Citation Nr: 1306147 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-29 228 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for a left ankle disorder. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to service connection for a left shoulder disorder. 5. Entitlement to service connection for a left hip disorder. 6. Entitlement to service connection for a neck (cervical spine) disorder. 7. Entitlement to a rating in excess of 10 percent for the service-connected tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active military service from October 2004 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the RO. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of entitlement to service connection for a right knee, right elbow and right hip disorders have been raised by the record, but 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. FINDINGS OF FACT 1. The evidence of record does not demonstrate a current right ankle disability. 2. The evidence of record does not demonstrate a current left ankle disability. 3. The evidence of record does not demonstrate a current left knee disability. 4. The evidence of record does not demonstrate a current left shoulder disability. 5. The evidence of record does not demonstrate a current left hip disability. 6. The evidence of record does not demonstrate a current cervical spine disability. 7. The Veteran's bilateral tinnitus is assigned the maximum schedular evaluation and does not present an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization. CONCLUSIONS OF LAW 1. The Veteran is not shown to have a current right ankle disorder due to disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The Veteran is not shown to have a current left ankle disorder due to disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. The Veteran is not shown to have a current left knee disorder due to disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 4. The Veteran is not shown to have a current left shoulder disorder due to disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 5. The Veteran is not shown to have a current left hip disorder due to disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 6. The Veteran is not shown to have a current neck (cervical spine) disorder due to disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 7. The criteria for an increased evaluation for service-connected tinnitus have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §4.87, DC 6260 (2012); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an October 2008 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports. The VA examination was adequate, despite the lack of claims file review, as it provided supporting rationale for its findings and was based upon examination of the Veteran. Because the examiner determined there were no diagnoses, review of the VA medical records was irrelevant as those records did not provide any diagnoses. The tinnitus examination as adequate as it elicited information from the Veteran regarding the presence and severity of his ringing in the ears. Regarding the increased evaluation claim, "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled." Dingess/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, section 5103(a) notice is no longer required). Additionally, where service connection has been granted, the claimant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements such as effective dates or disability ratings. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran has made no such assertions here. The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, 1377 (Fed. Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009); Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir.2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Veteran's service treatment records reflect that in June 2006, he complained of right ankle pain in the Achilles tendon. Objectively, there was some swelling along the right Achilles tendon. The diagnosis was tendonitis. In a June 2007 post-deployment health reassessment, the Veteran reported that he had rolled his ankle. In an August 2008 service treatment record, he complained of pain in his left upper back and neck. The diagnosis was rhomboid muscle spasm. In the August 2008 Report of Medical History associated with his separation examination, the Veteran recurrent back pain, swollen or painful joints and knee trouble. The physician noted, in relevant part, intermittent ankle pain. The August 2008 Separation Examination was unremarkable. Subsequent to service, the Veteran contends that he has current right ankle, left ankle, left knee, left shoulder, left hip and neck (cervical spine) disorders causally related to his period of active service. However, there is simply no evidence of current right ankle, left ankle, left knee, left shoulder, left hip and neck (cervical spine) disorders. In this regard, in the November 2008 report of VA examination, despite the Veteran's complaints, the examiner expressly found that there were no diagnoses for the right ankle, left ankle, left knee, left shoulder, left hip and neck (cervical spine) disorders. The examiner noted the Veteran's subjective complaints, but stated that the findings did not support the assignment of a diagnosis for any of the claimed disorders. The Board notes that further diagnostic testing was ordered in 2010, but the Veteran failed to appear for that testing in 2011. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (stating that "the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Without a current disability, service connection for a right ankle, left ankle, left knee, left shoulder, left hip, and/or neck (cervical spine) disability is simply not warranted. Entitlement to service connection is expressly limited to cases where disease or injury has resulted in disability. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.310. Thus, where, as here, medical evidence does not establish that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the instant case, the claims for service connection for right ankle, left ankle, left knee, left shoulder, left hip and neck (cervical spine) disorders must be denied, because the first essential criterion for a grant of service connection, evidence of a current disability upon which to predicate a grant of service connection, has not been met. Neither the Veteran nor his representative has identified, presented, or alluded to the existence of any medical evidence or opinion to contradict that provided by the VA examiner (which was based on a review of the entire claims file). The only evidence of record supporting the Veteran's claims is his various general lay assertions. Although the Veteran is competent to provide evidence of visible symptoms, he is not competent to provide evidence that requires medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, the Board finds the objective medical evidence to be more probative than his lay assertions in determining that he does not have current diagnosed right ankle, left ankle, left knee, left shoulder, left hip and neck (cervical spine) disorders. For the foregoing reasons, the Board finds that the claims of service connection for right ankle, left ankle, left knee, left shoulder, left hip and neck (cervical spine) disorders 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 claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Rating Tinnitus is evaluated under 38 C.F.R. § 4.87, DC 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260, note 2 (2007). In Smith v. Nicholson, 19 Vet. App. 63 (2005), the U. S. Court of Appeals for Veterans Claims (Court) reversed a Board decision that found that, under pre-June 2003 regulations, no more than a single 10-percent rating could be provided for tinnitus, whether perceived as bilateral or unilateral. The Court held that pre-1999 and pre-June 13, 2003, versions of DC 6260 required that VA assign separate 10-percent ratings for "bilateral" tinnitus where it was perceived as affecting both ears. VA appealed the Court's decision in Smith to the United States Court of Appeals for the Federal Circuit (Federal Circuit). The Federal Circuit reversed the Court's decision in Smith, and affirmed VA's long-standing interpretation of DC 6260. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit cited to the significance of VA's interpretation of its own regulations and concluded that the Court erred in not deferring to that interpretation, which in this case would limit the rating of tinnitus to a single evaluation regardless of whether the disability was unilateral or bilateral in nature. The Federal Circuit similarly noted that there was no language in the applicable diagnostic criteria clearly indicating that dual evaluations were required. Id. In view of the Federal Circuit's decision in Smith, the interpretation of the pre- 2003 version of DC 6260 potentially asserted by the Veteran must be rejected. In this case, the 10 percent rating is the maximum schedular rating the Veteran can receive for his service-connected tinnitus. Further, the Board has found no other applicable diagnostic codes for which any higher rating for the Veteran's service-connected tinnitus could be assigned. See 38 C.F.R. § 4.87. For these reasons, the Board finds that the assertions of the Veteran are without legal merit, and the claim for an increased rating for the service-connected tinnitus must be denied in this case. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). Additionally, the Board finds that at no point has the disability been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The symptoms, effects, and overall disability picture from the Veteran's tinnitus are contemplated by the 10 percent rating, which takes account of both the individual symptoms and the overall impairment caused by the tinnitus. This is because the Veteran's tinnitus and the diagnostic code both reflect ringing in the bilateral ears. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the Veteran has not asserted that the tinnitus causes marked interference with his employment. At the VA examination, the Veteran reported he had to move closer to people in order to hear what they are saying. Thus, the evidence does not reflect that the effect of the tinnitus on the Veteran's employment caused marked interference with employment, i.e., beyond that contemplated by the assigned 10 percent rating. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability"). Moreover, there is no evidence of frequent hospitalization, or indication that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for tinnitus is not warranted. 38 C.F.R. § 3.321(b)(1). In reaching the foregoing conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating for the service-connected tinnitus that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). ORDER Entitlement to service connection for a right ankle disorder is denied. Entitlement to service connection for a left ankle disorder is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for a left hip disorder is denied. Entitlement to service connection for a neck (cervical spine) disorder is denied. Entitlement to a rating in excess of 10 percent for the service-connected tinnitus is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs