Citation Nr: 1325850	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  11-17 862	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee

THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss.

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus.

3.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension.

4.  Entitlement to service connection for kidney cancer.

5.  Entitlement to service connection for bilateral hand tremors.

6.  Entitlement to service connection for right great toe injury.

(The issue of entitlement to reimbursement or payment of private medical care expenses incurred on January 30, 2010, is addressed in a separate decision.)




REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel


INTRODUCTION

The Veteran served on active duty from June 1967 to June 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The issues of entitlement to service connection for kidney cancer and bilateral hand tremors, and whether new and material evidence has been received to reopen the claims of service connection for hearing loss, hypertension, and tinnitus, are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

There is no evidence of a current disability of the right great toe.







CONCLUSION OF LAW

The criteria for service connection for right great toe injury have not been met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 

The Veterans Claims Assistance Act

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 

The RO provided pre-adjudication notice in a letter dated in December 2009 that satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  The letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 556 U.S. 396 (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 Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159(c)(2). 


 As the evidence of record does not indicate that a current right great toe injury disability may be associated with service, a medical examination or medical opinion is not required under the duty to assist.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

In order to prevail on the claim of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).


In the absence of proof of a current disability, 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).

Under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay observable events or the presence of disability, or symptoms of disability, capable of lay observation.  Jandreau, at 1377. 

Lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107. 

Right Great Toe Injury

The Veteran contends that he injured his right great toe during service and continues to have a disability associated with that injury.

The service treatment records do not show any complaints or findings related to a right great toe injury.  The separation examination in June 1972 noted normal lower extremities and feet examinations.

After service in December 2008 and in July 2011 VA records show onychomycosis of the toenails, but no orthopedic or neurological abnormality of the right great toe.

The service treatment records do not contain any complaint or finding related to the right great toe.  There are no records of any current disability related to right great toe injury.  


To the extent that the Veteran believes he has a disability associated with right great toe injury in service, the Board notes that a symptom without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez, 13 Vet. App. at 285.  Although the Veteran is competent to report symptoms, a disability is required in order to establish service connection.  Brammer, 3 Vet. App. at 225.  Therefore, in the absence of evidence of a diagnosed disability associated with right great toe injury, the preponderance of evidence is against service connection and the claim is denied.  38 U.S.C.A. § 5107(b). 


ORDER

Service connection for right great toe injury is denied.


REMAND

The Veteran's claims for service connection for hearing loss, tinnitus, and hypertension were most recently denied in a June 2009 rating decision that subsequently became final.  In order to reopen the claims, the Veteran must submit new and material evidence.  In the July 2010 rating decision, the RO found that new and material evidence had been received since March 2005 and September 2006 rating decisions that had denied the claims.  As the evidence relied on to reopen the claims was previously considered in the rating decision in June 2009, the same evidence cannot be used to reopen the claims and constitutes a due process deficiency.

On the claim of service connection for kidney cancer, on VA examination in April 2010, the VA examiner stated that it was less likely as not that  renal carcinoma was caused by or a result of service-connected diabetes mellitus.  The VA examiner did not specifically address whether diabetes mellitus aggravates kidney cancer.  



On the claim of service connection for bilateral hand tremors, the records show that diabetes mellitus was diagnosed in 2005 before the hand tremors were first shown in 2006.  As basis for the VA examiner's negative opinion in July 2010 was that the tremors preceded diabetes, the conclusion reached in the opinion has an inaccurate factual basis. 

In order to address the procedural deficiencies, the omission regarding aggravation, and an inaccurate factual basis, the case is REMANDED for the following action:

1.  Provide the Veteran VCAA notice on the claims to reopen service connection for hearing loss, tinnitus, and hypertension.  The Veteran must be notified of the basis for the prior denials of the claims and that the rating decision in June 2009 constituted the most recent denial of the claims.  

2.  Afford the Veteran a VA examination to determine: 

Whether kidney cancer is caused by or aggravated by the service-connected diabetes mellitus.  

In this context, "aggravation" means a chronic or permanent worsening of kidney cancer by service-connected diabetes mellitus as opposed to a temporary flare-up of symptoms. 

The Veteran's file must be reviewed by the VA examiner. 





3.  Afford the Veteran a VA examination to determine:  

Whether bilateral hand tremors are caused by or aggravated by the service-connected diabetes mellitus. 

In this context, "aggravation" means a chronic or permanent worsening of the hand tremors by the service-connected diabetes with complications of peripheral neuropathy of the upper extremities as opposed to a temporary flare-up of symptoms. 

The Veteran's file must be reviewed by the VA examiner.  

4.  After the above development, adjudicate the claims to reopen and the claims of service connection.  If any benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.

The Veteran the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
George E. Guido, Jr.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs