Citation Nr: 1214101 Decision Date: 04/18/12 Archive Date: 04/27/12 DOCKET NO. 08-14 208 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a respiratory disorder. 2. Entitlement to service connection for a disorder manifested by headaches and nausea. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1952 to June 1955, and from June 1955 to June 1958. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in Los Angeles, California. The Veteran testified before the undersigned Acting Veterans Law Judge at a March 2012 hearing. At his hearing, the Veteran testified that he believed his atrial fibrillation and cancer (unspecified type) were caused by his military service. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is not shown to have a respiratory disorder that is related to his military service. 2. The Veteran is not shown to have a disorder manifested by headaches and nausea that is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). 2. The criteria for service connection for a disorder manifested by headaches and nausea are e not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims 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. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in October 2006 which explained the types of evidence that VA would obtain on the Veteran's behalf and the types of evidence that the Veteran had to submit himself. The letter also explained the criteria for establishing service connection for a claimed disability as well as explained the general manner whereby VA assigns ratings and effective dates for service connected disabilities. In addition to the aforementioned notices, VA also must make reasonable efforts to assist the claimant with obtaining the evidence that is necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including VA treatment records and a transcript of the Veteran's testimony at the March 2012 hearing. In this case, the Veteran's service records are unavailable through no fault of the Veteran. The Veteran was notified of the unavailability of his service treatment records. The Board acknowledges its heightened obligation to consider carefully the benefit of the doubt rule in cases where the Veteran's service treatment records are unavailable through no fault of the Veteran. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran was not afforded a VA examination with respect to his claims. In this regard, the Board notes that VA is required to provide a medical examination or medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5107A(d). An examination is considered necessary if the record contains competent evidence that (a) the Veteran has a current disability or persistent or recurrent symptoms of a disability; (b) the disability or symptoms may be associated with the Veteran's service; and (c) the record does not contain sufficient medical evidence for VA to make a decision on the claim. Id. In this case VA was not required to provide an examination because the record does not contain any competent and credible evidence that the Veteran has a respiratory disorder or nausea and headaches which may be associated with his military service or with a service connected disability For the aforementioned reasons, the Board finds that its obligations pursuant to the VCAA have been met in this case. Service connection The Veteran contends that he has a respiratory disorder and a disorder characterized by nausea and headaches due to his military service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran does not contend that he served in combat during his time in the military. The Veteran testified that he was exposed to a lot of dust in service. He testified that while he was stationed at Fort Knox in Kentucky in 1955 he was hit in the face with a beer can below his eye and next to his nose. He was rendered unconscious at that time. The Veteran testified that his nose was puffed up after this incident. He was seen at the hospital at that time. Since then, he had headaches almost every day which are worse behind his ears. He also feels nauseous at times. He also has a sinus condition which made it hard to breathe. The Veteran did not identify any other respiratory condition apart from the sinus problem. VA treatment records indicate that the Veteran was seen for headache in April 2004, at which time he reported that the headache onset after his neck popped. He was seen for chronic sinusitis in April 2006 at which time he reported that he had intermittent sinus congestion for six months and the symptoms did not entirely go away between bouts. He reported getting small headaches associated with bouts of sinus congestion. The assessment was chronic sinusitis. No other respiratory disorder was shown in the service treatment records. The evidence does not show that the Veteran's sinusitis or headaches and nausea are related to his military service. While the Board finds that Veteran's testimony that he was hit in the face with a beer can during service to be credible, there is no competent and credible evidence of a link between that incident and the Veteran's current sinus problems or headaches. While the Veteran also claimed that he had nausea, he did not relate this problem to service at his hearing, he only testified that he currently had nausea. With respect the Veteran's respiratory problems, VA treatment records clearly show that this is due to chronic sinusitis and not an injury to the nose or exposure to dust. Moreover, in April 2006 the Veteran told his health care provider that this condition onset six months ago, which is approximately 48 years after his service. Additionally, while the Veteran testified that he had headaches since service, this is contradicted by his VA treatment records, which show the onset of headaches after a neck injury, as well as headaches due to sinus congestion during the Veteran's bouts of chronic sinusitis. It is unlikely that if the Veteran had in fact experienced chronic headaches in service he would have referred to headaches that onset only after an injury or which were accompanied by sinusitis. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claims. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Service connection for a respiratory disorder is denied. Service connection for a disorder manifested by headaches and nausea is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs