Citation Nr: 0809933 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-29 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a right elbow disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The veteran had active service from June 1982 to June 2002. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The veteran testified before the undersigned Veterans Law Judge a the RO in January 2008. A transcript of his hearing has been associated with the record. The issue of entitlement to service connection for a right shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is no current diagnosis of a right elbow disability. CONCLUSION OF LAW A right elbow disability was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant 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 claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, the veteran's claim was received in May 2003, after the enactment of the VCAA. A letter dated in October 2003 explained the evidence necessary to support the veteran's claim. He was asked to identify dates of medical treatment during service, and told that he could submit statements from people who know of the disability during service. Other types of evidence that could be submitted were discussed. The veteran was told to send any medical evidence in his possession. The evidence of record was listed, and the veteran was told how VA would assist him in obtaining additional evidence. A September 2004 letter asked the veteran to identify providers of treatment and any other records that might support his claim. It listed the evidence of record. The Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. The content of the notice provided to the veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only has the veteran been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. As the Federal Circuit Court has stated, it is not required "that VCAA notification must always be contained in a single communication from the VA." Mayfield, supra, 444 F.3d at 1333. The Board also notes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. With respect to VA's duty to assist, identified treatment records have been obtained and associated with the record. The veteran was afforded the opportunity to testify before the undersigned. The undersigned agreed to hold the record open for 30 days to allow the veteran to submit evidence of a diagnosis of a right elbow disability. Neither the veteran nor his representative has identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. The Board has considered whether the veteran should be afforded a VA examination. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). However, there is no reliable evidence of an in-service event, injury or disease. Furthermore, the veteran's own testimony establishes that there is no recurrent symptom that may be associated with such service. As noted by him, he did not complain during critical timeframes because it was not bothering him. See McLendon. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Factual Background The veteran maintains that his right elbow was injured when he fell down a hatch and caught himself with his right hand. The veteran's service medical records are negative for any diagnosis, complaint, or abnormal finding pertaining to his right elbow. On various examinations throughout his career, the veteran denied painful or trick shoulder or elbow, lameness, and bone or joint deformity. Upon retirement examination in October 2001, the veteran again denied painful or trick shoulder or elbow, lameness, and bone or joint deformity. He endorsed arthritis; however, the examiner noted that such referred to degenerative joint disease of the spine. Clinically, the veteran's upper extremities were normal. In his initial claim for service connection, received in September 2002, the veteran did not indicate that he sought benefits for an elbow disability. He submitted a claim for that disability in May 2003, noting his belief that is was related to his back or right thumb disabilities. He also indicated that the claimed disability might be due to his active duty assignments aboard submarines, stating that the way that sailors have to move might affect the body parts. A VA treatment record dated in September 2003 indicates the veteran's report of right shoulder pain of eight months' duration. At that time, he denied any trauma or fall. A December 2003 notation indicates that the veteran reported shoulder pain for more than one year. He stated that he had fallen off of a ladder in a submarine five years previously, and denied recent trauma. A June 2004 letter from K.D., D.C. reflects the veteran's report that he fell down a ladder in a submarine, catching his right arm. An October 2005 statement from a former service colleague indicates that the author had witnessed the veteran fall down a weapons shipping hatch. He noted that at the time of the incident, the veteran did not think that he was seriously injured and that he complained of soreness and stiffness which lasted for several days. In a January 2006 letter, B.L.C., M.D., J.D. stated that the veteran's elbow was stiff but had not required treatment. At his January 2008 hearing, the veteran testified that he had fallen down a hatch on a submarine in 1997, but had continued with his duties. He stated that a colleague summoned a corpsman, who gave him Motrin. He related that he had immediate pain, but that the Motrin helped. He also noted that on return to shore duty, he swam as part of therapy for his back and that it seemed to help his right arm. He stated that on his retirement, he drove from Washington to California and felt pain in his shoulder. He denied having complained of problems with his shoulder or elbow on discharge, because they did not hurt at that time. He denied having been treated post-service for his right elbow. Analysis Entitlement to service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability, evidence of in-service incurrence or aggravation of a disease or injury, and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]. 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative 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.A. § 5107(b) (West 2002). Having carefully reviewed the evidence of record, the Board finds that service connection for a right elbow disability is not warranted. Notably, various periodic examinations throughout the veteran's 20-year career did not reflect complaints or abnormal findings pertaining to the veteran's right elbow. Moreover, the evidence demonstrates no current clinical diagnosis pertaining to the veteran's right elbow, and the veteran himself has testified that he has received no treatment for a right elbow disability. In sum, the record demonstrates no current evidence of this claimed condition. The Board has considered the veteran's argument that he has a right elbow disability that is related to service. However, he is not, as a layperson, qualified to render a medical diagnosis or an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The grant of service connection requires competent evidence to establish a diagnosis of the claimed disability. In this regard, the Board notes that the veteran has not identified or produced any evidence, medical or otherwise, that would tend to show a current right elbow disability. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for a cervical spine disability and a right elbow disability must be denied. ORDER Entitlement to service connection for a right elbow disability is denied. REMAND As an initial matter, the Board notes that the VCAA is also applicable to the claim of entitlement to service connection for a right shoulder disability. There are two statements by private physicians, W.P., M.D. and B.L.C., M.D., J.D., associated with the record. Both physicians relate the veteran's current right shoulder disability to a fall down a hatch during service. The Board observes that the veteran's service medical records are negative for any diagnosis, complaint, or abnormal finding pertaining to his right shoulder. On various examinations throughout his career, the veteran denied painful or trick shoulder or elbow, lameness, and bone or joint deformity. Upon retirement examination in October 2001, the veteran again denied painful or trick shoulder or elbow, lameness, and bone or joint deformity. He endorsed arthritis; however, the examiner noted that such referred to degenerative joint disease of the spine. Clinically, the veteran's upper extremities were normal. Neither Dr. P. nor Dr. C. accounted for the silent service medical records or the fact that the veteran's initial complaints concerning right shoulder problems did not refer to any fall during service. Rather, the veteran's May 2003 claim indicated his belief that his right shoulder disability was related to his back or right thumb disabilities. Moreover, a September 2003 VA treatment record reflects the veteran's denial of trauma associated with his right shoulder complaints. In light of the above discussion, the Board finds that a VA examination is warranted to address the etiology of the veteran's right shoulder disability. Such examination should include a complete review of the record and specifically address the opinions of Drs. P. and C. Accordingly, the case is REMANDED for the following action: Schedule the veteran for a VA examination to determine the nature, extent, and etiology of his right shoulder disability. Upon examination and review of the entire claims folder, the examiner should provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent or greater) such disability is related to any disease or injury in service. The examiner should specifically address the opinions of Dr. P. and Dr. C. A discussion of the complete rationale for all opinions expressed should be included in the examination report. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. 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. 2007). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs