Citation Nr: 0813676 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-07 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for disequilibrium claimed as vertigo. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD E. I. Velez, Associate Counsel INTRODUCTION The veteran had active service from June 1954 to December 1957. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of August 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDINGS OF FACT 1. Disequilibrium, claimed as vertigo, was not manifest in service and is unrelated to his service connected hearing loss disability and tinnitus. 2. The veteran does not have a left knee or low back disability. CONCLUSIONS OF LAW 1. Disequilibrium, claimed as vertigo, is not proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (2007). 2. A left knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 3. A low back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. To be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) a VCAA notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that supports the claim, or something to the effect that the claimant should "submit any additional evidence that supports your claim." This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). The Board notes that in Mayfield v. Nicholson, 444 F. 3d. 1329 (2006), the Federal Circuit Court held that the VCAA notice must be provided prior to the initial decision or prior to readjudication, and such duty to notify cannot be satisfied by post-decisional communications. The notice in this case predated the rating decision. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. The timing requirement enunciated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), applies equally to all five elements of a service connection claim. Id. The Board finds that the VA's duties under the VCAA and the implementing regulations have been fulfilled with respect to the claim for service connection for disequilibrium, a left knee disability and a low back disability. In a VCAA letter of April 2003 the appellant was provided adequate notice as to the evidence needed to substantiate his claim. He was informed of the evidence necessary to establish entitlement, what evidence was to be provided by the appellant and what evidence the VA would attempt to obtain on his behalf; it also in essence told him to provide relevant information which would include that in his possession. See generally Quartuccio v. Principi, 16 Vet. App. 183 (2002). With regard to the requirement of notice with respect to the degree of disability and the effective date of the award as required by Dingess, supra, notice was not provided. However, the Board finds that the appellant's claim is being denied, therefore there can be no possibility of prejudice to the appellant even if the appellant was not informed of the same in a timely manner. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (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. In this case, the Board, based on a review of the appellant's statements in this case, finds that the claimant has demonstrated an understanding of the evidentiary requirements and therefore, the essential fairness of the process has not been affected. As such, even if there were some type of problem with the notice provided by the RO, the Board finds that there have been no notice errors that have resulted in any prejudice to the appellant. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Board notes that the veteran's service medical records were apparently destroyed in a 1973 fire at the National Personnel Records Center (NPRC). The RO contacted NPRC numerous times in an attempt to locate any available records to include medical and dental records. In March 2007 there was a formal finding by a Military Records Specialist stating that the veteran's service records were unavailable for review. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Board notes that the veteran has not been afforded a VA examination with regards to the claims for a low back disability and a knee disability. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. In this case, there is no reliable evidence of in service disease or injury. Therefore, the evidence on file is adequate to make a decision and further examination is not needed. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). In connection with the current appeal VA outpatient treatment records and private medical treatment records have been obtained. The veteran was afforded a VA examination and Travel Board hearing. Therefore, the Board finds that the VA has satisfied its duties to notify and to assist the claimant in this case. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Legal Criteria and Analysis Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223. 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. This includes any increase in disability (aggravation). The Court has also held that service connection can be granted for disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995). When aggravation of a veteran's non- service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. The Board notes that 38 C.F.R. § 3.310 was amended on September 7, 2006. The amendment is to be applied prospectively, it is not for application in the present claim. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initially, the Board notes the appellant does not assert that his claimed disabilities are a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application in this matter. Disequilibrium claimed as vertigo At the outset the Board notes that the veteran claimed service connection for vertigo. However, the competent medical evidence of record shows that the veteran has not been diagnosed with vertigo, but rather with disequilibrium. Therefore, the Board will conduct its analysis based on the diagnosed disability of disequilibrium claimed as vertigo. The Board notes that it is not argued, and the evidence does not show, that disequilibrium was manifested in service. A VA examination report of April 2005 notes that the veteran denied any complaints of vertigo, but reported periodic disequilibrium, most commonly brought on by sudden movement such as standing from sitting. The examiner noted that vertigo and disequilibrium are separate conditions with different symptoms. He opined that the veteran's disequilibrium is unrelated to his hearing loss and/or tinnitus. After a careful review of the evidence of record, the Board finds that service connection for disequilibrium is not warranted. The veteran asserts that his disequilibrium claimed as vertigo was caused by his service connected hearing loss disability and tinnitus. However, a careful review of the evidence reveals that there is no competent evidence of a relationship between the veteran's disequilibrium and the service connected hearing loss disability and tinnitus. The only medical opinion of record states that the veteran's disequilibrium is unrelated to his service connected hearing loss disability and tinnitus. The opinion was provided in conjunction with a detailed examination of the veteran's current condition and past medical history. This opinion is competent and stands uncotradicted by any other competent evidence of record. Furthermore, there is no competent evidence of an increase in disability (aggravation) due to a service connected disease or injury. In sum, the only evidence in favor of the veteran's claim is his own assertion that he believes his disequilibrium began as a result of his service connected hearing loss disability and tinnitus. His opinion as to etiology, however, is insufficient to establish a relationship between the two disabilities. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (Laypersons are not competent to offer medical opinions). Therefore, because the one medical opinion of record reflects that the veteran's disequilibrium was not caused or aggravated by the service connected hearing loss disability and tinnitus and there is no competent evidence to refute the opinion, the Board must deny service connection for disequilibrium. Left knee and low back The veteran is claiming service connection for a left knee disability and a low back disability. In statements the veteran has alleged that he injured his low back and his left knee while in service. He has further stated that he was treated for his knee after service but that his treating physician is now deceased. As noted above, service connection requires evidence of a current disability. Without competent evidence of a current disability of the left knee or the low back, service connection must be denied. 38 C.F.R. § 3.303; Brammer, 3 Vet. App. 223. The veteran has alleged he injured his back and left knee in service. Here, there is no current medical evidence of a disability of the left knee or the low back. The veteran has not submitted any competent medical evidence of disability of the left knee or the back. Without a current disability, service connection cannot be granted. In sum, the only evidence of a current disability of the left knee or low back comes from the veteran's own assertions that he has such disabilities. However, the Board notes that while the veteran is competent to report symptoms, as a layperson, he is not qualified to render an opinion concerning questions of medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Without a diagnosis of a left knee disability or a low back disability, service connection cannot be granted. ORDER Service connection for disequilibrium claimed as vertigo is denied. Service connection for a left knee disability is denied. Service connection for a low back disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs