Citation Nr: 0813606 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 00-03 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The veteran had active service from March 1989 to July 1998. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The case was remanded in October 2003 and March 2005 for additional development of the record. FINDINGS OF FACT 1. A cervical spine disability was not a manifest in service and is unrelated to service. 2. A lumbar spine disability was not a manifest in service and is unrelated to service. Degenerative joint disease was not manifest within one year of separation. 3. A left shoulder disability was not a manifest in service and is unrelated to service. CONCLUSIONS OF LAW 1. A cervical spine disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 2. A lumbar spine disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 3. A left shoulder disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Id. at 486. In the present case, the veteran's claim was received before the enactment of the VCAA. A February 2004 letter discussed the evidence necessary to support the veteran's claims. It listed the evidence of record and told the veteran how VA would assist her in obtaining further evidence. A letter dated in April 2005 asked the veteran to submit or identify any evidence that had not been previously submitted. The evidence necessary to support the claims was discussed. The evidence already of record was listed. The veteran was advised that VA would assist her in obtaining additional relevant evidence. An April 2006 letter apprised the veteran of outstanding private treatment records and informed the veteran that it was ultimately her responsibility to ensure that it was received by VA. This letter also discussed the manner in which VA determines disability ratings and effective dates. An August 2006 letter advised the veteran of the development undertaken by VA and asked her to submit any pertinent evidence in her possession. The Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Although the notices were provided to the veteran after the initial adjudication, the veteran has not been prejudiced thereby. The content of the notice provided to the veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only has the veteran been provided with every opportunity to submit evidence and argument in support of her claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of her claims. As the Federal Circuit Court has stated, it is not required "that VCAA notification must always be contained in a single communication from the VA." Mayfield, supra, 444 F.3d at 1333. In addition, identified treatment records have been obtained and associated with the record. Neither the veteran nor her representative has identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Initially, the Board notes that the evidence does not support a finding that the veteran engaged in combat. Thus, he is not entitled to application of the provisions of 38 U.S.C.A. § 1154(b) (West 2002). Entitlement to service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability, evidence of in-service incurrence or aggravation of a disease or injury, and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]. 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). Service medical records show that the veteran was involved in a motor vehicle accident (MVA) in December 1994. She noted mild neck pain at the scene, which became worse. She also complained of pain in her upper back. Physical examination revealed no localized tenderness of the neck. There was mild tenderness over the left trapezius muscle at the base of the neck. There was mild tenderness and bruising over the superior shoulder posterior to the clavicle. The diagnosis was acute cervical strain, secondary to MVA; and acute contusion of the left shoulder, mild. A February 1995 service treatment record shows an assessment of whiplash syndrome. Subsequent orthopedic consultation indicated possible C5 radicular symptoms. An MRI was ordered. An MRI in April 1995 revealed a normal cervical spine. On periodic examination in April 1995, the veteran endorsed recurrent back pain but denied painful or trick shoulder. Clinically, her spine and upper extremities were normal. A Physical Evaluation Board was conducted in January 1998. The recommendation was that due to disability of the veteran's knees, she be referred to a physical evaluation board because she no longer appeared to be fit for full duty. On separation examination in February 1998, the veteran denied recurrent back pain and painful or trick shoulder. Her spine and upper extremities were clinically normal on examination. VA and private treatment records show that the veteran has been seen for complaints of neck, low back, and left shoulder pain. On VA examination in January 1999, the examiner noted that the veteran had been in an MVA in 1994 and had subsequent resultant neck and left shoulder pain. The veteran reported that she had been treated by a chiropractor in 1995 but not since that time. With respect to her low back pain, the veteran noted that it had been present on and off for the previous two years. The diagnoses were cervical arthralgia, post MVA; left shoulder arthralgia, post MVA; and low back pain. X-rays revealed no significant abnormality of the cervical or lumbar spine. There was slight thoracolumbar scoliotic curvature, which was noted to be possibly positional. Age related minor degenerative change was noted. X-rays of the left shoulder were normal. A May 2000 VA treatment note indicates the veteran's complaints of continued low back pain. She reported that she strained her low back at a tire shop in 1991 and had suffered from episodes of low back pain since then. She also reported occasional pain in her neck radiating into her left shoulder. The assessment included chronic low back strain with no radicular findings. X-rays of the thoracic spine in March 2003 revealed no abnormality. Physical therapy notes show that the veteran underwent treatment for low back pain. A VA computerized problem list dated in June 2003 included lumbago and shoulder pain. In June 2003 the veteran complained of left shoulder pain that ached into the left chest. The veteran presented in October 2004 with complaints of back pain. The veteran reported that she fell off of an airplane on two occasions in about 1994. Examination of the back revealed no erythema, ecchymosis, swelling, lesions, or masses. Range of motion was full. There was tenderness around the area of he lower thoracic and upper lumbar spine with vertebrae in that area slightly protuberant. An MRI in November 2004 revealed a normal thoracic spine. The lumbar spine had minimal degenerative change but no focal disc protrusion of spinal stenosis. Having carefully reviewed the evidence of record, the Board finds that service connection for the claimed disabilities is not warranted. The Board acknowledges that the veteran was involved in an MVA in 1994, and subsequently complained of neck and left shoulder pain. However, on later examinations, she denied recurrent back pain and shoulder problems. Her spine and upper extremities were found to be clinically normal. Notably, on discharge examination in February 1998, a Report of Medical Assessment was completed. The veteran indicated that she would seek VA benefits for knee pain and migraine headaches. She denied having suffered any injury of illness while on active duty for which she did not seek medical care. She did not mention back or left shoulder problems. On clinical evaluation, her spine and upper extremities were normal. Moreover, the evidence demonstrates no current clinical diagnoses pertaining to the veteran's cervical spine or left shoulder. While the veteran has complained of neck and left shoulder pain, repeated examinations have indicated a normal cervical spine and left shoulder. In sum, the record demonstrates no current evidence of these claimed conditions. The Board has considered the veteran's argument that she has disabilities of the cervical spine and left shoulder, and that such disabilities are related to service. However, she is not, as a layperson, qualified to render a medical diagnosis or an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The grant of service connection requires competent evidence to establish a diagnosis of the claimed disability. In this regard, the Board notes that the veteran has not identified or produced any evidence, medical or otherwise, that would tend to show current disease or injury to account for her complaints. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a 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). Similarly, the Federal Circuit has noted that in order for a veteran to qualify for entitlement to compensation under those statutes, the veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. See, Sanchez- Benitez v. Principi, 259 F.3d 1356 (2001). Here, the Board is presented with no underlying pathology to account for her complaints. Accordingly, service connection for a cervical spine disability and a left shoulder disability must be denied. With respect to the veteran's claim of entitlement to service connection for lumbar spine disability, the Board notes that there is current evidence of minimal degenerative changes in the lumbar spine. However, the service medical records are negative for any diagnosis, complaint, or abnormal finding pertaining to the veteran's lumbar spine. In fact, she denied recurrent back pain on discharge examination, and the clinical examination was normal at that time. The Board has considered the veteran's reports that she either strained her back in 1991, or that she fell from an aircraft twice in 1994. However, these assertions are inconsistent with the contemporaneous evidence which shows no complaint or abnormal finding in service. Additionally, the Board notes that on discharge, the veteran affirmatively stated that she had not suffered from any injury or illness while on active duty for which she had not sought medical care. In summary, the evidence demonstrates no injury to the veteran's low back in service, and no abnormal finding or diagnosis pertaining to her lumbar spine during service. The Board has considered the veteran's argument that her claimed lumbar spine disability is related to service. However, she is not, as a layperson, qualified to render a medical diagnosis or an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Absent credible evidence of a disease or injury in service and competent evidence of a nexus between service and the claimed lumbar spine disability, service connection must be denied. The preponderance of the evidence is against the veteran's claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Accordingly, service connection for a back disability must be denied. ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a left shoulder disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs