Citation Nr: 0811853 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-11 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to disability compensation under the provisions of 38 U.S.C.A. § 1151 for a liver disorder, to include hepatitis, claimed to have resulted from the medication Zocor (simvastatin) prescribed by VA between July 2003 and November 2003. 2. Entitlement to service connection for chronic nosebleeds. 3. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J.G. Reinhart, Associate Counsel INTRODUCTION The veteran served on active duty from June 1971 to June 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2004 and August 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In the August 2004 rating decision, the RO denied the veteran's claim for entitlement to compensation under 38 U.S.C.A. § 1151 for liver disorder. In the August 2005 decision, the RO denied the veteran's claim for entitlement to service connection for nosebleeds and degenerative joint disease of the left knee. The issue of compensation under the provisions of 38 U.S.C.A. § 1151 for a liver disorder, to include hepatitis, claimed to have resulted from the medication Zocor (simvastatin) prescribed by VA between July 2003 and November 2003, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran did not have chronic nosebleeds during active service or until many years after separation from active service and any post service chronic nosebleeds are not etiologically related to his active service. 2. The veteran's current left knee disorder did not have onset during active service, arthritis of the left knee did not manifest within one year of separation from active service, and his current left knee disorder is not otherwise etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic nosebleeds have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 2. The criteria for entitlement to service connection for a left knee disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence 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). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). In his March 2005 claim for entitlement to service connection for nosebleeds and a left knee disorder, the veteran explained the basis for these claims. He stated that during his service in Vietnam, he was [O]n guard duty, when the viet con (sic) blew this ammunition (sic) dump. The blast was so great, I was blown out of the guard tower which was about 12 feet high. When I landed, I hit my head and knee. I was temporarily unconscious, all I could hear was buzzing in my head for a few minutes. I shook my head and my hearing returned. In a daze and my knee hurting, I climbed back into the guard tower. For days, I had head aches. This is also when my nose bleeding began. I used wet towels and tried to stay cool, as much as possible to keep the nose bleeding under control. In his August 2006 notice of disagreement, the veteran reported that the had a childhood disease that caused nosebleeds, but that he was free of nose bleeds from the time he was 11 years old until after the alleged injury in service. He speculated that this alleged injury either triggered his childhood disease or caused new damage inside of his head, resulting in chronic nosebleeds. Accompanying that claim was a letter dated in March 2005 and signed by "M.V." who states that he served in Vietnam with the veteran. M.V. stated that, while on post one night, he heard an explosion and was told that the enemy had blown up an ammunition dump. He does not say that he saw the veteran fall from a guard tower, but rather that the veteran told him, that night, that he had fallen from the guard tower and that he had injured his knee and slammed his head against the ground. He stated that he often heard the veteran complain of knee pain and witnessed the veteran suffering repeated nose bleeds during service. He also remarked that the guard towers were approximately 12 feet above the ground. Service medical records are absent for any report of the above incident, and contain no report of knee pain or nosebleeds. A May 1973 report of separation medical examination shows a normal clinical evaluation of the veteran's nose and lower extremities. In an associated report of medical history, the veteran endorsed that he did not then have, nor had ever had, swollen or painful joints; frequent or severe headaches; dizziness or fainting spells; ear nose or throat troubles; arthritis, rheumatism, or bursitis; bone, joint, or other deformity; "trick" or locked knee; or periods of unconsciousness. He also indicated that he had never bled excessively after injury or tooth extraction, or coughed up blood. He state that he was in good health. These service medical records are highly probative evidence that the veteran did not suffer a fall from a tower during service, suffered no injuries of his head or left knee during service, and had no symptoms involving his left knee or any chronic nosebleeds during service. Most importantly, they indicate no chronic disorders associated with the alleged injury, leading to something that the veteran would have noted during his separation examination. Post-service medical evidence of record is absent for any mention of nosebleeds. In a letter received in March 2004, the veteran reported that he had nosebleeds as a child, stating that if he sneezed hard his nose would bleed for a long time. He also stated that while in Vietnam, the heat would cause his nose to bleed so he constantly had to keep a wet towel around is neck. These remarks were submitted in argument for why he was concerned about his diagnosis of hepatitis C and why he believed that compensation was warranted for that disorder, based on his treatment by VA, a claim not addressed in this decision. This letter is evidence that the alleged inservice fall from a tower and resulting injuries did not occur. Importantly, the veteran failed to mention the incident in this letter, only later doing so when he sought benefits for a knee disability that he attributes to the alleged incident. It is reasonable for the Board to assume that a person suffering such a memorable event, with immediately following nosebleeds as the veteran has claimed, would relate such in a letter that goes into the detail of reporting that he placed a towel around his neck to stop nosebleeds during service. Such facts provide evidence against these claims, and undermine the veteran's credibility. Evidence that the veteran has had frequent nosebleeds in the last decade or so is provided in a letter from his spouse, received in March 2004. In that letter, his spouse states that over the nine years that she has been married to the veteran, he has had problems with nosebleeds. She remarked that she first thought the nosebleeds were due to the veteran's high blood pressure but later believed them to be due to body heat. Regardless of her opinion as to the cause of his nose bleeds, her speculation as to the cause of the veteran's recent nosebleeds is noteworthy because she makes no reference to the nosebleeds having been present since service or related to any fall during service. This is evidence that, as of March 2004, the veteran had not mentioned to his spouse the inservice incident or history of nosebleeds that he now alleges as the basis for his claims for entitlement to service connection. Had he done so, it is highly likely that she would have mentioned this in her reasons for why she believed that he had nosebleeds. This is more evidence that the veteran's report of this inservice injury is not credible. VA outpatient notes from October 2004 mark the first evidence of record of left knee symptoms suffered by the veteran. He presented with left knee pain, which he stated had been worsening, and reported that while he was in Vietnam he had fallen from a guard tower onto his left knee. He was assessed with left knee pain. A clinic note from February 2005 reports that the veteran had a knee strain from work. VA records also contain a report of x-rays of the veteran's left knee, from December 2004, that provides an impression that the veteran had inflammation of the medial collateral ligament which may be secondary to previous injury and/or current inflammation, mild joint effusion, mild irregularity of the articular cartilage in the medial compartment and patellofemoral articulation, and multilobed Baker's cyst. A February 2005 orthopedic consult report states that x-rays showed no arthritis of the veteran's left knee but magnetic resonance imaging revealed a Baker's cyst with degenerative changes in the left knee meniscus, without tears. An assessment of early osteoarthritis of the left knee was provided. This consult related the veteran provided history of the above mentioned inservice left knee injury and that his left knee had been stable since, but that he noticed chronic pain with swelling over the past year. This is evidence that the veteran has a current left knee disorder, arthritis. For the purposes of this discussion, the Board will assume, but not decide, that the veteran has had nosebleeds for several years. However, the preponderance of the evidence is against a finding that any injury or event occurred during service to give rise to his nosebleeds or his left knee arthritis or that these disorders have been present since service or any time shortly after service. With respect to the veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, evidence favorable to a finding that the alleged inservice injuries occurred consists of the veteran's own reports and the letter signed by M.V. The Board finds M.V.'s letter to be of limited probative value as it comes more than three decades after the events it describes and thus M.V.'s memory of the events he attests to has been subject to the eroding effects of time. M.V.'s letter includes his explanation that he wrote the letter at the request of the veteran. M.V.'s account, as related above, is rendered in language so similar to the veteran's language in his claim, that the effect on M.V.'s memory of M.V.'s recent correspondence with the veteran is apparent (i.e. that M.V. bothered to mention the height of the guard towers, recalled over 30 years after the service in Vietnam). This contamination of M.V.'s memory from his recent correspondence with the veteran reduces from the probative value of M.V.'s letter. Highly probative that the veteran suffered no chronic nosebleeds during service, no left knee symptoms during service, and suffered no fall from a guard tower resulting in any injury, is the evidence presented in the service medical records, particularly the veteran's own endorsements. That the alleged fall from a guard tower would have occurred with the claimed resulting loss of consciousness and injuries but not been recorded anywhere in the service medical treatment records is one aspect of the service medical records militating against his claim. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). However, more important is that the veteran affirmatively endorsed on the separation report of medical history that he had no knee problems, no nose problems, no periods of unconsciousness, and had never bled excessively after any injury. These records carry a great deal more weight than the veteran's current reports and those reports of M.V. because the endorsements were made much closer to the time of the alleged incident and symptoms. The Board is not making a finding that the veteran never had a nosebleed during service. Rather the Board is making findings that the veteran had no chronic nosebleeds during service and that there is no continuity of symptomatology between his service and any current nosebleeds. The U.S. Court of Appeals for the Federal Circuit has indicated that a lapse of time between service and evidence of treatment for a claimed disorder is a factor in deciding a claim for entitlement to service connection for the disorder. See Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). The record shows no treatment for nosebleeds, or even report to medical professionals of nosebleeds. Even considering the letter from the veteran's spouse, objective evidence of chronic nosebleeds is limited to nine years prior to that letter, or 1995, more than twenty years after separation from service. Similarly, the record is absent for any mention of symptoms of or treatment for a left knee disorder until 2004, some thirty years after separation from service. This weighs against a finding that these conditions are related to his service. Simply stated, the Board finds that the lay statements submitted by the veteran and others are outweighed by the highly probative service and post-service medical record, which contains evidence, sometimes from the veteran himself, that outweighs the positive evidence that supports these claims. In sum, the preponderance of the evidence of record shows that there was no incident giving rise to nosebleeds or a left knee injury during service, that the veteran had no knee symtomatology during service and no chronic nosebleeds during service, and that these disorders did not manifest until many years after separation from service. As such, the veteran's claims must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 or her 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 her or 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 RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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, the RO sent the veteran a letter in March 2006 providing notice as to assignment of disability ratings and effective dates. Although the veteran has had ample time to respond to that letter, and indeed stated in a January 2008 writing that he had nothing new to add, the RO has not readjudicated the veteran's claims since the March 2006 notice. Thus the Board will not make the finding that the timing defect in providing notice as to assignment of disability ratings and effective dates has been cured. However, that timing defect is harmless error given that the veteran's claims for service connection are being denied, and hence no rating or effective date will be assigned with respect to the claimed conditions. Here, the remaining VCAA duty to notify was satisfied by way of letters sent to the veteran in February 2005 and May 2005, that fully addressed all four notice elements and were sent prior to the initial RO decision in this matter. The February 2005 provided notice with regard to his claim for entitlement to service connection for chronic nosebleeds and the May 2005 letter provided notice with regard to his claim for a left knee disorder. Each letter informed the veteran of what evidence was required to substantiate the claims and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information, which would include that in his possession, to the RO. VA 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). With respect to the third factor above, the Court 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). No examination has been afforded the veteran with regard to his claims for service connection for nosebleeds and a left knee disorder. As explained above, the evidence shows that the veteran did not have nosebleeds (related to an injury) or a left knee disorder during service and no injury or event involving his left knee or nose occurred during his service. The Board finds that the service and post-service medical records provide evidence against such a finding. In any event, the Board finds sufficient competent medical evidence of record to make a decision on the claims. For these reasons, the Board declines to provide a medical examination or obtain a medical opinion as to these claims. 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 and VA outpatient and inpatient treatment records. 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 veteran 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). ORDER Service connection for chronic nosebleeds is denied. Service connection for a left knee disorder is denied. REMAND The veteran contends that he suffers from a liver disorder and hepatitis as the result of VA treatment with the drug Zocor between July 2003 and November 2003. He submitted his claim for benefits under the provisions of 38 U.S.C.A. § 1151 in March 2004. For claims filed on or after October 1, 1997, the provisions of 38 U.S.C.A. § 1151 require that entitlement to benefits for any injury or disease resulting from VA treatment be established by proof of fault or accident on the part of VA. 38 U.S.C.A. § 1151 (West 2002). VA codified that version of 38 U.S.C.A. § 1151 in 38 C.F.R. § 3.361, effective since September 2004. 38 U.S.C.A. § 7105(d) requires that, after receipt of a notice of disagreement with an RO decision, and if that disagreement cannot be resolved, the RO send the veteran a statement of the case (SOC) that contains a citation to pertinent law and regulations and a discussion of how such laws and regulations affect the RO's decision. In this case, the RO issued an SOC in February 2005. In the SOC, the RO stated that that the veteran's claim was denied for lack of "evidence that VA treatment or hospitalization caused hepatitis or a liver disorder due to negligence, fault, lack of skill, error of omission, or any other defect or oversight on VA's part." The SOC contained the text of 38 C.F.R. § 3.358 as effective prior to September 2, 2004; a regulation based on 38 U.S.C.A. § 1151 as in effect for claims filed prior to October 1, 1997. There is no language in the regulation provided to the veteran that requires proof of fault or accident on the part of VA to establish entitlement to benefits under 38 U.S.C.A. §1151 for injury or disease resulting from VA treatment. Simply stated, the veteran has been given an outdated regulation. On remand, the veteran must be provided with the text of 38 U.S.C. A. § 1151 (West 2002 & Supp. 2007) and of the regulation that implements that statute, 38 C.F.R. § 3.361 (2007). Additionally, clarification of certain points pertinent to this claim is in order. On remand, a medical opinion should be obtained that addresses permanent effects, if any, of his treatment by VA with Zocor. Accordingly, the case is REMANDED for the following action: 1. Submit the veteran's claims file to a medical professional and obtain an opinion as to the effects of VA's treatment of the veteran with Zocor (an examination of the veteran is not required). The examiner must review the claims file and annotate the opinion report as to whether he or she has done so. The examiner is asked to provide an opinion as to the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that VA's treatment of the veteran with Zocor between July 2003 and November 2003 actually caused any additional disability, including permanent liver damage or hepatitis C. Actual causation of additional disability means the disability is the result of the treatment or that an aggravation of an existing disease or injury was the result of the treatment, and not merely coincidental therewith. (b) If and only if the examiner's opinion is that VA's treatment did cause additional disability, such as permanent liver damage or hepatitis C, the examiner is asked to provide an opinion as to whether is at least as likely as not that such disability was caused by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing his care. A complete rationale is required for all opinions expressed. 2. Then, readjudicate the veteran's claim. If the disposition remains unfavorable to the veteran, send the veteran and his representative a supplemental statement of the case (SSOC) that includes the text of 38 U.S.C.A. § 1151 (2007) and 38 C.F.R. § 3.361 (2007) and return the matter to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs