Citation Nr: 1328067 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 07-29 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for a shoulder disability, to include as secondary to service-connected disabilities. 2. Entitlement to an evaluation in excess of 20 percent for lumbar strain with degenerative disc disease of the thoracolumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from May 1975 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. Jurisdiction of the case was subsequently transferred to the RO in Manila, the Republic of the Philippines. FINDINGS OF FACT 1. No shoulder disability has been shown during the pendency of this claim. 2. In May 2013, prior to the promulgation of a decision in the appeal, the Veteran indicated that he was satisfied with the overall disability evaluation assigned and did not wish to pursue his appeal for a higher disability evaluation of his lumbar strain with degenerative disc disease of the thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for service connection for a shoulder disability, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for withdrawal of the appeal seeking entitlement to an evaluation in excess of 20 percent for lumbar strain with degenerative disc disease of the thoracolumbar spine by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The RO's March 2006, June 2006, and April 2009 letters advised the Veteran of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The March 2006 and April 2009 letters provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, the RO satisfied the notice requirements with respect to the issues on appeal. The duty to assist the Veteran has also been satisfied. The RO has obtained the Veteran's available service treatment records and all identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Recently, the Veteran was provided with VA examinations of the spine and shoulder in January 2013. These examinations were performed by a VA examiner that reviewed the Veteran's claims file, the history of the conditions with the Veteran, examined the Veteran, and provided the rationale for the conclusions reached. The Board finds these examinations are adequate for evaluation of the issues on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). There is no sign in the record that additional evidence relevant to the issues being addressed is available and not part of the record. 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 this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO's January 2007 rating decision, in pertinent part, denied entitlement to service connection for a neck, upper back, and shoulder disability, to include as secondary to service-connected disabilities; and granted an increased evaluation of 10 percent for the Veteran's service-connected lumbar strain, effective August 9, 2005. In March 2009, the RO issued a supplemental statement of the case which granted an increased evaluation for the Veteran's service-connected lumbar strain of 20 percent, effective January 18, 2008, which was recharacterized as lumbar strain with degenerative disc disease of the thoracolumbar spine. In April 2011, the Board remanded this case for additional evidentiary development. In June 2011, the RO issued a rating decision granting an increased evaluation of 20 percent, effective November 26, 2006, for the Veteran's lumbar strain with degenerative disc disease of the thoracolumbar spine. In April 2013, the RO issued a rating decision which granted service connection at a 10 percent evaluation for the cervical spondylosis, effective August 9, 2005. As noted in the rating decision, this constituted a full grant of the Veteran's claim seeking entitlement to service connection for neck and upper back disability. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (finding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). I. Service Connection for a Shoulder Disability Service connection may be established for disability resulting from personal injury suffered or disease contracted in the 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. §§ 1131. 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). The most fundamental requirement for any claim for service connection is that the Veteran must first establish that he or she has the disability claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability). In this case, no current diagnosis of a shoulder disability has been shown during the pendency of the Veteran's claim. A January 2013 VA examination for shoulder and arm disabilities concluded that the Veteran did not have a shoulder disability. The Board acknowledges the Veteran's complaints of shoulder pain. However, pain is not a compensable disability absent an underlying pathology. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). With respect to whether the Veteran's own statements can establish a current disability here, as to the specific issue in this case, the process of diagnosing a disability of the shoulder falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Moreover, the 2013 VA examiner concluded that he had no current shoulder disability. The statements of the VA examiner, a medical professional, are given more weight than those of the Veteran, a lay person. Based on this evidentiary posture, service connection cannot be awarded. ii. Increased Evaluation for Lumbar Spine The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant submitted correspondence in October 2011 and April 2012 indicating that he was seeking an increased overall disability evaluation, from 30 percent to 40 percent, for his lower and upper spine disability. AB v. Brown, 6 Vet. App. 35 (1993); cf. Hamilton v. Brown, 4 Vet. App. 528 (1993) ("where . . . the claimant expressly indicates an intent that adjudication of certain specific claims not proceed at a certain point in time, neither the RO nor [the Board] has authority to adjudicate those specific claims. . . ."). In April 2013, the RO issued a rating decision which granted service connection at a 10 percent evaluation for the cervical spondylosis, effective August 9, 2005. This resulted in the assignment of a combined disability evaluation of 40 percent. 38 C.F.R. § 4.25 (2012). In May 2013, the RO contacted the Veteran to determine if he still wanted to pursue his claim for an increased evaluation of his lumbar spine disability. The Veteran indicated that he no longer wished to pursue the claim as it was adequately addressed by the recent rating decision. As there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal of the issue of entitlement to an evaluation in excess of 20 percent for lumbar strain with degenerative disc disease of the thoracolumbar spine and it is dismissed. ORDER Service connection for a shoulder disability, including secondary to service-connected disabilities, is denied. The appeal of the issue of entitlement to an evaluation in excess of 20 percent for lumbar strain with degenerative disc disease of the thoracolumbar spine is dismissed. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs