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