Citation Nr: 0813257 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 05-12 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for residuals of a head injury. 2. Entitlement to service connection for residuals of a neck injury. 3. Entitlement to service connection for systemic lupus. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served in the Army National Guard of South Carolina from March 1952 to August 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Columbia, South Carolina, Department of Veterans' Affairs (VA) Regional Office (RO). The case was remanded by the Board in September 2006 for further development which has since been made part of the claims file. The veteran submitted testimony before the undersigned Acting Veterans' Law Judge at a July 2006 Travel Board hearing. The issue of entitlement to service connection for systemic lupus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDING OF FACT The evidence does not support the conclusion that the claimed head and neck disorders are related to the veteran's active service. CONCLUSIONS OF LAW 1. A head injury was not incurred or aggravated during active duty service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2007). 2. A neck injury was not incurred or aggravated during active duty service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS VCAA 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, 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). With regards to the claim for service connection for residuals of a neck injury, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in July 2004 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 claim 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 this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With regards to the claim for service connection for a head injury, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of a letter sent to the veteran in September 2006 that fully addressed all four notice elements. The letter informed him of what evidence was required to substantiate the claim 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. With respect to the Dingess requirements, in March 2006 the RO provided the veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to all issues on appeal. 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). 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 VA treatment records and extant service medical records. He submitted private medical records and was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In addition, he was afforded a VA medical examinations regarding his claims. Significantly, neither the veteran nor his representative 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). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Overall, 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 veteran claims that he injured his head while in boot camp and was rendered unconscious for 15 minutes. The veteran's service medical records do not indicate a head injury in service. However, lay evidence concerning such an in-service injury, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Since service, the veteran's private medical records, including 2004 statements from Dr. Girault and Nurse Morrow, indicate that he has been treated for neck pain and headaches which he claims are residuals of the in-service injury. The veteran informed private doctors of his in-service injury and a private doctor submitted a treatment note suggesting a link between the veteran's current conditions and the in-service injury. However, there is no indication by the medical professionals that the 2004 findings were based upon a review of the veteran's claims file or other medical evidence dating back to the veteran's service. It is apparent that their opinions were based on the historical background reported by the veteran. The veteran has been diagnosed with neck pain and tension- type headaches resulting from age-appropriate osteoarthritis at the most recent VA examination in August 2007. The VA examiner conducted an extensive review of the claims file in addition to a full physical examination, and elicited a history of the condition from the veteran. Upon examination, the examiner noted that it was impossible without resorting to mere speculation to state that any of the veteran's service-connected history is responsible for his neck and/or head complaints. The examiner noted that the veteran was released from active duty service in 1952, and that there were no records available from the reported complaints during his active duty. Given this information, the examiner concluded that the veteran's current complaints of neck pain and tension-type headaches were related to cervical osteoarthritis, which is in virtually all cases a product of aging and not clearly related to any illness or injury, as with this veteran. After a complete review of all evidence, the examiner concluded, within a reasonable degree of medical certainty that was greater than 50 percent, that the current tension-type headaches were related to the veteran's neck arthritis, and which in turn were not products of military activity. The Board acknowledges that, while the June 2007 VA examiner indicated a positive nexus opinion regarding the veteran's current condition and service, he did so without the benefit of reviewing the veteran's claims file and medical history. Upon reviewing the claims file, a second examiner issued a new opinion stating the negative nexus opinion and thoroughly explaining the rationale behind this opinion. Despite the fact that the private doctor and the June 2007 VA examiner indicated positive associations between the veteran's service and his current conditions, the August 2007 VA examiner's conclusion that they are not related is more probative. The August 2007 VA examiner indicated a complete review of the claims file and a sound rationale for his negative nexus opinion, that of lack of treatment for many years and considering the age of the veteran. As such, his opinion is more probative than the loose associations drawn by the private examiner and the earlier VA examiner. As a result of the weight of the evidence indicating a negative association between his service and his current head and neck conditions, the veteran's claim must be denied. 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 veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). In this case, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals than to the veteran's statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for residuals of a head injury is denied. Service connection for residuals of a neck injury is denied. REMAND The claim for entitlement to service connection for systemic lupus was remanded by the Board in September 2006 for a VA examination to determine if the veteran's systemic lupus is related to his service. While VA examinations conducted after that remand have positively diagnosed the veteran as having lupus, no opinion was made as to whether it is at least as likely as not related to service. The Board must remand the claim for failing to comply with its previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: 1. Schedule the veteran for a VA examination to determine whether he has systemic lupus that is at least as likely as not (i.e., a probability of at least 50 percent) related to a disease or injury in service, to include but not limited to the reported fall from a truck during training in 1952. A complete rationale for any opinion expressed should be included in the report. 2. Thereafter, readjudicate the claim for service connection for systemic lupus. If it remains denied issue the veteran a supplemental statement of the case and allow an appropriate period for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2007) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. All claims remanded by the Board 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). ____________________________________________ C. TRUEBA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs