Citation Nr: 0811131 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 04-10 875 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for sleep problems. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for a bilateral shoulder disability. 6. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Amy R. Grasman, Associate Counsel INTRODUCTION The veteran served on active duty from March 1960 to March 1966. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2002 RO decision denying service connection for a back disability, a left knee disability, sleep problems, bilateral hearing loss and a bilateral shoulder disability. This appeal also comes before the Board from a February 2005 RO decision denying service connection for PTSD. In January 2008, the veteran testified in a Travel Board hearing in front of the undersigned Veterans Law Judge. The transcript of the hearing is associated with the claims file and has been reviewed. The Board notes that in a December 2005 statement, the veteran withdrew claims for an increased rating for nasal bone fracture and right fibula fracture and service connection for a sinus disability and dental condition. During the January 2008 hearing, the veteran confirmed his withdrawal of these claims. The issues of a back disability, sleep problems, bilateral hearing loss and PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent medical evidence does not show a current diagnosis of a left knee disability that was incurred in or related to service. 2. The competent medical evidence does not show a current diagnosis of a bilateral shoulder disability that was incurred in or related to service. CONCLUSIONS OF LAW 1. A left knee disability was not incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2007). 2. A bilateral shoulder disability was not incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a 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, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; (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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in March 2002 that fully addressed all four notice elements and were sent prior to the initial AOJ decision. A letter was also sent in May 2005. The letters informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, a letter was sent to the veteran in March 2006 that provided notice of the rating criteria and effective date provisions that are pertinent to the appellant's claims. Any error regarding this notice was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to these claimed conditions. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). In this case, the service medical records do not indicate a knee or shoulder injury or disability. The service medical records do not show that the veteran received treatment for a shoulder or knee injury and a chronic disability was not noted at the separation examination. Additionally, the objective medical evidence of record does not show a shoulder or knee disability after service. In view of the objective evidence of record which was negative for any complaints or findings of a chronic shoulder or knee disability in service, and the absence of a disability after service, the Board finds the veteran's current assertions alone in the face of this objective evidence not credible, and thus do not require VA to provide an examination. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (in determining whether lay evidence is satisfactory the Board may properly consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the veteran). The Court has held, in circumstances similar to this, where the supporting evidence of record consists only of a lay statement, that VA is not obligated, pursuant to 5103A(d), to provide a veteran with a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (a medical opinion was not warranted when there was no reasonable possibility that such an opinion could substantiate the veteran's claim because there was no evidence, other than his own lay assertion, that reflected an injury or disease in service that may be associated with his symptoms). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records, DD Form 214, private medical records and VA medical records. The veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions. Id. To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, 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 the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 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. See 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. Id. 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). The veteran contends that he has a bilateral shoulder disability and a left knee disability. He testified that his bilateral shoulder disability was caused by lifting heavy objects in service. He also indicated that his left knee was injured in a motor vehicle accident in service. The Board has reviewed all the medical evidence of record and finds that the veteran does not have a current diagnosis of a bilateral shoulder or left knee disability. The veteran testified that his shoulder was worn out from lifting heavy objects in service; however, the medical evidence of record does not show a diagnosis of a disability. The Board also notes that although there was a motor vehicle accident in service, there is also no diagnosis of a left knee disability of record after service. The VA treatment records do not show a current disability, and the private medical records also do not show a current diagnosis for either a shoulder or knee disability. Without a current disability, service connection cannot be granted. Additionally, there is no indication in the service medical records of a shoulder or knee injury. The veteran reported that he did not have a painful or trick shoulder or a trick or locked knee in the December 1962, March 1960 and March 1966 physical examinations. His upper and lower extremities were clinically evaluated as normal. The Board also notes that there are service medical records from Verdun, Toul and Metz, there the veteran testified that he received treatment for a shoulder and knee disability. There is also no medical evidence of record relating a bilateral shoulder or left knee disability to service. As there is no medical evidence of a current disability, there is also no medical opinion that a shoulder or knee disability is related to any remote incident in service. Without competent medical evidence linking the veteran's disability to service, service connection is not warranted. The Board has considered the contentions of the veteran that he incurred injuries in service. However, as a layman, without the appropriate medical training and expertise, he is not competent to provide a probative opinion on a medical matter such as diagnosis or etiology. While a layman such as the veteran can certainly attest to his in-service experiences and current symptoms, he is not competent to provide an opinion of etiology or nexus. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. See Espiritu, supra. The Board notes that while the veteran is competent to report symptoms, he does not have medical expertise and therefore cannot provide a competent opinion regarding diagnosis or causation of his disabilities. As there is no diagnosis of a left knee or bilateral shoulder disability, the Board finds that the preponderance of the evidence is against the claims and the benefit-of-the-doubt rule does not apply. Service connection for a bilateral shoulder disability and a left knee disability must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a left knee disability is denied. Service connection for a bilateral shoulder disability is denied. REMAND The veteran testified in the January 2008 hearing that he was currently receiving VA treatment in Dallas for PTSD and sleep disturbances. The last VA medical records of record are dated in September 2004. VA has a duty to obtain all outstanding identified VA treatment records; therefore, the additional VA treatment records should be obtained. See 38 C.F.R. § 3.159 (c). There are also private medical records showing that the veteran has a current diagnosis of a back disability. The veteran had a laminotomy and discectomy at L4-L5 for a herniated disc in July 1997. X-ray evidence showed narrowing of the L4 disc space and straightening of the normal lumbar lordosis on the neutral lateral view suggested the possibility of paraspinous muscle spasm. The veteran testified that he received treatment for a back injury in service and he may have injured his back in the motor vehicle accident in service. He also claimed that his back disability is secondary to a service-connected right leg disability. A treatment note dated in November 1961 shows the veteran was admitted in Verdun, France following an automobile accident. A clinical record dated in January 1962 shows the veteran was transferred from Verdun to a hospital in Landstuhl, Germany where he spent 48 days. The hospital records from Landstuhl have not been requested or obtained. As such, the Board finds that the hospital records must be requested to determine if a back injury was incurred in service. Lastly, regarding the veteran's claim for bilateral hearing loss, he claims he lost his hearing after exposure to loud noise, including gun fire, during training in Fort Carson. The personnel file shows that the veteran had combat training in Fort Carson. To date, there is no audiology examination of record. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all medical records from the Dallas VA Medical Center in Dallas, Texas. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 2. The RO should obtain all clinical records from the United States Army Hospital in Landstuhl, Germany for the period from November 11, 1961 to February 1962 from the appropriate government agency, including the National Personnel Records Center. All efforts to obtain these records should be fully documented. If the records are not available, a negative response should be provided. 3. Then, the veteran should be scheduled for a VA examination with the appropriate medical specialist to determine the etiology of the veteran's current back disability. The claims file must be made available to and reviewed by the specialist in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The specialist should state whether the veteran's disability is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), causally or etiologically related to or aggravated by service, including the November 1961 motor vehicle accident. Additionally, the examiner should state whether the back disability is etiologically related to or aggravated by the service-connected right leg disability. 4. If the acquired Dallas VA treatment records show a diagnosis or symptoms of a psychiatric disability, the veteran should be afforded a VA psychiatric examination to ascertain a diagnosis and etiology of any psychiatric disability, including PTSD. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. If a psychiatric disability is diagnosed, the examiner should state whether the veteran's disability is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), causally or etiologically related to or aggravated by service. If a diagnosis of PTSD is deemed appropriate, the examiner must specify (1) whether each asserted stressor was sufficient to produce PTSD; and (2) whether there is a link between the current symptoms and the in-service stressor(s). The report of examination should include a complete rationale for all opinions expressed. 5. The veteran should be scheduled for a VA examination with the appropriate medical specialist to determine the etiology of sleep disturbances. The claims file must be made available to and reviewed by the specialist in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The specialist should state whether the veteran's disability is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), causally or etiologically related to or aggravated by service. Additionally, the examiner should state whether the sleep disturbances are secondary to (etiologically related to or aggravated by) any psychiatric disability or any other service-connected disability. 6. The veteran should be afforded with an appropriate VA examination to determine the identity and etiology of any hearing loss that may be present. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished and all findings reported in detail. The claims file should be made available to the examiner for review in connection with the examination. The examiner should state whether any hearing loss found on examination is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability of less than 50 percent) causally or etiologically related to any symptomatology shown in service or any other incident in service. 7. The RO should then readjudicate the issues on appeal. If the determinations remain unfavorable to the veteran, the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if 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. 2007). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs