Citation Nr: 1318213 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-11 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a cervical spine disorder. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disorder. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right elbow disorder. 4. Entitlement to service connection for a left elbow disorder. 5. Entitlement to service connection for a bilateral vision disorder. 6. Entitlement to service connection for a bilateral knee disorder. 7. Entitlement to service connection for a bilateral foot disorder. 8. Entitlement to service connection for a bilateral hearing loss disability. 9. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The appellant had no periods of active duty service for VA purposes. He had periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA) as a member of the Air National Guard from June 1979 to October 2002. These matters came before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In February 2013, the appellant testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disorder, entitlement to service connection for a bilateral hearing loss disability, and entitlement to service connection for tinnitus 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. FINDINGS OF FACT 1. Service connection for a cervical spine disorder and a right elbow disorder was denied in a May 2006 rating decision; the appellant did not appeal. 2. The evidence received since the May 2006 rating decision is cumulative or redundant of evidence previously of record, and does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for a cervical spine disorder and a right elbow disorder. 3. The preponderance of the evidence is against finding that the appellant has a left elbow disorder that was incurred in, aggravated by, or otherwise related to a disease, injury, or event in service. 4. The preponderance of the evidence is against finding that the appellant has a bilateral vision disorder that was incurred in, aggravated by, or otherwise related to a disease, injury, or event in service. 5. The preponderance of the evidence is against finding that the appellant has a bilateral knee disorder that was incurred in, aggravated by, or otherwise related to a disease, injury, or event in service. 6. The preponderance of the evidence is against finding that the appellant has a bilateral foot disorder that was incurred in, aggravated by, or otherwise related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. The May 2006 rating decision is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.1100, 20.1103, 20.1104 (2012). 2. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for a cervical spine disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for a right elbow disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. A left elbow disorder was not incurred in or aggravated by active military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 5. A bilateral vision disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 6. A bilateral knee disorder was not incurred in or aggravated by active military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 7. A bilateral foot disorder was not incurred in or aggravated by active military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file. 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 submitted by or on behalf of the appellant. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and 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. The Court has also issued a decision which held that, in the context of a claim to reopen, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court further explained that a notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. See id. A VCAA letter dated in January 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187. The appellant was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. This letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, this letter described how appropriate disability ratings and effective dates were assigned. This letter also advised the appellant of the reason for the previous final denial of service connection for a cervical spine disorder and a right elbow disorder and instructed him on the meaning of new and material evidence. The Board also concludes VA's duty to assist has been satisfied. The appellant's available service treatment records, VA medical treatment records, and private medical records are in the file. The Board notes that the claims file contains a May 2012 Formal Finding prepared by the RO, which indicated that the appellant's complete Kansas Air National Guard Service Treatment Records were unavailable for review. VA has a heightened duty to assist in these cases. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The claims file documents an August 2012 phone conversation in which the RO informed the appellant that VA had not been able to locate his complete service records. The appellant responded by waiving his due process period. The Board finds no indication that other available, outstanding service treatment records exist. Therefore, the Board concludes that all records identified by the appellant as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. As noted above, the appellant also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs 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, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the appellant's claims. Significantly, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board notes that the appellant has not been scheduled for or provided with a VA examination for the claims of entitlement to service connection for a left elbow disorder, bilateral vision disorder, bilateral knee disorder, or bilateral foot disorder. However, as will also be discussed in more detail below, the Board finds that an examination or opinion in this regard is not necessary due to a lack of credible lay or medical evidence of any such disabilities in service or for years thereafter. In essence, there is no credible lay evidence of symptoms since service, nor is there a competent etiology opinion of record that links the claimed disorders to the Veteran's military service. Therefore, a VA examination is not warranted for these claims. Moreover, the Board observes that with respect to a previously denied claim, until a claim is reopened, VA does not have a duty to provide a medical examination or obtain a medical opinion. See 38 C.F.R. § 3.159(c)(1). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. New and Material Evidence Claims A. Law and Regulations Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). B. Cervical Spine Disorder and Right Elbow Disorder As noted, service connection was denied for a cervical spine disorder and a right elbow disorder in May 2006. The RO noted that the appellant essentially contended that his job in the Guard caused him to put his body in an awkward position which led to his current disabilities. The service treatment records reflected that the treatment records documented long-term degenerative changes of the cervical spine which had progressed from the early 1990's. The RO considered an August 2002 statement from a private examiner, Dr. E., which related that the appellant's work activities probably did aggravate his symptoms to some extent but were not the responsible cause for his degenerative changes. Dr. E. could not specifically say that there was any specific incident related to the appellant's military activity or work that caused the degenerative disc condition; Dr. E. felt that the appellant would have had the degenerative disc condition regardless of what activity the appellant participated in. The RO found that the appellant's cervical spine disorder was not the result of disease or injury incurred during ACDUTRA or from injuries incurred while on INACDUTRA. The RO further noted that the treatment records failed to show that the appellant had been diagnosed or treated for a right elbow disorder. It was further noted that the appellant's degenerative disc disease of the cervical spine had progressed to include radiculopathy. The RO found that the appellant's claimed right elbow disorder was not the result of disease or injury incurred during ACDUTRA or from injuries incurred while on INACDUTRA. Evidence added to the record since the May 2006 rating decision includes additional VA and private treatment records which do not reflect treatment for the appellant's cervical spine or right elbow. A February 2009 statement from T.N.C., medical services administrator for the Kansas Air National Guard, reflects that the appellant was a member of their unit from July 1981 through January 2003. The statement indicates that the appellant was medically disqualified for a degenerative disc and subsequently retired. The appellant remarked during his February 2013 Board hearing that while he was serving in the Guard, he worked on aircraft. He related that he felt a sharp pain in his neck when he was working. He further related that he experienced pain in his right elbow, but he had never received a diagnosis of a right elbow disability. Upon close review of the evidence pertaining to this claim, the Board has concluded that new and material evidence has not been submitted to reopen the claim of entitlement to service connection for a cervical spine disorder or a right elbow disorder. As discussed, the RO initially denied the appellant's claims because the evidence did not show that the appellant's cervical spine disorder and claimed right elbow disorder were the result of disease or injury incurred during ACDUTRA or from injuries incurred while on INACDUTRA. Since then, there has been no medical evidence added to the file which would establish a clinical diagnosis related to the appellant's right elbow. Additionally, there has been no evidence added to the file which establishes the presence of a specific disease or injury to the cervical spine or right elbow incurred during ACDUTRA, or injury to the cervical spine or right elbow incurred while on INACDUTRA. The fact that the appellant was medically disqualified from duty for a degenerative disc was considered at the time of the previous final decision and is therefore cumulative. The appellant's reports of ongoing symptoms and physical stresses related to his job were considered at the time of the previous final decision and are thus cumulative. In essence, the evidence added to the record since the May 2006 rating decision does not raise a reasonable possibility of substantiating either claim. In summary, the defects existing at the time of the prior final decision has not been cured, and the claims of entitlement to service connection for a cervical spine disorder and a right elbow disorder may not be reopened. III. Service Connection Claims A. Law and Regulations In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 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). Service connection may also be granted for chronic disabilities, such as arthritis, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Active military, naval, or air service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 C.F.R. § 3.6(a). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Left Elbow Disorder, Bilateral Vision Disorder, Bilateral Knee Disorder, Bilateral Foot Disorder The appellant's service treatment records reflect that in January 1993, the appellant was exposed to exhaust and hydrazine. He was treated for hydrazine exposure to both of his eyes. The treatment provider gave a diagnosis of chemical conjunctivitis. Subsequent service treatment records and private treatment records are negative for any signs, symptoms, or diagnoses of a disorder of either eye, left elbow, either knee, or either foot. During the appellant's February 2013 Board hearing, the appellant related that he had never received treatment for or a diagnosis of a left elbow disorder. He stated that he did not have tunnel vision or other specific disability of the eyes. He related that he had difficulty reading normally and had average wear and tear on his eyes. He also said that his work as an aircraft mechanic while in the Guard was labor intensive. He recalled getting a Cortisone shot in his right knee at some point in the 1990s. He said he had not received treatment for his knees or his feet. He related that while his feet would hurt, he had never been told by a doctor that he needed arch supports or orthopedic shoes. Having carefully reviewed the record regarding this claim, the Board finds that service connection is not warranted for a left elbow disorder, a bilateral vision disorder, a bilateral knee disorder, or a bilateral foot disorder. Here, while the appellant asserts that he has the aforementioned disorders that are subject to service connection, he has neither produced nor identified evidence demonstrating such diagnoses and that they are related to service. The record is devoid of any persuasive evidence, medical or otherwise, that would tend to show that the appellant currently has left elbow, bilateral vision, bilateral knee, and bilateral foot disabilities. The appellant has said that he does not undergo current treatment for any of these disorders. None of the medical treatment records from the appellant's private treatment provider give evidence of a diagnosed left elbow, bilateral vision, bilateral knee, or bilateral foot disorder. While the appellant has complained of pain, those complaints have not resulted in a diagnosis of an actual disability from medical personnel. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. The appellant was advised of the necessity for evidence showing current disability but failed to identify or submit such. 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 Board has considered the appellant's statements and acknowledges that the appellant is competent to diagnose and report on simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). However, given the absence of complaints or clinical findings related to a left elbow, bilateral vision, bilateral knee, or bilateral foot disorder, the Board concludes that any suggestions by the appellant of experiencing symptoms since service are not credible. In reaching this conclusion, the Board has considered the decision in Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006), wherein the United States Court of Appeals for the Federal Circuit determined that the Board erred by finding that a claimant's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. However, the Board believes the instant case is clearly distinguishable, as the Board is not relying solely upon a general absence of complaints during service. Rather, it is relying on the fact that periodic physical examinations during the appellant's period of Guard duty revealed no evidence of chronic left elbow, bilateral vision, bilateral knee, or bilateral foot symptoms. In fact, the Board finds it significant that the appellant affirmatively stated during his Board hearing that his claimed disorders have not required medical treatment. For these reasons, the Board finds that any suggestions of chronic problems following his period of active duty are not credible. In short, the preponderance of evidence is against this claim and there is no doubt to be resolved. Accordingly, the appellant's claims of entitlement to service connection for left elbow, bilateral vision, bilateral knee, and bilateral foot disorders are denied. ORDER New and material evidence having not been submitted, the petition to reopen a claim of entitlement to service connection for a cervical spine disorder is denied. New and material evidence having not been submitted, the petition to reopen a claim of entitlement to service connection for a right elbow disorder is denied. Entitlement to service connection for a left elbow disorder is denied. Entitlement to service connection for a bilateral vision disorder is denied. Entitlement to service connection for a bilateral knee disorder is denied. Entitlement to service connection for a bilateral foot disorder is denied. REMAND I. Whether New and Material Evidence Has Been Received to Reopen a Claim of Entitlement to Service Connection for a Lumbar Spine Disorder During his February 2013 Board hearing, the appellant testified that while working on a bomber while on Guard duty, he injured his lower back while attempting to hook a mechanical tongue onto a tub. He said that he was working at the McConnell Air Force Base in Wichita, Kansas, and he was sent to the emergency room at Westley Medical Center for treatment for his lower back. The records from Westley Medical Center have not been associated with the claims file. When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). While this case is in remand status, efforts should be made and documented to obtain these records, as authorized by the appellant. II. Entitlement to Service Connection for a Bilateral Hearing Loss Disability and Tinnitus During his February 2013 Board hearing, the appellant testified that the week before the hearing, he was administered a hearing test in connection with beginning a new job. He said the test was given by his employer, Vigor Marine. He remarked that the test showed that he had noticeable hearing loss, and he was sure that the company would allow a copy of the hearing test to be associated with his claims file. When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). While this case is in remand status, efforts should be made and documented to obtain these records, as authorized by the appellant. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO, with any necessary authorization from the appellant, should obtain all of his records from Westley Medical Center and Vigor Marine. All attempts to locate these records must be documented in the claims folder. If VA is unable to secure these records, VA must notify the appellant and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 2. When the development requested has been completed, the case should be reviewed by the AMC/RO on the basis of additional evidence. If any benefit sought is not granted, the appellant should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs