Citation Nr: 1331785 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 11-01 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for dental damage. 2. Entitlement to service connection for residuals of head injury. 3. Entitlement to service connection for residuals of cold injuries to the lower extremities. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his friend, Mr. A. B. ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1944 to June 1946. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO), in which the benefits sought on appeal were denied. In December 2012, the Veteran testified before the undersigned at the RO. A copy of the transcript has been associated with the claims folder. Notably, a Veterans Law Judge who conducts a hearing must fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2) (2013); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the appellant was assisted at the December 2012 hearing by an accredited representative from the Texas Veterans Commission, and, during the hearing, the Acting Veterans Law Judge fully explained the issues on appeal. The Acting Veterans Law Judge and the Veteran's representative asked questions during the Board hearing regarding the appellant's contentions. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the appellant or his representative. Neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that the Acting Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), consistent with Bryant, and that any error in notice provided during either hearing constitutes harmless error. The issues were previously remanded by the Board in March 2013. Upon reviewing the development since March 2013, the Board finds there has been substantial compliance with its remand instructions with respect to the Veteran's head trauma claim. The AMC was tasked by the Board to obtain an additional VA examination. This occurred in May 2013, with an addendum dated in June 2013. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Thus, the Board will proceed to review and decide the claim based on the evidence that is of record. The Board also notes that VA treatment records were received (into Virtual VA) in September 2013, subsequent to the August 2013 supplemental statement of the case. A review of those records reveals no evidence relevant to the sole issue decided in this case. Accordingly, the Board finds no basis for a remand under 38 C.F.R. §§ 19.9 and 19.31 (2013). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for residuals of cold injuries to the lower extremities and dental damage is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Residuals of a traumatic brain injury have not been present at any time during the pendency of this claim. CONCLUSION OF LAW Residuals of a traumatic brain injury were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See 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). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Letters issued in June 2010 and March 2013 discussed the evidence necessary to support a claim for service connection. The Veteran was invited to submit or identify pertinent evidence. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. The June 2010 letter also advised the Veteran of the manner in which VA determines disability ratings and effective dates. The content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Therefore, the record reflects that he was provided with a meaningful opportunity during the pendency of his appeal such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA and private medical records are in the file. The majority of the Veteran's service treatment records could not be obtained because of a fire-related incident. Attempts to obtain this information from other sources were unsuccessful. Any further attempts to obtain the Veteran's service treatment records would be futile. The Board finds that all relevant records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). The Veteran was provided a VA examination for his disability claim in May 2013, with an addendum dated in June 2013. The examiner reviewed the claims file, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. The Board finds the examination report to be thorough and complete. Therefore, the Board finds the examination report and opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal. II. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease 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). However, '[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.' Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). The Veteran asserts that he sustained a head injury in service when a block of ice fell on him. Available records pertaining to the Veteran's active service are negative for any diagnosis, complaint, or treatment for a traumatic brain injury. Post-service VA treatment records include complaints of dizziness. In a March 1999 treatment record, the Veteran complained of dizziness the past two weeks, and that he felt light-headed when his sits, but when he stands, he seemed to veer to the right. The examiner noted he has a history of myocardial infarction two years ago, and his cardiologist had prescribed Plavix on last visit. In a May 2010 VA progress note, the Veteran reported being light headed after he had been unloading a big load of mulch by himself. During a May 2013 VA examination, the examiner noted that the Veteran sustained a traumatic brain injury in 1945. However, he currently has no complaints related to a head injury. He had no complaints of impairment of memory, attention, concentration, or executive functions. He had normal judgment. His social interaction is routinely appropriate. He is always oriented to person, time, place, and situation. His motor activity and visual spatial orientation was normal. He had no subjective symptoms, no neurobehavioral effects, no communication problems, and normal consciousness. The examiner noted no subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to a head injury. A June 2013 addendum indicated that the VA examiner reviewed the claims file and determined that the Veteran's claimed head injury and residuals of a head injury are less likely than not related to the Veteran's alleged in-service injury or are otherwise related to the Veteran's active duty. The examiner found there was no objective evidence of a head injury in service or post-service treatment records, and there were no residuals of head injury noted on examination. Upon careful review of the record, the Board has concluded that service connection for residuals of a head injury is not warranted. In that regard, the Board observes that service treatment records are negative for any complaints, treatment, or diagnosis of a head injury. The grant of service connection requires competent evidence to establish a diagnosis and relate the diagnosis to the Veteran's service. Though the Veteran has filed a claim for service connection, the record does not contain a clinical diagnosis associated with the claim. Moreover, it does not contain reliable evidence which relates such complaints of residuals of a head injury to any injury or disease in service. Rather, the Veteran's service treatment records and post-service treatment records are negative for any complaints of residuals of a head injury until March 1999 when the Veteran complained of dizziness associated with exertion, but no diagnosis was made. In essence, the Veteran has not identified or produced any evidence, medical or otherwise, that would tend to show that he currently has any clinical diagnosis referable to his claimed residuals of a head injury that is related to service. The Board acknowledges the Veteran's claim that he has neurological problems. However, the VA treatment records do not reveal such a diagnosis. While the Board is sympathetic to the Veteran's assertions, and recognizes that he is competent to report symptoms, the Board ultimately places more probative weight on the lack of clinical diagnosis (as opposed to reported symptoms) and to the VA examiner denying any current residuals of a head injury. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a chronic disability. In the absence of proof of a current and chronic disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In summary, there is no credible evidence establishing current residuals of a head injury. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. Consequently, the benefit sought on appeal is denied. ORDER Entitlement to service connection for residuals of head injury is denied. REMAND As noted in the previous remand, no post-service dental records have been associated with the claims folder. The Board notes that during the December 2012 Travel Board hearing, the Veteran identified private dental treatment from Dr. C. P. over the years. The RO requested the Veteran identify his private dentist and authorize the AMC to obtain those records on his behalf; however, no response was received from the Veteran. The AMC was unable to obtain any private dental treatment records. Though no treatment records were available, the AMC still had a duty to readjudciate the Veteran's dental claim within a supplemental statement of the case as directed by the March 2013 remand. The issue must be remanded accordingly. As the claim is being remanded, the AMC should, again, attempt to acquire authorization from the Veteran in order to obtain any private dental records available. For the issue of entitlement to service connection for residuals of cold injuries to the lower extremities, the Board notes that the issue was remanded in March 2013 for an additional VA examination. The examination was conducted in March 2013 and included a positive nexus opinion. There is no indication in either the paper or electronic claims file that the issue was then readjudicated. A September 2013 RO decision discussed other issues, and the supplemental statement of the case dated in August 2013 only included the issue of entitlement to service connection for residuals of a head injury. Therefore, the Board finds the issue of entitlement to service connection for residuals of cold injuries to the lower extremities must be remanded for reajudication in light of a review of the entire claims folder. 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) (2013). Expedited handling is requested.) 1. Contact the Veteran and ask for his assistance in obtaining any outstanding dental treatment records from Dr. C. P. All development efforts must be in writing and associated with the claims file. 2. After all the available dental records have been associated with the claims folder, the RO/AMC must review the entire record and determine whether any additional development is needed. 3. Thereafter, the Veteran's claims must be readjudicated in light of a review of the entire claims folder. If the benefits sought remain denied, issue the Veteran and his representative a supplemental statement of the case (SSOC). An appropriate period of time must be allowed for response. Thereafter, the case must be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs