Citation Nr: 1301956 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-01 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a coccyx (tailbone) disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from May 30, 1986 to September 26, 1986 and from July 1987 to November 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case was previously before the Board in April 2011, when the Board remanded the Veteran's claim in order to solicit an addendum opinion regarding the nature of the Veteran's claimed tailbone disability. An addendum opinion was received in August 2011. The Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As the Board noted in its April 2011 Remand, the issue of entitlement to an increased rating for back strain with degenerative changes, thoracolumbar spine, has been raised by the record. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran is not currently shown to have a tailbone disability. CONCLUSION OF LAW A tailbone disability was not incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but it does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See id. at 486. Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In the instant case, correspondence dated March 2004 notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The Veteran filed her claim prior to the Court's 2006 decision in Dingess, and as such, she was not provided with full Dingess notice at the time of the March 2004 VCAA letter. Instead, in June 2008 and March 2009, pursuant to the Court's holding in Dingess, the Veteran was provided with notice regarding the degree of disability and effective date. Additionally, since the time of the June 2008 and March 2009 Dingess notices, the Veteran has been provided with several readjudications of her claim, and the Board finds that there has been no prejudice to the Veteran requiring additional notice. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran. Private and VA medical records have been obtained and reviewed in connection with this appeal, and the Veteran has been afforded VA examinations. In this regard, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate as they are predicated on a full reading of the claims file, provide rationale for the opinions, and rely on and cite to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion concerning the issues on appeal has been met. In addition, the Veteran testified at a hearing before a Decision Review Officer in March 2009, and before the Board at a video conference hearing in December 2010. Transcripts of both of these hearings have been associated with the record. The Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file, and it is not contended otherwise. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection The Veteran claims that service connection is warranted for a tailbone disability. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, 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). Specifically with respect to the first Hickson element, there must be competent evidence of a current disability. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (current disability means a disability shown by competent medical evidence to exist at the time of the award of service connection); McClain v. Nicholson, 21 Vet. App. 319 (2007) (current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim, even if the disability resolves prior to adjudication); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in absence of proof of a present disability, there can be no valid claim for service connection because Congress has specifically limited entitlement in this manner). Furthermore, pain alone, 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). A review of the medical evidence of record does not indicate that the Veteran has a currently-diagnosed tailbone disability. In October 2009, a VA examiner indicated that the Veteran had a "coccyx condition," which the examiner related to the Veteran's active duty service. The Board noted in its April 2011 Remand that the examiner did not specify what the Veteran's diagnosed condition was, and the Board remanded the Veteran's claim for an addendum opinion clarifying the diagnosis. An addendum opinion was provided in August 2011. The examiner concluded that the Veteran suffered only from episodic coccyx pain without any additional diagnosis. The examiner noted that the Veteran had no history of direct trauma to the tailbone, and x-ray examinations of the coccyx were normal. Pursuant to the holding in Sanchez-Benitez discussed above, the Board finds that the Veteran's complaints of tailbone pain alone do not constitute a current tailbone disability. Further, as the VA examiner concluded that the Veteran does not have a current tailbone disability and there is no other evidence showing such a diagnosis, the Board must conclude that the Veteran does not have a currently-diagnosed tailbone disability. The Board acknowledges the Veteran's belief that she has a tailbone disability, and she is competent to testify as to symptomatology such as experiencing pain. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, the Veteran has been provided with examinations of her alleged tailbone condition based on the competency of her reports of pain. Notwithstanding these reports of pain, the objective evidence fails to show that the Veteran has a current tailbone disorder. The Veteran, as a lay person, is not competent to opine that any symptomatology, such as pain, is attributable to a particular underlying disability. Her statements are therefore insufficient to establish the presence of any tailbone disability, and her opinions regarding the presence of a tailbone disability are outweighed by the weight of the objective evidence that does not establish a tailbone disability at any time during the course of the appeal. Without medical evidence of a current disability, the Veteran does not meet the first requirement set forth in Hickson, and the claim fails on this basis. See Hickson, supra. Thus, service connection for tailbone pain may not be granted. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). As the Veteran has failed to satisfy the first element of Hickson, the Board finds the remaining questions of in-service disease or injury or other service-connected disability and medical nexus to be irrelevant. Accordingly, the Board finds that the claim of entitlement to service connection for a tailbone disability 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 Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for a coccyx (tailbone) disability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs