Citation Nr: 1302297 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-34 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for chest pain. 3. Entitlement to service connection for bronchitis. 4. Entitlement to service connection for a skin condition. 5. Entitlement to an initial compensable disability rating for a left shoulder strain. 6. Entitlement to an initial compensable disability rating for a right hand strain (major). 7. Entitlement to an initial compensable disability rating for a left hand strain. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1988 to July 2008. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which denied service connection for sinusitis, chest pain, bronchitis, and a skin condition, and granted service connection for a left shoulder strain, left hand strain, and right hand strain, assigning noncompensable disability ratings. The Veteran's claims were subsequently handled by the RO in Wichita, Kansas. The Veteran filed a notice of disagreement (NOD) with the denial of his claims for service connection in August 2009, and timely perfected his appeal in August 2010. The Veteran filed a notice of disagreement (NOD) with the noncompensable disability ratings assigned for left shoulder strain, left hand strain, and right hand strain in May 2010, and timely perfected his appeal in May 2011. The Board notes that while the claims of service connection for carpal tunnel and positive PPD were certified to the Board, a Substantive Appeal was not filed for these claims. Therefore, the Board does not have jurisdiction over the issues of service connection for carpal tunnel and positive PPD, and they are not currently on appeal before the Board. The Board notes that additional evidence, in particular VA treatment records, was added to the claims file after the Veteran submitted his VA Form 9. However, the documents submitted did not contain any information relative to the claim of service connection for sinusitis. Thus, this matter need not be remanded for additional consideration by the RO. See 38 C.F.R. § 20.1304 (2012). The issues of entitlement to initial compensable disability ratings for left shoulder strain, left hand strain, and right hand strain 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. FINDINGS OF FACT 1. In March 2012 statements, the Veteran and his representative indicated his desire to withdraw his appeal seeking service connection for chest pain, a skin condition, and respiratory (bronchitis) condition. The Board received such request prior to the promulgation of a decision. 2. The evidence does not demonstrate that the Veteran is currently diagnosed with sinusitis. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issues of service connection for chest pain, a skin condition, and respiratory (bronchitis) condition have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for a grant of service connection for sinusitis are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In March 2012, the Veteran and his representative submitted statements indicating the Veteran's desire to withdraw the issues of entitlement to service connection for chest pain, a skin condition, and respiratory (bronchitis) condition currently on appeal. These statements have been accepted as the Veteran's withdrawal of the Substantive Appeal as to these issues. See Tomlin v. Brown, 5 Vet. App. 355 (1993). The Veteran has withdrawn the appeal of the issues of entitlement to service connection for chest pain, a skin condition, and a respiratory (bronchitis) condition and, hence, there remain no allegations of errors of fact or law for appellate consideration regarding these issues. As such, the Board does not have jurisdiction to review the appeal of the issues of entitlement to service connection for chest pain, a skin condition, and respiratory (bronchitis) condition and they are dismissed. II. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided 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); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in December 2008 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. A January 2010 letter also provided notice regarding how disability ratings and effective dates are assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although this last notice was delivered after the initial denial of the claim, the AOJ subsequently readjudicated the claim based on all the evidence in the August 2010 statement of the case (SOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the Veteran was not precluded from participating effectively in the processing of his claim and the late notice did not affect the essential fairness of the decision. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA 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 other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining medical records and providing the Veteran with a VA examination in April 2008. Additionally, the Veteran has not indicated that he has received additional treatment for sinusitis. The Board thus concludes that there are no additional records outstanding with respect to that claim. Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). III. Service Connection Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). However, the absence of a documented disability while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). 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. In determining whether service connection is warranted for a disability, VA 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 to the Veteran. The Veteran contends that he has had sinusitis since his time on active duty. The Veteran's service treatment records show that he was treated for acute sinusitis in December 2006. The Army Hospital records show that the Veteran was seen in January 2008 for military separation. At that time, multiple medical conditions were noted. However, the January 2008 record did not document any diagnosis of sinusitis. Additionally, Irwin Army Hospital treatment records dated after the Veteran's separation do not list any treatment for sinusitis, and also do not have it listed on the Veteran's problem list. Further, VA outpatient treatment records in the file do not contain a diagnosis of or treatment for sinusitis. The Veteran was afforded a VA examination in April 2008 to assess his sinus condition. The examiner noted that the Veteran had the normal number of colds, with no clear history of sinusitis or allergies. Examination of the Veteran's nose, sinuses, mouth, and throat showed nose patent, no rhinorrhea, no deformity, no oral lesions, and no throat erythema or exudates. The examiner concluded that the Veteran's sinusitis had resolved. On the August 2009 Notice of Disagreement, the Veteran reported that he had a lot of buildup of mucus and it made it difficult to breathe. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under these circumstances, for the Board to conclude that the Veteran has sinusitis that had its origin during service would be speculation, and the law provides that service connection may not be granted on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). Simply put, in the absence of a present disability that is related to service, a grant of service connection is clearly not supportable. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran was advised of the need to submit medical evidence demonstrating a current disorder and a nexus between a current disorder and service by way of the letter from the RO to him, but he has failed to do so. A claimant has a responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C.A. § 5107(a), and the Veteran was clearly advised in the letter of the need to submit medical evidence of a current disorder and a relationship between a current disorder and an injury, disease or event in service. The Board notes that the Veteran has reported problems with sinusitis since service. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, as a layperson, the Veteran is not competent to offer an opinion that requires specialized training, such as the diagnosis or etiology of a medical disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In this case there is no diagnosed disorder for which service connection can be considered. Accordingly, service connection for sinusitis is not established in the absence of competent medical evidence of a current disorder and competent medical evidence demonstrating a relationship between a current disorder and service. Based on the evidence and analysis above, the Board concludes the criteria for service connection are not met. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for chest pain is dismissed. Service connection for a skin condition is dismissed. Service connection for bronchitis is dismissed. Service connection for sinusitis is denied. REMAND A review of the record discloses further development is necessary prior to the adjudication of the Veteran's claims of initial compensable disability ratings for left shoulder strain, left hand strain, and right hand strain. The Veteran contends that his left shoulder strain, left hand strain, and right hand strain are worse than the noncompensable evaluations assigned. The Veteran was last given a VA examination in April 2008 in order to establish the severity of his service-connected left shoulder strain, left hand strain, and right hand strain. In the May 2011 Substantive Appeal, the Veteran's representative noted that the Veteran's hands and shoulder are "actually painful" on motion. In this particular case, the April 2008 VA examination is too remote in time to address the current severity of the Veteran's service-connected left shoulder strain, left hand strain, and right hand strain. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand these matters to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his left shoulder strain, left hand strain, and right hand strain. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Lastly, a remand is also necessary to obtain outstanding VA and private medical records. The record reflects that the Veteran was receiving treatment for his service-connected disabilities at the VA through March 2011. Because it appears that there may be outstanding VA medical records dated after March 2011 that may contain information pertinent to his claims, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2009); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1) The AMC should obtain any available outstanding VA treatment records dating from March 2011 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's VA claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. 2) After the foregoing, the Veteran should be scheduled for a VA orthopedic examination to determine the current manifestations of his left shoulder disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All tests deemed appropriate by the examiner, including X-rays and/or MRI studies, should be conducted. Specifically, the VA orthopedic examiner should address the following: A. Set forth all current complaints, findings, and diagnoses pertaining to the Veteran's service-connected left shoulder disorder. B. If manifested by ankylosis of scapulohumeral articulation, (such that the scapula and humerus move as one piece) state whether the ankylosis is favorable, unfavorable, or intermediate (between favorable and unfavorable). C. If manifested by other impairment of the humerus, state whether the disability is manifested by any of the following: malunion of the scalpulohumeral joint with marked deformity; recurrent dislocation of the scalpulohumeral joint with frequent episodes and guarding of all arm movements; fibrous union of the scalpulohumeral joint; false flail joint; or flail shoulder. D. If manifested by impairment of the clavicle or scapula, state whether the disability is manifested by any of the following: dislocation, nonunion with loose movement or without loose movement, or malunion. E. Provide complete range-of-motion and repetitive motion findings with respect to the Veteran's left shoulder. All ranges of motion should be expressed in degrees. The examiner should also be asked to determine whether the left shoulder exhibits weakened movement, excess fatigability, instability, or incoordination attributable to the service-connected disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45; Deluca v. Brown, 8 Vet. App. 202 (1995). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Additionally, the Veteran should be scheduled for a VA orthopedic examination to determine the current manifestations of his left and right hand disabilities, to include left and right hand strains. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All tests deemed appropriate by the examiner, including X-rays and/or MRI studies, should be conducted. Specifically, the VA orthopedic examiner should address the following: A. Set forth all current complaints, findings, and diagnoses pertaining to the Veteran's service-connected left and right hand strains. B. If manifested by wrist ankylosis state whether the ankylosis is favorable in 20 degrees to 30 degrees dorsiflexion; any other position, except favorable; or unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation. C. If manifested by favorable or unfavorable ankylosis of the digits. D. Provide complete range-of-motion and repetitive motion findings with respect to the Veteran's left and right hands. All ranges of motion should be expressed in degrees. The examiner should also be asked to determine whether the left and/or right hands exhibit weakened movement, excess fatigability, instability, or incoordination attributable to the service-connected disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45; Deluca v. Brown, 8 Vet. App. 202 (1995). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. E. Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). F. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC readjudicate the Veteran's claims. If a claim remains denied, the AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs