Citation Nr: 1325828	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  11-19 309	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Portland, Oregon


THE ISSUES

1.  Entitlement to service connection for a left hand disability, claimed as a residual of stitches.

2.  Entitlement to service connection for sleep apnea, to include as secondary to allergic rhinitis.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

Jebby Rasputnis, Associate Counsel




INTRODUCTION

The Veteran served on active duty from September 1969 to September 1973 and from January to May 1992.

This appeal to the Board of Veterans' Appeals (Board) arose from an October 2009 rating decision in which the RO, inter alia, denied service connection for sleep apnea and left hand disability, claimed as a residual of stitches.  In later October 2009, the Veteran filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in May 2011, and, in July 2011, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals).  The RO issued a supplemental SOC in April 2012.

The claim of entitlement to 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.


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 

2.  Although the Veteran has presented a claim for service connection for a left hand disability, as a residual of stitches, the record does not persuasively show an event, injury, or disease affecting the left hand during his active duty service, or that the Veteran has, or ever has had, a left hand disability.



CONCLUSION OF LAW

The criteria for service connection for a left hand disability, claimed as a residual of stitches, are not met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). 

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence she or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet.App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or her possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). 

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b) (1), which had stated that VA will request that a claimant provide any pertinent evidence in her or her possession. 

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In this appeal, a March 2009 pre-rating letter provided notice to the Veteran as to what information and evidence was needed to substantiate a claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA.  The letter also provided general information pertaining to VA's assignment of disability ratings and effective dates in accordance with Dingess/Hartman.  

The record also reflects that VA has made reasonable efforts to obtain, or to assist in obtaining, all relevant records pertinent to the matter herein decided.  Pertinent evidence associated with the claims file consists of service treatment records, service personnel records, and private treatment records.  Also of record and considered in connection with the appeal are written statements provided by the Veteran.  The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's appeal.  A review of the paperless claims processing system did not reveal any additional evidence pertinent to the appeal that was not already associated with the Veteran's paper file.  The Board also finds that no additional RO action to further develop the record in connection with the claim for a left hand disability, prior to appellate consideration, is required.  
Although the Veteran has contended that some service treatment records remain outstanding, the claims file appears complete.  He has specifically contended that he received stitches for a left hand injury - a laceration caused by broken glass - at Madigan Army Hospital while on active duty in October/November 1969.  However, his active duty service treatment records, to include records of treatment generated at Madigan, during his first period of active duty, are associated with the claims file.  Further, the claims file reflects that the RO made additional inquiry for any outstanding records of treatment at Madigan, but received a negative response in September 2011.  The April 2012 supplemental SOC detailed the negative result of the additional search.  In any event, this evidence is not shown to have any bearing on the outcome of the appeal as this claim also must be denied due to lack of competent, credible evidence of a current disability.  Neither the Veteran nor his representative attorney has identified any additional existing evidence that is necessary for a fair adjudication of the specific claim herein decided.  Under the circumstances, the Board finds that the RO has undertaken sufficient and appropriate development action and that no further action in this regard is warranted.  

In summary, the duties imposed by the VCAA have been considered and satisfied.  The Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).


II. Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Such a determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992).  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d). 

If a chronic disease, such as arthritis, becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 

In some cases, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease; or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology.  The United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to establishing service connection on the basis of  continuity of symptomatology in lieu of a medical nexus opinion is limited to disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Here, as the record does not show, and the Veteran does not contend, that he has been diagnosed with any disorder recognized as a chronic disease under 38 C.F.R. § 3.309(a). 

After a full review of the record, including the medical evidence and statements made by the Veteran, the Board finds that service connection for a left hand disability is not warranted.  Although the Veteran timely perfected an appeal of the claim for service connection for "stitches in the hand," there is no competent, credible evidence that the Veteran has, or ever has had, any left hand disability-much less, one related to an in-service disease, injury or incident.  

The Veteran has reported that he fell on broken glass while completing KP duty in either October or November 1969 and, as a result, received stitches to his left hand at Madigan Army Hospital.  However, his service treatment records, to include records from Madigan, do not document a left hand laceration.  

The report of an examination conducted at the time of his May 1973 separation from his first period of service is negative for any observation of hand scars; the Veteran did not report any hand injury or scar on an accompanying self report of medical history.  Reports of service examinations conducted in October 1991 and July 1996 also do not reflect any observation of scars other than a residual scar from a right inguinal herniorrhaphy.  The Veteran did not report any hand injuries on concurrent self reports of examination.  A July 1996 "summary of care" reflects no hospitalization or surgery other than for childhood surgeries and repair of a broken nose in 1989.  Subsequent, post-service, private treatment records associated with the claims file do not reflect any report of, or treatment for, the left hand.  

As indicated, the service records do not substantiate the Veteran's report of an in-service injury to his left hand.  The Veteran is competent to report  matters within his personal knowledge, to include an in-service event or injury.  See Although the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence of the in-service event (see Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006)), the Board may discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  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 Caluza v. Brown, 7 Vet. App. 498 (1995).   Here, the Veteran's assertion is inconsistent with objective evidence of record.  Thus, there is no persuasive evidence of any in-service event or injury affecting the left hand-a fundamental requirement for service connection.

Moreover, even if the Board was to accept, as credible, the Veteran's assertions of in-service injury,  the record does not reflect that he has, or ever has had, a current left hand disability-also an essential requirement for service connection.  Although the Veteran indicated on his December 2009 NOD that he was claiming entitlement to service connection for a left hand scar as residual from the claimed in-service injury, he indicated on his July 2011 substantive appeal (VA Form 9) that he did not have a scar but rather was entitled to service connection because even though "there may not be a scar, [] there were stitches."   Further, the record reflects that the Veteran did not self report any hand injuries during service and that multiple military examiners did not observe any hand scar.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than subsequently reported history).  If fact, other than the December 2009 allegation of a scar, neither the Veteran nor his representative has identified any current left hand disability or signs/symptoms of disability.

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C.A. § 1110; see also 38 C.F.R. § 3.303.  That an in-service injury or event occurred is not enough; there must be resulting disability.  Where, as here, competent, credible and persuasive  evidence does not support a finding that the Veteran has a disability upon which to predicate an award of service connection, there can be no valid claim for service connection.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992).  

As a final point, the Board notes, that, although the Veteran  has not been afforded a VA examination in regard to his claimed left hand disability, VA is not, on these facts, required to arrange for VA examination or to otherwise obtain a medical opinion.  Generally, VA has a duty provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim.  38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet.App. 79 (2006).  Here, however, there is, fundamentally, no credible evidence of any current disability or any in-service injury to the left hand.  On these facts, no examination is required.  See Bardwell v. Shinseki, 24 Vet. App. 36, 39-40 (2010) (holding that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service).  

For all the foregoing reasons, the claim for service connection for a left hand disability must be denied.  In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of- the-doubt doctrine.  However, as no competent, credible and probative evidence supports the required elements of the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Service connection for a left hand disability, claimed as a residual of stitches, is denied.


REMAND

The Board's review of the claims file reveals that further RO action on the claim remaining on appeal is warranted.

In October 2009, the RO granted the Veteran service connection for allergic rhinitis.  As he has claimed entitlement to service connection for sleep apnea as secondary to allergic rhinitis, any subsequently generated VA treatment records may be pertinent to the appeal.  Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Hence, the RO should determine whether or not the Veteran has sought any VA treatment for his service-connected respiratory disability and obtain any such relevant records of VA evaluation and/or treatment for association with the claims file.  The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities.

The Board also notes that the Veteran was afforded a VA examination for sleep apnea in September 2011.  Although the VA examiner observed that the Veteran did not, at that time, have sleep apnea, subsequently, in July 2012, the Veteran submitted a statement in support of his claim indicating a diagnosis of sleep apnea by a Dr. Schreiner.  As the July 2012 statement did not provide additional detail as to the timing of, or basis for, that diagnosis, additional evidence of current diagnosis is needed. 

Therefore, the RO should give the Veteran further opportunityto provide additional information and/or evidence pertinent to the claim remaining on appeal.  The RO's letter to the Veteran should explain that he has a full one-year period for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period).  In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, outstanding records from Dr. Schreiner.

Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159.  

The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA (to include arranging for the Veteran to undergo further examination, if appropriate) prior to adjudicating the claim remaining on appeal in light of all pertinent evidence and legal authority.  

Accordingly, this matter is hereby REMANDED for the following action:

1.  Obtain any outstanding, pertinent records of VA evaluation and/or treatment of the Veteran.  The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities.  All records and/or responses received should be associated with the claims file.

2.  Send to the Veteran and his representative a letter requesting that he provide sufficient information, and, if necessary, authorization to enable the RO to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record.  Specifically request that the Veteran provide, or provide authorization to obtain, any pertinent, outstanding records from a Dr. Schreiner. 

 Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within that period).

3.  If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 

4.  To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this remand.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268 (1998). 

5.  After completing the requested actions, and any additional notification and/or development deemed warranted to include arranging for the Veteran to undergo further examination, if appropriate), readjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority.

6.  If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied.  The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 

This REMAND must be afforded expeditious treatment.  The law requires that all claims 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).



______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs