Citation Nr: 1328920 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-15 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for sinusitis. 6. Entitlement to service connection for a bilateral shoulder disability. 7. Entitlement to service connection for bilateral shoulder scars (claimed as due to shoulder surgery). 8. Entitlement to service connection for a low back disability. 9. Entitlement to service connection for radiculopathy of the lower extremities. 10. Entitlement to service connection for a left hand disability. ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1980 to July 1983. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the San Juan, Puerto Rico Department of Veterans Affairs (VA) Regional Office (RO). In September 2010, and January 2012, the Board remanded the case for additional development. FINDING OF FACT The Veteran does not have an acquired psychiatric disability, headaches, bilateral hearing loss, tinnitus, sinusitis, a bilateral shoulder disability, bilateral shoulder scars, a low back disability, radiculopathy of the lower extremities, or a left hand disability, due to his service. CONCLUSION OF LAW The Veteran does not have an acquired psychiatric disability, headaches, bilateral hearing loss, tinnitus, sinusitis, a bilateral shoulder disability, bilateral shoulder scars, a low back disability, radiculopathy of the lower extremities, or a left hand disability, that are related to his service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran asserts that he has an acquired psychiatric disability, headaches, bilateral hearing loss, tinnitus, sinusitis, a bilateral shoulder disability, bilateral shoulder scars, a low back disability, radiculopathy of the lower extremities, and a left hand disability, due to his service. He has indicated that all of the claimed disorder began during active duty service. See Veteran's claim (VA Form 21-526), received in May 2008. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Regulations also provide that 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 which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for arthritis, and an organic disease of the nervous system, such as a sensorineural hearing loss, when they are manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). It is appropriate to consider high frequency sensorineural hearing loss as an organic disease of the nervous system and, therefore, subject to presumptive service connection. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. § 3.309(a) (2012). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2012). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. The Veteran's service treatment reports show that in October 1981, he was treated for a left thumb injury after he had closed a door on it. He reported a previous left thumb injury about one year before that had not resulted in a fracture, but that his thumbnail had come off. The assessment was rule out smashed finger, and blood build-up under nail. He was given ice, and the thumb was splinted. In December 1981, the Veteran was treated for complaints of a painful first left digit. A left thumbnail crush injury was noted that was several weeks old. The assessment was soft tissue injury. In April 1982, he was treated twice for complaints of low back pain. The assessments were normal examination, "pulled muscle in back," and possible muscle spasm. In May 1983, the Veteran was treated for complaints of chest and back pain. The assessment was possible nephritis. A separation examination report is not of record. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 2001 and 2012. This evidence includes VA progress notes, dated between 2001 and 2012. A July 2002 report shows treatment for complaints of suicidal ideas. The Axis I diagnosis was depression NOS (not otherwise specified). A March 2005 report notes that the Veteran had headaches that are related to stress, and that he has shoulder symptoms, and depression. On examination, there was no gross motor or sensory deficit. In April 2008, the Veteran reported a work history of 12 years at a pharmaceutical factory, "but he was dismissed from work"; other notations show that he stated that he retired after 14 years. In June 2008, the Veteran complained of bilateral hand numbness, and an 8-month history of weekly headaches. The report indicates that tinnitus was present, but not hearing loss. Another June 2008 report shows that he was noted to have a work history that included a number of "menial jobs," to include construction, manufacturing, and installing curtains, followed by 14 years with a pharmaceutical company which he left "after a retirement window was open and also because he was having conflicts with a supervisor." An EMG (electromyogram) for the upper extremities, dated in July 2008, contains a conclusion noting an abnormal study, with evidence of early bilateral median neuropathy at the wrist level "such as carpal tunnel syndrome." The report notes that the differential diagnosis may include CTS (carpal tunnel syndrome), OA (osteoarthritis), and tendonitis. In October 2008, the Veteran complained of bilateral hand numbness, and an 8-month history of weekly headaches. On examination, there was tinnitus, and bilateral CTS, but no hearing loss, or sinus disease. There was no gross motor or sensory deficit. In January 2009, the Veteran reported that he worked as a pharmaceutics operator for 12 years, during which time he had to complete repetitive movements which had caused him pain, and that he decided to leave his job the year before. Another January 2009 report notes the presence of tinnitus, but that there were no headaches, or sinus symptoms. In March 2009, the Veteran complained of symptoms that included headaches, and sinusitis; he denied tinnitus. On examination, with regard to hearing loss, the report notes "no deviation." Between 2008 and 2012, the Veteran received multiple treatments for psychiatric symptoms. He was repeatedly diagnosed with depressive disorder NOS. There were also a number of diagnoses of rule out dysthymic disorder. In March 2009, the Veteran was treated for headaches. With regard to hearing loss, the report notes "no deviation." A May 2009 X-ray report for the shoulders contains an impression of "normal shoulders." In January 2011, he was noted not to have headache, tinnitus, or hearing loss, or any gross motor or sensory deficits. In January and May of 2012, the Veteran was noted not to have a headache, or any gross motor or sensory deficits. A private X-ray for the lumbar spine, dated in May 2003, contains an impression of paraspinal myositis. A private CT (computerized tomography) report for the lumbar spine, dated in April 2007, contains an impression noting straightening of the lumbar lordosis. Reports from L.A.M.T., M.D., dated between 2004 and 2008, include a February 2004 report which notes complaints of right shoulder pain "for many months." The Veteran was noted to be an operator at a pharmaceutical company. A review of systems noted disorders that included sinusitis, and depression. X-rays of the right shoulder were noted to show distal clavicle osteolisis. The onset of the right shoulder disorder was noted to be November 2003. A May 2004 report indicates that the Veteran had undergone a right shoulder decompression and distal clavicle excision. A November 2005 report notes that the Veteran had developed left shoulder pain. An MRI and X-ray of the left shoulder were noted to show impingement syndrome, and AC joint arthrosis. A December 2005 report indicates that the Veteran had undergone a left shoulder decompression and distal clavicle excision. A May 2008 report notes a history of right shoulder pain of insidious onset, and that the Veteran reported a history of on and off pain "since many years due to the high level activities done throughout his life, including his work in the U.S. Army and also jobs as an operator in MOVA Pharmaceuticals." The Veteran's history was noted to include left shoulder pain beginning in November 2005, and Dr. T stated that, "It was there doing overhead activities related to his job." The report notes bilateral shoulder scars due to the Veteran's 2005 shoulder surgeries. In another May 2008 report, the Veteran was noted to state that he had lost his job, and Dr. T stated, "[H]e wanted me to relate his shoulder condition to his job and I told him I will dictate a note..." A VA hand examination report, dated in May 2009, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran reported an inservice history of a left thumb crush injury. A decision of the Social Security Administration (SSA), dated in November 2009, shows that the SSA determined that the Veteran was disabled as of May 2008, with a primary diagnosis of affective disorders. The SSA's reports note a history of treatment for psychiatric symptoms dating to 2000 "with gaps." An associated private psychiatric evaluation, dated in October 2009, notes that the Veteran has disabling major depression A VA joint examination report, dated in November 2010, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran reported that during service he sustained a bilateral shoulder injury, and his left hand. He also reported a history of right shoulder surgery in 1994, and left shoulder surgery in 1996, both due to AC (acromioclavicular) degenerative disease. The examiner recorded the Veteran's subjective history, and performed an examination. An October 2009 MRI (magnetic resonance imagining) study of the left shoulder was noted to show mild degenerative changes of the AC joint. The diagnoses were right shoulder AC joint degenerative disease, left shoulder AC joint degenerative disease, and left hand trauma with no residual deficits. The examiner stated that there was no evidence of lumbar radiculopathies. The examiner concluded that the Veteran's bilateral shoulder joint disorders were less likely than not related to his service. The examiner explained that there was no evidence of injuries, treatments, or complaints for the shoulders during service, or for a year after service, and that there is no residual damage to his left hand. A VA spine examination report, dated in November 2010, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran reported that he had had back pain, and bilateral radiculopathies, since his service. The diagnoses noted lumbar strain, and "no evidence of any lumbar radiculopathies." The examiner concluded that the Veteran's claimed conditions were not related to his service, explaining that his inservice low back pain was acute and transient, since he did not receive additional treatments during service, and that there were no radiological findings or diagnoses to show chronicity of a low back condition. A VA back Disability Benefits Questionnaire (DBQ), dated in February 2012, shows that the Veteran reported that he sustained trauma to his back when he slipped from a truck during mobilization exercises. He reported he had received therapy when he returned to Puerto Rico, but that he could not remember the place. He complained of pain, and leg numbness. An X-ray was noted to show mild lumbar degenerative changes. The diagnoses were muscle spasms, and degenerative disc disease. The report indicates that the Veteran did not have radiculopathy, or any other neurological abnormalities. The examiner stated that the Veteran's thoracolumbar spasms are at least as likely as not related to the lumbar strain shown during service, "taking into consideration the Veteran's history of recurrent pain, nevertheless the claim file and CPRS medical record failed to provide any evidence of treatment within a year after discharge." The examiner further stated that there was no evidence of radiculopathy at the physical exam. A VA shoulder and arm DBQ, dated in February 2012, shows that the diagnoses were shoulder osteoarthritis, and shoulder tendonitis. The Veteran reported having shoulder pain "during exercises," and that he has had shoulder pain since the 1990s. He reported a history of surgeries in 2004 (right shoulder) and 2005 (left shoulder). X-rays were noted to show very mild acromioclavicular degenerative changes. The examiner concluded that the Veteran's shoulder conditions were less likely to be related to his military service, explaining that the reasons for his surgeries was degenerative joint disease that is more related to the aging process, and the Veteran has reported that his symptoms began in the 1990s. The examiner further noted that Dr. T had stated that the Veteran's left shoulder pain was related to above-shoulder activities at his job. Finally, the examiner stated that the bilateral shoulder scarring was related to the Veteran's surgical procedures, and that it was not related to his service. The examiner also stated that there was no evidence of radiculopathy at the exam. A VA scar DBQ, dated in February 2012, is also of record which shows that the Veteran has bilateral shoulder scars secondary to distal clavicle excision surgeries, due to degenerative joint disease. As an initial matter, the Board finds that the Veteran is not a credible historian. The Veteran has asserted that during service he sustained a bilateral shoulder injury, and that he sustained trauma to his back when he slipped from a truck. See VA examination reports, dated in November 2010 and February 2012. However, his service treatment records do not show an injury to either shoulder, or that he slipped off of a truck and injured his back. In addition, Dr. T's reports show that the onset of the Veteran's right shoulder disorder was in November 2003, that the onset of his left shoulder disorder was in November 2005, and his reports indicate that both of these disorders were related to his many years of labor at a manufacturing company. Furthermore, in a May 2008 report, the Veteran requested Dr. T "to relate his shoulder condition to his job." The February 2012 VA shoulders DBQ shows that the Veteran reported that although he had shoulder pain "during exercises," that his shoulder pain began "in the 1990s." He also reported that he was disabled through the SSA due to a psychiatric condition, a lumbar spine condition, and a shoulder condition. However, the SSA's records show that they determined that he was disabled solely due to a psychiatric condition. Although the Veteran has asserted that he has had headaches since his service, he has told VA health care providers that he had no more than an 8-month history of weekly headaches. See VA progress notes, dated in June and October of 2008. He has also repeatedly complained of financial problems, and this is evidence of financial interest. See e.g., VA outpatient treatment reports, dated in January, April and May of 2009; Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). The Board therefore finds that he is not a credible historian. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). With regard to the claims for hearing loss, radiciulopathy of the lower extremities, and a left hand disability, the Board finds that the claims must be denied, as the preponderance of the evidence shows that the Veteran does not have hearing loss, radiciulopathy of the lower extremities, or a left hand disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. § 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). Although the Veteran was treated for a left thumb injury during service in October 1981, there were no findings of left thumb bone, ligament, or nerve injury. He was also treated for a left first digit injury in December 1981. These were evidently acute injuries, as evidenced by the lack of subsequent treatment during the Veteran's remaining period of service, a period of at least one year and six months. The diagnoses in the November 2010 VA joint examination report noted left hand trauma "with no residual deficits," and there is no other competent evidence to show the existence of a left hand disability. In this regard, the Veteran is shown to have bilateral CTS, which is not a left hand disability and is therefore not considered to be within the scope of this claim. However, the Board will note that there is no competent evidence linking left wrist CTS to the Veteran's service. The VA examination reports, dated in November 2010 (two reports), and the February 2012 back DBQ, all show that the examiners determined that the Veteran did not have radiculopathy. There is no competent evidence to show that the Veteran currently has hearing loss, to include as defined at 38 C.F.R. § 3.385. Finally, there is no competent evidence linking hearing loss, radiciulopathy of the lower extremities, or a left hand disability, to the Veteran's service, and no competent evidence to show that sensorineural hearing loss was manifest to a compensable degree within one year of separation from service. Accordingly, these claims must be denied. With regard to the claims for an acquired psychiatric disability, headaches, tinnitus, sinusitis, and bilateral shoulder scars, the Board finds that the claims must be denied. During service, the Veteran was not treated for, or shown to have, an acquired psychiatric disability, headaches, tinnitus, sinusitis, or a shoulder scar. It is not entirely clear whether the Veteran currently has tinnitus or sinusitis, however, there are findings of these two disorders in the post-service medical records. In any event, the earliest post-service medical evidence of any of the claimed disabilities is dated no earlier than 2001. This is about 17 years after service. Furthermore, the Veteran's shoulder scars are clearly related to his post-service surgeries in 2004 and 2005, and the Board has determined that service connection is not warranted for a disability of either shoulder, infra. The February 2012 VA DBQ also contains an etiological opinion against the claim for shoulder scars. The Veteran is not shown to have been diagnosed with a disorder listed at 38 C.F.R. § 3.309(a) (2012), and the U.S. Court of Appeals for the Federal Circuit has recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, there is no competent medical evidence to show that the Veteran has any of the claimed disabilities that is related to his service. Accordingly, these claims must be denied. With regard to the claims for a bilateral shoulder disability, and a low back disability, these claims must also be denied. The Veteran's service treatment records show that in April 1982, he was treated twice for complaints of low back pain. The assessments were normal examination, "pulled muscle in back," and possible muscle spasm. In May 1983, the Veteran was treated for complaints of chest and back pain. The assessment was possible nephritis. The earliest post-service medical evidence of either of the claimed disabilities is dated no earlier than 2003. This is about 20 years after separation from service. The Veteran has been found not to be credible, and this lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claims. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). As previously discussed, the evidence indicates that the Veteran's bilateral shoulder disorder is related to his history of employment, which is shown to have required extensive physical labor and to include at least 12 years at a pharmaceutical plant. See e.g., Dr. T's reports. Furthermore, the only competent and probative opinions are contained in the November 2010 VA examination reports, and the February 2012 VA shoulder and arm DBQ, and these opinions weigh against the claims. These opinions are considered to be highly probative evidence against the claims, as they discuss the Veteran's service and post-service medical history, and they are accompanied by a sufficient rationale. See Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). To the extent that the Board had previously found fault with the opinions in the 2010 VA examination reports in its January 2012 remand, this was prior to the instant credibility determination. The Veteran has been found not to be credible, and the opinions in these examination reports are therefore considered both competent and probative (discussed at greater length, infra). Finally, there is no competent evidence to show that arthritis of either the low back, or either shoulder, was manifest to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. The Board therefore finds that the preponderance of the evidence is against the claims, and that the claims must be denied. In reaching this decision, the Board has considered the opinion in the February 2012 spine DBQ. That report shows that the Veteran reported that he had sustained low back trauma after slipping from a truck. In fact, no such injury is shown in the service treatment records. Furthermore, the examiner's opinion specifically related "muscle spasms" to his service. VA generally does not grant service connection for symptoms which have not been associated with trauma or a disease process. See Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The examiner further indicated that her conclusion was based on the Veteran's reports of "recurrent pain." However, the examiner undermined her opinion by noting that there was no evidence of treatment within a year of separation from service. In any event, the Board has determined that the Veteran is not credible, the evidence does not indicate that the Veteran had a chronic low back disorder during service, and there is no evidence of low back treatment for many years after service. Thus this opinion warrants no probative value. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). In this regard, in its January 2012 remand, the Board essentially indicated that the Veteran's assertions of low back pain since his service were to be considered credible upon reexamination. However, this was prior to the instant credibility determination. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Kahana v. Shinseki, 24 Vet. App. 428 (2011) (discussing the "chicken-or-egg" dilemma faced by the Board when requesting opinions and making credibility determinations with an undeveloped record). Thus, the instant credibility determination, which has been made on a more complete record, supersedes and renders moot the Board's January 2012 remand instruction, to the extent it indicated that the Veteran's assertions were to be considered credible. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, whether or not the Veteran has an acquired psychiatric disability, headaches, sinusitis, a bilateral shoulder disability, bilateral shoulder scars, a low back disability, radiculopathy of the lower extremities, or a left hand disability, that have been caused by service, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With regard to the claims for bilateral hearing loss, and tinnitus, lay persons are generally competent to report symptoms of these disabilities. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, the Veteran has been found not to be credible. In this case, the Veteran's service treatment reports and post-service medical records have been discussed. The Board has determined that service connection for these disabilities is not warranted. Etiological opinions have been obtained which weigh against the claims for a bilateral shoulder disability, a low back disability, and bilateral shoulder scars. Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contentions. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran, dated in May 2008. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records, and SSA records. With regard to the claims for a low back disability, radiculopathy of the lower extremities, bilateral shoulder scars, a bilateral shoulder disability, and a left hand disability, the Veteran has been afforded VA examinations, and etiological opinions have been obtained. With regard to the claims for an acquired psychiatric disability, hearing loss, tinnitus, headaches, and sinusitis, the Veteran has not been afforded examinations, and etiological opinions have not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifest during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The Veteran's service treatment reports do not show any relevant complaints, treatment, or findings, providing evidence against these claims. Therefore, the second McLendon criterion is not satisfied. With regard to the third McLendon criterion, the earliest post-service medical evidence of any of the claimed conditions is dated no earlier than 2001. This is about 17 years after separation from service. There is no competent evidence to show that any of the claimed conditions is related to service, which ended in 1983. Therefore, an examination and an etiological opinion need not be obtained. McLendon; see also 38 C.F.R. § 3.159(c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). In January 2012, the Board remanded these claims. The Board directed that copies of complete clinical records of all VA treatment the Veteran has received for the disabilities at issue, from January 2011 to the present, be obtained. That has been done. The Board also directed that the Veteran's SSA records be obtained, and that was done. Finally, the Board directed that the Veteran be afforded another examination, before an examiner other than the examiner who conducted the November 2010 VA spine and joints examinations, for an opinion as to whether any current back and shoulder disability are related to the Veteran's active service. In February 2012, this was done. Given the foregoing, the Board finds that there has been substantial compliance with its January 2012 remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to a veteran are to be avoided). Simply stated, the Board finds that the service and post-service medical record provides evidence against these claims. The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for an acquired psychiatric disability, headaches, bilateral hearing loss, tinnitus, sinusitis, a bilateral shoulder disability, bilateral shoulder scars, a low back disability, radiculopathy of the lower extremities, and a left hand disability, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs