Citation Nr: 0811246 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-23 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for residuals of a left knee injury. 3. Entitlement to service connection for left ear hearing loss. 4. Entitlement to service connection for asthma. 5. Entitlement to service connection for a heart disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The veteran served on active duty from June 1984 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge, sitting at the RO in January 2008. A transcript of the hearing is associated with the claims file. In October 2007, the veteran filed a claim for service connection for post-traumatic stress disorder (PTSD). The RO has not yet adjudicated this claim. Thus, it is referred to the RO for appropriate action. The issues of entitlement to service connection for a back disorder, hearing loss, residuals of a left leg injury, and asthma 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. FINDING OF FACT The medical evidence of record does not demonstrate that the veteran has a current diagnosis of a heart disorder. CONCLUSION OF LAW A heart disorder was not incurred in or aggravated by the veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1131, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGAND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007)), eliminated the concept of a well- grounded claim and redefined VA's obligations with respect to its duties to notify and assist a claimant. In August 2001, VA issued regulations to implement the VCAA. 66 Fed. Reg. 45,620 (August 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007)). The Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. In this case, the veteran was provided with VCAA notification letters in November 2004, January 2005, and December 2005, prior to the initial unfavorable AOJ decision issued in February 2006. Under Pelegrini, for a VCAA notice to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the notice must: (1) inform a claimant about the information and evidence not of record that is necessary to substantiate the claims; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence that the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claims. Pelegrini, 18 Vet. App. at 120-121. In reviewing the veteran's claims of entitlement to service connection, the Board observes that the VCAA notice issued in November 2004 informed the veteran of the type of evidence necessary to establish service connection, how VA would assist him in developing his claims, and his and VA's obligations in providing such evidence for consideration and requested that he send any evidence in his possession to VA. The VCAA letters sent in January 2005 and December 2005 were specific to VA's efforts to obtain particular medical records. As the veteran was sent a fully VCAA compliant notice prior to the initial adjudication by the RO, the Board finds no prejudice to him in proceeding with a final decision. Also pertinent to VA notice requirements is the Court's decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Dingess/Hartman 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. Additionally, this notice must notify the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present case, no communication from the RO to the veteran informed him of the evidence necessary to establish entitlement to disability ratings and effective dates for the disabilities on appeal. Despite the inadequate notice provided to him on these two elements, the Board finds no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). As the Board concludes herein that the preponderance of the evidence is against the veteran's service connection claims, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot. All that VCAA requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished all due process concerns have been satisfied. See Bernard; Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). As indicated above, all content requirements of a VCAA notice have been fully satisfied in this case. Therefore, the Board finds that delaying appellate review by providing additional VCAA letters to the veteran would be of no benefit. With respect to the duty to assist, service medical records (SMRs) and VA and non-VA treatment records have been associated with the claims file. The Board observes that two requests were made for records from a Dr. B., which yielded no response. In December 2005, the veteran reported that Dr. B. had retired and that there are no other records available. He has not identified any additional outstanding, relevant records that VA needs to obtain for an equitable disposition of the claims. Further, the Board notes that the veteran has not been afforded a VA examinations and medical opinion in connection with his service connection claim. Pursuant to the VCAA, a medical opinion should be obtained if the evidence shows the presence of a current disability, and indicates the disability may be associated with service. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4) (2007); McClendon v. Nicholson, 20 Vet. App. 79 (2006); Charles v. Principi, 16 Vet. App. 370 (2002). A medical nexus opinion with respect to the service connection claim for heart disability is not warranted because there is no competent evidence of a current disability. As will be discussed in greater detail below, there is simply no current medical evidence that the veteran suffers from any type of disability of the heart. Without evidence of a current disability, there would be no basis on which the examiner could render an opinion. Thus, the Board finds that additional efforts to assist or notify the veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duty to inform and assist the veteran at every stage in this case. Therefore, he will not be prejudiced by the Board proceeding to the merits of the claims. II. Analysis The veteran contends that he currently has a heart disorder as a result of his active service. Thus, he contends that service connection is warranted for a heart disorder. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a). Connecting the disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service or that otherwise indicates a direct relationship between service and the current disability. 38 C.F.R. §§ 3.303(a), (d). The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including cardiovascular-renal disease, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). Direct service connection may be granted for disease or disability diagnosed in service; or, if diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Id. A finding of direct service connection requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Service medical records are silent as to any complaints, treatment, or diagnosis of a heart disorder. Post-service records are similarly silent with respect to there being a current diagnosis of a heart disorder. Indeed, at his January 2008 hearing, the veteran testified that he does not have a current diagnosis of a heart disorder, to include coronary artery disease and hypertension . A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Chelte v. Brown, 10 Vet. App. 268, 271 (1997) (a condition or injury occurred in service alone is not enough, there must be a current disability resulting from that condition or injury), Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability, there can be no valid claim). Although the veteran has expressed his own opinion that he currently suffers from some type of disability of the heart, the Court has held that lay persons, such as the veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Thus, in the absence of any competent medical evidence of a current diagnosis of a heart disorder, the Board concludes that service connection for a heart disorder is not warranted. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, in the present case, the preponderance of the evidence is against the veteran's claim of entitlement to service connection for a heart disorder. Therefore, his claim must be denied. ORDER Service connection for a heart disorder is denied. REMAND The veteran contends that he currently suffers a back disorder, left ear hearing loss, a left knee disorder, and asthma as a result of in-service injuries. Therefore, he argues that service connection is warranted for these disorders. The Board determines that a remand is necessary for further development of the record. Specifically, at his January 2008 hearing, the veteran testified to receiving treatment for his back, left knee, hearing loss, and asthma at the Daytona VA Outpatient Center (VAOC). He stated that audiological tests conducted at the Daytona VAOC in 2006 had confirmed a diagnosis of left ear hearing loss. He also provided a history of treatment at that facility in the early 1990s. The only records from this facility are dated between June 2003 and December 2005. VA records pre-dating 2003 and post-dating appear to be missing. When VA has notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); see also Quartuccio v. Principi, 16 Vet. App. 183, 187-188 (2002); Baker v. West, 11 Vet. App. 163, 169 (1998). Thus, a remand is required to allow VA the opportunity to obtain these outstanding, relevant records. The Board further notes that service medical records show that the veteran was seen for complaints of left knee pain due to trauma. A December 2004 letter from P.J. Yocum, D.C., appears to relate this incident to the veteran's current complaints of chronic left knee pain. While observing the veteran's left knee as "very abnormal," Dr. Yocum indicated that he was deferring a diagnosis of the left knee until an MRI was made available. He did, however, note that the veteran suffered from degenerative disc disease of the lumbar spine. He vaguely appeared to associate the veteran's back problem with the stresses and strains of his active service. Accordingly, the case is REMANDED for the following action: 1. The veteran should be sent a VCAA notice letter that includes an explanation as to the information or evidence needed to establish a disability rating and an effective date for the disabilities now on in accordance with Dingess/Hartman. He should also be asked to provide the name(s) of any health care provider who has treated his for his back, hearing loss, left knee, or pulmonary problems since discharge. 2. Records from the VA medical facility in Daytona relevant to treatment of the veteran's back, hearing loss, left knee, and asthma, dated from 1990 onward should be obtained. 3. The veteran should be afforded a VA examination in order to determine the nature and etiology of any left knee or low back disability. The claims folder should be made available to the examiner for review before the examination. Any indicated tests and studies, should be conducted if the examiner deems it appropriate. The examiner should provide an opinion as to the diagnosis, date of onset, and etiology of any current disability of the left knee and/or low back. The examiner should also provide an opinion on whether there is a 50 percent probability or greater (as likely as not) that any current disability of the left knee or low back (lumbar spine) had its onset during active service or is related to any in-service disease or injury. 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the veteran's service connection claims should be readjudicated, to include all evidence received since the July 2006 statement of the case. The veteran and his representative should then be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). ______________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs