Citation Nr: 0814877 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 05-14 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected chronic lumbosacral strain. 2. Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected chronic lumbosacral strain. 3. Entitlement to service connection for a skin condition, to include as secondary to eczema. 4. Entitlement to an increased evaluation for lumbosacral strain, currently evaluated as 40 percent disabling. 5. Entitlement to an increased evaluation for rhinitis, currently evaluated as 10 percent disabling. 6. Entitlement to an effective date earlier than October 11, 2006, for the assignment of a 10 percent evaluation for rhinitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Jason R. Davitian, Counsel INTRODUCTION The veteran served on active duty from February 1994 to September 1996. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center in Philadelphia, Pennsylvania (RO), which denied increased evaluations for the veteran's chronic lumbosacral strain and rhinitis. It is also on appeal from a September 2004 rating decision that denied service connection for cervical spine and right shoulder disabilities, and an October 2005 rating decision that denied service connection for a skin condition, secondary to eczema. During the pendency of the appeal, an October 2007 rating decision assigned a 10 percent evaluation for the veteran's rhinitis, effective October 11, 2006. The veteran submitted a timely notice of disagreement with the effective date in November 2007. The RO has not issued a statement of the case with respect to this issue. During a March 2008 hearing before the undersigned Veterans Law Judge, the veteran contended that his service-connected eczema warrants an increased evaluation. In this regard, the Board observes that the October 2005 rating decision denied an increased evaluation for eczema. The veteran failed to submit a notice of disagreement (NOD) with this decision and it became final. The veteran's claim is therefore a new claim that has not been developed. The Board refers this to the RO for appropriate action. The issues of service connection for a skin condition, to include as secondary to eczema; entitlement to an increased evaluation for chronic lumbosacral strain; and an effective date earlier than October 11, 2006, for the assignment of a 10 percent evaluation for rhinitis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent medical evidence, overall, does not show that the veteran has a cervical spine condition that was incurred or aggravated during service, or caused or aggravated by service-connected disability. 2. The competent medical evidence, overall, does not show that the veteran has a right shoulder condition that was incurred or aggravated during service, or caused or aggravated by service-connected disability. 3. During a March 2008 hearing before the undersigned Veterans Law Judge, the veteran withdrew the issue of entitlement to an increased evaluation for rhinitis. CONCLUSIONS OF LAW 1. Service connection for a cervical spine disability, to include as secondary to chronic lumbosacral strain, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310(a) (2007). 2. Service connection for a right shoulder disability, to include as secondary to chronic lumbosacral strain, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310(a) (2007). 3. The criteria for withdrawal of a Substantive Appeal by the veteran with regard to the issue of entitlement to an evaluation in excess of 10 percent for rhinitis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 or her representative, if any, 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 notice from VA 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 her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of letter sent to the appellant in July 2004 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claims, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed conditions. See Dingess, supra. VA has a duty to assist the appellant in the development of the claim. This duty includes assisting the appellant in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA medical records. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. VA examinations have been conducted. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection A claimant with active service may be granted service connection for disease or disability either incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a)(2006). Secondary service connection may be found where a service-connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service- connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The disease entity for which service connection is sought must be "chronic" as opposed to merely "acute and transitory" in nature. 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Where the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, 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 generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The veteran's service medical records include numerous references to a pre-service motor vehicle accident (MVA) that occurred in August 1993. However, these references are made only with respect to complaints, symptoms, findings or diagnoses pertaining to the veteran's low back. In fact, the veteran's service medical records are negative for any complaints, symptoms, findings or diagnoses related to the cervical spine or right shoulder. There is no evidence of pertinent complaints, symptoms, findings or diagnoses within one year of the veteran's separation from service. Because these claimed conditions were not seen during service, service connection may not be established based on chronicity in service or continuity of symptomatology thereafter. 38 C.F.R. § 3.303; Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997). Because no degenerative changes of the cervical pine or right shoulder were seen within one year of the veteran's separation from service, presumptive service connection is not warranted. The veteran's post-service medical records include March 2003 X-ray findings of degenerative changes of the cervical spine. These results do not support the veteran's claim because they do not show that the degenerative changes began during service, were aggravated during service, or began as a result of the veteran's service-connected lumbosacral strain. The report of an August 2004 VA examination provides that the examiner was requested to evaluate the veteran's neck, middle back and shoulder conditions. The examiner stated that he had reviewed the veteran's claims file and found no documentation of thoracic spine, cervical spine, or right shoulder problems during the veteran's service. The report sets forth the results of current physical examination. The diagnosis was that it was less likely than not that the veteran's neck and thoracic spine condition was related to the lower back condition. The veteran did not demonstrate altered biomechanics to suggest that the lower back had caused injury to the thoracic and cervical spine regions. Nor did it suggest that the veteran's lower back problem had caused the right shoulder condition. The examiner noted that he could not locate any specific evidence in the claims file to document that the veteran had injury to the cervical or thoracic spine or right shoulder while in the service. The report of an October 2006 VA examination provides the veteran's current complaints with respect to the cervical spine. He stated that the symptoms started as a result of a 1993 pre-service bus accident and worsened from 1994 to 1996. The pertinent diagnosis was cervical radiculopathy, secondary to degenerative joint disease. The examiner noted that the veteran's service medical records did not show the beginning of the veteran's cervical spine symptoms during service. There was no clear biomechanical abnormality or other manifestation that would make it clearly likely that the veteran's cervical radiculopathy was caused by, or a result of, the lumbosacral condition. Only the veteran's verbal reports reflected that his cervical spine symptoms initiated with the same event as the lower back. The examiner expressed the opinion that cervical radiculopathy was a separate condition from the veteran's lumbosacral strain and was less likely than not a result of the lumbosacral strain. It was most likely a separate event which, by the veteran's report, was caused during a pre-service bus accident "with likely possible exacerbation during his service from 1994 to 1996." The two VA examination report are highly probative evidence against service connection on a direct or secondary basis. They are based on current examination results and reviews of the medical record. They are supported by reference to the objective medical evidence of record, such as the absence of relevant physical findings in the service medical records and the absence of biomechanical abnormality suggesting a link between the claimed conditions and the veteran's service- connected lumbosacral strain. This fact is particularly important, in the Board's judgment, as the reference makes for a more convincing rationale. The Board is aware that the October 2006 report notes that the veteran's cervical spine condition underwent "likely possible exacerbation" during service. However, the examiner provides no explanation for this conclusion. Indeed, such a statement indicating a "possible" link is not sufficient medical evidence to establish entitlement to service connection. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In any case, the remainder of his report tends to contradict this suggestion: he himself noted that it was only the veteran's own verbal reports that reflected that his cervical spine symptoms began with the same event as the lower back, and the veteran's service medical records did not show the beginning of the veteran's cervical spine symptoms during service. In fact, there is no probative or persuasive medical evidence in the record that the veteran's active duty aggravated any pre-existing cervical spine or right shoulder conditions. The veteran's active service medical records show his cervical spine and right shoulder were normal at entrance. They are silent as to any cervical spine or right shoulder injuries due to the pre-service MVA, or any aggravation of such injuries by service. With respect to the veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu, supra (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nevertheless, in this case the veteran's opinions are outweighed by the lack of pertinent findings in his service medical records, the probative medical opinions against service connection on a direct or secondary basis, and the lack of probative medical opinions showing aggravation during service. In sum, the medical evidence demonstrates that the veteran is not entitled to service connection for a cervical spine or right shoulder disability, each to include as secondary to chronic lumbosacral strain. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Turning to the veteran's claim for an increased evaluation for rhinitis, the Board notes that under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.202. A Substantive Appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. During the March 2008 hearing, the veteran withdrew his appeal to the Board concerning the issue of entitlement to an evaluation in excess of 10 percent for rhinitis. There remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, it is therefore dismissed. ORDER Service connection for a cervical spine disability, to include as secondary to chronic lumbosacral strain, is denied. Service connection for a right shoulder disability, to include as secondary to chronic lumbosacral strain, is denied. The issue on appeal of entitlement to an evaluation in excess of 10 percent for rhinitis is dismissed. REMAND As noted in the Introduction above, the veteran submitted a timely NOD with the October 11, 2006, effective date for the grant of a 10 percent evaluation for rhinitis. The record does not reflect that VA issued a statement of the case (SOC) for this claim. As the veteran has entered an NOD, and has not otherwise withdrawn the issue in writing, the Board is required to remand the claim for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). With respect to the veteran's claim for service connection for a skin condition, secondary to eczema, the veteran's representative noted during the March 2008 hearing that there were relevant treatment records (dated after August 2007) at the Philadelphia, VA Medical Center (VAMC) that had not been associated with the claims file. Similarly, a thorough review of the claims file demonstrates that it does not contain the report of a November 2003 VA examination of the veteran's service-connected chronic lumbosacral strain conducted at the Philadelphia VAMC. VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2) (2007). There are also heightened obligations to assure that the record is complete with respect to Federal Government records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). VA treatment records and examination reports are deemed to be constructively of record in proceedings before the Board. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Provide the veteran and his representative with an SOC regarding the claim for entitlement to an effective date earlier than October 11, 2006, for the grant of a 10 percent evaluation for rhinitis. The SOC should address all aspects of the claim and compliance with VA's duty to notify and assist. Provide the veteran the appropriate amount of time in which to submit a substantive appeal. If the veteran perfects his appeal of the issue, the appeal should be returned to the Board, if otherwise in order. 2. Obtain a copy of the November 2003 VA spine examination conducted at the Philadelphia VAMC, as well as all medical records from that facility dated from August 2007 to the present. VA should also attempt to obtain any other VA (or private) medical records that are brought to VA's attention by the appellant on remand. 3. Then, readjudicate the veteran's claims for service connection for a skin condition, to include as secondary to eczema, and entitlement to an evaluation in excess of 40 percent for chronic lumbosacral strain. If any benefit sought on appeal remains denied, provide the veteran with an SSOC. The SSOC should contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response. 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs