Citation Nr: 1304746 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 09-05 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for pseudofolliculitis barbae. 2. Entitlement to service connection for chronic pain and arthritis of the spine, to include cervical spondylosis. 3. Entitlement to service connection for flat feet. 4. Entitlement to service connection for bowel and bladder incontinence. 5. Entitlement to service connection for carotid artery stenosis, claimed as blockage of right and left internal carotid artery (ICA). 6. Entitlement to service connection for mass in frontal lobe and headaches. 7. Entitlement to service connection for congestive heart failure (CHF), also claimed as shortness of breath, fainting, dizziness and lightheadedness. 8. Entitlement to service connection for a vision disorder. 9. Entitlement to service connection for shin splints. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps Reserves from February 1975 to July 1975, and in the Marine Corps from August 1975 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which declined to reopen the claim for service connection for pseudofolliculitis barbae and denied the remaining claims. The RO in Atlanta, Georgia, currently has jurisdiction of the claims. FINDINGS OF FACT 1. In an unappealed August 2002 rating decision, the RO denied the Veteran's claim for service connection for pseudofolliculitis barbae. 2. Additional, relevant service reports have been associated with the claims file since the RO's August 2002 decision. 3. The Veteran does not have psuedofolliculitis barbae, chronic pain and arthritis of the spine, to include cervical spondylosis, flat feet, bowel and bladder incontinence, carotid artery stenosis, a mass in his frontal lobe and headaches, congestive heart failure, a vision disorder, or shin splints, that are related to his service. CONCLUSION OF LAW Psuedofolliculitis barbae, chronic pain and arthritis of the spine, to include cervical spondylosis, flat feet, bowel and bladder incontinence, carotid artery stenosis, a mass in his frontal lobe and headaches, congestive heart failure, a vision disorder, and shin splints, were was not incurred or aggravated during the Veteran's active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Sup. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection The Veteran asserts that he has chronic pain and arthritis of the spine, to include cervical spondylosis, flat feet, bowel and bladder incontinence, carotid artery stenosis, claimed as blockage of right and left internal carotid artery (ICA), a mass in his frontal lobe and headaches, congestive heart failure (CHF) (also claimed as shortness of breath, fainting, dizziness and lightheadedness), a vision disorder, and shin splints, due to his service. He argues, in part, that he fell of about 25 feet from a telephone pole during advanced training, in which he injured his feet, legs, arms and back. See Veteran's claim, received in July 2005, appeal (VA Form 9), received in February 2009, and Veteran's statement, received in July 2009. He also argues that he sustained head trauma during pugil stick training at Parris Island. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Congenital or developmental defects, e.g., refractive error of the eyes, as such, are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303(c) (2012); see also 38 C.F.R. § 4.9 (2012); Beno v. Principi, 3 Vet. App. 439 (1992). The VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section B provides guidance on evaluating conditions of the organs of special sense (i.e., the eyes). Refractive errors are defined to include astigmatism, myopia, hyperopia, and presbyopia. See M21-1MR, Part III, Subpart iv, 4.B.10.d. "Presbyopia is described as 'hyperopia and impairment of vision due to advancing years or to old age; it is dependent on diminution of the power of accommodation from loss of elasticity of the crystalline lens, causing the near point of distinct vision to be removed farther from the eye'." Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003) (citing to DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1453 (29th ed. 2000)). Based on the law discussed, the term "eye disability" is not intended to include refractive error of the eyes. The Veteran's service treatment reports show that in March 1975, he was treated for complaints of a 11/2 -week history of stomach and back pain. He denied a history of trauma. The impression was muscle strain. In April 1975, the Veteran complained of stomach pains, and reported a history of falling 10 to 12 feet and landing on his back, and breaking his wrist. He complained that he could not hold his water, and that he urinated on himself. In June 1975, the Veteran requested a "no-shaving" chit, and that he was noted to have PFB. The Veteran's separation examination report, dated in January 1976, shows that his face, head, neck, eyes, ophthalmoscopic examination, pupils, and ocular motility, heart, anus and rectum, G-U (genitourinary) system, feet, lower extremities, and skin, were clinically evaluated as normal. His uncorrected distant vision was noted to be 20/20 (right) and 20/25 (left), with "no rx" (prescription) NCD (not considered disabling). In an associated "report of medical history," he denied having a history of swollen or painful joints, frequent or severe headaches, head injury, eye trouble, skin diseases, pain or pressure in chest, heart trouble, intestinal trouble, rectal disease, frequent or painful urination, history of bed-wetting since age 12, arthritis, recurrent back pain, or foot trouble. The Veteran's service personnel records include a memorandum, dated in December 1975, which states that the Veteran's duty performance had been satisfactory, but that he had a "malady" which "interferes with his performance of duty." The memorandum states that he had an "Improper fit of his gas mask with facial hair, and irritation form prolonged wearing of gas mask would only serve to aggravate his condition." The memorandum states that his condition would cause him to be in direct violation of present grooming standards. Associated service reports indicate that the Veteran was discharged as a result of this memorandum. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 1996 and 2011, and SSA records. VA reports show that in 1996, the Veteran was treated for complaints of chest pain, with a two-year history of private treatment. He also reported having urinated some blood in early 1996. The impressions were acute gastritis, rule out peptic ulcer disease, and probable UTI (urinary tract infection). An electrocardiogram (EKG) was noted to show sinus bradycardia, otherwise normal. He was noted to have left-sided myalgia/myofascial pain syndrome. Reports, dated in 1997, show treatment for complaints of chest pain and back pain. Reports, dated in 1998, note that he was overweight, and show that a CT (computerized tomography) of the head was negative. Reports, dated in 1999, show treatment for complaints of head, back and cervical/neck pain, headaches, and blurred vision. He underwent a cervicocerebral angiogram, which indicated no stenosis or aneurysm, but possible focal soft plaque at high right ICA. His diagnoses included osteoarthritis of the spine, ICA (possibly on the right). MRIs (magnetic resonance imaging) of the cervical and lumbar spines showed mild degenerative arthritic change in the cervical spine, and a bulge at L3-4 and L4-5. An April 1999 CT of the head shows a normal study, with no evidence of enhancing mass lesion. Reports, dated in December 1999, show that the Veteran reported a six-year history of back pain, as well as a history of back pain "about 7 years," and, alternatively, since 1985. Between December 1999 and January 2000, the Veteran was hospitalized for neck and back pain, with an MRI study showing a disc bulge at L3-4, and a normal cervical spine. The impression was myofascial back pain. A February 2005 CT scan for the head contains an impression noting an essentially normal scan, with possible minimal frontal lobe atrophy, and no evidence of CVA (cerebrovascular accident). A February 2005 report notes that a December 2003 carotid ultrasound had been normal, and that the Veteran was referred by psychiatric referral. A March 2005 report notes that the Veteran had complained of chest pain that was determined to by atypical with low probability of ischemia. A July 2005 report notes that the Veteran stated that he had formerly worked on a railroad line. Reports, dated in 2006, note carotid artery stenosis, degenerative discs of the lumbar and cervical spines, and a history of headache. Reports, dated in January and February of 2006, note complaints of back pain that had existed "for several years." A March 2010 report notes a history of bowel and bladder incontinence. A May 2010 report shows that the Veteran reported a history of a head injury. Reports, dated in 2000, show treatment for bladder symptoms and visual blurring. Reports, dated in February and March of 2011, note complaints of back pain following a fall down some steps. A March 2011 report shows that the Veteran reported a family history of MI (myocardial infarction)/heart disease/coronary artery disease, on his father's side. Other VA reports contain notations of hypertension, hyperlipidemia, urinary incontinence, cervical radiculopathy, spinal stenosis of the lumbar region, pes planus, astigmatism, presbyopia, and lumbar radiculopathy, and that he was given a prescription for glasses for refractive error. See e.g., VA progress notes, dated in February and June 2011. Reports from the Flowers Hospital, dated in 2002, show that the Veteran was admitted with complaints of chest tightness that had existed "for several years," with shortness of breath that had been constant for about 12 to 13 months. He was noted to have a history of mild carotid artery disease, and hyperlipidemia. A chest X-ray and resting EKG were normal. The discharge diagnoses were chest pain with essentially normal coronary arteries, history of asthma, and hypertension. A VA spine examination report, written by B.B., M.D., dated September 26, 2011, shows that Dr. B.B. stated that the Veteran's claims file had been reviewed. The diagnosis was osteoarthritis, lumbar spine, due to aging. The date of the diagnosis is listed as "1999." Dr. B.B. indicated that the claimed condition is less likely than not (less than a 50 percent probability) incurred in or caused by the Veteran's service. Dr. B.B. explained that service treatment reports show treatment for back and stomach pain in 1975, and that there was no documentation in the service treatment reports to show an abnormality of the lumbar spine. Dr. B.B. further stated that the Veteran has developed multi-level disc disease and lumbar spondylosis as a process of aging, and that there was no documentation to support the claim. Another opinion by Dr. B.B., dated September 26, 2011, shows that Dr. B.B. stated that the Veteran's claims file had been reviewed. The Veteran asserted that he had an incontinence problem that was related to arthritis of the spine, and a disorder of his spinal discs. Dr. B.B. stated the following: there was no documentation of genitourinary problems in the Veteran's service treatment reports. Following service, in 2008, VA reports show subjective complaints of urinary incontinence. There was no objective evidence in VA reports to show genitourinary problems. The physician determined that an examination was not necessary. Dr. B.B. concluded that there was no evidence to diagnose urinary incontinence. She explained that there was no evidence in service treatment reports of genitourinary problems, and no documentation to show a current genitourinary problem, specifically, no objective documentation to show urinary incontinence. Reports from the SSA indicate that the Veteran's claim for SSI (Social Security Insurance) claim was granted in November 2008. An associated report indicates that he had a primary diagnosis of ischemic heart disease. The Board will first address several preliminary matters. In September 2012, the Veteran submitted a prospective written waiver of initial RO review of any evidence submitted. That same month, the Veteran submitted additional evidence, to include service department records and VA and non-VA medical reports, to the Board. Accordingly, a remand is not required. See 38 C.F.R. § 20.1304 (2012). In July 2002, the RO denied a claim for service connection for pseudofolliculitis barbae (PFB), and this decision was sent to the Veteran by way of a cover letter, dated in August 2002. A timely notice of disagreement was received in September 2002, and in July 2003, the RO issued a statement of the case. In October 2003, a substantive appeal (VA Form 9) was received, however, this substantive appeal was untimely, and the RO's August 2002 decision therefore became final. See 38 U.S.C.A. § 7105(c) (West 2002). In July 2005, the Veteran filed to reopen the claim. In March 2006, the RO determined that new and material evidence had not been submitted, and declined to reopen the claim. The Veteran has appealed. In September 2012, the Veteran submitted additional service department records, to include a December 1975 memorandum which indicates that he was released from active duty due to issues with his facial hair. Given the foregoing, this is a case where additional relevant official service department records were received subsequent to the prior final rating decision that denied service connection for PFB. The Board finds that this evidence is relevant because it documents the reasons that the Veteran sought treatment during service. Under such circumstances, there is no need to undertake a new and material evidence analysis to determine if the claim should be reopened. 38 C.F.R. § 3.156(c) specifically provides that in such a case the claim will be reconsidered. Accordingly, the Board finds that the issue of entitlement to service connection for PFB is in appellate status under a merits analysis. As a final preliminary matter, the Board finds that the Veteran is not a credible historian. The Veteran asserts that the claimed conditions are all related to his service, to include as due to a fall of about 25 feet in which he injured his feet, legs, arms and back. However, with the exception of PFB, one complaint of being unable to hold his urine, and one treatment for stomach and back pain, service treatment reports do not show any relevant treatment. None of the claimed conditions was shown upon separation from service, and at that time he denied having any relevant symptoms. Furthermore, these claims were not filed until 2005, many years after service, and several years after he filed other service connection claims (in 1999 and 2001). To the extent that he argues he has a back condition due to his service, VA progress notes dated in December 1999 contain three notations showing that he reported that his back pain had begun in 1985, or that his back pain had existed for 6 to 7 years. Reports from the SSA show that the Veteran reported that he had arthritis of the spine, and congestive heart failure, that first interfered with his ability to work in 1995. Finally, VA progress notes show that the Veteran has reported having both audio and visual hallucinations, and that he has been diagnosed with a psychosis. See e.g., reports, dated in October 2010 and February 2011. The Board therefore finds that he is not a credible historian. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). The Board further finds that the claims must be denied. With regard to the claims for pseudofolliculitis barbae, congestive heart failure, bowel and bladder incontinence, a frontal lobe mass, vision problems, and shin splints, the Board finds that the preponderance of the evidence shows that the Veteran does not currently have these disabilities. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. §§ 1110 and 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). With the exception of pseudofolliculitis barbae, none of these conditions are shown during service. With regard to all of these claims, none of them are shown after service. In this regard, the 2002 Flowers Hospital reports show that although the Veteran complained of chest pain, he had essentially normal coronary arteries. VA progress notes contain some notations of a history of "headache and tumors," however, the Veteran's CT scans of his head have not shown tumors, nor are tumors otherwise shown at any time from the filing of his claim. See generally McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication). Dr. B.B.'s September 2011 opinion specifically states that the Veteran does not have urinary incontinence. To the extent that the Veteran is shown to have astigmatism, and presbyopia, these are not "disabilities" for which service connection may be granted. 38 C.F.R. §§ 3.303(c), 4.9; Beno. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran does not have these disabilities, and that these claims must be denied. With regard to the claims for a spine disability, carotid artery stenosis, flat feet, and headaches, during service, in April 1975, the Veteran complained that he could not hold his water, and that he urinated on himself. There was no diagnosis. None of these conditions were shown upon separation from service, and the Veteran denied having any relevant symptoms at that time. The earliest post-service medical evidence of any of these conditions is dated ne earlier than 1996. This is about 20 years after separation from service. As was noted earlier and consistent with the reasoning already set forth, the Veteran has been found not credible. Therefore, this lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claims. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In addition, there is no competent medical evidence to show that the Veteran has any of these conditions that are related to his service. In this regard, the only competent opinion is contained in the September 2011 VA examination report, and this opinion weighs against the claim for a spine condition. This opinion is considered to be highly probative evidence against the claim, as it is shown to have been based on a review of the Veteran's medical records, and it is accompanied by a sufficient rationale. See Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Finally, there is no competent evidence to show that the Veteran had arthritis of the spine that was manifest to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. With respect to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. 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). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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, (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 (Fed. Cir. 2007). In this case, the issues on appeal are based on the contentions that the claimed conditions were caused by service that ended in 1976. Except for the claims involving PFB, vision problems, bowel and bladder incontinence, and shin splints, the Veteran would not normally have the requisite skills, knowledge, or training, to be competent to provide a diagnosis of any of the claimed conditions, or to state whether the claimed conditions were caused by his service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, the Veteran has been found not to be credible. Except for PFB, the Veteran was not found to have any of the claimed conditions during service, nor were any of the claimed conditions noted upon separation from service. The post-service medical records do not show any relevant treatment or diagnoses prior to 1996. The Board has determined that pseudofolliculitis barbae, congestive heart failure, bowel and bladder incontinence, a frontal lobe mass, vision problems, and shin splints, are not shown. As to any currently diagnosed disabilities claimed to be associated with service, there is no competent or credible lay or medical evidence of a nexus between any of the claimed conditions and the Veteran's service. Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweighs the Veteran's contentions to the effect that he has the claimed conditions that are related to his service. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in November 2005, and September 2011. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's service treatment reports, and his VA and non-VA medical records. With regard to the claim for a spine disability, the Veteran has been afforded an examination, and an etiological opinion has been obtained. With regard to the claims for flat feet, carotid artery stenosis, a mass in his frontal lobe and headaches, congestive heart failure, a vision disorder, and shin splints, the Veteran has not been afforded examinations, and etiological opinions have not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. With regard to the first McLendon criterion, the Board has determined that pseudofolliculitis barbae, congestive heart failure, bowel and bladder incontinence, a frontal lobe mass, vision problems, and shin splints, are not currently shown. With regard to the second McLendon criterion, with regard to all claims except the claim for PFB, and although there was one complaint of urinary symptoms, the Veteran's service treatment reports do not show any relevant treatment, findings, or diagnoses. Therefore, the second McLendon criterion is not satisfied as to all claims except the claim for PFB. With regard to the third McLendon criterion, and the claims for carotid artery stenosis, and headaches, the Board has determined that the earliest medical evidence of either of these disorders is dated no earlier than 1996. For all claims, there is no competent evidence to show that any of the claimed disorders are related to service, which ended in 1976. Therefore, the third McLendon criterion is not satisfied. Given the foregoing, examinations, and etiological opinions, need not be obtained. McLendon; see also 38 C.F.R. § 3.159(c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). In August 2011, the Board remanded these claims. The Board directed that the Veteran be provided with notice as to a new and material claim for PFB, as required by Kent v. Nicholson, 20 Vet. App. 1 (2006). However, as the Board has determined that this issue is to be considered on the merits based on application of 38 C.F.R. § 3.156(c), no further discussion is warranted. The remand also stated that the Veteran was to be provided notice regarding the bases for assigning disability ratings and effective dates for his claims, as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a duty-to-assist letter, dated in September 2011, this was done. The Board's remand directed that the Veteran's complete treatment records from the VAMC in Augusta, Georgia, and from the Central Alabama Veterans Healthcare System (Tuskegee and Montgomery facilities), dated since February 2006, were to be obtained. This has been done. All medical and legal documents pertaining to the Veteran's applications for SSA disability benefits were to be obtained. This has been done. The AMC was to request clarification from the Veteran as to which of the medical providers listed on a July 2005 VA Form 21-4142 are non-VA; thereafter, obtain the requisite authorization for the release of records from any identified non-VA provider. The September 2011 duty-to-assist letter was in compliance with this directive, however, in a response received that same month, the Veteran did not identify any additional non-VA providers. The Veteran was to be scheduled for a VA orthopedic and genitourinary examinations, to include etiological opinions. That same month, the Veteran was provided with an examination of his spine; the examiner determined that a genitourinary examination was not required. An etiological opinion was obtained as to the Veteran's claim for a spine disability. Under the circumstances, the Board finds that there has been substantial compliance with the Board's remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs