Citation Nr: 0814509	
Decision Date: 05/02/08    Archive Date: 05/12/08

DOCKET NO.  05-05 100	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los 
Angeles, California


THE ISSUE

1.  Entitlement to service connection for degenerative disc 
disease of L5-S1.

2.  Entitlement to service connection for lateral ligament 
sprain of the right knee with right hip and leg pain.

3.  Entitlement to service connection for pseudofolliculitis 
barbae.

4.  Entitlement to service connection for bilateral tinnitus.


REPRESENTATION

Appellant represented by:	California Department of 
Veterans Affairs


ATTORNEY FOR THE BOARD

J. Barone, Counsel
INTRODUCTION

The veteran had active service from August 1990 to February 
1993 and from October 1993 to October 1996.  

This matter comes before the Board of Veterans' Appeals 
(Board) from a rating decision of the Department of Veterans 
Affairs (VA) Regional Office (RO) in Los Angeles, California.  

The veteran was scheduled to testify before a Veterans Law 
Judge via videoconferencing technology in April 2008 but 
failed to report for his hearing.


FINDINGS OF FACT

1.  Degenerative disc disease of L5-S1 was not manifest in 
service and is unrelated to service; arthritis of the spine 
was not manifest within one year of discharge.  

2.  There is no current diagnosis of tinnitus.


CONCLUSIONS OF LAW

1.  Degenerative disc disease of L5-S1 was not incurred in or 
aggravated by service and may not be presumed to have been 
incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 
(West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).

2.  Tinnitus was not incurred in or aggravated during 
service.  38 U.S.C.A. §§ 1110, 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) (2007).

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) (2007); 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).

The Board also notes that 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.  

A letter dated in October 2003, prior to the adjudication of 
the veteran's claim, 
Discussed the evidence and information necessary to 
substantiate a claim for service connection.  It asked him 
for evidence showing that his claimed disabilities had 
existed from service to the present.  It listed the types of 
evidence that might support the veteran's claim.  He was 
asked to send any medical evidence in his possession.  He was 
also requested to send treatment records pertinent to his 
claimed conditions.  The evidence of record was listed, and 
the veteran was told how VA would assist in obtaining 
additional evidence.  The letter also indicated the 
development steps already taken by VA.

A letter dated in March 2005 asked the veteran to complete 
releases so that records could be obtained.  He was asked to 
identify providers of VA or military treatment.  This letter 
discussed the evidence necessary to support a claim for 
service connection and listed the evidence of record.  

In March 2006 the veteran was advised of the manner in which 
VA determines disability ratings and effective dates.

The Board finds that any defect with respect to the timing of 
the VCAA notice requirement was harmless error.  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.  The veteran has been 
provided with every opportunity to submit evidence and 
argument in support of his claim and to respond to VA 
notices.  Although the veteran received inadequate 
preadjudicatory notice, and that error is presumed 
prejudicial, the record reflects that he was provided with a 
meaningful opportunity such that the preadjudicatory notice 
error did not affect the essential fairness of the 
adjudication now on appeal.  

With respect to VA's duty to assist, identified treatment 
records have been obtained and associated with the record.  
Neither the veteran nor his 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.

The Board acknowledges that the veteran has not been afforded 
a VA medical examination of his claimed disabilities.  
However, the Board finds that a VA examination is not 
necessary in order to decide the veteran's claim.  There are 
two pivotal cases which address the need for a VA 
examination, Duenas v. Principi, 18 Vet. App. 512 (2004) and 
McClendon v. Nicholson, 20 Vet App. 79 (2006).  In McClendon, 
the Court held that in disability compensation claims, the 
Secretary must provide a VA medical examination when there 
is: (1) competent evidence of a current disability or 
persistent or recurrent symptoms of a disability, and (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.  Id. at 81.  In 
Duenas, the Court held that a VA examination is necessary 
when the record: (1) contains competent evidence that the 
veteran has persistent or recurrent symptoms of the claimed 
disability and (2) indicate that those symptoms may be 
associated with his active military service.

With respect to the veteran's claimed tinnitus, there is no 
competent evidence of a current disability or persistent or 
recurrent symptoms of a disability.  Regarding the claimed 
low back disability, while there is evidence of low back pain 
and a diagnosis of lumbar degenerative disc disease, there is 
no evidence establishing that an event, injury, or disease 
occurred in service, nor is there an indication that the 
current back disability might be associated with service.  As 
such, examinations are not warranted.

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).

Service connection may be presumed for certain chronic 
disorders such as arthritis that have manifested to a 
compensable degree of 10 percent or more within one year 
following active service.  38 U.S.C.A. §§ 1101, 1112, 1113, 
1137; 38 C.F.R. §§ 3.307, 3.309.

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).

	Degenerative Disc Disease at L5-S1

Review of the record has led the Board to the conclusion that 
service connection is not warranted for degenerative disc 
disease.  The veteran's service medical records are silent 
with respect to any diagnosis, complaint, or abnormal finding 
pertaining to his spine.  In fact, examinations conducted 
during the veteran's service indicate that his spine was 
clinically normal.  The veteran did not report any history of 
recurrent back pain at those examinations.  

The Board acknowledges that the veteran has a current 
diagnosis of degenerative disc disease at L5-S1.  However, 
the grant of service connection requires not only competent 
evidence to establish a diagnosis, but also evidence relating 
the diagnosis to the veteran's service.  The record does not 
contain competent evidence which relates this claimed 
disability to any injury or disease in service.  The Board 
has considered the veteran's argument that this claimed 
disability is related to service.  However, he 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).  

In summary, the evidence clearly points to a remote, post-
service onset of degenerative disc disease.  In fact, the 
first evidence indicating complaints referable to the 
veteran's back dates to July 1999, when acute low back pain 
and severe muscle spasm were assessed.  At that time, he 
related a history of pain after playing basketball, rather 
than an in-service event.  There is a remarkable lack of 
credible evidence of pathology or treatment in proximity to 
service or within years of separation.  Rather, the competent 
evidence clearly establishes that the post service diagnoses 
relating to the veteran's low back are not related to 
service.  The Board has considered the record and the 
veteran's statements.  However, the most probative evidence 
consists of treatment records that do not show objective 
evidence of a low back disability until years after service.  
Absent reliable evidence relating this disability to service, 
the claim of entitlement to service connection must be 
denied.

In reaching its conclusion, the Board has considered the 
doctrine of reasonable doubt, but finds that the record does 
not provide an approximate balance of negative and positive 
evidence on the merits.  38 U.S.C.A § 5107(b); 38 C.F.R. § 
3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

	Tinnitus

Service connection for tinnitus must also be denied.  The 
veteran's service medical records are silent with respect to 
any diagnosis, complaint, or abnormal finding pertaining to 
tinnitus.  Audiometric testing during service does not 
reflect an assessment of tinnitus.  Examination in May 1996 
revealed normal hearing.  The Board also notes that there is 
no current clinical diagnosis of tinnitus and that there is 
no evidence showing complaints relating to the veteran's 
hearing.  In sum, the record contains no current evidence of 
this claimed condition.  

The Board again notes that the grant of service connection 
requires competent evidence to establish a diagnosis of the 
claimed disability.  With respect to the veteran's claim of 
entitlement to service connection for tinnitus, the Board 
notes that the veteran has not identified or produced any 
evidence, medical or otherwise, that would tend to show a 
current diagnosis, and the evidence assembled by VA also 
fails to reflect such a diagnosis.  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).  Accordingly, service connection for tinnitus must be 
denied.

Board has considered the doctrine of reasonable doubt, but 
finds that the record does not provide an approximate balance 
of negative and positive evidence on the merits.  38 U.S.C.A 
§ 5107(b); 38 C.F.R. § 3.102; Gilbert.

ORDER

Entitlement to service connection for degenerative disc 
disease of L5-S1 is denied.

Entitlement to service connection for lateral ligament sprain 
of the right knee with right hip and leg pain is denied.

Entitlement to service connection for pseudofolliculitis 
barbae is denied.

Entitlement to service connection for bilateral tinnitus is 
denied.


REMAND

As discussed above, the issue of whether the Secretary must 
provide a VA medical examination has been addressed in Duenas 
v. Principi, 18 Vet. App. 512 (2004) and McClendon v. 
Nicholson, 20 Vet App. 79 (2006).  In McClendon, the Court 
held that in disability compensation claims, the Secretary 
must provide a VA medical examination when there is: (1) 
competent evidence of a current disability or persistent or 
recurrent symptoms of a disability, and (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.  Id. at 81.  In Duenas, the Court held that a 
VA examination is necessary when the record: (1) contains 
competent evidence that the veteran has persistent or 
recurrent symptoms of the claimed disability and (2) indicate 
that those symptoms may be associated with his active 
military service.

Regarding the veteran's claimed right knee disability, the 
record reveals that lateral collateral ligament sprain was 
assessed in May 1994.  The veteran, in his February 2005 
substantive appeal, indicated that he continued to have 
problems with his knee.  As there is evidence of an injury in 
service and the veteran contends that he continues to have 
problems with his knee, the Board finds that a VA examination 
is warranted.

With respect to folliculitis barbae, the Board notes that an 
assessment of folliculitis barbae was made in service and the 
veteran was placed on shaving profile.  In his February 2005 
substantive appeal, the veteran maintained that he continued 
to have problems with respect to this claimed disability.  
There is insufficient competent medical evidence on file for 
the Board to make a determination regarding this issue.  As 
such, a VA examination is in order.

In light of the above discussion, the Board has determined 
that additional development is necessary.  Accordingly, the 
case is REMANDED for the following action:

1.  Schedule the veteran for a VA 
examination to determine the extent and 
etiology of any currently present right 
knee disability.  Upon examination and 
review of the entire claims folder, the 
examiner should provide an opinion 
regarding whether it is at least as 
likely as not (i.e., probability of 50 
percent or greater) that any such 
disability is related to any disease or 
injury in service.  

A discussion of the complete rationale 
for all opinions expressed should be 
included in the examination report.

2.  Schedule the veteran for a VA 
examination to determine the extent and 
etiology of any currently present skin 
disability affecting the veteran's face.  
Upon examination and review of the entire 
claims folder, the examiner should 
provide an opinion regarding whether it 
is at least as likely as not (i.e., 
probability of 50 percent or greater) 
that any such disability is related to 
any disease or injury in service.  

A discussion of the complete rationale 
for all opinions expressed should be 
included in the examination report.

If upon completion of the above action the claim remains 
denied, the case should be returned to the Board after 
compliance with requisite appellate procedures.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals 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).



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs