Citation Nr: 1315288 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 09-11 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for an abnormal PAP smear, status post colposcopy. 2. Entitlement to service connection for a right wrist ganglion cyst and right hand numbness. 3. Entitlement to service connection for a right great toe and right foot disability. 4. Entitlement to service connection for a right shoulder disability. 5. Entitlement to service connection for a left shoulder disability. 6. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from October 1978 to October 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Seattle, Washington, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefits sought. The Board has recharacterized the issues with respect to the right great toe and foot, and the right hand numbness and right wrist ganglion cyst, to consolidate the claims to better reflect the Veteran's contentions and the evidence of record. In March 2009, the Veteran requested a hearing before a Veterans law Judge, to be held via videoconference from the RO. Such hearing was repeatedly rescheduled to accommodate the Veteran. However, as of February 2013, she has stated that she no longer desires a Board hearing. FINDINGS OF FACT 1. There is no current disability associated with documented abnormal PAP smears in service. 2. The Veteran failed to report for a necessary VA examination scheduled in connection with her claims. 3. There is no competent and credible evidence showing a nexus between current right hand and wrist neurological problems and service. 4. There is no competent and credible evidence showing a nexus between current right great toe and foot problems and service. 5. There is no competent and credible evidence showing a nexus between current right shoulder problems and service. 6. There is no competent and credible evidence showing a nexus between current left shoulder problems and service. 7. There is no competent and credible evidence showing a nexus between current low back problems and service. CONCLUSIONS OF LAW 1. The criteria for service connection of an abnormal PAP smear are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection of a right wrist ganglion cyst and right hand numbness are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for service connection of a right great toe and right foot disability are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 4. The criteria for service connection of a right shoulder disability are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 5. The criteria for service connection of a left shoulder disability are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 6. The criteria for service connection of a low back disability are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A September 2007 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and select private treatment records have been obtained; she did not identify any VA treatment records pertinent to the appeal. With regard to private records, VA repeatedly sought records from those providers identified by the Veteran, but received either no or an incomplete reply. The Veteran was properly informed, in June 2012 correspondence, of the missing records. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). With regard to the claimed orthopedic and neurological conditions, the veteran as scheduled for a VA examination in August 2012. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, although notice was sent to the Veteran's address of record in the normal course of business, she failed to report for the scheduled examinations, without explanation or any attempt to reschedule. No examination was scheduled in connection with the Veteran's gynecological claim, as the competent and credible evidence of record does not indicate any current disability, and hence no examination is necessary for adjudication of the matter. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A nexus may also, in the case of certain specifically listed diseases, be presumed if the disability manifested to a compensable degree within the applicable presumptive period. Arthritis is such a condition; the presumptive period is one year following separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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). 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 the claimant. Abnormal PAP Smear The term "disability," as used for VA purposes, refers to a condition resulting in an impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). A PAP smear is a diagnostic test used to detect "various conditions, particularly malignant and premalignant conditions of the female genital tract (cancer of the vagina, cervix, or endometrium)." Dorland's Illustrated Medical Dictionary 1897 (32th Ed. 2012). It is not, in and of itself, a disease or disability, and hence is not service-connectable. Such would be the equivalent of service-connecting an x-ray or MRI. That said, service connection would be available for any condition diagnosed as a result of the abnormal test. The hypothetical x-ray could reveal a fracture, which would then be subject to compensation. Here, however, although the Veteran has at various times had abnormal PAP smears recorded, no chronic gynecological condition has been diagnosed. She is monitored for a risk of cervical cancer, based upon the history of abnormal PAP smears, but the evidence of record does not reveal any current disability. The limited private medical records received by VA, covering the period of August 2008 to September 2009, include numerous gynecology treatment notes, all of which report no current disabilities or diagnoses related to the in-service abnormal PAP smears. Similarly, service records showing an abnormal PAP smear marked by benign squamous epithelial cells in 1995 reveal no diagnosis of chronic disability; exploratory colposcopy showed no current condition. Additionally, the Board notes that the post-service records indicate that there has been no repetition of the abnormal testing since discharge. Repeated PAP smears in 2008 and 2009 are reported as normal. In repeated statements detailing her claims, the Veteran has not reported any current chronic gynecological condition. Simply put, there is no current disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The preponderance of the evidence is against the claim; there is no doubt to be resolved. All the competent evidence of record is in agreement that metabolic syndrome is not a disability for VA purposes. Orthopedic and Neurological Disabilities As the analyses with regard to the claims of service connection for a right wrist ganglion cyst and right hand numbness, a right great toe and right foot disability, a right shoulder disability, a left shoulder disability, and a low back disability are substantially identical, they are discussed together. Service connection requires a showing of a disease or injury in service, a current disability, and a nexus between the two. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For each of the currently claimed disabilities, service treatment records reflect some injury or complaint while on active duty. A ganglion cyst was diagnosed in the right wrist. The Veteran sustained two injures to the right foot and toe when objects fell onto or rolled over them. She reported bilateral shoulder pain in service, and tendonitis was diagnosed on the left. She fell on two occasions and injured her back, reporting muscular pain. Further, the Veteran has competently reported the presence of current disabilities of the right foot, right hand and wrist, bilateral shoulders, and low back. She has not merely reported the presence of pain or discomfort; she has cited diagnoses and testing results by several doctors, and has reported specific diagnoses for each claimed joint or affected body part. Although VA has generally been unsuccessful in obtaining supporting documentation of her reports from the private doctors, those records which have been received, for 2008 and 2009, do corroborate her allegations in part. Left shoulder bursitis is diagnosed, for example, and allegations regarding hypertension (which is not at issue here) were confirmed. Her statements are sufficient at this time to show, for purposes of argument, the presence of current disabilities. A Veteran is competent to report signs and symptoms she experiences, and can report the statements and diagnoses of medical professionals. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Neither requires application of any specialized knowledge or training. However, the Veteran's lay statements, while competent for purposes of showing current disability, are not competent to show the final element of service connection in this instance: a nexus to service. This is not a situation where a cause and effect relationship is readily observable, such as with an explosion and tinnitus, or fractured bone. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (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). Here, seven years passed between separation from service and the first filing of a claim for benefits, and the first associated reports of current disability. No contemporaneous records from 2000 to 2007 have been secured to corroborate her claims. There is therefore no evidence of reported diagnoses of arthritis of any joint within the first post service year, which is the applicable presumptive period, and hence no nexus can be shown on that basis. 38 C.F.R. §§ 3.307, 3.309. VA had requested a series of examinations in connection with these claims, and had directed the examiner to offer a reasoned medical opinion regarding any causal relationship between current disabilities and service, but the Veteran failed to report for that examination in August 2012. The examination request listed her current address, and it is presumed that in the regular course of business the VA contractor contacted her at that address and informed her of the time and place of examination. VA Adjudication Manual M21-1MR, III.iv.3.B.14.d; Kyhn v. Shinseki, 24 Vet. App. 228, 232 (2011). Moreover, even if VA for some unknown reason deviated from normal practice in this case, the Veteran was notified of the failure in the December 2012 supplemental statement of the case, and of the consequences of such. She did not, however, request rescheduling or offer any explanation of her failure. Where a Veteran fails to report for a necessary examination in connection with an original claim, the claim is adjudicated on the evidence of record. 38 C.F.R. § 3.655. In the absence of the requested medical examinations and opinions, there is no competent evidence of a nexus between the current disabilities and service, and service connection cannot be granted. The Veteran has argued, through her representative, that service connection for a left shoulder disability, at least, should be granted based on a showing of a chronic diagnosis in service and current complaints "related to the same condition." However, service record show a diagnosis of tendinitis. Post-service records document bursitis and arthrosis; the Veteran has also reported the development of arthritis. The in-service and post-service diagnoses are not the same condition. While they may be related in some fashion, such is not clear based on the evidence of record. The Veteran was not diagnosed with a listed chronic disease in service, such as osteoarthritis, and hence the lay statements regarding left shoulder symptoms are not sufficient to show a link between service and current disability. Continuity of symptomatology affords a route to service connection only for specific chronic diseases. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). No listed condition is shown in service, and there is no clear diagnosis of one even now. The same applies to each claimed orthopedic and neurological condition. The preponderance of the evidence is against the claims; there is no doubt to be resolved. Service connection is not warranted for a right wrist ganglion cyst and right hand numbness, a right great toe and right foot disability, a right shoulder disability, a left shoulder disability, or a low back disability. ORDER Service connection for an abnormal PAP smear, status post colposcopy, is denied. Service connection for a right wrist ganglion cyst and right hand numbness is denied. Service connection for a right great toe and right foot disability is denied. Service connection for a right shoulder disability is denied. Service connection for a left shoulder disability is denied. Service connection for a low back disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs