Please provide a fully reasoned explanation. (ii) Was the Veteran's current lumbar spine disability, to include lumbar degenerative disc disease, caused by or are they a result of the Veteran's active service? d. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. e. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case (SSOC) and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ CHRISTOPHER MURRAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs