Citation Nr: 0811525 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-17 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for major depression. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a right eye disorder. 4. Entitlement to service connection for cluster headaches. 5. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The veteran served on active duty from February 1986 to February 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case has since been transferred to the New York, New York VARO. The issues of service connection for a right eye disorder, cluster headaches, and tinnitus 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. Major depression was not first manifested in service or for many years thereafter. 2. A right knee disorder was not first manifested in service or for many years thereafter. CONCLUSIONS OF LAW 1. Major depression was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). 2. A right knee disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). A proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide; and must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). Any error in VCAA notification should be presumed prejudicial, and VA has the burden of rebutting this presumption. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reaffirmed principles set forth in earlier Federal Circuit and United States Court of Appeals for Veterans Claims (Court) cases in regard to the necessity of both a specific VCAA notification letter and an adjudication of the claim at issue following that letter. See also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Mayfield line of decisions reflects that a comprehensive VCAA letter, as opposed to a patchwork of other post- decisional documents (e.g., Statements or Supplemental Statements of the Case), is required to meet VA's notification requirements. At the same time, VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. The VCAA letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. In the present case, the veteran was issued a VCAA letter meeting the specific requirements of C.F.R. § 3.159(b)(1) in January 2004. As this letter was issued prior to the appealed rating decision, this case raises no procedural concerns in view of the Mayfield line of decisions. The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, such notification was provided in a March 2006 letter. As to VA's duty to assist the veteran with the obtaining of evidence necessary to substantiate a claim, under 38 U.S.C.A. § 5103A, in this case VA has obtained records of treatment reported by the veteran, and there is no indication from the claims file of additional medical treatment for which VA has not obtained, or made sufficient efforts to obtain, corresponding records. For reasons described in further detail below, VA examinations with etiology opinions have been found to not be "necessary" in this case pursuant to 38 U.S.C.A. § 5103A(d). In summary, all relevant facts have been properly developed in regard to the veteran's claims, and no further assistance is required in order to comply with VA's statutory duty to assist with the development of facts pertinent to the claims. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of this appeal in this Board decision. Rather, remanding this case for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also 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). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). Also, certain chronic diseases, including psychoses and arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board has reviewed the veteran's service medical records and observes that they are entirely negative for complaints of, or treatment for, psychiatric symptoms. Subsequent to service, the veteran was hospitalized at a VA facility in October 2003 and at that time reported no past psychiatric treatment. He subsequently underwent psychotherapy and was noted to have a diagnosis of major depression in November 2003. The veteran's January 2004 VA psychiatric examination also contains a diagnosis of major depressive disorder, but the examiner did not offer commentary as to the etiology of this disorder. As to the claimed right knee disorder, the Board notes that the veteran did not complain of right knee symptoms or of any joint pain during his January 2004 VA orthopedic examination. He had previously been privately treated for right knee swelling of seven days' duration in October 2002, but x-rays from that month revealed only a bone infarct in the distal femur, with no fracture, dislocation, or joint space abnormalities. There is no suggestion from any of these medical records of a current and chronic disorder that is in any way etiologically related to service. To date, the RO has not afforded the veteran fully comprehensive VA examinations for the express purpose of ascertaining the etiology of his claimed major depression and right knee disorder. Such opinions are "necessary" under 38 U.S.C.A. § 5103A(d) when: (1) there is competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) there is an indication the current disability or symptoms may be associated with service, and (4) there is not sufficient medical evidence to make a decision. See 38 U.S.C.A. § 5103A(c)(4). In this case, however, there is no evidence linking the veteran's claimed disorders to service and no reasonable possibility that VA examinations would result in findings favorable to the veteran. Accordingly, the Board finds that etiology opinions are not "necessary." See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Consequently, the Board does not find that the competent medical evidence of record supports the veteran's claims. The only evidence of record supporting the veteran's claims is his own lay opinion, as indicated in his May 2005 Substantive Appeal. The veteran, however, has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Accordingly, his lay opinion does not constitute competent medical evidence and lacks probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996). Overall, the preponderance of the evidence is against the veteran's claims of service connection for major depression and a right knee disorder, and the claims must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the veteran's claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for major depression is denied. Entitlement to service connection for a right knee disorder is denied. REMAND During service, in October 1987, the veteran sustained a right eye injury when cleaning a weapon. The Board also notes that he was treated for headaches in June 1988. His January 2004 VA eye examination contains an impression of symptoms consistent with cluster headaches "OD [right eye] onset associated with past trauma." No indication was given as to whether there existed a current right eye disorder, although an earlier VA treatment record from October 2003 contains an assessment of glaucoma suspect secondary to asymmetric choroidal detachment and thinned rim tissue, right greater than left. Given this evidence, the Board finds that a more thorough VA eye examination is "necessary" under 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4) to ascertain the nature and etiology of the veteran's claimed right eye disorder and cluster headaches. As to the veteran's claim of service connection for tinnitus, the Board initially notes that the Court has determined that, for tinnitus, the veteran is competent to present evidence of continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). As such, the veteran's lay contentions as to tinnitus represent competent evidence. Moreover, service connection is in effect for bilateral hearing loss, and the veteran has been noted to have driven a Bradley infantry vehicle during service. A January 2004 VA ear disease examination report also indicates that it was "possible" that exposure to loud noises in service "could have caused partially" tinnitus. In September 2006, the RO contacted the VA examiner who conducted the veteran's January 2004 VA audiological examination to determine whether his claimed tinnitus was related to in-service noise exposure. In the same month, the examiner noted that this case was difficult since the veteran has had ear infections and HIV. The examiner recommended that the veteran "be retested with a c-file." The claims file, however, contains documentation that the veteran failed to report for VA audiological examinations in October and December of 2006. Nevertheless, in view of Charles, the January 2004 medical opinion, and the recommendation from the audiological examiner, the Board finds that the appropriate action at this juncture would be for the veteran's claims file to be reviewed by an ear disease specialist to ascertain the etiology of his claimed tinnitus. Accordingly, the case is REMANDED for the following action: 1. The veteran should be afforded a VA eye examination, with an appropriate examiner, to determine the nature and etiology of his claimed right eye disorder and cluster headaches. The veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner is first requested to provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the veteran has any chronic disability, other than refractive error, etiologically related to service and specifically to his October 1987 right eye injury. The examiner is also requested to offer an opinion as to whether it is at least as likely as not that current cluster headaches, if present, are etiologically related to the veteran's period of active service. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 2. The veteran's claims file should also be reviewed by an appropriate VA examiner to determine whether it is at least as likely as not (e.g., a 50 percent or greater probability) that current tinnitus is etiologically related to service and, specifically, to noise exposure therein. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 3. After completion of the above development, the veteran's claims of service connection for a right eye disorder, cluster headaches, and tinnitus should be readjudicated. If the determination of one or more of the claims remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). ______________________________________________ JOHN Z. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs