Citation Nr: 0815188 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 05-18 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to service connection for degenerative disc disease of the cervical spine, status-post anterior cervical discectomy. 3. Entitlement to service connection for a left eye disability with defective vision and scarring. 4. Entitlement to service connection for a shoulder disability. 5. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Van Stewart, Counsel INTRODUCTION The veteran had active military service from July 1969 to July 1971. Service in combat in Vietnam is indicated by the evidence of record. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. (Consideration of the veteran's claims for service connection for degenerative disc disease of the cervical spine, a left eye disability, a shoulder disability, and a back disability are deferred pending completion of the development sought in the remand that follows the decision below.) FINDING OF FACT The veteran does not have a right hip disability that is related to his military service. CONCLUSION OF LAW The veteran does not have a right hip disability that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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 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 agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, subsequent RO actions may "essentially cure[] the error in the timing of notice"). The Board notes that the veteran was apprised of VA's duties to both notify and assist in correspondence dated in August 2003, March 2006, and October 2007. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claims, any timing errors have been cured by the RO's subsequent actions. Id.) Specifically regarding VA's duty to notify, the notifications to the veteran apprised him of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the veteran's behalf. The RO specifically requested that the veteran submit any evidence he had pertaining to his claim. The veteran was apprised of the criteria for assigning disability ratings and for award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided a statement of the case (SOC) and a supplemental statement of the case (SSOC) reporting the results of its reviews of issues on appeal and the text of the relevant portions of the VA regulations. Regarding VA's duty to assist, the RO obtained the veteran's service medical records (SMRs), and post-service medical records, Social Security Administration (SSA) records, and secured an examination in furtherance of his claim. In correspondence dated in November 2007 the veteran averred that he had no other information or evidence to submit. VA has no duty to inform or assist that was unmet. The veteran's SMRs show no complaints or treatment related to the hips. In his report of medial history given in conjunction with his separation examination the week before he left active duty in 1971, the veteran reported no complaint whatever. The examination report also found no abnormality at all. The physician's only comment was "normal male." Nevertheless, the veteran contends that he has a right hip disability, which he describes as painful motion, that is attributable to his military service. The veteran's record contains no medical evidence of any current hip disability. Social Security Administration (SSA) records show complaints and examinations related to averred back and shoulder disabilities, but no complaint or finding of a hip disability. The June 2001 report of a VA radiological examination of the veteran's pelvis reported that the pelvis and hip joints were normal. The report of treatment following a February 2004 slip and fall on ice reported that the veteran sustained severe pain and generalized ecchymosis over the low back and buttock region, but did not mention any hip complaint. A May 2007 VA examination revealed a normal gait, and no abnormalities related to the hips or any other part of the musculoskeletal system. The veteran's VA medical records show a July 2007 computer generated problem list containing 19 identified medical complaints, but a hip complaint is not among those listed. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Thus, evidence must show that the veteran currently has the disability for which benefits are being claimed. Here, there is no medical evidence of a current hip disability. There are no current treatment records showing complaints of or treatment for any hip disability, and the veteran has offered none, even after repeated notification by the RO in the VCAA notification letters, the rating decision, the SOC, and SSOC that evidence of a current disability was needed. With no medical evidence of the claimed disability, the analysis ends, and service connection must be denied. The veteran contends that he has a current right hip disability as a result of his military service. However, there is no evidence of record showing that the veteran has the specialized medical education, training, and experience necessary to render competent medical diagnosis or opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1) (2006). Consequently, the veteran's own assertions in this regard have no probative value. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even 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 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against this service connection claim. The veteran does not have a right hip disability that is etiologically related to his military service. ORDER Entitlement to service connection for a right hip disability is denied. REMAND The veteran contends that he suffered an injury to his head and neck in service when the hatch cover of an armored personal carrier (APC) was lowered onto his head. This happened when the APC came under enemy fire. It is contended that he was treated in the field by a medic. Of record is a buddy statement attesting to the hatch cover incident. The veteran has attributed his cervical spine disability to this APC hatch cover incident. Also of record is the report of a June 2003 MRI of the cervical spine revealing abnormalities that the interpreting radiologist noted were most likely related to old trauma. The veteran did not attribute his claimed shoulder disabilities and degenerative disc disease of the lumbosacral spine to that incident when he perfected his appeal, saying only that they were the result of bone deterioration over 30 years. He did, however, tell a physician in December 2004, that his claimed shoulder disabilities are a result of a 1970 injury sustained in Cambodia, which the evidence seems to indicate is the APC hatch cover incident noted above. Given the report of having been hit on the head by a hatch cover, and the possibility of spine and other injuries related thereto, the Board will remand for an examination in order to determine whether there is a medical nexus between any current claimed disability and the in-service hatch cover incident. The record also contains an April 2005 treatment report showing that the veteran presented at a VA dermatology clinic for removal of a foreign body from above his eyelid (which eyelid was not specified). The veteran told the examining physician that he had had sunglasses shattered while in Cambodia in 1970 resulting in a piece of glass being embedded, and that the wound was sutured in the field. Examination revealed a scar and palpable foreign body of an upper eyelid. The veteran reported that the area of the embedded foreign object caused him no problems, pain, or annoyance. Given the risks of surgery and the fact that the imbedded glass was inert and causing no complications, it was decided not to remove it. In sum, the veteran is contending that he injured his head, spine, and left eye in combat in Cambodia in 1970, and that his bilateral shoulder disability is also related to that injury. While the veteran's SMRs contain no mention of the APC hatch cover incident, under the circumstances of combat, the veteran is competent to report that such an incident did, in fact, happen. See 38 U.S.C.A. § 1154(b). Nevertheless, because the United States Court of Appeals for Veterans Claims (Court) has held that this combat presumption does not provide a substitute for medical nexus evidence, the Board must remand in order to obtain a medical nexus opinion as to each of these four claimed service connection issues. See Clyburn v. West, 12 Vet. App. 296, 303 (1999). Accordingly, the veteran's case is REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. The AOJ should arrange for the veteran to undergo a VA examination(s) by a medical professional with appropriate expertise to determine the current diagnosis and etiology of any cervical or lumbosacral spine, bilateral shoulder, and left eye disorders. For each diagnosis, a medical opinion should be provided as to whether it is at least as likely as not that the disability is etiologically related to the veteran's military service, including as secondary to any service-connected disability or any disability believed by the examiner to be service-related. The examiner must provide a medical opinion, based on review of the evidence of record, as to whether any current spine, shoulder, or left eye disability is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) related to military service, specifically to include an incident where the veteran was hit on the head by an APC hatch cover. A complete rationale should be given for all opinions and conclusions expressed. All indicated tests should be conducted and those reports should be incorporated into the examination and associated with the claims file. The veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. The AOJ should ensure that any examination report complies with this remand and the questions presented in the AOJ's examination request, especially with respect to the instructions to provide medical opinions. If the report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. The veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. See 38 C.F.R. § 3.655 (2007). 2. After undertaking any other development deemed appropriate, the AOJ should consider the issues on appeal in light of all information or evidence received. If any benefit sought is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. After expiration of any applicable period allowed for response, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the AOJ. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded to the AOJ. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment by the AOJ. The law requires that all claims that are remanded by the Board or by the Court 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). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs