Citation Nr: 1333450 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-07 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a disability manifested by hypoglycemia. 2. Entitlement to service connection for shin splints. 3. Entitlement to service connection for a cervical spine disorder. 4. Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active service with the Air Force and the Air National Guard from April 1983 to April 1989, February to July 1991, and September 1994 to July 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran requested a hearing before the RO in January 2010, but cancelled this hearing request in June 2010. A review of the Veteran's virtual VA claims file shows that it contains only evidence that is already associated with the paper claims file or irrelevant to the issues on appeal. The issues of entitlement to service connection for a disability manifested by hypoglycemia and sinusitis 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 1. The Veteran has not been shown to have a current shin disorder that is related to his military service. 2. The Veteran has not been shown to have a current cervical spine disorder that is related to his military service. CONCLUSIONS OF LAW 1. Shin splints were not incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. A cervical spine disorder was not incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, fully compliant notice with regard to the Veteran's claims was provided in July 2007 and July 2008, which was prior to the February 2009 initial adjudication of the Veteran's claims. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. The Veteran has not identified any outstanding records that are available and relevant to the claims being decided herein. Moreover, the record includes various written statements provided by the Veteran and his representative. The Board acknowledges that one of the Veteran's claims is being remanded below in order to attempt to obtain more recent medical records relative to that claim. However, it is the nature of hypoglycemia that is the reason for that remand. This symptom appears likely to either resolve or evolve into a disease. However, the evidence of record, as discussed in more detail below, shows that there is no disability of the shins or cervical spine. There is also no suggestion from either the Veteran or the record that any change has occurred with regard to either of these issues. Therefore, they need not be remanded for additional development. In addition, the Veteran was afforded VA examinations in August 2007 and November 2008 in connection with both of his claims. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations in this case are adequate, as they are predicated on a review of the Veteran's medical history as well as on an examination. As will be discussed in more detail below, disabilities due to disease or injury are not shown for either of the claimed issues that are decided herein. Therefore, while the VA examinations did not contain opinions as to whether the claimed disabilities were due or related to service, this does not render them inadequate, because the claims fail on the basis of a lack of a currently diagnosed disability. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Laws and Analysis At the outset, the Board notes that the Veteran has not alleged and the record does not suggest that any of the claimed disabilities are related to service in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Because the Veteran has not been diagnosed as having one of the enumerated chronic diseases, consideration of continuity of symptomatology under the provisions of 38 C.F.R. § 3.303(b) is not warranted. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.309(a). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability. In the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a "current disability" is satisfied if a disorder is diagnosed at the time or in close proximity to when a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, --- Vet. App. ----, 2013 WL 1907369, Vet. App., May 09, 2013 (NO. 11-3272). A Veteran bears the "'evidentiary burden' to establish all elements of his claim, including the nexus requirement." Fagan v. Shinseki, 573 F. 3d 1282, 1287-88 (2009). The Board's duty is to assign probative value to all pertinent medical and lay evidence of record based on its credibility and competency and then weigh the evidence regarding all material elements of a claim. See 38 U.S.C.A. § 7104(d); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also 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"). A "veteran is given the 'benefit of the doubt' 'regarding any issue material' to the Veteran's claim 'when there is an approximate balance of positive and negative evidence.'" Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). Thus, if there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully consider the lay assertions of record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana, 24 Vet. App. at 438; Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana, 24 Vet. App. at 433; Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In the present case, the Board finds that the weight of the probative evidence is against the claims decided herein for the following reasons. Records dated during the Veteran's service show treatment for cervicalgia and shin splints. Specifically, a January 1999 record indicates that running was causing pain in the medial aspect of the right and left shins, and the assessment was bilateral shin splints. A February 1999 record shows that the Veteran continued to have bilateral shin pain that was better. The finding was bilateral shin splints, resolving. In January 2000 and July 2001, the Veteran reported treatment for shin splints since his last examination. Service records beginning in December 2006 also indicate that the Veteran had cervicalgia and was referred to physical therapy, which continued thereafter with the same diagnosis. In August 2007, the Veteran underwent a pre-discharge VA examination. He reported having been diagnosed as having bilateral shin splints and noted that the condition had existed since 1983. He indicated that he had pain located in both shins for 24 years. The pain occurred when he ran and lasted for one hour. The Veteran also reported being diagnosed with a cervical condition that had existed for many years. On examination, the right and left tibia and fibula were normal. An examination of the cervical spine revealed no evidence of radiating pain on movement and no evidence of muscle spasm. There was no tenderness or ankylosis of the cervical spine. Range of motion of the cervical spine was also normal. X-rays of the right and left tibial and fibula were within normal limits, as was the x-ray of the cervical spine and sinus. Bilateral shin splints were diagnosed based on records dated in February 1999 documenting the diagnosis. For the Veteran's claimed cervical condition, there was no diagnosis because there was no pathology to render a diagnosis. In a May 2008 report of medical history, the Veteran denied having recurrent back pain or bone and joint deformity. The Veteran's separation examination dated at that time shows that none of his body systems was noted to have an abnormality. In November 2008, the Veteran underwent a VA examination. He reported having shin splints that started in 1983 and recurred in 1998. He complained of pain in both lower legs when he ran a lot. However, he indicated that he currently had no localized tenderness over either tibia consistent with active stress fracture (shin splints). X-rays were also normal. The Veteran then reported a cervical condition that began in 2006. He stated that he experienced neck pain after hand-to-hand combat special training. However, x-rays were normal and showed no chronic degenerative changes. Following examination, there were diagnoses of episodes of acute bilateral shin splints, resolved; and episodes of acute mechanical neck pain. As noted above, the Veteran separated from service in July 2008. The only medical record associated with the claims file since the Veteran's separation is the November 2008 VA examination report, and the Veteran has not identified any other potentially relevant post-service medical evidence. On examination in November 2008, no disability due to disease or injury is shown of the shins or cervical spine. The Veteran's previous shin splints were noted to have been acute and to have resolved. The examiner gave a diagnosis of episodes of acute mechanical neck pain. However, no underlying pathology for this pain is shown on this or any other medical record. Basic entitlement to disability compensation derives from two statutes, both found in title 38, sections 1110 and 1131-the former relating to wartime disability compensation and the latter relating to peacetime disability compensation. Both statutes provide for compensation, beginning with the following words: "For disability resulting from personal injury suffered or disease contracted in the line of duty. . . ." 38 U.S.C.A. §§ 1110, 1131. Thus, in order for a veteran to qualify for entitlement to compensation under those statutes, that veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. In the absence of an identified disease or injury, service connection may not be granted. See Sanchez-Benitez v. West, 25 F.3d 1356 (Fed. Cir. 2001). While lay persons may provide competent testimony as to visible symptoms and manifestations of a disorder, they are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, even if the Veteran is competent to provide an opinion that he has a current shin or cervical spine disability due to disease or injury, the findings given by the November 2008 VA examiner are afforded greater probative weight. To the extent that the Veteran contends that he has current underlying pathology for his complaints of neck pain or that he has a current disease of the shins, the findings on examination in November 2008 are more probative because they are provided by a medical professional, who has experience, training, and education that the Veteran is not shown to have. The examiner's findings were also based on objective examination, including x-rays, which revealed no current disability. Thus, the more probative evidence of record supports a finding that the Veteran's neck pain is not related or due to disease or injury (underlying pathology) and that the Veteran's in-service shin splints were acute and have since resolved. In light of the foregoing, the Board finds that the probative evidence of record is not at least in a state of relative equipoise in showing that service connection is warranted for shin splints or a cervical spine disorder. Accordingly, the claims are denied. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304; Fagan, 573 F.3d at 1287. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for shin splints is denied. Service connection for a cervical spine disorder is denied. REMAND The Board finds that additional development is necessary prior to final adjudication of the Veteran's claims remaining on appeal. With regard to hypoglycemia, the record shows that the Veteran was assessed, during service, with probable hypoglycemia in December 2007 and glucose intolerance in January 2008. He underwent a VA examination in November 2008 and was diagnosed as having borderline reactive hypoglycemia. While it appears that the Veteran has been shown to have glucose intolerance or borderline reactive hypoglycemia, it is unclear from the record as to what these findings may be attributed. In other words, there is a question as to whether there is any underlying pathology, such as diabetes mellitus. There is no evidence of record dated since the November 2008 VA examination, and it is unknown whether the Veteran's hypoglycemia has either resolved or progressed to a disease, such as diabetes mellitus. The Board finds that a remand is necessary to attempt to obtain more recent medical evidence to ascertain whether a disease associated with the findings of hypoglycemia or glucose intolerance has manifested. Regarding sinusitis, the evidence of record shows that the Veteran was treated for this disorder during service. On pre-discharge VA examination in August 2007, the Veteran was diagnosed as having status-post sinusitis based on November 2003 and November 2005 service records documenting diagnoses of acute sinusitis. While the Veteran underwent a post-discharge VA examination in November 2008 with regard to his other claimed disabilities, no evaluation of sinusitis was conducted. Therefore, it is unclear whether the Veteran has suffered from sinusitis since service and, if so, whether this is related to his treatment and diagnoses during service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for sinusitis and hypoglycemia. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. The RO/AMC should obtain any outstanding VA medical records pertaining to the claimed disorders. 2. The RO/AMC should afford the Veteran a VA examination to determine the nature and etiology of any sinusitis that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should then state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran has current sinusitis that is causally or etiologically related to his military service. In rendering this opinion, the examiner is asked to consider the in-service treatment for sinusitis. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The RO/AMC should afford the Veteran a VA examination to determine the nature and etiology of any disability manifested by hypoglycemia that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should then identify any current diagnosis that is manifested by hypoglycemia. For each disability identified, the examiner should state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the disorder is causally or etiologically related to his military service. In rendering this opinion, the examiner is asked to consider the in-service findings of hypoglycemia and glucose intolerance. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. Thereafter, the RO/AMC should consider all of the evidence of record and readjudicate the issues on appeal. If any benefit sought is not granted, the RO/AMC should issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs