Citation Nr: 0811484 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 04-28 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for residuals of a left facial fracture. 2. Entitlement to a compensable rating for hemorrhoids. 3. Entitlement to a compensable rating for residuals of a nasal septum fracture. 4. Entitlement to a compensable rating for a scar of the left eyebrow. 5. Entitlement to service connection a headache disorder. 6. Entitlement to service connection for bilateral pes planus. 7. Entitlement to service connection for a left knee disorder. 8. Entitlement to service connection for a right knee disorder. 9. Entitlement to service connection for pseudofolliculitis barbae. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Roth, Associate Counsel INTRODUCTION The veteran had active service from June 1975 until May 1995. This matter comes before the Board of Veterans' Appeals (BVA or Board) from the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. The veteran's increased rating claims 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. Isolated episodes of headaches, bilateral pes planus, a left knee disorder, and pseudofolliculitis barbae treated in- service are shown to have resolved without chronic residuals. 2. A right knee disorder was not shown in service 3. A headache disorder, bilateral pes planus, bilateral knee disorders, and pseudofolliculitis barbae are not currently shown. CONCLUSIONS OF LAW 1. A headache disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.03 (2007). 2. Bilateral pes planus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.03 (2007). 3. A left knee disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.03 (2007). 4. A right knee disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.03 (2007). 5. Pseudofolliculitis barbae was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.03 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS According to the law and regulations, service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 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. See 38 C.F.R. § 3.303(d). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the veteran received in-service treatment relating to his claims for service connection of headaches, bilateral pes planus, a left knee disorder, and pseudofolliculitis barbae. Specifically, service medical records reflect that he was treated on a few occasions between September 1989 and October 1989 for vascular versus migraine headaches. In October 1989, a diagnosis of headaches, rule out migraines was rendered. Moreover, in a report of medical history dated in January 1991, the veteran self-reported that he has experienced frequent and severe headaches, the last one being three weeks prior to that date. Additionally, a service medical examination dated in July 1980 indicated that the veteran had pes planus with no congenital defects. Service medical records dated in April 1988 also reflect that he was treated for left knee pain after incorrectly dismounting from a ladder. Lastly, service medical records reflect that he was treated in-service for a rash in November 1983, June 1994, and July 1994. On each occasion, the veteran experienced an itchy rash, associated primarily with his neck and arms. In June 2004, a diagnosis of possible dermatitis was provided. Although the veteran received in-service treatment for headaches, bilateral pes planus, left knee pain, and dermatitis, these disorders appear to have been acute and transitory and were resolved without out any residuals. Regarding this claim for a right knee disorder, the Board noted that there is no evidence demonstrating treatment in- service for a right knee condition. Significantly, his separation examination dated April 1995 indicated that he had a normal head, feet, lower extremities, and skin. Furthermore, he denied having any frequent or severe headaches, head injury, foot trouble, trick or locked knee, or skin diseases in his reports of medical history dated in November 1991, July 1986, January 1983 and in April 1995. This evidence weighs against an in-service incurrence of a chronic disability. In addition, there is no objective evidence of record, nor has the veteran alleged the existence of evidence that reflects findings or complaints or current chronic underlying pathology related to his claims, including treatment after service for these disorders. Specifically, the veteran indicated in his application for benefits that he had been providing self treatment for these disorders since discharge in 1995. Therefore, there is a lack of competent evidence demonstrating a current disability or diagnosis of a headache disorder, bilateral pes planus, bilateral knee disorder, and pseudofolliculitis barbae. In this regard, the Court has also held that Congress specifically limited entitlement to service connected benefits to cases where there is a current 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). The Board acknowledges the veteran's own belief that he has a diagnosis of a headache disorder, bilateral pes planus, a bilateral knee disorder, and that was incurred during active duty. The Board acknowledges that he is competent to give evidence about what he experienced; for example, he is competent to discuss his current and previous symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to render an opinion as to the diagnosis, cause, or etiology of any current disability because he does not have the requisite medical knowledge or training, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In addition to the service medical records, the evidence includes statements from the veteran asserting continuity of symptoms. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In adjudicating his claim, the Board must evaluate the veteran's credibility. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board has considered the all the statements asserting continuity of symptomatology of his service connection claims and active duty service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that the veteran is competent to provide evidence of his own experiences of headaches, bilateral pes planus, bilateral knee pain, and pseudofolliculitis barbae. However, the fact that he was only treated on limited occasions, or not at all, in-service for these disorders and there is no evidence of post service treatment weighs heavily against the claim he now makes that he has had problems ever since service. Furthermore, no competent evidence of record causally relates a headache disorder, bilateral pas planus, bilateral knee disorder, and pseudofolliculitis barbae to active service. Specifically, no medical examiner or treating physician has established or suggested a medical nexus between the veteran's claimed disorders and active duty. The Board acknowledges the veteran's statements asserting a relationship between his headache disorder, bilateral pes planus, bilateral knee disorder, and pseudofolliculitis barbae and active duty service. As stated above, while he is competent to report symptoms, he is not competent to offer opinions on medical diagnosis or causation. See Layno v. Brown, 6 Vet. App. at 470; Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). In sum, the evidence of record fails to establish that the veteran has a current diagnosis of a bilateral knee disorder, headaches, bilateral pes planus, and pseudofolliculitis barbae that were incurred in service. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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, 5103(a), 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay 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 her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in July 2003 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disabilities on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claims for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are moot. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him 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); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, there is no competent evidence of any current disability related to his service connection claims. Moreover, given the absence of in-service evidence of chronic manifestations of the disorders on appeal, no current evidence of the disorders, and no competent evidence of a nexus between service and the veteran's claims, a remand for a VA examination would unduly delay resolution. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records. He submitted statements in support of his claims. Additionally, in a Statement in Support of Claim received in August 2003, he indicated that he was gathering evidence to support his claims; however no further specific information was provided. After ample opportunity, he has yet to submit additional evidence. Significantly, neither the veteran 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 claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist 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). ORDER Service connection for a headache disorder is denied. Service connection for bilateral pes planus is denied. Service connection for a left knee disorder is denied. Service connection for a right knee disorder is denied. Service connection for pseudofolliculitis barbae is denied. REMAND As stated above, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159 (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In the present case, the Board finds that additional development is required in order to satisfy VA's duty to assist the veteran. Specifically, he should be afforded a VA physical examination with respect to his claims for entitlement to a compensable rating for residuals of a left facial fracture, hemorrhoids, residuals of a nasal septum fracture, and a scar of the left eyebrow. Specifically, the state of the record is uncertain as to the severity of the veteran's service-connected disabilities and a VA examination is therefore needed in order to make an informed decision regarding his current level of functional impairment and adequately evaluate his current level of disabilities. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As such, appropriate VA examinations should be scheduled. VA has the authority to schedule an examination when such is necessary, and the veteran has an obligation to report for that examination. 38 C.F.R. §§ 3.326, 3.655 (2007). Accordingly, the case is REMANDED for the following actions: 1. Schedule the veteran for the appropriate VA examinations to determine the current severity of his service- connected residuals of a left facial fracture, hemorrhoids, residuals of a nasal septum fracture, and a scar of the left eyebrow. The examiner(s) should review the claims folder in conjunction with this request, and the examination report(s) should indicate that such review has occurred. 2. Then, readjudicate the issues on appeal. If the benefits sought on appeal remains denied, issue a Supplemental Statement of the Case and allow the appropriate period for response. Thereafter, return the case to the Board. 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. 2006). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs