Citation Nr: 0811036 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 06-31 535A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for residuals of a right shoulder injury. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a right hip and groin disability. 4. Entitlement to service connection for a back disorder. (The issues of entitlement to service connection for residuals of a right knee injury, service connection for residuals of a head injury, service connection for bilateral hearing loss, and service connection for residuals of a right wrist injury have been addressed in a separate rating decision under the same docket number.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca N. Poulson, Associate Counsel INTRODUCTION The veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Albuquerque, New Mexico, Regional Office (RO) that, in pertinent part, denied the veteran's claims for service connection for a right shoulder injury, tinnitus, a right hip and groin condition, and a back disorder. The veteran timely filed a notice of disagreement in January 2006. The RO provided a statement of the case in August 2006, and the veteran timely filed a substantive appeal in October 2006. In June 2007, the RO provided a supplemental statement of the case. In July 2007, the veteran appeared at a hearing at the RO before the undersigned Veterans Law Judge. The transcript of that hearing has been associated with the claims file, and the case is now ready for appellate review. Because of the need for a three-judge panel review, the issues of entitlement to service connection for residuals of a right knee injury, service connection for residuals of a head injury, service connection for bilateral hearing loss, and service connection for residuals of a right wrist injury will be the subject of a separate decision issued simultaneously herewith under the same docket number. The Board notes that in a June 2005 statement, the veteran appeared to raise an informal claim of service connection for depression. The Board further notes that in documents submitted with the September 2005 notice of disagreement, the veteran appeared to raise informal claims of service connection for a urinary tract disorder, impotence, and nervousness due to exposure to herbicides. These issues are not developed for appellate consideration and are referred to the RO for appropriate action. The issues of entitlement to service connection for a right shoulder injury, right hip and groin condition, and a back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT Tinnitus was not shown in service, nor did current tinnitus result from disease or injury of service origin. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act (VCAA) On November 9, 2000, the President signed into law the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. a. Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of the service connection claim (including degree of disability and effective date of disability (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio, supra. at 187; 38 C.F.R. § 3.159(b) (2005). As a fourth notice requirement, VA must "request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b) (1); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Notice must be provided "at the time" that VA receives a completed or substantially complete application for VA-administered benefits. Pelegrini at 119 (2004). This timing requirement applies equally to the initial-disability-rating and effective-date elements of a service connection claim. Dingess/Hartman, supra. The Board finds that the VCAA letter sent to the veteran essentially complied with the statutory notice requirements as outlined above. The August 2005 VCAA letter notified the veteran of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. Also, VA notified the veteran that he should submit evidence in his possession or alternatively provide VA with sufficient information to allow VA to obtain the evidence on his behalf. The August 2005 VCAA letter also informed the veteran about the type of evidence needed to support a service connection claim, namely, proof of: (a) an injury in military service or disease that began in or was made worse during military service, or an event in service causing injury or disease; (b) a current physical or mental disability; and (c) a relationship between the current disability and an injury, disease or event in service. The Board thus finds that the veteran was effectively informed to submit all relevant evidence in his possession, and that he received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 403; see also Mayfield, 19 Vet. App. at 109-12. With respect to the Dingess requirements, the veteran was not provided with notice of the type of evidence necessary to establish a rating or effective date for the rating in the August 2005 letter. Instead, the RO supplied notice of these elements in the August 2006 statement of the case. See Dingess, supra. This notice was temporally after the RO's initial decision. The Board is cognizant of recent Federal Circuit decisions pertaining to prejudicial error. Specifically, in Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16, 2007), the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial and that once an error is identified by the Veterans Court (Court of Appeals for Veterans Claims), the burden shifts to VA to demonstrate that the error was not prejudicial. The Federal Circuit reversed the Court of Appeals for Veterans Claims' holding that an appellant before the Court has the initial burden of demonstrating prejudice due to VA error involving: (1) providing notice of the parties' respective obligations to obtain the information and evidence necessary to substantiate the claim: (2) requesting that the claimant provide ant pertinent evidence in the claimant's possession; and (3) failing to provide notice before a decision on the claim by the agency of original jurisdiction. (Emphasis added.) See also Simmons v. Nicholson, No. 06-7092 (Fed. Cir. May 16, 2007). The presumption of prejudice raised by the untimely notice of the Dingess requirements is rebutted in this case. The overwhelming preponderance of the evidence is against service connection for tinnitus; thus, the question of how to assign a rating or affective date is moot. See Sanders, 487 F.3d at 887 (recognizing that "a demonstration that the outcome would not have been different in the absence of the error would demonstrate that there was no prejudice"). There has been no showing that the essential fairness of the adjudication of the veteran's claim has been altered by the untimely notice of Dingess. Furthermore, the veteran has not raised an effective date claim, and in view of the foregoing, the Board cannot conclude that the defect in timing of Dingess notice affected the essential fairness of the adjudication. Significantly, the evidence does not show, nor does the appellant contend, that any notification deficiencies, either with respect to timing or content, have resulted in prejudice. That is, there has been no plausible showing of how the essential fairness of the adjudication was affected. See Mayfield v. Nicholson, 19 Vet. App. 103, 128, 129 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (due process concerns with respect to VCAA notice must be pled with specificity). See also Overton v. Nicholson, 20 Vet. App. 427 (2006); Dunlap v. Nicholson, No. 03-320 (U.S. Vet. App. Mar. 22, 2007). b. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the veteran of its duty to assist in obtaining records and supportive evidence. Service medical records, VA medical records, and private provider medical records have been associated with the claims folder. Additionally, the veteran was afforded a VA hearing examination in September 2004, which was thorough in nature and adequate for the purposes of deciding this claim. The veteran provided sworn testimony with respect to the claim of service connection for tinnitus in July 2007. The Board finds that the medical evidence of record is sufficient to resolve this appeal, and the VA has no further duty to provide an examination or opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the veteran, and thus, no additional assistance or notification was required. The veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Analysis of Claim of Service Connection In order to establish service connection for a claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. 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." 38 C.F.R. § 3.303(b). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). In order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical evidence, or, in certain circumstances, lay evidence, of in-service occurrence or aggravation of a disease or injury; and (3) medical 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). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2004). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The veteran contends that his current tinnitus is related to service, and specifically to the acoustic trauma he experienced when a tire that he was fixing exploded. The veteran's service medical records do not show complaints, treatment, or diagnosis of tinnitus in service. The initial post-service documentation of tinnitus is contained in the report of the September 2004 VA audiology examination. In the report of the VA examination, the veteran reported, by history, recurrent bilateral tinnitus on a weekly basis of several minutes duration since 1970. Following the examination which included a review of the veteran's claims file, the VA audiologist concluded that the veteran's tinnitus was not considered to be abnormal within a normal population, and that it was "least likely secondary to military service." Notwithstanding the lack of evidence of tinnitus during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Assuming without deciding that the veteran has a current tinnitus disability, the question then is whether the evidence is at least in equipoise as to whether the veteran has tinnitus that is related to service. The veteran believes that his tinnitus is the result of exposure to a tire explosion in service. With respect to any medical conjectures that could be made on his part, however, the veteran has not been shown to possess the medical background required to provide such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay opinions regarding the diagnosis or etiology of a disease, particularly in the absence of any supporting medical authority, serves no constructive purpose and need not be considered. Hyder v. Derwinski, 1 Vet. App. 221, 225 (1991). There are no opinions supportive of the veteran's claim from anyone with the medical background required to provide such an opinion. On the other hand, the medical evidence against the veteran's claim consists of the report of the VA audiologist examiner who examined the veteran in September 2004 for the purpose of making a determination as to etiology. Based upon a review of the veteran's claims file, including service medical records and an interview of the veteran, the examiner unequivocally concluded that the veteran's tinnitus was not associated with military service. Taken in conjunction with an overview of the claims folder which demonstrates the paucity of evidence of tinnitus between 1968 and 2004, the evidence against the veteran's claim becomes overwhelming. The medical evidence as a whole demonstrates that tinnitus was not diagnosed until over 35 years after service. The preponderance of the evidence stands against the proposition that the veteran's tinnitus was related to service; there is no doubt to be resolved; and service connection for tinnitus is not warranted. ORDER Entitlement to service connection for tinnitus is denied. REMAND The Board finds that additional development is warranted to address the merits of the appellant's claims of entitlement to service connection for a right shoulder injury, right hip and groin disability, and low back disability. 38 C.F.R. § 19.9 (2007). A summation of the relevant evidence is set forth below. The veteran claims that his right shoulder disability, right hip and groin disability, and low back disability were incurred in service. Specifically, the veteran contends that these injuries were the result of an accident that occurred when a tractor-trailer wheel that he was replacing exploded. He claims that he sought medical treatment for his injuries soon after getting out of the military, but that those private provider records have since been destroyed. a. Factual Background Service Medical Records The veteran's December 1965 and July 1968 Reports of Physical Examination for Induction and Separation disclose a normal clinical assessment of all systems. Private Provider Records June 1983 treatment records indicate that the veteran complained of right thigh and back pain after "working on a bike." He stated that he had "never had this pain before." August 1993 to December 1993 treatment records indicate that the veteran complained of pain in his right upper inner thigh. The assessment was muscle strain. An April 1998 X-ray revealed thoracic degenerative disease. May 1998 treatment records indicate that the veteran complained of groin pain "in the region of the right ischial tuberosity" for 3-4 years. The veteran denied known injury. He had had a herniorrhaphy done that same month. Upon physical examination, the doctor noted a normal gait, normal lumbar spine range of motion, normal strength through the lower extremities, and normal hip range of motion. X-rays revealed some periostitis reaction along the ischial tuberosity bilaterally. The impression was probable periostitis and possible chronic ligamentous injury at the insertion of the ischial tuberosity. A subsequent MRI of the right hip revealed no evidence of stress fracture, synovitis, or other adjacent inflammatory process. An August 1998 X-ray of the right hip revealed mild symmetry of the acetabula, "probably reflecting an osteophyte arising from the right superolateral acetabulum." The impression was "suspect mild DJD right hip." January 2005 treatment records indicate that the veteran complained of right shoulder pain for 30-40 years. The clinician's notes state that "[the veteran] got hurt while he was in service - apparently twisted right shoulder." The veteran reported that the shoulder pain had worsened over time. Upon physical examination, the clinician noted that the range of motion was limited by pain. He described the shoulder as "stiff." Abduction was to 45 degrees. The assessment was chronic right shoulder pain. September 2005 treatment notes indicate that the veteran's right shoulder was still hurting. There was pain upon abduction and internal rotation. Abduction was to 90 degrees. A MRI of the right shoulder revealed an articular tear of the rotator cuff near the junction between supraspinatus and infraspinatus tendons. The doctor noted that "hyperintense signal within the subacromail/subdeltoid bursa may relate to the above noted tendon findings vs. an overlaying inflammatory process such as bursitis." Degenerative appearing changes involving the humeral head and acromoclavicular joint were also found. A MRI of the cervical spine revealed multilevel disc and bony degenerative changes without subluxation. Disc bulge or osteophyte/disc complex was seen at each level between C3 and C7 producing spinal canal stenosis at the C4-5 and C5-6 levels. Multilevel neural foraminal narrowing was also found. The impression was cervical radiculopathy and right shoulder pain. September 2005 treatment notes indicate that the veteran also complained of right thigh and hip pain. A physical examination was within normal limits. A June 2007 correspondence by J.L., DC, contains the following statement: This letter is being written at the request of the above captioned patient to state that current symptomatology and x-ray findings in his lumbar spine are consistent with a fall that he described while he was in the military in 1967. This information when correlated with his history of transient to intermittent lumbosacral pain since the accident, support a finding that his fall in 1967 was the initial injury. Buddy Statement The claims file contains a March 2003 letter submitted by R.T., which includes the following statement: In October or November of 1967, while at work in the Motor Pool, I was present when [the veteran] sustained an injury. He was fixing a flat tire of a truck when the steel ring blew off and actually threw [the veteran] into the air and then landing and injuring his right side. b. Analysis There is no mention in the veteran's service medical records of the alleged 1967 accident. There is also a significant lapse in time between the veteran's 1968 separation and the first documented medical reports of his disabilities. However, from January 2003 through his July 2007 Travel Board testimony, the veteran has presented consistent, credible, and detailed accounts of the accident. Furthermore, the claims file contains a "buddy" statement that corroborates the veteran's testimony. Additionally, a private provider opinion supports the alleged nexus with respect to the back claim. The probative value of this opinion is diminished by an absence of a review of all the evidence of record. However, the opinion is of some probative value and does support the claims. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims recognized in 38 C.F.R. § 3.159(c)(4) a three-pronged test for ascertaining whether a VA examination or opinion is warranted to address a claim for service connection. The Court stressed that the criteria for obtaining a VA examination is a low threshold. No adequate medical examination or opinion fully addressing the incurrence and causation issues presented by the veteran's claims for service connection for a right shoulder injury, a right hip and groin condition, and a low back disability is of record and further medical input as to those matters is deemed advisable. The Board finds that a VA examination that includes an opinion addressing the contended nexus is warranted. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The veteran must be provided with a VA orthopedic examination to determine the nature and etiology of each of the veteran's claimed disabilities, which include a right shoulder injury, a right hip and groin disability, and a low back disability. With respect to the claimed orthopedic disabilities, the examiner is to answer the following question: Is it at least as likely as not (i.e., 50 percent or greater probability) that any right shoulder injury, right hip and groin disability, and/or low back disability that is currently present began during service or is etiologically related to any incident of active service. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship; less likely weighs against the claim. The examiner is requested to provide a rationale for any opinion provided. If the clinician is unable to answer any question presented without resort to speculation, he or she should so indicate. The claims folder and a copy of this remand should be made available to the clinician for review. 2. After completion of any other development indicated by the record, with consideration of all evidence added to the record subsequent to the June 2007 supplemental statement of the case, the AMC/RO must readjudicate the claims for service connection for a right shoulder injury, a right hip and groin disability, and a low back disability. If the claims remain denied, the AMC/RO should issue an appropriate supplemental statement of the case and provide the veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ MICHAEL A. PAPPAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs