Citation Nr: 1033030 Decision Date: 09/02/10 Archive Date: 09/13/10 DOCKET NO. 06-17 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for left wrist disorder. 2. Entitlement to service connection for stroke, to include as secondary to service-connected residuals of head injury. 3. Entitlement to service connection for right shoulder disorder. 4. Entitlement to an initial evaluation in excess of 10 percent for chronic lumbar sprain. 5. Entitlement to an initial evaluation in excess of 20 percent for residuals of head injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1978 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). In that rating decision, the RO denied the claims for left wrist, stroke, and right shoulder. The RO granted service connection for lumbar sprain and assigned a 20 percent evaluation, and it granted service connection for residuals of head injury and assigned a 10 percent evaluation. Both assigned ratings were effective from May 25, 2005. The Veteran appealed the denial of his claims and the assigned evaluations. A July 2005 correspondence from the Veteran's representative shows the Veteran seeks entitlement to service connection for bilateral knee disorder. This issue has been raised by the record, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for stroke and right shoulder disorder, and entitlement to higher initial evaluations for lumbar sprain and residuals of head injury 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. FINDING OF FACT The competent medical evidence does not show that the Veteran has a current disability that is related to his complaints of left wrist pain during service. CONCLUSION OF LAW The criteria for service connection for left wrist disorder have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, prior to the October 2005 RO decision in the matter, VA sent a letter to the Veteran in June 2005 that informed him of what evidence is required to substantiate the claim, and apprised him as to his and VA's respective duties for obtaining evidence. The original notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim regarding service connection, and proper notice was provided until August 2006. It is noted that the Veteran's claim was not subsequently adjudicated in a supplemental statement of the case after receipt of the August 2006 notice. Regardless, the Board finds that any defect of timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claims by the RO subsequent to the claimant's receipt of compliant notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. Moreover, for the reasons stated below, the claim of service connection must be denied. As such, no disability rating or effective date are to be assigned, or were even considered, for this claim. Consequently, the Board concludes that the Veteran has not been prejudiced by this lack of notification regarding the Court's holding in Dingess. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine). In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical 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 the Veteran's service treatment records (STR). The Veteran was provided examination for his joints in September 2005. The findings contained in this examination report are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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. 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). 2. Service Connection The Veteran seeks service connection for left wrist disorder. He asserts that he injured his left wrist in service and he continues to experience symptoms of pain. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). Service connection may also 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). To prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks service connection for left wrist disorder. He asserts that he injured his left wrist in service, and he sought medical treatment for complaints of wrist pain during service. The Veteran reports that he continues to experience left wrist pain. A review of the Veteran's service treatment records shows complaints of left wrist pain in service. A June 1979 service treatment record shows the Veteran presented with complaints of left wrist pain, but the treating physician noted x-ray film revealed no abnormalities. A subsequent June 1979 treatment record shows the Veteran's left wrist was evaluated as "healed". The report of a July 1983 examination prior to separation shows a normal upper extremity evaluation. On the associated report of medical history, the Veteran marked that he had experienced broken bones in service. The examiner noted that the Veteran had a history of left wrist fracture in 1978, but there were no other findings noted. The claims folder only contains one post-service treatment record from October 2001. This record does not contain any complaints, treatment or diagnosis for left wrist disorder. The Veteran has not indicated that he has sought any medical treatment for his alleged left wrist disorder since service. In September 2005, the Veteran was afforded a VA examination in conjunction with his claim. This reports show that the Veteran reported symptoms of left wrist pain, with increased pain on use. On examination, the examiner observed the left wrist was normal in appearance except for a prominent ulnar head, which did not have any pain. The Veteran had a strong grip and his finger tips could be brought into the palmer. There was full range of motion in all directions against resistance and no evidence of carpal tunnel syndrome. X-ray filmed revealed normal findings of the left wrist. The examiner concluded the Veteran had a normal left wrist without residuals of trauma. Initially, the Board notes that the record does not show that the Veteran has a currently diagnosed disability. Although the service treatment records show complaints of left wrist pain and left wrist fracture during service, the September 2005 examination report shows a normal examination without any residuals of trauma, and there were only complaints of pain with use. The Board notes that complaints of pain, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The Board acknowledges the service treatment records that show history of fracture in 1978. Nonetheless, this is no evidence of a current disability in the left wrist. VA law requires that the grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). At the time of the Veteran's separation, there was only a history of left wrist fracture, and there were no findings of a chronic left wrist disorder. Moreover, the September 2005 VA examination report does not contain a current diagnosed disability. In addition to the medical evidence, the Board has also considered the Veteran's own lay statements in support of his claim, in particular his assertion that he injured his left wrist in service and he continues to experience left wrist pain. While the Veteran is competent to attest to the facts surrounding his claim, he cannot provide an actual medical diagnosis of a current disability without any indication that he retains the proper medical training to do so. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(2). In sum, without a current diagnosis of a left wrist disability, service connection cannot be granted. One of the requirements for service connection is competent evidence that a claimed disability currently exists. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Here, there are only subjective complaints of pain with use and there is no current diagnosed disorder. Service connection must be denied. See Hickson, 12 Vet. App. at 253. ORDER Entitlement to service connection for left wrist disorder is denied. REMAND Service Connection Claims Initially, with respect to the claim for service connection for stroke, VA has not met all statutory and regulatory notice provisions as required under VCAA. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Here, the Veteran has asserted a theory of service connection on a secondary basis. See December 2005 notice of disagreement. Although the Veteran's VCAA notification in June 2005 addressed the requirements for the establishment of service connection on a direct basis, the letter failed to provide information pertaining to the requirements necessary to substantiate a claim for secondary service connection. If, as here, the record has a procedural defect with respect to the notice required under the VCAA, this may not be cured by the Board. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Board therefore must remand the case to the agency of original jurisdiction because the record does not show that the Veteran was provided adequate notice under the VCAA and the Board is without authority to do so. In regard to the right shoulder disorder, another VA examination is necessary. While the record shows that the Veteran was afforded a VA examination in September 2005, the report is not adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Specifically, the September 2005 examination report shows the Veteran has chronic rotator cuff tendonitis, but the examiner failed to provide an opinion on whether the current diagnosed disorder was etiologically related to the inservice complaints of right shoulder pain. The Board finds that a new VA examination is in order to obtain an opinion as to the likelihood that any diagnosed right shoulder disorder is related to service. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4). Increased Rating Claims It has been more than four years since the Veteran's lumbar spine was evaluated in the September 2005 VA examination. The VA's duty to assist requires a "thorough and contemporaneous" medical examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). A new examination is in order to fully ascertain the severity of his disabilities. 38 U.S.C.A. § 5103A(d); 38 C.F.R. Part 4. During the pendency of this appeal, the criteria for evaluating disabilities due to traumatic brain injuries (TBI) were amended, effective October 23, 2008. See 73 Fed. Reg. 54693 (Sept. 23, 2008). The Board observes that the Veteran sought a higher evaluation for his residual of his head injury prior to October 2008. Under Note 5 of this version of 38 C.F.R. § 4.124a, a Veteran whose residuals of a TBI are rated under a prior version of Diagnostic Code 8045 may request consideration under the new provisions. Here, by reporting such symptoms as memory loss, depression, and cognitive problems, the Board finds that the Veteran has, in effect, requested review under the new provisions. See the February 2010 statement in support of the case. A re-adjudication of his claim under both sets of provisions - deleted and revised - is thus warranted. Prior to any examination, the RO/AMC should ask the Veteran to identify any outstanding records of pertinent VA and private treatment, and obtain those records Accordingly, the case is REMANDED for the following action: 1. Review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000 (VCAA) is completed. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In particular, the RO should ensure that notification is provided regarding requirements and development procedures necessary to substantiate a claim for secondary service connection with regard to the Veteran's claims for service connection for stroke. 2. Contact the Veteran and request that he identify any VA or private health care providers who may have treated him for claimed conditions, and that he provide any necessary authorization for all private health care providers identified, who may possess additional records pertinent to his claims. 3. Obtain copies of any outstanding records of pertinent VA or private medical treatment. 4. After receipt of any additional records, the RO/AMC should then schedule the Veteran for a VA examination by the appropriate specialist, to determine the nature and likely etiology of any right shoulder disorder. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file and the clinical findings from the examination, the examiner should provide a diagnosis for any current right shoulder disorder. If no disability is found, then the examiner should so state in the examination report. Additionally, based on a review of the claims file and the clinical findings on examination, the examiner should be requested to provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that any right shoulder disorder is etiologically related to service. The examiner should comment on the inservice complaints of right shoulder pain. A complete rationale should be given for all opinions and conclusions expressed. If the examiner is unable to provide an opinion, he or she should state so and why. 5. Afford the Veteran a VA neurological examination to determine the current severity of his residuals of a head injury. The examiner should identify and completely describe all current symptomatology. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. Ask the examiner to discuss not only neurological but also any mental health or cognitive functions attributed to the head injury. If the service-connected disability is manifested by facets of cognitive impairment including: memory, attention, concentration, executive functions, judgment, social interaction, orientation, motor activity, visual spatial orientation, neurobehavioral effects, communication, or unconsciousness, the examiner should so state. The examiner should also address the effect of this disability on the Veteran's employability. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail in a typewritten report. 6. Provide the Veteran with a VA spine examination to determine the current severity of back disorder. The examiner should identify and completely describe all current symptomatology, including range of motion and any incapacitating episodes (i.e., doctor- prescribed bedrest). The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should address the extent to which this disability is productive of painful motion, functional loss due to pain, excess fatigability, weakness, or additional disability during flare-ups. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. 7. The RO/AMC should review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. The RO/AMC should then re-adjudicate the claims on appeal, including the Veteran's claim for service connection for stroke on a secondary basis to service-connected residuals of head injury. If any benefit sought remains denied, the RO should issue an appropriate SSOC and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. 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). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. [Continued on following page] These claims 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs