Citation Nr: 1320052 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-40 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for residuals of head injury. 2. Entitlement to service connection for disability of the right upper extremity. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June 2000 to June 2004 and from May 2005 to July 2008. This appeal to the Board of Veterans' Appeals (Board/BVA) from a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). An August 2009 VA examination report reflects a diagnosis of memory loss and the examiner was unable to opine whether the memory loss was due to the Veteran's service-connected posttraumatic stress disorder (PTSD), which has been rated as 30-percent disabling effectively since July 12, 2008. In her substantive appeal to the Board concerning these claims at issue, the Veteran referenced her short-term memory loss. The Board finds that a claim of service connection for memory loss, to include as due to service-connected PTSD, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for disability of the right upper extremity is addressed in the REMAND below and is remanded to the RO via the Appeals Management Center (AMC). The Veteran will be notified if any further action is required on his part. FINDING OF FACT The Veteran does not have residuals of head injury, and has not had residuals of a head injury during the claim period. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of head injury are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VA satisfied its duties to the Veteran in a VCAA letter issued in February 2009. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate her claim of service connection for residuals of head injury, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and how VA determines disability ratings and effective dates. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the Veteran's service treatment records, VA outpatient treatment records, and lay statements of the Veteran. The Veteran has not identified any relevant post-service medical evidence pertaining to the issue being addressed in this decision. The Veteran underwent a VA examination in August 2009 with regard to residuals of head injury. Such examination report is thorough and contains sufficient information to decide the issue on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue of entitlement to service connection for residuals of head injury. Residuals of head injury Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). A June 4, 2007 service treatment record reflects the Veteran's report that she hit her head by heavy machinery on June 1 without loss of consciousness. She reported that she has large swelling on the left side of her forehead. She complained of headache, disorientation and dizziness. She stated she feels drunk at times. She denied any pain now. The assessment was cerebral contusion with concussion. A June 5, 2007 records also reflects her complaints that she hit her head while walking into a vehicle. The event took place on June 1. She reported that she was having difficulty focusing and everything is moving. She reported that she "feels drunk off and on" and she complained of dizziness. On examination, she had no problems tracking and her coordination and balance were good. Facial nerves were intact. CN 2-12 was grossly intact. She was placed on light duty for the day. An MRI of the brain was ordered. On June 6, 2007, the Veteran underwent an evaluation where she reported having a concussion with no loss of consciousness. She denied any significant concerns related to his. It was noted that the Veteran has had had longstanding concerns about her memory and intellectual abilities in general. Thus, the examiner performed a neuropsych screen. The assessment was rule out developmental disorder. A June 13, 2007 MRI of the brain was normal. In her January 2009 claim for compensation, the Veteran asserted that she has residuals of head injury. She asserted that in June 2007 she was working on a generator when she hit her head on another piece of equipment. She asserts she was diagnosed with a concussion and since that time has developed problems with short and long term memory loss. In August 2009, the Veteran underwent a VA examination. She reported to the examiner that she walked into large machinery but there was no loss of consciousness. She sustained injury to her left forehead and was seen 3 days later with complaint of headache and told them she was dazed. The diagnosis was concussion without loss of consciousness. She reported headaches off and on, and she reported memory loss. Upon examination, the examiner diagnosed poor memory. The examiner opined that it is less likely than not that the head injury she sustained in service was severe enough to cause memory loss. She had no loss of consciousness and continued to work for 3 days before being seen for headaches. She is presently going to school and is able to maintain a B/C average taking 12 hours of classes. The medical evidence of record does not otherwise reflect residuals of head injury. Thus, despite the fact that the Veteran did suffer a head injury in service, the medical evidence of record does not reflect that she suffered any residuals from the head injury. In the absence of proof of disability resulting from the head injury there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A Veteran's belief that she is entitled to some sort of benefit simply because she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. Service connection can also be warranted if there was a disability present at any point during the claim period, even if it is not currently present. McClain v. Nicholson, 21 Vet. App. 319 (2007). The evidence does not demonstrate residuals of a head injury at any point during the claim period. While the Veteran has complained of memory loss, that symptom has not been linked to the injury in service by any competent evidence. The Board is also cognizant of the holding of the U.S. Court of Appeals for Veterans Claims (Court) in Romanowsky v. Shinseki, No. 11-3272 (Vet. App. May 9, 2013). In Romanowsky, the Court held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In a footnote, the Court noted that a determination that a diagnosis is "sufficiently proximate to the filing of a claim so as to constitute evidence of a 'current diagnosis' is a factual finding to be made by the Board in the first instance." However, in this case, there is no diagnosis of residuals of a head injury at any point. In the absence of any competent evidence of residuals of head injury, the Board must conclude the Veteran does not currently suffer from such a disability. Without competent evidence of residuals of head injury, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The Board has considered the Veteran's contention that she has residuals of head injury that are due to the head injury sustained in service. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (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 the facts or circumstances and conveys matters that can be observed and described by a lay person). In this capacity, the Board finds the Veteran is competent to attest to her symptomatology associated with her head injury, and finds her assertions to be credible. Likewise, the Veteran's head injury is documented in the service treatment records. The Veteran, however, is not competent to diagnose residuals of head injury, as she does not have the requisite medical expertise. As detailed hereinabove, the VA examiner opined that that her memory loss is not due to the head injury sustained in service. Notwithstanding this, at the time the Veteran reported the head injury she also reported that she had been concerned about long-standing memory loss concerns. Thus, this suggests that any memory loss preceded the head injury. In any event, the Veteran's contentions of residuals of head injury are outweighed by the objective clinical findings and conclusions made by a medical professional. Absent a showing of residuals of head injury, service connection for such disability cannot be granted. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for residuals of head injury must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to service connection for residuals of head injury is denied. REMAND A January 2007 private treatment record from First Medical of Kapolei associated with service treatment records reflects that the Veteran complained of right low back pain radiating to the hip and right lower extremity with aching right shoulder pain and numbness in the right upper extremity. The Veteran reported that her problems began in March 2003 after epidural injection for childbirth. She denied any physical pain complaints prior to her epidural injection. The remaining pages of the report are missing. An attempt should be made to obtain a complete record from First Medical of Kapolei. An October 2007 service treatment record reflects the Veteran's complaints of intermittent numbness and tingling of the right arm and hand, although she was not clear about the time course of these symptoms. There was no diagnosis rendered with regard to the right upper extremity. An October 2007 x-ray of the right shoulder was normal. On an August 2008 Report of Medical History, the Veteran report numbness and tingling in the right arm when she carries something. In March 2009, the Veteran underwent a VA general examination. She reported right shoulder pain since 2005. She gets a tingling feeling worse with neck pain. There was guarding of movement of the right shoulder. Range of motion was normal. No diagnosis was rendered by the examiner. In August 2009, the Veteran underwent a VA joints examination. She reported right shoulder pain since 2007. She stated that it "just started hurting." She reported pain into the right scapula and into the right posterior shoulder joint. She reported stiffness, weakness, and flare-ups. She reported continuous numbness and tingling in the right arm. On physical examination, range of motion was normal and an x-ray examination was normal. The examiner diagnosed arthralgia, right shoulder. "Arthralgia" is defined as joint pain. See DeLuca v. Brown, 6 Vet. App. 321, 322 (1993) (citing Dorland's Illustrated Medical Dictionary 147 (27th ed. 1988)). The Board notes that pain alone, without a diagnosed or identifiable underlying malady, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (Fed. Cir. 2001) (pain alone, without a diagnosis or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). The Veteran also underwent a VA peripheral nerves examination. The examiner diagnosed radiculopathy, right arm, but opined that it was not due to her service-connected cervical spine disability, rated 10 percent disabling. The examiner stated that the condition is not related to minimal disc protrusion with no spinal canal stenosis as films show normal discs. The examiner stated that degenerative disc disease is minimal and does not show any spinal narrowing or stenosis that would cause shoulder pain or arm numbness. While the examiner opined that her radiculopathy, right arm, is not due to the cervical spine disability, the examiner did not provide an opinion as to whether her radiculopathy, right arm, is due to symptomatology experienced during active service. See 38 C.F.R. § 3.303. Thus, the Veteran should be afforded another VA examination to assess the nature and etiology of her radiculopathy, right arm. Accordingly, the case is REMANDED for the following actions: 1. After obtaining an appropriate release from the Veteran, request the Veteran's treatment records from First Medical of Kapolei dated from January 2007. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. Schedule the Veteran for a VA neurological examination with a physician with appropriate expertise to assess the nature and etiology of her radiculopathy, right arm. The claims file must be reviewed in conjunction with the examination. The examiner should state the claims file was reviewed and a copy of this remand should be in the claims file. The examiner should give an opinion by answering the following questions and explaining the answer with relevant facts: (a) Whether current radiculopathy, right arm, at least as likely as not (50 percent probability or more) had its onset in service or is otherwise related to service; (b) Whether radiculopathy, right arm, is at least as likely as not (50 percent probability or more) proximately due to a service-connected disability degenerative disc disease, cervical spine; (c) Whether radiculopathy, right arm, is at least as likely as not (50 percent probability or more) was aggravated (made permanently worse beyond the natural progression of the disease) by service-connected degenerative disc disease, cervical spine? If so, please identify the permanent and measurable increase in the severity of radiculopathy, right arm, that is attributed to service-connected degenerative disc disease, cervical spine. The examiner must provide a complete rationale for the opinions given. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 3. If the issue remains denied, issue a supplemental statement of the case. The case should then be returned to the Board, if otherwise in order. 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). ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs