Citation Nr: 1004433 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 07-00 200A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a disability of the left little finger. 3. Entitlement to service connection for a right foot disability, other than residuals of a cold injury. 4. Entitlement to service connection for residuals of a cold injury to the feet. 5. Entitlement to an initial, compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from June 1951 to June 1955. VA has deemed him incompetent and C.P., his daughter, has been appointed legal custodian and payee for his benefits. The Veteran's daughter has prosecuted the Veteran's appeal on his behalf. As such, she is the appellant in this case. This appeal to the Board of Veterans' Appeals (Board) arises from March 2006 and August 2006 rating decisions. In the March 2006 rating decision, the RO denied service connection for hearing loss, a right foot disability, and cold injury to the feet. In May 2006, the appellant filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in December 2006, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2007. In the August 2006 rating decision, the RO denied service connection for disabilities of the lower back and the left little finger. In October 2006, the appellant filed a NOD. A SOC was issued in September 2007, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2007. In a January 2009 rating decision, the RO granted service connection for bilateral hearing loss, representing a full grant of that benefit sought. In her January 2007 substantive appeal, the appellant requested a hearing before a Veterans Law Judge in Washington, DC. In her October 2007 substantive appeal, the appellant indicated that she did not want a Board hearing. Therefore, the Board finds that the appellant's Board hearing request was withdrawn. In November 2009, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2009). The Board notes that, while the Veteran previously was represented by the North Carolina Division of Veterans Affairs, in October 2008, the appellant granted a power-of- attorney in favor of The American Legion with regard to the claims on appeal. The appellant's current representative has submitted written argument on her behalf. The Board's decision addressing the claims for service connection for a low back disability; a disability of the left little finger; a right foot disability, other than residuals of a cold injury; and residuals of a cold injury to the feet is set forth below. The claim for an initial, compensable rating for bilateral hearing loss is addressed in the remand following the order; that matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on her part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim on appeal have been accomplished. 2. There is no competent medical evidence that the Veteran currently has a low back disability. 3. There is no competent medical evidence that the Veteran currently has a disability of the left little finger. 4. There is no competent medical evidence that the Veteran currently has a right foot disability, other than residuals of a cold injury. 5. The most probative medical opinion on the question of whether there exists a medical nexus between the Veteran's current residuals of a cold injury to the feet and service weighs against the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 2. The criteria for service connection for a disability of the left little finger are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 3. The criteria for service connection for a right foot disability, other than residuals of a cold injury, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 4. The criteria for service connection for residuals of cold injury to the feet are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (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(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. As regards the claims of service connection for a low back disability and a disability of the left little finger, in a May 2006 pre-rating letter, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the claims for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; this letter also provided the appellant with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The August 2006 rating decision reflects the initial adjudication of the claims after issuance of this letter. Hence, the May 2006 letter- which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. As regards the claims for service connection for a right foot disability, other than residuals of a cold injury to the feet, and residuals of a cold injury to the feet, in an August 2005 pre-rating letter, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the claims for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The March 2006 RO rating decision reflects the initial adjudication of the claim after issuance of the August 2005 letter. A subsequent March 2006 letter provided the appellant with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the March 2006 letter, and opportunity for the appellant to respond, the January 2009 supplemental SOC (SSOC) reflects readjudication of the claims. Hence, the appellant is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service treatment and private medical records and the reports of March 2006 and December 2008 VA examinations. Also of record and considered in connection with the appeal are various written statements provided by the appellant and by the Veteran's representative. The Board also finds that no additional RO action to further develop the record is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the appellant has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any of the claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from 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). A. Low Back, Left Little Finger, Right Foot The appellant has contended that the Veteran has disabilities of the low back, left little finger, and right foot, other than residuals of a cold injury, that are related to his service. Considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that the record presents no basis for a grant of service connection for a low back disability, a disability of the left little finger, and a right foot disability, other than residuals of a cold injury. An October 1952 service treatment record shows that the Veteran had jammed fingers. A May 1953 service record indicates that the Veteran fell last night, and his left little finger was now swollen and tender. X-rays were taken, and the Veteran was instructed to soak the finger three times a day. A June 1953 service treatment record shows that the Veteran began having pain in his back yesterday. He had a cough but no pain on deep breathing. The diagnosis was bronchitis. A November 1953 service record indicates that the Veteran had pain in the little toe of his right foot. He was instructed to soak the toe for five days. A September 1954 service treatment record shows that the Veteran complained of pain on the right plantar surface of his foot. The pain occurred when he was walking and in bed at night. A subsequent September 1954 entry shows that x- rays were negative. There was no evidence of pathology. In May 1955, the Veteran was examined for separation. The spine, feet, upper extremities, and lower extremities were normal. Other than childhood diseases and a non-correctable left eye, the Veteran denied all serious illnesses, injuries, and operations. In December 2008, the Veteran underwent VA examination for his spine. The examiner noted that the claims file was reviewed. He had dementia and could not offer any complaints with regard to his back. There was no treatment. The examiner noted the entry in the Veteran's service treatment records, showing he complained of back pain and was diagnosed as having bronchitis. Range of motion was flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degree bilaterally, and rotation to 45 degrees bilaterally. There was no pain, spasm, weakness, or tenderness. Neurological examination was normal. Spine x- rays showed the spine was unremarkable for the age. A low back condition was not found on examination. In December 2008, the Veteran underwent VA examination for his hand. The examiner noted that the claims file was reviewed. There was no known trauma to the hand. The Veteran had pain in his little finger while on active duty and no complaints over the years. There was no treatment. X-rays were negative. Following examination, the examiner noted that arthralgia of the left little finger was not found on examination. In December 2008, the Veteran underwent VA examination for his feet. The examiner noted that the claims file was reviewed. The Veteran had no pain in his right foot. He had dementia and was unable to offer history of the right foot. There were no problems with the right foot and no treatment. X-rays were negative. Following examination, the examiner indicated that arthralgia of the right foot was not found on examination. The appellant has contended that the Veteran has disabilities of the low back, left little finger, and right foot, other than residuals of a cold injury, that are due to his service. Although the service treatment records show that the Veteran was seen for complaints of pain, there was no diagnosis of any chronic disability at that time. Furthermore, a review of the post-service evidence reveals no diagnosed disability with regard to these claims. The appellant and the Veteran have not submitted or identified any existing evidence that shows a diagnosis of a low back disability, a left little finger disability, or a right foot disability, other than residuals of a cold injury. Furthermore, the December 2008 VA examinations specifically found no low back condition and that arthralgia of the left little finger and right foot was not found. The VA examinations are the only pertinent, post-service medical evidence of record. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1131; see also 38 C.F.R. § 3.310. Thus, where, as here, medical evidence establishes that the Veteran does not have the claimed disability upon which to predicate a grant of service connection, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the instant case, the claims for service connection for a low back disability, a disability of the left little finger, and a right foot disability, other than residuals of a cold injury, must be denied, because the first essential criterion for a grant of service connection-evidence of a current disability upon which to predicate a grant of service connection-has not been met. B. Cold Injury to the Feet The Veteran's DD Form 214 indicates that he had one year and six months of foreign and/or sea service. One service record indicates that the Veteran was located in Tripoli, Libya, from September 1953 to March 1954. That same document then indicates that the Veteran left New York and arrived in Tripoli, Libya, in September 1952, and left Libya in March 1954, arriving in Massachusetts the next day. His duty was in North Africa. An April 1995 document indicates that the Veteran completed a questionnaire about his military service for the purpose of his Social Security wage credits. The Veteran indicated that he served from 1952 to 1955 with the 580th Air Re Supply Squadron, and the location was Africa. May 2003 private treatment records show that the Veteran's feet were examined. He had no hair growth and diminished sensorium. In a written statement, R.F., D.P.M., indicated that he had examined the Veteran and, in his opinion, it was more likely than not that he had frost bite as a result of his service in the Korean conflict. In a September 2005 written statement, R.F., D.P.M., indicated that the Veteran was under his care for complications associated with peripheral vascular disease. He had poor circulation identified by non palpable posterior tibial and dorsalis pedis arteries. He had tropic epidermal changes that placed his foot at risk. The condition was further complicated by small vessel disease resultant from frostbite suffered during World War II. The condition had progressed. In March 2006, the Veteran underwent VA examination. The Veteran's service records did not specify where he had his foreign service. The Veteran stated that most of the time, he was in Africa. The Veteran had Alzheimer's disease and poor memory. The Veteran did recall some cold exposure. The examiner noted the in-service x-ray of the right foot that was normal. However, it was unclear what led to the examination of the Veteran's right foot. Following examination, the diagnosis was status post frostbite of the bilateral feet with cold sensitivity and tingling sensation of the feet, dystrophy of the toenails, and callus formation at the medical aspect of the great toe, bilaterally. The evidence of record clearly establishes that the Veteran has a diagnosis of status post frostbite of the bilateral feet with cold sensitivity and tingling sensation of the feet, dystrophy of the toenails, and callus formation at the medial aspect of the great toe, bilaterally. This was shown in the March 2006 VA examination report. In addition, the Veteran's private clinician indicated that the Veteran had problems with peripheral vascular disease. However, the record simply fails to establish that any of the noted diagnoses are actually a residual of a cold injury. The Veteran's private clinician has indicated, in two separate statements, that the Veteran's residuals of a cold injury of the feet are due to his service in Korea and, alternatively, his service during World War II. The record clearly shows that the Veteran did not serve during World War II. In addition, the record does not establish that the Veteran had service in Korea. The Veteran has dementia and was not able to give a complete history. He did report exposure to cold during his March 2006 VA examination. However, he also indicated that his foreign service was in Africa. All of the Veteran's service personnel records indicate that he had service in Libya and northern Africa. There is no evidence that he had service in Korea. Furthermore, there is no evidence in the Veteran's service treatment records that he suffered a cold injury during service. While the Veteran has reported a vague history of having been exposed to cold weather, he, unfortunately, has been diagnosed with dementia. Therefore, absent any other evidence that the Veteran served in cold weather, including Korea, the Board cannot find that his statement is credible. Additionally, while the Veteran reported cold exposure, he did not report a specific history of cold injury. In the absence of any competent and credible evidence of a cold injury in service, the Board must find that service connection is not warranted. While the Veteran's private clinician indicated that the Veteran's residuals of a cold injury to the feet were related to service in Korea or during World War II, the more probative evidence of record establishes that the Veteran did not have service in Korea or during World War II. Therefore, the opinions of the Veteran's private clinician, which are based on an inaccurate factual premise, are not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). C. All Claims In addition to the medical evidence, in adjudicating these claims, the Board has considered the assertions of the appellant and her representative; however, none of this evidence provides a basis for allowance of any of the claims. As indicated above, the claims turn on the medical matter of current disability (a medical diagnosis) and etiology, matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the appellant and her representative are not shown to be other than laypersons without the appropriate medical training and expertise, they are not competent to render a probative (persuasive) opinion on a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claims for service connection for a low back disability; a disability of the left little finger; a right foot disability, other than residuals of a cold injury; and residuals of cold injury to the feet must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a low back disability is denied. Service connection for a disability of the left little finger is denied. Service connection for a right foot disability, other than residuals of cold injury is denied. Service connection for residuals of cold injury to the feet is denied REMAND In a January 2009 rating decision, the RO granted the Veteran service connection for bilateral hearing loss and assigned a noncompensable (0 percent) disability rating. In December 2009, the Board received a written statement from the appellant. In that December 2009 written statement, the appellant questioned the 0 percent rating assigned to the Veteran's bilateral hearing loss disability when it was service connected. The Board accepts this as a timely NOD with the January 2009 RO rating decision. The appellant has not been furnished a SOC regarding the issue of entitlement to an initial compensable rating for service-connected bilateral hearing loss. By filing a NOD with the January 2009 RO decision, the appellant has initiated appellate review of the issue decided therein. The next step in the appellate process is for the RO to issue to the appellant an SOC. See 38 C.F.R. § 19.29 (2009); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Consequently, this matter must be remanded to the RO for the issuance of a SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202 (2009). Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: The RO must furnish to the appellant and her representative a SOC with respect to the assignment of a noncompensable (0 percent) rating for bilateral hearing loss, along with a VA Form 9, and afford them the appropriate opportunity to submit a substantive appeal perfecting an appeal on that issue. The appellant and her representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status-here, an initial, compensable rating for bilateral hearing loss-a timely appeal must be perfected within 60 days of the issuance of the SOC. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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. 2009). The RO is reminded that this appeal has been advanced on the Board's docket. ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs