Citation Nr: 1329172 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 12-34 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for arthritis of the bilateral lower extremities. 2. Entitlement to service connection for a left hip disability, to include total left hip replacement. 3. Entitlement to service connection for a right knee disability, to include total right knee replacement. 4. Entitlement to service connection for a low back disability, to include degenerative disc disease and arthritis of the lumbar spine. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for tinnitus. 7. Entitlement to service connection for residuals of head trauma. ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active duty service from August 1952 to May 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Pittsburgh, Pennsylvania. The Veteran was afforded an April 2011 Decision Review Officer (DRO) hearing at the RO. A hearing transcript is associated with claims folder. In his October 2012 substantive appeal, the Veteran requested a videoconference hearing before the Board. A hearing was scheduled in March 2013, but the Veteran failed to appear without showing good cause. The hearing request is deemed withdrawn. 38 C.F.R. § 20.702. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for arthritis of the bilateral lower extremities, a left hip disability, to include total left hip replacement, a right knee disability, to include total right knee replacement, a low back disability, to include degenerative disc disease and arthritis of the lumbar spine, bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The evidence of record fails to show that the Veteran has any current residuals of a claimed in-service head trauma. CONCLUSION OF LAW The criteria for service connection for residuals of head trauma are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA 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; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in June 2010, the RO notified the Veteran of the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This letter also informed him of the types of evidence that would be considered to substantiate his claims and the information and evidence needed to sustain a claim for service connection. In addition, the letter met the notice requirements set out in Dingess. The Veteran has not alleged that notice has been less than adequate. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). Further, the Board finds that the notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this case in May 2013 in order to request that the Veteran identify any medical records showing treatment for residuals of head trauma and to provide the Veteran with a VA examination to determine whether the Veteran has residuals of an in-service head trauma. The Veteran was sent the required letter in May 2013, and responded later that month that he had already provided release forms for all private physicians that had treated him. These records are in the claims file. The Veteran also indicated that VA treatment had been provided in the Pittsburgh region. The Virtual VA online claims file contains these records. The Veteran was provided with a VA examination in June 2013 to determine whether he had residuals of in-service head trauma. The Board finds that the VA examination is adequate because, as will be discussed in detail below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the report discusses the lack of symptoms associated with any claimed in-service head injury. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Service Connection - Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A current disability must be present for a valid service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). More recently, the Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ('[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence'). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has claimed that he sustained a head injury in a parachute jump in Colorado during the winter of 1953. He landed hard and believed that he struck his head, but denied losing consciousness. He was wearing a helmet at the time. Service treatment records do not reflect any head injury. On his April 1954 Report of Medical History, the Veteran did not report any residuals of a head injury, and reported that his health was excellent. Post-service medical records do not show any reports of or treatment for a head injury. The Veteran was provided with a VA examination in June 2013. The examiner noted the Veteran's report of his hard parachute landing in the winter of 1953, but also acknowledged that Veteran reported that he did not have confusion, nausea/vomiting, double/blurred vision, or other neurological symptoms consistent with experiencing a concussion or traumatic brain injury (TBI) following the incident. The examiner also noted that there was no history of symptoms consistent with residuals of a concussion/TBI. Personnel records show that Veteran was described as "an exceptional, outstanding officer in all respects" and "an extremely capable, well balanced officer." See Officer Efficiency Report, dated May 3, 1954. The examiner found it extremely unlikely that an officer experiencing residuals of a head injury would perform at such an exceptional level. In addition, after his discharge, the Veteran attended business school at Harvard and earned a Masters in Business Administration. He was an executive vice president at a manufacturing firm for 25 years prior to retirement. After his retirement, the Veteran taught part time at Carnegie Mellon before he fully retired when he was 75. Again, the examiner found it very unlikely that an individual with any significant residuals of a head injury or TBI would have the ability to perform at such a high level. Finally, the Veteran did not describe any symptoms consistent with TBI. The Veteran did express concerns regarding "late life" difficulties resulting from TBI; however, the examiner noted that, typically, a person who experienced TBI would exhibit symptoms immediately after the incident; these symptoms would resolve over the following days or weeks. The examiner opined that the Veteran did not fall into the two categories of people who may experience later in life problems with residuals of TBI-those people who have experienced a severe TBI with coma, and those people who sustain multiple, frequent mild concussions such as football players or boxers. The Board finds that the evidence fails to show that the Veteran has had a head injury or TBI that has caused any current residuals. He reported that he may have hit his head during a hard landing on a parachute jump in winter, 1953. The Veteran is competent to report such an event and, as there is no evidence directly contradicting his reports, is credible; however, a current disability is one of the fundamental requirements of entitlement to service connection. Without evidence of a current disability, there is no basis upon which to grant service connection. Brammer. In this case, post-service treatment records do not reflect residuals of a head injury, and the VA examiner, who conducted a thorough examination in June 2013, found that the Veteran did not exhibit any symptoms that would be related to a head injury in service or in the years since his discharge. The examiner thoroughly reviewed the Veteran's medical and professional history and background, and based his opinion on this review and the examination of the Veteran. The Veteran has contended that he has residuals of a head injury in service; however, this is a complex medical issue, and nothing in the record reflects that the Veteran has the requisite medical expertise to render such an opinion. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As such, the Board must deny the claim. The benefit of the doubt doctrine has been considered; however, as the preponderance of the evidence is ageist the claim, it is not for application. 38 U.S.C.A. § 5107 (2012). ORDER Service connection for residuals of head trauma is denied. REMAND In its May 2013 remand, the Board instructed that the Veteran should be provided with VA examinations to determine whether he had arthritis of the bilateral lower extremities, a left hip disability, a right knee disability, a low back disability, hearing loss and tinnitus related to service. The Board instructed the examiner to review the entire claims file prior to examining the Veteran and rendering an opinion. In addition, the examination instructions included a provision that the examiner should consider the Veteran's reports of in-service parachute jumps as credible, and that the Veteran was competent to report his observable symptoms and relate his medical history. It was noted that the examiner could not reject the Veteran's reports solely on the absence of contemporaneous medical treatment. The Veteran was provided with a VA audio VA examination in June 2013. The examiner determined that the Veteran had sensorineural hearing loss in both ears and secondary tinnitus. The examiner found that evidence within the record did not suggest noise injury during service. However, at this DRO hearing, the Veteran indicated that he had exposure to machine gunfire and grenades while in training. The VA examiner did not address these contentions or discuss whether he rejected these reports. As such, on remand, the Veteran's claims file should be returned to the VA examiner who provided the June 2013 examination, in order to provide an opinion that addresses the Veteran's contentions of noise exposure in service. With regard to the Veteran's claims for entitlement to service connection for arthritis of the bilateral lower extremities, a left hip disability, a right knee disability, and a low back disability, the Veteran underwent an examination in June 2013. The examiner diagnosed low back degenerative disc disease, left hip degenerative joint disease, and a right knee meniscal tear with surgical repair. He opined that these were less likely as not related to service; however, he did not assess the Veteran's reports in the claims file that he began to have symptoms soon since service, and based his opinions on the lack of medical evidence showing treatment for these disorders in the years following service, in contradiction with the Board's remand instructions. As such, the Veteran's claims folder should be returned to the examiner who provided with June 2013 opinions, in order to obtain an opinion evaluating and addressing the Veteran's contentions regarding the onset of his symptoms. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran's claims file should be returned to the VA examiner who provided the June 2013 orthopedic examination to review the record and render an opinion as to whether the Veteran's disorders of the lumbar spine, left hip, lower extremities, and right knee are related to service, that addresses the Veteran's contentions regarding ongoing symptoms since service. After complete review of the claims folder and in particular the Veteran's statements regarding the onset of his symptoms, the examiner is asked to opine for each claimed disability (lumbar spine, left hip, arthritis of both lower extremities, and right knee) on whether it is as likely as not (probability of 50 percent or greater) related to service. The Veteran is competent to report his observable symptoms and relate his medical history. If the examiner rejects the Veteran's reports, he or she must explain why and cannot rely solely on the absence of contemporaneous medical treatment to do so. The examiner must consider the Veteran's reports of in-service parachute jumps as credible. A complete rationale for all opinions should be given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 2. The Veteran's claims file should be returned to the VA examiner who provided the June 2013 audiology examination in order to obtain an opinion that addresses the Veteran's contentions of in-service noise exposure (provided at his April 2011 DRO hearing). The claims folder, a copy of this Remand, and access to the Virtual VA efolder must be given to the examiner, who should acknowledge receipt and review of the records. The examiner must express an opinion as to whether it is more likely than (50 percent probability or greater) that the Veteran's current hearing loss is related to his reported in-service noise exposure. A detailed rationale must be provided. The Veteran is competent to describe his reports of noise exposure and hearing loss history. His reports must be considered. If the examiner rejects the Veteran's reports, an explanation must be given and it cannot solely be based upon an absence of contemporaneous audiological treatment. If the Veteran's hearing loss is deemed related to service, the examiner should furthermore list the functional impairments caused by hearing loss. If the examiner cannot provide an opinion without resort to speculation, he or she explain why and identify any outstanding medical records that would facilitate a non-speculative opinion. 3. Carefully review the examination reports to ensure that they are in compliance with the Remand instructions. 4. After completing all development required to adjudicate the Veteran's claims, re-adjudicate these issues. If the benefit sought remains denied, the Veteran should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs