Citation Nr: 1317372 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 06-05 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for residuals of a right elbow injury. 2. Entitlement to service connection for residuals of a head injury, to include residuals of a traumatic brain injury (TBI). 3. Entitlement to service connection for a lumbar spine disability. 4. Entitlement to service connection for a right eye disability. 5. Entitlement to service connection for a disability of the lower right extremity, to include as secondary to a lumbar spine disability. 6. Entitlement to an initial evaluation in excess of 20 percent for service-connected residuals of a cervical spine injury. 7. Entitlement to an initial evaluation in excess of 20 percent for service-connected residuals of a right shoulder injury. 8. Entitlement to an effective date prior to October 25, 2004, for the grant of service connection for bilateral hearing loss. 9. Entitlement to an effective date prior to October 25, 2004, for the grant of service connection for tinnitus. 10. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran had active duty service from October 1976 to November 1979. He also had a period of reserve duty from May 1990 to May 1991 which has not been verified. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania, denying the benefits sought on appeal. In June 2008, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge (VLJ), a transcript of which is of record. The Board previously remanded this case in September 2008, August 2011 and January 2012 for further evidentiary development. The Board's prior remand directives and the subsequent actions by the RO and VA Appeals Management Center (AMC) will be further discussed below. The Veteran's claims have been returned to the Board. During the Veteran's June 2008 Board hearing and in May 2012, January 2013 statements, the Veteran raised a claim of entitlement to TDIU. Although this claim was referred to the AOJ by the Board on three prior occasions for development and adjudication in the first instance, no such actions have been undertaken. In April 2013, the Veteran submitted a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) in support of this claim. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In this case, as will be further discussed below, the two increased rating claims addressed in the Remand section are effectively on appeal, but only for the limited purpose of remanding for a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Nonetheless, as the Veteran's claims for increased evaluations are in appellate jurisdiction at this time, the Board concludes that the Court's holding in Rice is applicable, and thus, the Veteran's TDIU claim is properly before the Board, and the issue has been listed on the title page. During the pendency of the present appeal, the Veteran also perfected appeals to the Board concerning claims to establish service connection for a cervical spine disability, a right shoulder disability, bilateral hearing loss, and tinnitus. In August 2011, the Board granted the Veteran's claims to establish service connection for a cervical spine disability and a right shoulder disability. These awards were implemented by the AMC in an October 2011 rating decision. Also, in a March 2013 rating decision, the AMC established service connection for bilateral hearing loss and tinnitus. To the extent that service connection for these disabilities has been granted, the appeals with respect to establishing service connection are moot and no longer before the Board. However, as will be further discussed below, in May 2012 and March 2013, the Veteran expressed disagreement with the evaluations assigned by the AMC in the October 2011 rating decision and the effective dates assigned by the AMC in the March 2013 rating decision. To that extent, the downstream issues remain in appellate status and are appropriately listed on the title page of this decision. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). As noted by the Board on three prior occasions since September 2008, during the Veteran's June 2008 Board hearing and in a concurrent statement submitted to the Board, he raised the claims to establish service connection for residuals of a TBI, post-traumatic stress disorder (PTSD), sexual dysfunction, an acquired psychiatric disorder, to include depression, tinnitus, and a dental disability. As these issues had not been developed or adjudicated in the first instance by the Agency of Original Jurisdiction (AOJ), the Board did not have jurisdiction of them, and thus, they were referred to the AOJ for appropriate actions. Godfrey v. Brown, 7 Vet. App. 398 (1995). Also, since the Board's most recent remand in January 2013, the Veteran, in statements dated in May 2012, January 2013, and April 2013, raised the issue of entitlement to a compensable evaluation for osteomyelitis, for which compensation was awarded under 38 U.S.C.A. § 1151. As noted above, the Veteran's claim to establish service connection for tinnitus was granted by the AMC in the March 2013 rating decision. Further, as will be further discussed below, the Veteran's claim to establish service connection for residuals of a TBI has been merged with his claim for residuals of a head injury. However, concerning the remainder of these claims, although the record contains September 2010 and December 2012 memoranda from AMC employees to the RO noting that these claims had been raised and are in need of development and adjudicative action, it does not appear that such has been undertaken. In sum, the issues of (1) entitlement to a compensable evaluation for osteomyelitis (granted under 38 U.S.C.A. § 1151), (2) entitlement to service connection for PTSD, (3) entitlement to service connection for sexual dysfunction, (4) entitlement to service connection for an acquired psychiatric disorder, to include depression, and (5) entitlement to service connection for a dental disability have been raised by the record during the pendency of the Veteran's appeal. However, since these claims have not been adjudicated in the first instance by the AOJ, the Board does not have jurisdiction over them, and thus, they are, again, REFERRED to the AOJ for development and adjudication. Characterization of issues on appeal Head injury/TBI residuals In October 2004, the Veteran filed a claim to establish service connection for residuals of in-service head injuries. This claim was denied by the RO, and subsequently, the Veteran perfected an appeal to the Board. As noted above, at the June 2008 hearing and in a concurrent submitted statement, the Veteran filed a claim to establish service connection for a TBI, resulting from several in-service head injuries. Review of the record reflects that both claims are based on the same in-service traumas. During the pendency of this appeal, the Court addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons, the Board concludes that these claims should be merged, as they both allegedly stem from the same in-service events, and the Veteran's reported symptomatology with respect to both issues is nearly identical. Accordingly, this issue has been recharacterized as stated on the title page of this decision. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. As this claim is being remanded for further development, as will be discussed below, the Veteran is not prejudiced by the Board's actions in this respect. Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Right lower extremity Throughout the pendency of the Veteran's appeal, the RO, Board and AMC have developed and adjudicated the Veteran's right lower extremity disability claim under the theory of direct service connection. However, as will be further discussed below, the Veteran's post-service VA treatment records reflect that his complaints of chronic right leg pain may represent neurological impairment secondary to his lumbar spine disability. See e.g., a July 2008 VA treatment record. Although the Veteran has not specifically asserted that his lower right extremity disability is proximately due to or the result of or aggravated by his lumbar spine disability, in Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000), the Court held that VA has obligation to explore all legal theories, including those unknown to the Veteran, by which he can obtain benefit sought for the same disability. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); Bradford v. Nicholson, 20 Vet. App. 200, 206 (2006). As such, the Board has expanded the Veteran's right lower extremity disability claim as stated on the title page of this decision. As the claim is being remanded for further development, the Veteran is not prejudiced by the Board's actions. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of (1) entitlement to service connection for residuals of a head injury, to include residuals of a TBI, (2) entitlement to service connection for a lumbar spine disability, (3) entitlement to service connection for residuals of a right eye injury, (4) entitlement to service connection for residuals of a right lower extremity injury, (5) entitlement to an initial evaluation in excess of 20 percent for service-connected residuals of a cervical spine injury, (6) entitlement to an initial evaluation in excess of 20 percent for service-connected residuals of a right shoulder injury, (7) entitlement to an effective date prior to October 25, 2004, for the grant of service connection for bilateral hearing loss, (8) entitlement to an effective date prior to October 25, 2004, for the grant of service connection for tinnitus, and (9) entitlement to TDIU, are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC.. FINDING OF FACT The evidence of record reflects that the Veteran does not have a right elbow disability. CONCLUSION OF LAW Service connection for a right elbow disability is not warranted. 38 U.S.C.A. §§ 511, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A January 2005 letter satisfied the duty to notify provisions, with regard to his claim to establish service connection. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the Veteran was not notified of how VA determines disability ratings and effective dates as per the Court's holding in Dingess/Hartman at the time of the initial adjudication of his claim. However, such was a practical and factual impossibility since the Court's decision in Dingess/Hartman was not promulgated until March 2006, one year after the March 2005 rating decision. However, a May 2006 letter provided him with complete notice pertaining to his claim, to include sufficient notice pursuant to Dingess/Hartman, and the Veteran's claim was subsequently readjudicated in an April 2007 supplemental statement of the case. As such, there was not prejudice to the Veteran concerning the timing of these notice elements. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Board observes that, an extensive search conducted by the RO and AMC in response to prior Board remand directives, the Veteran's complete service records are unavailable for review. See an August 2010 Formal Finding of the Unavailability of the Veteran's service records. The AMC informed the Veteran that a complete copy of his service records were unavailable on several occasions and requested that he submit any photocopies of his service treatment records which may be in his possession. The Veteran has not responded to this request. In this respect, the Board notes that, while VA has a significant duty to assist the Veteran in developing the facts and evidence pertinent to a Veteran's claim, it is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (veteran cannot passively wait for help from VA). VA's duty must be understood as a duty to assist the veteran in developing her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). In light of above, the Board's prior remand directives with respect to attempting to obtain the Veteran's complete service records have been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). The Court has held that in cases where the Veteran's service treatment records were unavailable, through no fault of the Veteran, as is the case here, there is a "heightened duty" to assist the Veteran in the development of the case. See generally McCormick v. Gober, 14 Vet. App. 39, 45-49 (2000); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As will be further explained below, the Veteran's claim is being denied because there is no evidence of a right elbow disability during the pendency of the appeal. Notwithstanding the August 2010 Formal Finding of the unavailability of the Veteran's complete service records, since the Veteran's claim is being denied because of a lack of evidence of a right elbow disability during the pendency of the appeal, another remand to attempt to obtain the Veteran's service records could avail and would only result in unnecessary delay to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); 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 record reflects that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). The SSA decisions and records upon which they are based have been obtained and associated with the claims file in response to the Board's August 2011 and January 2012 Board remand directives. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The Board notes that no medical examination has been conducted or medical opinion obtained with respect to the Veteran's claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Under McLendon, in claims to establish service connection, VA must provide a 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 VA to make a decision on the claim. However, the McLendon standards for an examination are not met in this case. Although the evidence reflects two traumatic incidents which could have caused injury to his right elbow, as will be further discussed below, there is no credible evidence of a current right elbow disability, claimed symptomatology, or continuity of symptoms. 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, 20 Vet. App. at 83. Neither is present here. In this regard, the Federal Circuit recently held that "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and the Veteran's mere conclusory generalized lay statement that a service event or illness caused a current condition, such as in the present case, is insufficient to require the Secretary to provide a VA examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and extant, but yet not part of the record. 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 Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing in June 2008, the VLJ noted the elements of the claim that were lacking to substantiate the claim of service connection. The Veteran was assisted at the hearing by an accredited representative from the American Legion. The representative and the VLJ asked questions to ascertain the extent of any current disability and to determine whether such was related to the Veteran's service. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 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). Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises. It would also include 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 means 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.") If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit Court has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claim. In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a right elbow disability. At the outset, the Board observes that the Veteran's available service treatment records are devoid of complaints of or treatment for a right elbow injury during the Veteran's service. Nonetheless, as noted above, and as the Veteran alluded to above, the service treatment records reflect that he sustained serious bodily injury in a motor vehicle accident in February 1978, and again, in April 1978 when a locker subsequently fell on him. Although these records do not specifically reflect that the Veteran's right elbow was injured in either incident, due to the severity of the accidents and the fact that the Veteran's complete service treatment records are not available for review, the Board concedes that it is plausible that the Veteran sustained a right elbow injury during one or both of these incidents. Accordingly, one could see an argument for how element (2) of direct service connection has been demonstrated. However, notwithstanding above, after a review of the evidence, the Board concludes that the Veteran's claim must be denied because there is no evidence of a current right elbow disability during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). Initially, the evidence fails to reflect that the Veteran has been diagnosed with any right elbow disability. VA x-ray testing conducted in April 2003 reflects a normal right elbow with no diagnosable pathology. See an April 2003 VA x-ray report. The Veteran has been less than forthcoming concerning his experiences of symptomatology attributable to his alleged right elbow disability. At the June 2008 hearing, he asserted that he does not experience "any strong pain" in his right elbow, and while he reported decreased grip strength in his right hand, he contended that such may be a neurologic manifestation of his service-connected cervical spine disability. See the June 2008 hearing transcript at page 18. The evidence of record is congruent with the Veteran's assertion in this respect. The Veteran has an extensive history of cervical spine injuries and resulting disabilities, and as noted above, service connection for a cervical spine disability was established by the Board in the August 2011 decision. VA examinations provided in connection with the Veteran's original claim to establish service connection for a cervical spine disorder note his reports of neurologic pain, secondary to his cervical spine disability, radiating down his right arm and into his right hand. See September 2006 and August 2010 VA examination reports. These reports are congruent with a private August 2009 examination conducted in connection with the Veteran's claim for SSA disability benefits, noting numbness and pain in his right arm and hand secondary to his cervical spine disability. See an August 2009 examination report from Dr. Muthiah. The Veteran is competent to testify to those things that come to him through his senses, such as experiencing pain and numbness in the right arm, elbow and hand, see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005), and his account thereof is competent and credible. In the Veteran's statements, he does identify symptomatology, right arm, elbow and hand pain and numbness, which he experiences. However, the Court has also found 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." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Likewise, a mere recitation of the Veteran's self-reported lay history does not constitute competent medical evidence of diagnosis or causality. LeShore v. Brown, 8 Vet. App. 406 (1995) (unenhanced medical information recorded by a medical examiner). As noted above, a prerequisite for entitlement to service connection is a showing of current disability, and the record fails to identify a current disability of the right elbow. To the extent that the Veteran asserts that he has a current disability regarding his right elbow, the Board notes that he lacks the required medical education and training, such as to render competent any opinion or statement identifying this specific disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). There is insufficient competent or credible evidence of a right elbow disability at any point during the claim period. McClain v. Nicholson, 21 Vet. App. 319 (2007). As the evidence of records fails to demonstrate a right elbow disability during the pendency of the appeal, no discussion of concerning chronicity or continuity of symptomatology under 38 C.F.R. § 3.303(b) and the Federal Circuit Court's holding in Walker is necessary. In view of the foregoing, the Board must conclude that the preponderance of the evidence is against a finding that the Veteran has a current right elbow disability, and thus, his claim cannot succeed. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application and the claim advanced must be denied. 38 U.S.C.A. § 5107(b); see also, generally, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right elbow disability is denied. REMAND Although the Board acknowledges that the Veteran's claims discussed below have been remanded on several prior occasions, after a review of the record, another remand is necessary in order for VA to fulfill its duty to assist the Veteran in substantiating his claims. All of the Veteran's claims remanded herein have been asserted under the theory of direct service connection. As recounted above, establishing direct 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). Head/TBI and right eye disability claims As noted in the Introduction, the Board has merged the Veteran's claims for residuals of a head injury and residuals of an in-service TBI in light of the Court's holding in Clemons and the Veteran's reports of resulting symptomatology, to include headaches, memory loss, headaches, vertigo, nausea, and blurred vision. See the June 2008 hearing transcript at page 3. With respect to element (1), evidence of a current disability, the evidence is tenuous concerning the Veteran's claimed head/TBI residuals and right eye disability. VA treatment records dated in August 2006, April 2007 and February 2008 reflect diagnoses of right optic nerve disc drusen and facial lacerations which were incurred in a motor vehicle accident. Although the August 2006 VA treatment records reflects that the Veteran reported that the motor vehicle accident which resulted in these injuries occurred about 7 or 8 years ago, the latter VA treatment records do not specify whether these injuries were incurred in the documented in-service motor vehicle accident or a separate such incident which occurred in approximately 1999 - after the Veteran's separation from service. Nonetheless, in light of the evidence of facial lacerations and right optic nerve disc drusen, element (1) has arguably been demonstrated with respect to both claims. As discussed above, the Veteran's available service treatment records reflect that he was involved in two in-service accidents: a motor vehicle accident in February 1978 and an incident when a locker fell on him in April 1978. Although the available service treatment records do not reflect specific injuries to the Veteran's head, face or right eye, the Board concludes that, in light of the severity of the accidents, such injuries are plausible. Further, a June 1979 service treatment records reflects that the Veteran presented for treatment for neck pain and reported experiencing secondary photosensitivity, headaches and "problems with vision." In light of above, element (2), an in-service incurrence or aggravation of a disease or injury, has been demonstrated with respect to both claims. Further, in consideration of the Veteran's testimony that he experiences blurred vision as a residual of his in-service head injury, it is unclear whether the Veteran's reports asserted symptomatology (i.e., blurred vision) is a separate disability for which he may be compensated, or whether such is a manifestation of a TBI. With the above evidence in mind, the Board concludes that a VA examination is required so that the nature, date of onset and etiology of these disorders can be determined. This is especially important considering that the Veteran has not been afforded a VA examination in conjunction with these claims. McLendon v. Nicholson, 20 Vet. App. at 83 see also 38 U.S.C.A. § 5103A (d) (West 2002). The threshold for finding a link between current disability and service is low for the purposes of obtaining a medical opinion. Locklear v. Nicholson, 20 Vet. App. 410 (2006). Lumbar spine The evidence of record reflects a diagnosis of degenerative joint disease and degenerative disc disease of the lumbar spine with mild narrowing at L5-S1. See an August 2009 private examination report from Dr. Muthiah and an April 2012 VA x-ray report. Element (1) has been demonstrated. With regard to element (2), an in-service incurrence or aggravation of a disease or injury, although the available service treatment records do not reflect specific injuries to the Veteran's low back, the Board concludes that such an injury is plausibly the result of the February 1978 motor vehicle accident, as asserted by the Veteran at the June 2008 hearing. See the June 2008 hearing transcript at page 14. To that extent, it can be argued that element (2) has been demonstrated. The Veteran has not been afforded a VA examination in connection with this claim; however, in light of the evidence recounted above, the Board concludes that a VA examination is necessary with respect to the issue to determine the nature and etiology of the Veteran's currently-diagnosed lumbar spine disability. McLendon v. Nicholson, 20 Vet. App. at 83. Further, the evidence of record reflects that the Veteran underwent a lumbar laminectomy in 1981 secondary to obesity. See e.g. VA treatment records dated in July 2008 and August 2008. Although the Veteran has been requested on multiple occasions to identify the treatment records associated with this surgery, he has refused to do so. As noted above, VA's duty to assist the Veteran is not a one-way street, and in this regard, the Veteran is notified that continued failure to respond to such requests may be detrimental to his claims. On remand, the AMC should provide the Veteran with a VA Form 21-4142, and request that he identify and submit a completed release so that VA may attempt to obtain them. Right lower extremity Initially, in light of the recharacterization and expansion of the Veteran's claim, as described in the Introduction above, the Board concludes that additional procedural and evidentiary development must be completed, and thus, a remand is necessary. The Board notes that the Veteran has not been provided notice of all of the laws and regulations pertinent to claims brought under the theory of secondary service connection as per 38 C.F.R. § 3.310 and the Court's holding in Allen. If, as here, the record has a procedural defect with respect to the notice required under the VCAA, this may not be cured by the Board. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, the RO/AMC must provide the Veteran with adequate notice because he has not received such and the Board is without authority to do so. Under VA regulations, service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The Veteran's VA treatment records are replete with complaints of right foot pain; however, since VA x-ray testing of the Veteran's right foot was normal in April 2011, metatarsalgia (right foot pain) was the impression. As noted above, the Court has also 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." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Nonetheless, it is uncontroverted that the Veteran has post-service diagnoses of degenerative joint disease of the right knee. See a March 2010 VA MRI of the right knee. Accordingly, element (1) has been demonstrated with respect to both theories of entitlement. Concerning element (2) of direct service connection, an in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records reflect that he injured his right foot in March 1977 when he dropped a can of oil on it. A small abrasion of the right foot was treated and, although the right foot was tender and discolored, x-ray testing was negative. Further, although the available service treatment records do not reflect specific injuries to the Veteran's right lower extremity, the Board concludes that an injury to such is plausibly the result of the February 1978 motor vehicle accident, as asserted by the Veteran at the June 2008 hearing. See the June 2008 hearing transcript at page 14. In light of above, it may be argued that element (2) has been demonstrated under the theory of direct service connection. With respect to element (2) of secondary service connection, a current disability which may have caused or aggravated the Veteran's right lower extremity disability, as noted above, service connection for a lumbar spine disability has not been established, and the Veteran's claim for such is being remanded by Board at this time. To the extent that, under the theory of secondary service connection, the Veteran's right lower extremity disorder claim is dependent on the outcome of his claim for a lumbar spine disability, the claims are inextricably intertwined. Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The Veteran has not been afforded a VA examination in connection with this claim; however, in light of the evidence recounted above, the Board concludes that a VA examination is necessary with respect to the issue to determine the nature and etiology of any identified disorder of the Veteran's right lower extremity. McLendon v. Nicholson, 20 Vet. App. at 83. TDIU As noted in the Introduction, in statements dated in June 2008, May 2012, January 2013, and April 2013, the Veteran raised the claim of entitlement to TDIU. A request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities which is part of a pending claim for increased compensation benefits. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (the issue of entitlement to TDIU is not a free-standing claim which must be pled with specificity). It would be fundamentally unfair to the Veteran to decide a claim which has not been developed and adjudicated by the RO. Bernard v. Brown, 4 Vet. App. 384 (1993). Also, as the Veteran's TDIU claim is partly reliant upon the evaluations for his service-connected cervical spine and right shoulder disabilities, the Board observes that these claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). In light of above, the Veteran's TDIU claim must be remanded for further development. Claims for increased evaluations and earlier effective dates As discussed in the Introduction, in the October 2011 rating decision which implemented the August 2011 Board decision, the AMC established service connection for a cervical spine disability and a right shoulder disability; both disabilities were evaluated 20 percent disabling, effective from October 25, 2004. Also, in a March 2013 rating decision, the AMC established service connection for bilateral hearing loss (noncompensably (zero percent) disabling from October 25, 2004, and 40 percent disabling from December 3, 2012) and tinnitus (10 percent disabling from October 25, 2004. In May 2012 and March 2013, the Veteran expressed disagreement with the evaluations assigned by the AMC in the October 2011 rating decision and the effective dates for the awards of service connection assigned by the AMC in the March 2013 rating decision. The Board notes that the Veteran was not provided a statement of the case resulting from his notices of disagreement. The filing of a notice of disagreement places a claim in appellate status. The failure to issue a statement of the case in such circumstances renders the claims procedurally defective and necessitates a remand. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2012); see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). The purpose of remanding these issues is to give the RO/AMC an opportunity to cure this defect. Thereafter, the claim(s) should be returned to the Board only if the Veteran perfects his appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a notice of disagreement, a statement of the case and a VA Form 9 [substantive appeal], the Board is not required, and in fact, has no authority, to decide the claim). Finally, the Board observes that the most recent VA outpatient treatment records associated with the Veteran's Virtual VA file are dated in August 2012. As these claims are being remanded for other matters, the Board finds that the RO/AMC should also obtain updated VA treatment records and request that the Veteran identify any outstanding private treatment records which are pertinent to the his claims. See e.g., 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1); see also Loving v. Nicholson, 19 Vet. App. 96, 102 (2005); Bell v. Derwinski, 2 Vet. App. 611 (1992); Dunn v. West, 11 Vet. App. 462 (1998). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the Veteran a notice letter consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) which provides an explanation as to the elements necessary to substantiate a TDIU claim as well as a claim under the theory of secondary service connection as per 38 C.F.R. § 3.310 and the Court's decision in Allen v. Brown, 8 Vet. App. 374 (1995). 2. Contact the Veteran and request that he identify all outstanding records from private health care providers that are pertinent to the claims being remanded. A specific request must be made to the Veteran to identify the name of the facility and physician(s) who conducted and oversaw his 1981 lumbar laminectomy. The Veteran must complete a release for any private treatment records identified by him prior to any attempts to obtain such. All records obtained should be associated with the Veteran's VA claims file. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 3. Obtain and associate with the claims file or Virtual VA file all outstanding records of VA treatment dated from August 2, 2012, to the present. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 4. Thereafter, schedule the Veteran for a VA examination in connection with his claims to establish service connection for residuals of a head injury/TBI, a lumbar spine disability, a right eye disability, and a disability of the lower right extremity. The entire claims file and Virtual VA file, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. The examiner should confirm and identify whether the Veteran has residuals of a head injury/TBI, a lumbar spine disability, a right eye disability, and/or a disability of the lower right extremity, presently or at any point during the claims process. Any tests deemed necessary to confirm or rule out any diagnosis must be undertaken. For each has residual of a head injury/TBI, lumbar spine disability, right eye disability, and/or disability of the lower right extremity which is identified during the appeal process, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such is the result of or otherwise related to the Veteran's active service. If the examiner concludes that the Veteran has a lumbar spine disability which is related to his active service, he/she should provide an opinion addressing whether each identified disability of the right lower extremity is at least as likely as not (50 percent or greater probability) that such is (a) caused by, or (b) aggravated by a lumbar spine disability. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 5. Provide the Veteran and his representative a statement of the case addressing the issues of (1) entitlement to an initial evaluation in excess of 20 percent for service-connected residuals of a cervical spine injury, (2) entitlement to an initial evaluation in excess of 20 percent for service-connected residuals of a right shoulder injury, (3) entitlement to an effective date prior to October 25, 2004, for the grant of service connection for bilateral hearing loss, (4) entitlement to an effective date prior to October 25, 2004, for the grant of service connection for tinnitus. The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The RO/AMC should advise the Veteran that the these claims will not be returned to the Board for appellate consideration following the issuance of the statement of the case unless he perfects an appeal. 6. After completing any additional development necessary to properly adjudicate the Veteran's TDIU claim, to specifically include collecting and verifying information concerning the Veteran's complete educational and occupational history, schedule him for a general medical examination to evaluate whether he is precluded from obtaining and maintaining substantially gainful employment due to service-connected disabilities. The claims folder contents must be made available to the examiner for review. The examiner is request to provide opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities, either singly or combined, render him unable to obtain and maintain substantially gainful employment. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 7. Finally, after undertaking any other development deemed appropriate, readjudicate the any remaining issue(s) on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The Veteran 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs