Citation Nr: 1312962 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-29 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for eye problems, also characterized as proptosis. 2. Entitlement to service connection for dermatitis, also characterized as pseudofolliculitis barbae (PFB) shaving problems. 3. Entitlement to service connection for residuals of a second-degree burn on the right hand. 4. Entitlement to service connection for bilateral arm muscle strain. 5. Entitlement to service connection for hemorrhoids. 6. Entitlement to service connection for a left knee disability. 7. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from July 1990 to January 1992. The Veteran also had prior Reserve service. These matters come before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veteran Affairs (VA), Regional Office (RO), in Nashville, Tennessee, which denied the benefits sought on appeal. This appeal is part of the VA's Expedited Claims Adjudication (ECA) initiative, a pilot program designed to accelerate claims and appeals processing. In March 2012, this appeal was remanded in order to schedule the Veteran for a Travel Board hearing. In July 2012 correspondence, the Veteran indicated that he wanted to withdraw his request for such hearing. The issues of entitlement to service connection for right and left knee disabilities 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. VA will notify the Veteran if any action on his part is required. FINDINGS OF FACT 1. An eye problem, also characterized as proptosis is not currently diagnosed. 2. Dermatitis, also characterized as PFB shaving problems is not currently diagnosed. 3. Residuals of a second-degree burn on the right hand are not currently diagnosed. 4. A bilateral arm muscle strain is not currently diagnosed. 5. Hemorrhoids are not currently diagnosed. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an eye problem, also characterized as proptosis have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for entitlement to service connection for dermatitis, also characterized as PFB shaving problems have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. The criteria for entitlement to service connection for residuals of a second-degree burn on the right hand have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 4. The criteria for entitlement to service connection for a bilateral arm muscle strain have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 5. The criteria for entitlement to service connection for hemorrhoids have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Regarding the claims decided herein, proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, 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 Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in November 2009 that fully addressed all notice elements. The letter provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service personnel records, service treatment records, and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file, to include the Veteran's electronic Virtual VA file, contains his service treatment records, as well as post-service reports of VA treatment records. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no additional available outstanding evidence has been identified. Notably, the Veteran indicated in December 2009 correspondence that he had no additional information to submit. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was not afforded a VA examination. The Board finds that a VA examination is not essential in this case. While the Veteran's service treatment records include complaints of bilateral arm muscle strain; external hemorrhoids; second-degree burn on the right hand; and dermatitis, on service separation examination, the Veteran offered no complaints of any current disability, and clinical evaluation of the Veteran's systems were essentially normal. While, the Veteran's separation examination documented mild proptosis with a recommendation for screening for Grave's disease and glaucoma; postservice treatment records document no screening or current disability related to Grave's disease, glaucoma, or any other vision disorder. Furthermore, there is no postservice treatment documenting any current bilateral arm muscle strain, hemorrhoids, residuals of a second degree burn; or skin disability. Based upon this information, the Board finds that an examination for these disorders is not necessary. Id. Accordingly, all reasonable efforts have been undertaken by VA with respect to the instant appeal, and no further development is required under these circumstances. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Analysis Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran seeks service connection for bilateral arm muscle strain, an eye disability, hemorrhoids, dermatitis, and residuals of a second-degree burn on the right hand. He asserts that his disabilities "began in service and became more painful". Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2011). When the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for bilateral arm muscle strain, an eye disability, hemorrhoids, dermatitis, and residuals of a second-degree burn on the right hand. Simply stated, the competent medical evidence of record does not demonstrate that the Veteran currently suffers from any of these disabilities. Significantly, while the Veteran's service treatment records include complaints of bilateral arm muscle strain (January 1991); external hemorrhoids (December 1990); second-degree burn on the right hand (September 1991); and dermatitis (August 1990 and January 1991), on December 1991 service separation examination, the Veteran offered no complaints of any current disability, and clinical evaluation of the Veteran's systems were essentially normal. Furthermore, while, the Veteran's December 1991 separation examination documented mild proptosis with a recommendation for screening for Grave's disease, glaucoma, the Veteran denied any eye trouble. Postservice VA treatment records dated from August 2004 through January 2010; and from January 2012 through September 2012 show no complaints of or specific treatment for bilateral arm muscle strain, an eye disability, hemorrhoids, dermatitis, and residuals of a second-degree burn on the right hand. Specifically, in a November 2009 VA history and physical record, the Veteran denied having any eye problems, skin problems, musculoskeletal problems (muscle aches), or rectal problems. Physical examination revealed that the Veteran's eyes were normal; there was no muscle mass; the rectum was normal; and his skin was normal without any rashes, bruises, or skin lesions. The only evidence that the Veteran currently suffers from any of these disabilities is a vague statement regarding pain, from the Veteran in conjunction with his notice of disagreement. The record lacks any evidence of a diagnosed disability associated with the Veteran's bilateral arm muscles, eyes, rectum, skin, and right hand. The Court has held that 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, 13 Vet. App. at 285. As indicated above, current disability is required in order to establish service connection. Brammer, 3 Vet. App. at 225. Further, there is no evidence that the Veteran had the claimed disabilities at any time from when he first filed his claims for service connection. McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, in the absence of an identifiable disability of the bilateral arm muscles, eyes, rectum, skin, and right hand, service connection for bilateral arm muscle strain, an eye disability, hemorrhoids, dermatitis, and residuals of a second-degree burn on the right hand is denied. 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). ORDER Service connection for eye problems, also characterized as proptosis is denied. Service connection for dermatitis, also characterized as pseudofolliculitis barbae (PFB) shaving problems is denied. Service connection for residuals of a second-degree burn on the right hand is denied. Service connection for bilateral arm muscle strain is denied. Service connection for hemorrhoids is denied. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the right and left knee claims can be properly adjudicated. A February 1990 pre active service record associated with the Veteran's service treatment records documents a three-to-four year history of insidious onset of bilateral knee pain. Bilateral patella tendonitis was diagnosed and the Veteran was to be fitted for a patella support brace. The Veteran was seen on multiple occasions during his active service for bilateral knee pain (see March 1991, August 1991, and November 1991 service treatment records). Postservice VA treatment records show ongoing complaints and treatment for bilateral knee disability. An October 2006 VA bilateral knee X-ray revealed mild degenerative changes. On December 2009 VA physical therapy treatment record, the Veteran reported chronic bilateral knee pain for over 20 years. Specifically, a remand is needed to afford the Veteran a VA examination and medical opinion to determine the etiology of his currently diagnosed bilateral knee degenerative changes. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, any ongoing VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Virtual VA has been reviewed and additional records dated through September 2012 have been uploaded. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all updated VA treatment records. 2. Thereafter, afford the Veteran a VA examination for bilateral knee degenerative changes, with an appropriate examiner. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file. After the claims file is reviewed, the examiner should offer comments and an opinion addressing the following: a) Is there clear and unmistakable evidence that the Veteran's current bilateral knee degenerative changes existed prior to service? b) If bilateral knee degenerative changes clearly and unmistakably pre-existed service, did it undergo a permanent worsening in service? If so, was that permanent worsening the result of the natural progress of the disorder? The examiner must consider the Veteran's lay statements regarding his symptoms in service. Whether these statements make sense from a medical point-of-view must be considered and discussed in the opinion. c) If bilateral knee degenerative changes did not clearly and unmistakably pre-exist service, is it at least as likely as not (probability of 50 percent or more) that the symptomatology shown during service (chronic bilateral knee pain) is causally or etiologically due to his bilateral knee degenerative changes? Again, the Veteran's lay statements in this regard must be considered. In doing so, the examiner must acknowledge symptoms experienced prior to active duty, during active duty, and after discharge from service, and discuss lay and medical evidence of a continuity of symptomatology. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. If it is not possible to provide the requested opinions without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinions. 3. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of his case. 4. After all of the above actions have been completed, readjudicate the claims. If the claims remain denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. 5. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs