Citation Nr: 1330391 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 10-09 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a disability of the left shin. 2. Entitlement to service connection for the residuals of a concussion also claimed as traumatic brain injury (TBI). 3. Entitlement to service connection for a right eyelid disorder. 4. Entitlement to an initial compensable rating for deviated septum, status post septoplasty. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Appellant is a veteran who had active military service from May 1985 to June 2008. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The RO in Nashville, Tennessee, however, certified this appeal to the Board. The Veteran filed this claim as a participant in the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. The issues regarding service connection for residuals of a concussion and a higher rating for deviated nasal septum are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. There is no competent and credible evidence of an underlying chronic disability involving the left shin besides the Veteran's report of left shin pain. 2. There is no competent and credible evidence of an underlying chronic disorder involving the right eyelid besides the Veteran's report of a sensation of a foreign object in his right eye. CONCLUSIONS OF LAW 1. The Veteran does not have chronic disabilities involving the left shin as a result or consequence of disease or injury incurred in or aggravated by his active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The Veteran does not have chronic disabilities involving the right eyelid as a result or consequence of disease or injury incurred in or aggravated by his active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To this end, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b) (1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In January 2008, when filing his claims, the Veteran received a letter satisfying these notice requirements of 38 C.F.R. § 3.159(b)(1) as part of the BDD program. The letter informed him of the evidence required to substantiate the claims and of his and VA's respective responsibilities in obtaining this supporting evidence. The letter also complied with Dingess by as well discussing the "downstream" disability rating and effective date elements of his claims. So he has received all required notice concerning his claims. All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records (STRs), Blanchfield Army Community Hospital records, VA outpatient treatment reports, adequate VA examination and opinion as well as statements from the Veteran and his representative. He also was provided a QTC compensation examination for a medical opinion concerning whether he has the claimed disabilities. Thus, the Board finds that the duty to assist him with his claims has been met. 38 U.S.C.A. § 5103A. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. II. Service Connection for Left Shin Disability and Right Eyelid Disorder Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing she has at some point since the filing of her claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Diseases initially diagnosed after service may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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 (Fed. Cir. 2007). So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements for service connection are met is based on an analysis of all of the evidence of record, medical and lay, and the evaluation of its competency and credibility to, in turn, determine its ultimate probative value in relation to other relevant evidence. See Baldwin v. West, 13 Vet. App. 1 (1999). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. The Veteran's STRs do not show any complaints, treatment, or diagnosis regarding a left shin disability. Regardless, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See 38 C.F.R. § 3.159(a)(2). In light of the Veteran's reported history, the RO scheduled a VA compensation examination by QTC Services for January 2008. The Veteran reported his medical history. He stated that his condition has existed since 1994. He explained that an injury occurred when he drove a vehicle into fighting position in Kuwait. His symptoms consisted of constant pain that traveled to his back, legs and neck. The pain could be elicited by activity. On objective physical examination of the left lower extremity, there was no edema, ulceration, or stasis. Examination of the tibia and fibula were within normal. There were no fasciculation, rigidity, or spasticity. In fact, there were no reported disabling effects. In his notice of disagreement (NOD), received in July 2009, the Veteran reported that as a result of a vehicular impact, he received a divot in the left shin. He added that his shin would ache after prolonged standing or after running. Regarding a right eyelid disorder, the STRs show that he was seen on several occasions for right eyelid complaints. In February 2006, he stated that he felt as though he had a foreign body under the right eyelid. He added that this sensation had its onset a year previously. Significantly however, on examination, while there was a noted nasal pinguecula (OU), there was no abnormality of the right eyelid found. Moreover, the clinical findings were the same when seen with similar complaints in May and October 2007. The QTC examiner in January 2008 also was unable to find a right eyelid abnormality. In the statement received in July 2009, the Veteran again reported that his right eyelid condition occurred near an explosion in Iraq. He stated that he has had constant right eye irritation since then. He reported that he had undergone multiple eye tests which indicated that his eyes were fine; yet his symptoms include blurred vision, redness, and tearing. . At a May 2010 examination, at Blanchfield Army Community Hospital, his eyes were considered normal. As explained, the most fundamental requirement for any claim for service connection is that the Veteran must first establish he or she has the condition 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); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). In this regard, the Veteran has neither provided nor identified any medical evidence showing current diagnoses of the claimed disorders. A review of his STRs, as well as his VA and Army hospital treatment records do not show he has ever complained about or been treated for or received a diagnosis of a left shin disorder of any sort. And he has only claimed service connection for a vaguely unidentifiable right eyelid disability. He is competent, even as a layman, to proclaim for example having experienced pain in his left shin or an odd sensation in his right eye. Indeed, he is even competent to make this proclamation absent any supporting contemporaneous medical evidence such as treatment records. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). But his lay statements concerning this also must be credible to ultimately have probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and 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")). And his mere complaint of pain (or an "itching" eye), alone, 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. Sanchez-Benitez v. West, 13 Vet. App. 282, 285. A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran is not competent from a medical point of view to challenge the findings of no left shin or right eyelid disabilities. For these reasons and bases, the Board rejects the Veteran's unsubstantiated lay statements as competent and credible evidence sufficient to establish the required current diagnoses of separately ratable compensable chronic disabilities involving the left shin and right eyelid. See Colantino v. Shinseki, No. 2009-7067, 2010 WL 2163002 (Fed. Cir. June 1, 2010); Johnson v. Shinseki, No. 2010-7060 (Fed. Cir. June 10, 2010). Consequently, the Board finds that the preponderance of the evidence is against the claims and, as such, they must be denied. 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). ORDER The claim for service connection for a disability of the left shin is denied. The claim for service connection for a disability of the right eyelid is denied. REMAND The Veteran also claims that service connection should be granted for the residuals of a concussion. Although the STRs do not show he received a concussive injury, he has submitted a September 2009 medical statement from Dr. M.T. of the U.S.. Army Medical Corps who indicated that after reviewing unit records, the Veteran sustained a traumatic facial injury in a free fall parachute exercise in May 2000. (These unit records are not included in the claims file and should be obtained.) Furthermore, the physician who conducted the January 2008 QTC examination indicated that the Veteran did not have any residuals from a concussion but had a focal injury traumatic brain injury (TBI) with a severity grade of mild. She further indicated that the TBI had stabilized. It is not clear from this statement whether she is stating that a TBI is related to the Veteran's claimed inservice free fall injury. Nor is it clear as to what, if any, residual disabilities (physical, cognitive, or emotional) he may now has from TBI . Further examination and opinion are needed. The Veteran is also claiming that a compensable rating is warranted for his deviated nasal septum. Given that over five years have passed since the most recent QTC examination, the evidence has become stale, at least as it pertains to the current level of disability. Therefore, the Board finds that the Veteran should be afforded another VA compensation examination to assess the current degree of disability caused by his deviated nasal septum. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran whether he has received any additional (more recent) evaluation or treatment for his deviated nasal septum or TBI. If he has, and the records are not already in the file, then obtain them with his cooperation. If attempts to obtain any additionally identified records are unsuccessful, and it is determined that further attempts to obtain them would be futile, then make an express declaration to this effect and notify the Veteran. 2. Obtain a detailed statement from the Veteran regarding his inservice injury involving the free fall accident during parachute training in May 2000 in Kuwait and thereafter obtain any unit records that refer to this injury. 3. The Veteran should be afforded appropriate VA examination to determine the nature and etiology of any current TBI deficits which may be present. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file. All indicated studies and tests should be performed and all findings must be reported in detail. The examiner should indicate if the Veteran currently has residuals of a TBI. If residuals of a TBI are found to be present, the examiner must offer an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the residuals of TBI are etiologically related to the Veteran's period of active service, to include any head trauma sustained in service. The examiner should provide detailed rationale for this opinion. 4. Then, the Veteran should be afforded an appropriate VA evaluation to determine the current manifestations and degree of severity of his service-connected deviated nasal septum. The pertinent records in the claims folder must be made available to and reviewed by the examiner. All indicated studies should be performed. Findings pertinent to the rating schedule should be provided. 5. To help avoid future remand, the RO must ensure the required 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, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 6. Readjudicate the remanded claims. If either benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran 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). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs