Citation Nr: 0811918 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-11 065 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for post-operative residuals of cervical stenosis. 2. Entitlement to service connection for right hand injury. 3. Entitlement to service connection for left hand injury. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Peters, Legal Intern INTRODUCTION The veteran had active military service from November 1974 until he was honorably discharged in October 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from the RO. FINDINGS OF FACT 1. The veteran is not shown to have manifested any complaints of nor been diagnosed with cervical stenosis during active service or for many years thereafter. 2. The veteran's hand injuries are not shown to be caused by any incident during the period of the veteran's service, but instead are caused by the veteran's currently diagnosed cervical stenosis. CONCLUSIONS OF LAW 1. The veteran's post-operative residuals of cervical stenosis are not due to disease or injury that was incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2007). 2. The veteran's right hand injury is not due to disease or injury that was incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2007). 3. The veteran's left hand injury is not due to disease or injury that was incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initial Considerations The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2005). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issues decided herein. In September 2005, the RO sent the veteran a letter in which he was informed of the requirements needed to establish entitlement to service connection. In accordance with the requirements of VCAA, the letter informed the veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. Additional private evidence was subsequently added to the claims file. In this letter, the veteran was also advised to submit additional evidence to the RO, and the Board finds that this instruction is consistent with the requirement of 38 C.F.R. § 3.159(b)(1) that VA request that a claimant provide any evidence in his possession that pertains to a claim. The Board notes that the veteran was informed in a VA letter dated in May 2006 about relevant information on disability ratings and effective dates in the event that his claim was granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is to be considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of diagnosed disability or symptoms of disability; establishes that the veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). Because not all of these conditions have been met, as will be discussed, a VA examination is not necessary with regard to the issues on appeal. The Board concludes that all available evidence that is pertinent to the claims decided herein has been obtained and that there is sufficient medical evidence on file on which to make a decision on each issue. The veteran has been given ample opportunity to present evidence and argument in support of his claims. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2007). Finally, to the extent that VA has failed to fulfill any duty to notify and assist the veteran, the Board finds that error to be harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998). In this case, however, as there is no evidence that any failure on the part of VA to further comply with VCAA reasonably affects the outcome of this case, the Board finds that any such omission is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005) rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Law and Regulations Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish service connection for the claimed disorder, there must be (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). Analysis The veteran's service medical records show that in January 1977, the veteran was seen for lower back pain. He was again seen for lower back pain in April 1977, and was diagnosed with a lumbar muscle strain. In October 1978, the service medical records show that the veteran had a contusion and laceration on his right hand at the time of his separation, which had been sutured and was "healing well." No other complaints were made during separation of any lower back pain or other back or hand injuries. Also of record are VA treatment records from July 2004 through September 2005. The history reported throughout the treatment records shows that the veteran fell off his back porch in April 2002 and fractured his neck. On February 1, 2005, the veteran had neck surgery to fuse certain segments of his spine which were causing him pain, weakness and numbness. The veteran was diagnosed with cervical stenosis with significant myelopathy. A VA doctor two days after the surgery described the patient as having "slow progressive neurological decline from a fall in 2002." The treatment records show that following his surgery, the veteran's numbness, pain and weakness subsided slightly. However, in March 2005, the veteran complained of difficulty using his right hand in functional activities. In March 2005, the veteran was diagnosed with cervical spondylosis and cervical disc degeneration. In June 2005, the VA doctor diagnosed the veteran with degeneration of lumbar and lumbosacral intervertebral disc, and noted that the veteran has complained about numbness and loss of dexterity in his hands since his fall in 2002. Given the evidence of record, the veteran's in service injuries to his lower back and right hand are acute and transitory injuries. There is no evidence in the record of any complaint of either of these injuries for many years after service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In fact, the first evidence in the record of anything wrong with his cervical spine or either hand is in April 2002, after the veteran fell and fractured his neck. Further, after the veteran's neck surgery and subsequent diagnosis of cervical stenosis, the VA doctor stated that there was a slow progressive neurological decline due to the veteran's fall in 2002. In his appeal, the veteran contends that his lower back pain in service shows evidence of his cervical stenosis in service; however it is clear that the doctors who performed his surgery clearly attributed his cervical stenosis and subsequent neurological problems to his fall in 2002. Although the veteran can provide competent evidence as to his observations, he cannot provide competent evidence to establish the etiology of any current diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Thus, on this record, the Board finds that the veteran has not presented evidence to show that his cervical stenosis, nor his neurological hand injuries are due to or aggravated by any incident in service. Therefore, service connection for the veteran's claimed post-operative residuals of cervical stenosis, and injuries to his right and left hands must be denied. In reaching this appeal's 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 claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Service connection for post-operative residuals of cervical stenosis is denied. Service connection for right hand injury is denied. Service connection for left hand injury is denied. ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs