Citation Nr: 1032437 Decision Date: 08/27/10 Archive Date: 09/01/10 DOCKET NO. 04-35 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disorder, including as secondary to service-connected left knee disorder. 2. Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ann L. Kreske, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1983 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) from an April 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, declined to reopen the previously denied claim of entitlement to service connection for a right knee disability and denied a claim for service connection for a cervical spine disability. As support for his claim, the Veteran provided testimony before RO personnel in January 2005. The transcript of the hearing has been associated with the claims file and has been reviewed. This matter was previously before the Board in May 2009, at which time it was remanded for further evidentiary development. The case has returned to the Board and is again ready for appellate action. The application to reopen the previously denied claim of entitlement to service connection for a right knee disability is again addressed in the REMAND portion of the decision below and REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is no probative evidence of a current diagnosis of a cervical spine disability. CONCLUSION OF LAW A cervical spine disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). For claims, as here, pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA also request that a claimant submit any evidence in his or her possession that might substantiate the claim, i.e., the "fourth element" notice. See 73 Fed. Reg. 23,353 (Apr. 30, 2008). The notice provided by VA must be given 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) (Mayfield II); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, if VCAA notice was not provided prior to the initial adjudication of the claim or, if provided, was inadequate or incomplete, such an error can be "cured" by providing any necessary notice and then readjudicating the claim, including in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, the Veteran was provided with VCAA notices in May 2003 and July 2004. He also was provided with the May 2003 VCAA notice prior to the April 2004 rating decision. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims 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, 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. Here, with regard to Dingess, supra, the Veteran was provided with such notice in an SSOC issued in March 2010. However, the RO did not readjudicate the claim by way of a subsequent SSOC. Thus, in essence, based on the above case law, the timing defect in VCAA notice was not rectified. Regardless, the Court has held that the failure of the claimant to submit additional evidence following proper notification may constitute a waiver of readjudication or render the error harmless. Medrano v. Nicholson, 21 Vet. App. 165, 173 (2007). Here, the Veteran did not submit any additional pertinent evidence in response to the March 2010 SSOC and notice pursuant to Dingess. Therefore, the absence of a subsequent SSOC after such notice is not prejudicial because the result of such a readjudication on exactly the same evidence and law previously considered would be no different than the previous adjudication. Medrano, 21 Vet. App. at 173. Further, the Board finds that the duty to assist provisions of the VCAA have been met. All available service treatment records (STRs) have been obtained and associated with the Veteran's claims folder. Further, all relevant treatment records adequately identified by the Veteran have been procured and associated with his claims folder. He underwent a VA examination in connection with his claim. He also testified at a hearing before RO personnel. Accordingly, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran in the development of his claim. Under the circumstances of this case, additional efforts to assist the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case and that such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Finally, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions regarding the issue of a cervical spine disorder from its May 2009 remand. Specifically, in the May 2009 remand, the RO was to provide the Veteran with a VA examination of his cervical spine to determine the nature, extent, and etiology of his clamed cervical spine disability, including whether it is related to a reported in-service injury or the cause of his migraine headaches. The Board finds that the RO has complied with this instruction and that the VA examination report dated in November 2009 substantially complies with the remand directives in the Board's May 2009 remand as it responded to the questions posed in the May 2009 Board remand. Stegall, 11 Vet. App. at 268. Service Connection Service connection may be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be demonstrated either by showing direct service incurrence or aggravation, or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection requires competent evidence showing (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). See also Hickson v. West, 12 Vet. App. 247, 252 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A disorder also may be service connected if the evidence of record reveals that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third Caluza elements discussed above. Savage, 10 Vet. App. at 495- 496. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). 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 generally do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, 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 (e.g., a broken leg), (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, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). In this regard, the Court has emphasized that, 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. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). In this case, the Veteran contends that he currently has a cervical spine disorder that resulted from an injury he sustained to his back during service. See, e.g., RO hearing transcript dated in January 2005. The first requirement for any service connection claim is competent evidence of existence of a current disability. Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed). In this regard, a VA examination of the Veteran's cervical spine in November 2009 revealed no current cervical spine disorder. The examiner stated that the Veteran did not report any complaints for his cervical spine. Further, the examiner noted that the Veteran's STRs did not show a cervical spine injury. The lack of relevant complaints, diagnosis of, or treatment for a cervical spine injury or disability in the STRs is probative evidence against this claim. See Struck v. Brown, 9 Vet. App. 145 (1996). Further, while treatment records show complaints of cervical pain, there has been no documentation of a definitive diagnosis of a cervical spine disorder. Pain alone, without a diagnosis or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Although the Veteran is competent to state that he has symptoms of a cervical spine disorder, there must be competent medical evidence where the determinative issue involves medical causation or a medical diagnosis. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Thus, absent evidence of a current disability, service connection cannot be granted for a cervical spine disorder. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Furthermore, in November 2002, after leaving the military, the Veteran was in a motor vehicle accident. Prior to the accident, the record shows that the Veteran complained of neck pain, but had not been diagnosed with a cervical spine disability. A November 2002 private medical record from Dr. M. B. states that the motor vehicle accident aggravated a pre existing cervical condition, meaning the Veteran's previous reports of neck pain. An April 2003 private medical record from Dr. T. J. also discusses the post-service motor vehicle accident in November 2002, after which the Veteran reported neck pain. A June 2003 VA examination notes that the Veteran was in a post-service motor vehicle accident in November 2002, where he sustained a whiplash injury that was treated with a cervical fusion. It is clear from the record that the Veteran injured his cervical spine after leaving the military. The preponderance of the evidence is against the Veteran's claim, and there is no doubt to resolve in his favor. Service connection is denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). See also Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001). ORDER Service connection for a cervical spine disorder is denied. REMAND Before addressing the merits of the issue concerning whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disorder, the Board finds that additional development is required. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, the Board finds that a remand is necessary in order to comply with remand directives it had set forth in its May 2009 remand. Specifically, in the May 2009 remand, the Board instructed the RO to provide the Veteran with a VA examination and medical opinion to determine whether his right knee disability first manifested during active service, or, if not, whether it was caused or aggravated by the service-connected left knee disability. However, a VA examiner who examined the Veteran in November 2009 failed to respond fully to the questions posed in the May 2009 Board remand. The November 2009 VA examiner indicated that the Veteran's right knee disorder "is less likely as not caused by or a result of [service-connected] left knee disorder," but there was no opinion provided regarding the relationship between the Veteran's right knee disorder and his military service, or any indication of whether it was aggravated by the service- connected left knee disorder, as requested by the May 2009 Board remand. In this regard, secondary service connection shall be awarded when a disability "is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See Allen v. Brown, 7 Vet. App. 439, 446 (1995). Thus, the Board finds another remand is necessary to correct this matter. See Stegall, 11 Vet. App. at 268. Accordingly, the case is REMANDED for the following action: 1. Request that the previous November 2009 VA examiner provide an addendum to his or her previous opinion, if that physician is still available. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. Specifically, the examiner should provide a clarification as to the following: (a) Is the Veteran's current right knee disorder at least likely as not proximately due to, or the result of, his service- connected left knee disorder? (b) Alternatively, if the VA examiner finds that the Veteran's right knee disorder is not due to his service-connected left knee disorder, the VA examiner is requested to state whether the Veteran's right knee disorder is aggravated by [that is, permanently increased in severity as a result of] his service-connected left knee disorder? (c) Or, is it at least as likely as not the Veteran's right knee disorder is directly due to his military service? A complete rationale should be provided for any opinion given. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. Another VA examination is not necessary in order to provide this opinion, unless the previous VA examiner listed on the November 2009 report is unavailable, and a new examiner indicates a physical examination is necessary in order to adequately answer the questions posed. 2. Following completion of the above, readjudicate the claim of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disorder, including as secondary to service-connected left knee disorder, in light of the medical nexus opinion provided and any additional medical evidence received since the SSOC in March 2010. If the claim is not granted to the Veteran's satisfaction, send him and his representative another SSOC. It must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and discussion of all pertinent regulations. The Veteran and his representative should be given an opportunity to respond to the SSOC before returning the file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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 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. 2009). ______________________________________________ D. M. AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs