Citation Nr: 0814222 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 06-10 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for residuals of a right jaw fracture. 2. Entitlement to service connection for left shoulder and back disorders. 3. Entitlement to service connection for residuals of a head injury claimed as including glaucoma, hearing loss and headaches. ATTORNEY FOR THE BOARD M. McPhaull, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from December 1965 to June 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from January and August 2005 rating decisions by the Department of Veterans Affairs (VA) Manila Regional Office (RO). Notably, the RO addressed separately, and denied, claims of service connection for residuals of a head injury, glaucoma and hearing loss. The issues have been characterized to reflect that service connection for headaches, glaucoma, and hearing loss is sought on the basis that those are residuals of the veteran's head injury in service. The issue(s) of entitlement to service connection for residuals of a head injury claimed as including glaucoma, hearing loss and headaches are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if any action on his part is required. FINDINGS OF FACT 1. It is not shown that the veteran sustained a right jaw fracture in service, or that he has any current disability that is a residual of such injury. 2. A left shoulder or back disability was not manifested in service; arthritis of the left shoulder or back was not manifested in the first postservice year; and the veteran's current left shoulder and back disabilities are not shown to be related to his service. CONCLUSIONS OF LAW 1. Service connection for residuals of a right jaw fracture is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303, (2007). 2. Service connection for left shoulder and back disabilities, to include arthritis, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Via November 2004 letter, the veteran was informed of the evidence and information necessary to substantiate his claims, the information required of him to enable VA to obtain evidence in support of his claims, the assistance that VA would provide to obtain evidence and information in support of his claims, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. The VCAA letter informed the veteran that he should submit any medical evidence pertinent to his claim. VCAA notice was provided to the appellant prior to the initial adjudication in these matters. See Pelegrini, supra. While he was not provided timely notice regarding disability ratings or effective dates of awards (see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)), this decision does not grant service connection; neither the rating of a disability nor the effective date of an award of service connection is a matter for consideration herein. A December 2006 letter ultimately provided such notice. Regarding VA's duty to assist, the veteran's service medical records (SMRs) and postservice medical records are associated with his claims file. He has not identified any pertinent records that remain outstanding. The Board has considered whether a VA examination or medical opinion is necessary as to these disabilities. Because there is no objective evidence of a right jaw fracture in service or competent evidence of current disability consistent with residuals of a right jaw fracture, and no competent evidence that current left shoulder or back arthritis might be related to service, the Board finds that a VA examination for a medical nexus opinion is not necessary. See 38 C.F.R. § 3.159(c)(4)(i)(A). VA has met its assistance obligations. The Board will proceed with appellate review. B. Factual Background, Legal Criteria and Analysis The veteran's SMRs (to include his service separation examination report) contain no mention of complaints of, or treatment for, a right jaw fracture, or of a left shoulder or back disability. Postservice records from 1982 to 2004 show no complaints of or treatment for residuals of a right jaw fracture. The records note the veteran was seen for complaints of joint pain, including in the shoulders and spine, and that arthritis was diagnosed. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If certain chronic diseases (here, arthritis) are manifested to a compensable degree within one year following a veteran's discharge from active duty, they may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury (disability). Hickson v. West, 13 Vet. App. 247, 248 (1999). Residuals of right jaw fracture: The threshold question that must be addressed here (as with any claim seeking service connection) is whether the veteran actually has the disability for which service connection is sought. In the absence of proof of a present disability, there is no valid claim [of service connection]. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the record contains no competent (medical) evidence that the veteran now has the disability for which service connection is sought. There has been no current medical diagnosis of a right jaw fracture or residuals of such. The veteran was specifically advised that to establish service connection for a claimed disability, as a threshold requirement he must show he actually has such disability. He has not submitted any competent (medical) evidence that he currently has any residuals of a right jaw fracture, nor has he identified any treatment provider who might substantiate that he has any such disability. Because the veteran is a layperson, his own opinion that he has residuals of a right jaw fracture related to service is not competent evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Notably, there is also no objective evidence that the veteran actually sustained a jaw fracture (or any jaw injury) in service. [The record shows an upper skull injury.] Accordingly, this claim must be denied. Arthritis, left shoulder and back: The record appears to show that the veteran now has left shoulder and back disability. Private treatment records reflect that he was seen for complaints of joint pain including in the shoulders and back, and that arthritis has been diagnosed. What he must still show to establish service connection for any current left shoulder or back disability is that such disability is related to his active service. A disability of the left shoulder or back was not manifested in service, and arthritis of the left shoulder or back was not manifested in the first postservice year. Consequently, service connection for a left shoulder or back disability on the basis that such became manifest in service, and persisted, or on a presumptive basis (for arthritis as chronic disease under 38 U.S.C.A. § 1112) is not warranted. The veteran may still establish service connection for a left shoulder or back disability if competent (medical) evidence relates any such disability to his service. See 38 C.F.R. § 3.303. However, there is no such evidence in this case. Significantly, a lengthy time interval between service and the initial postservice manifestation of a disability for which service connection is sought (as here) is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d. 1330, 1333 (Fed. Cir. 2000). As the veteran is a layperson, his own opinion that his left shoulder and back disabilities are related to service is not competent evidence. Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The preponderance of the evidence is against these claims. Accordingly, they must be denied. ORDER Service connection for residuals of a right jaw fracture is denied. Service connection for arthritis, to include the left shoulder and back is denied. REMAND The veteran contends that he suffered a head injury in service and that he currently has residuals of such injury to include glaucoma, hearing loss, and headaches. His SMRs note that on three occasions in January 1970 he was seen for initial treatment and follow-up following a head injury with upper skull laceration. Postservice medical records from 1991 to 2004 include several notations where the veteran was seen and treated for "headaches and dizziness". An August 1991 record notes "suspect bilateral glaucoma"; and an undated record notes "SNHL" (sensorineural hearing loss). During the pendency of this appeal, the U.S. Court of Appeals for Veterans Claims issued a decision in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), that addresses the requirements of 38 C.F.R. § 3.159(c)(4). This regulation provides that an examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4). The Court held that the third prong of 38 C.F.R. § 3.159(c)(4) is a "low threshold" standard. As the record shows that the veteran had a significant upper skull injury in service (and a notation suggests that headaches were an expected consequence), and shows he has been seen for glaucoma and hearing problems (which he claims resulted from the head injury in service), a VA examination is warranted Accordingly, the case is REMANDED for the following: 1. The RO should arrange for the veteran to be afforded an examination by an appropriate physician to determine (a) Whether he has any residual disability from his documented head injury in service? and (b) Whether his current glaucoma and any hearing loss disability at least as likely as not are residuals of such injury? The veteran's claims file must be reviewed by the examiner in conjunction with the examination, and any tests or studies deemed necessary should be completed. The examiner should respond to the two questions posed, and should explain the rationale for the opinion given. 2. The RO should then re-adjudicate the remaining claims. If they remain denied, the RO should issue an appropriate supplemental statement of the case and give the veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs