Citation Nr: 1318355 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 05-16 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a left lower extremity disability. 4. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran had active service from July 1980 to July 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2003, April 2007, and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In February 2009, the Veteran testified during a Board hearing before the undersigned (VLJ) at the RO. A transcript of that hearing is included in the claims file. In May 2009 the Board issued a decision reopening previously denied claims for entitlement to service connection for a back disorder and a left shoulder disorder, denying those claims, and denying service connection for a left lower extremity disorder. The Veteran appealed this decision the Court of Appeals for Veterans Claims (Court), which issued a Memorandum Decision in May 2011 vacating the May 2009 Board decision. In November 2011, and again in December 2012, the Board remanded these claims for further development. They have been returned for further appellate consideration. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issue of service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's back, left shoulder, and left lower extremity disabilities did not have onset in service or within one year of service and were not caused or aggravated by his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a left shoulder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for a left lower extremity disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including arthritis, may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 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. In a September 2006 statement, as well as during the February 2009 Board hearing, the Veteran claimed that his back and left shoulder pain first began in service. In a January 2013 statement, the Veteran asserted that his disabilities were due to in-service trauma from his duties, which included riding tanks and other military vehicles, repelling off of cliffs, and road marches with heavy rucksacks and weapons. Additionally, the Veteran submitted a January 2008 treatment record from Triple A Chiropractic Clinic in which the examining physician noted that the Veteran stated that his low back and mid-thoracic pain had its onset in 1983 during active service. Service treatment records reflect two complaints of and treatment for back pain in May 1983. The Veteran first complained of back pain in the thoracic area of three days duration, but denied direct trauma to the back. On examination, his spine was found to be normal. The Veteran was diagnosed with back pain of unknown etiology and restricted from lifting and bending for three days. After three days, he returned for follow-up treatment and continued to complain of pain near the left shoulder blade of six days duration and to report no known trauma to the back. On examination, point pain of the left scapular area was noted. At that time, the Veteran was diagnosed with possible neuralgia. However, aside from these two complaints in 1983, the Veteran's service treatment records do not reflect any complaints of, or treatment for, back or left shoulder pain, and there is no evidence in the service treatment records of treatment for left leg or foot pain, even though the Veteran had active service until July 1994. Also, medical evaluation reports in September 1987 and April 1994 do not note any back, shoulder, leg, or foot problems; they in fact indicate that the Veteran's upper and lower extremities, feet, spine, and musculoskeletal system were normal, providing affirmative evidence against these claims. Furthermore, on Reports of Medical History completed by the Veteran in March 1987, January 1994, and April 1994, the Veteran indicated that did not have and had never had recurrent back pain, a painful or trick shoulder or elbow, cramps in the legs, swollen or painful joints, or foot trouble, providing factual evidence against his own claim. The Veteran's complaint of thoracic and scapular pain was limited to a single one-week period in May 1983 and there were neither additional complaints after that time nor any thoracic spine abnormalities noted in later examinations, including the examination performed at separation from service. The service treatment records thus tend to contradict the Veteran's current assertions that his back, left shoulder, or left lower extremity pain first began in service, and specifically that any such pain first began in 1983, and the Board finds that they provide highly probative evidence against the Veteran's claims. His own prior statements provide evidence against his current claims. Additionally, the record does not reflect back, shoulder, leg, or foot problems in the year immediately following service. Therefore, presumptive service connection under the provisions 38 C.F.R. §§ 3.307 and 3.309 is not warranted. At a January 1998 VA general medical examination, the Veteran denied any left shoulder pain or injury and, according to the examiner, had "absolutely no complaints with reference to his shoulder." Additionally, while at a January 1998 neurological examination the Veteran complained of low back pain that had its onset in service, at the January 1998 general medical examination the examiner noted that the Veteran "is not complaining of lumbar spine pain at all." The Veteran complained only of "occasionally get[ting] a little fleeting pain up and down the dorsal spine." He did not mention any pain in his left leg or foot. On examination, the Veteran's back, spine, and shoulder were normal. An x-ray of the thoracic spine showed generalized osteopenia, but was otherwise normal, providing more evidence against this claim. Not only does the January 1998 general medical examination report provide evidence against the Veteran's claims, it also causes the Board to question the Veteran's credibility or, at the very least, his ability to accurately recall details concerning the onset of his current medical problems. Simply stated, the Veteran is not always an accurate historian. In July 2002, the Veteran complained of stiffening left calf muscles on and off for a month and aches that could come at any time; the diagnosis was left leg muscle pain. On July 2003 VA examination, it was noted that, with reference to joint and muscle pain, the Veteran reported some lateral left calf muscle soreness and pain along the lateral aspect of the left foot and over the left shoulder; the diagnoses were left calf muscle and left foot pain with no disease found, and history of left shoulder pain with no disease found. While the Veteran has repeatedly stated to the RO, the Board, and various medical providers that he has experienced pain in his mid and low back, left shoulder, left leg, and left foot since his active military service, his contentions are not supported by his service treatment records or by many of his own prior statements. The Board has reviewed the Veteran's VA treatment records, as well as private treatment records from Triple A Chiropractic Clinic and from S.G., D.P.M., and finds that, to the extent that, prior to March 2012, any medical provider attributed the Veteran's back disability, left shoulder disability, or left lower extremity disability to his military service, he or she had done so based on the Veteran's self-reported medical history which, for reasons clearly cited above, has not been consistent. The Veteran's sister submitted a written statement, dated in December 2012, asserting that when he left service in 1994, the Veteran lived with her for a period of time. She asserted that the Veteran often complained about the pains and discomfort that he was having with his shoulder and back area that he injured while in the military, and that he would take over the counter medications to ease the pain because he could not afford to take off from work to go to the doctor. The Veteran's sister further asserted that he continued to complain about his shoulder and back throughout 2002, and that his back and shoulder injuries had become progressively worse. However, like the Veteran's assertions, the Veteran's sister's contentions conflict with the medical record and the Veteran's own prior statements. The Veteran's sister's assertion that the Veteran often complained about his back and shoulder contradict the Veteran's own statements on Reports of Medical History in January 1994 and April 1994 that he did not have and had never had recurrent back pain, a painful or trick shoulder or elbow, or swollen or painful joints. Her assertion that the Veteran did not see a doctor because he could not afford to take off work is contradicted by service and post-service treatment records reflecting treatment for multiple medical problems and conditions unrelated to the Veteran's back or shoulder, limiting the probative value of this statement. Furthermore, her assertion that the Veteran's back and shoulder problems were the result of in-service injuries is inconsistent with service and post-service records indicating that the Veteran did not incur any such injuries in service and, in fact, it is the Veteran himself who denied any such injury (the only times he was treated for back and left scapular pain in May 1983). For these reasons, the Board does not find the Veteran's sister's statement to be credible evidence. Overall, the Board must find that the service and post-service medical records, which includes statements from the Veteran himself, provide highly probative evidence against these claims, indicating problems that did not begin during service, outweighing the Veteran's and his sister's current statements. The Board also finds that the Veteran's own statements, overall, to medical providers, over time, provide evidence against these claims, indicating a minor problem in 1983 that was not chronic and did not cause chronic residuals. Regarding the Veteran's left lower extremity problems, such problems were initially noted in July 2002, when the Veteran complained of stiffening left calf muscles on-and-off for a month. On February 2008 VA examination, the Veteran reported left leg and foot pain. Following examination of the Veteran, the diagnosis was L5 lumbar radiculopathy. The examiner stated that after reviewing the Veteran's claims file in detail, taking a history, examining him, and reviewing the results of his nerve conduction studies, it was the examiner's opinion that his left leg and foot pain was not due to foot or muscle problems but was due to an L5 lumbar radiculopathy on the left side. Likewise, on January 2012 VA examination, an orthopedic physician diagnosed left lumbar radiculopathy, stating that the Veteran's pain in the left buttock, thigh, left and foot had been proved by electromyography to be radicular pain, and opined that there was no other evidence of a left leg and foot condition other than such radiculopathy, coming from the lumbar spine. There is no evidence more persuasive than these medical opinions indicating that the Veteran's left lower extremity symptoms have been due to anything else but lumbar radiculopathy, which is a manifestation of the Veteran's current back disability. The medical evidence of record contains conflicting evidence on the question of whether Veteran's claimed back disability is related to service. The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Veteran submitted a statement dated in March 2012 from Dr. A.R., D.C., of Triple Chiropractic Clinic. Dr. A.R. stated that the Veteran had been treated for low back pain and discomfort, and that the Veteran's current diagnosis was ankylosing spondylitis. Dr. A.R. further stated that, on review of his military medical record and supplemental testing such as magnetic resonance imaging (MRI) of the lumbar spine in December 2011, it was evident that it was at least as likely as not that his condition was caused or aggravated by military service. However, the Board finds very little probative value in Dr. A.R.'s opinion. The opinion is supported by no rationale or explanation whatsoever. Such lack of explanation is particularly problematic given the apparent absence of any back problems during the Veteran's period of service from 1980 to 1994 except in one week in May 1983, which appears to have resolved, as the Veteran thereafter during service reported having no recurrent back pain or problems, and as no further problems involving the back were noted during service. The opinion is unusually nonevident as it provides no reason for the finding that it is "evident". The Veteran was also afforded VA examinations in January 2012 by an orthopedic physician. Regarding the Veteran's claimed left shoulder disability, the VA physician diagnosed a sprain, and noted that the Veteran had complained of sharp pain in the left shoulder one time in 1983, had a negative examination at the time of his separation from service, and had no further complaints regarding the left shoulder until 2003. The Veteran complained of pain in the left scapular area that just came on especially when he carried mail, which he had done for the past 14 years. The examiner opined that the Veteran's left shoulder sprain was less likely than not related to service as he had a negative separation examination, at which time he reported no complaints of shoulder problems, and as the Veteran complained of his left shoulder one time in service in 1983, with a negative examination, and not again until 2003. The examiner stated that there was no evidence to connect a left shoulder condition with military service by this gap in complaints of shoulder problems, the Veteran's history, a review of the claims file, and the physician's examination of the Veteran. Regarding the Veteran's claimed back disability, the examining physician diagnosed thoracolumbar sprain and degenerative disc disease with myelopathy. The examiner opined that it was less likely than not that the Veteran's current back condition was related to service, noting the gap in complaints from the Veteran's one-time complaint of back pain in 1983 and his negative separation examination and no complaints of back pain until the 1990s, and more specifically in 2002 when his left foot pain was noted and, in 2006, was diagnosed as radiculopathy from the low back to the left leg. In a January 2013 addendum opinion, the January 2012 examining orthopedic physician stated that his rationales for his opinions regarding the Veteran's claimed shoulder and back disabilities were based on lack of continuity of symptomatology regarding these conditions and the Veteran's negative responses on separation examinations. The examiner indicated that the Veteran's given history of back symptomatology with onset in 1983 was not supported by the record, and that the examiner could not find any other compelling reason or evidence to change his opinions made in January 2012 regarding the Veteran's claimed back and shoulder disabilities. The Board finds the opinions of the January 2012 VA examiner to be persuasive, and highly probative evidence. The opinions were made by an orthopedic physician with appropriate expertise and based on examination of the Veteran and review of the record. Also, the VA examiner's opinions were supported by clear rationales, which are consistent with the evidence of record; as discussed above, the record does not support the Veteran's subjective history of continuity of back or shoulder symptomatology during or after service. The Board thus finds that the medical evidence of record weighs against a finding of service connection for any of the Veteran's claimed disabilities. The Board notes the Veteran's assertion in a written statement received in January 2013 that, while the January 2012 VA examiner stated that following the Veteran's 1983 complaint he did not begin complaining of shoulder problems again until 2003, the RO denied service connection for a left shoulder disability in 1998. However, while the RO did originally deny service connection for the Veteran's left shoulder disability in March 1998, the medical record does not reflect complaints of left shoulder pain until 2003. In this regard, on January 1998 VA examination it was noted that the Veteran had "absolutely no complaints with reference to his [left] shoulder," and that he "[did] not recall a shoulder injury," and was "not complaining of joint pain or abnormality of range of motion of the shoulder." The RO denied service connection in March 1998 on the basis that VA examination revealed no evidence of a shoulder condition. The Board acknowledges that the Veteran is competent to report matters within his own personal knowledge, such as having back, left shoulder, and left lower extremity pain and problems during and since his period of service. See Layno, 6 Vet. App. at 469. However, as explained above, the Board finds that the Veteran's assertions of such continuing symptomatology not to be credible given the inconsistency of his assertions with the record and with his own past statements. In this regard, the Board notes that, in its May 2011 Memorandum Decision, the Court found the Board's determination that the Veteran was not credible based on his statements not to have been "clearly erroneous": Here, the Board stated that the January 1998 VA general medical examination "causes the Board to question the Veteran's credibility or at the very least, his ability to accurately recall details concerning the onset of his current medical problems." R. at 10. It based this determination on its observation that the appellant complained of [intermittent] low back pain that had its onset in service while at a January 14, 1998, neurological examination, R. at 819, but two days later, on January 16, 1998, at a general medical examination, R. at 821, the examiner noted that the appellant "is not complaining of lumbar spine pain at all." R. at 10. The Board also noted that the examiner for the January 16, 1998, examination also stated that the appellant "complained only of occasionally get[ting] a little fleeting pain up and down the dorsal spine" and stated that, on examination, the appellant's back, spine, and shoulder were normal. R. at 8, 821-22. As the Board properly considered the evidence contained in these reports, specifically the appellant's report of lower back pain in the January 14, 1998, examination and the complete absence of such complaints in the January 16, 1998, examination, the Court does not conclude that the Board was "clearly erroneous" in questioning the appellant's credibility. Memorandum Decision, at pp. 6, 7. Accordingly, the Board finds that the claims for service connection for back, left shoulder, and left lower extremity disabilities must be denied for this reason: The Veteran is simply not an accurate historian of his disabilities, for reason cited above. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letters dated in August 2003, January 2007, and April 2007, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman. While the January 2007 and April 2007 notice letters were provided subsequent to the initial RO determination regarding the Veteran's left lower extremity disability claim in September 2003, after issuance of the letter and opportunity for the Veteran to respond, a March 2013 supplemental statement of the case (SSOC) reflects the most recent readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also 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 in an SSOC, is sufficient to cure a timing defect). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical treatment records, identified private treatment records a statement from the Veteran's private doctor, and a written statement from the Veteran's sister have been obtained. Also, the Veteran was provided VA examinations in January 2012. These examinations and associated January 2012 and January 2013 reports were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claims. The examination reports were based on examination of the Veteran by an orthopedic physician with appropriate expertise who reviewed relevant medical records. 38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007). Also, the RO has substantially complied with the Board's November 2011 and December 2012 remand instructions. The RO has obtained current VA treatment records and information regarding whether the Veteran had ever filed any workman's compensation claims with the U.S. Postal Service. Also, as noted above, the Veteran has been provided adequate VA examinations that sufficiently answered the Board's questions and addressed its concerns and, along with the other evidence of record, provided sufficient information to decide the appeal. Furthermore, in the January 2013 addendum, the examiner adequately acknowledged and discussed the Veteran's assertions that symptoms of his disabilities first manifested during service and continued after service, and provided his reasons for rejecting such assertions. Under these circumstances, the Board finds that there has been substantial compliance with its remand instructions, and an additional remand to comply with the Board's directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, the Board has complied with the instructions contained in the Court's May 2011 Memorandum Decision. In that Decision, the Court found that the Board had not sufficiently explained why a VA examination had not been obtained with regard to the issues herein decided; the Veteran has since been provided adequate examinations in connection with these claims. Also, the Board has addressed the two 1983 service treatment records regarding back and left shoulder symptoms. Moreover, in Bryant v. Shinseki, Court held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They 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. In this case, during the February 2009 Board personal hearing, the VLJ fully explained the issues on appeal. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. The VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed disabilities, specifically regarding their onset, in-service treatment, and post-service and current treatment. In addition, the VLJ specifically inquired as to pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding, and specifically inquired as to whether all pertinent medical records relating to the Veteran's disabilities had been associated with the claims file, and suggested that the Veteran obtain a medical opinion from his private treating doctor in support of his claims. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. 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), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for a back disability is denied. Service connection for a left shoulder disability is denied. Service connection for a left lower extremity disability is denied. REMAND In August 2010, the Veteran filed a notice of disagreement with the denial of service connection for sleep apnea in the RO's July 2010 rating decision. Because the filing of a notice of disagreement initiates appellate review, the claim must be remanded for the preparation of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). Accordingly, the case is REMANDED for the following action: With respect to the issue of entitlement to service connection for sleep apnea, the RO should furnish the Veteran and his representative a statement of the case in accordance with 38 U.S.C.A. § 7105 (West 2002). The Veteran and his representative should clearly be advised of the need to file a substantive appeal following the issuance of the statement of the case if the Veteran wishes to perfect an appeal as to that issue. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs