Citation Nr: 1335344 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-34 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for left shoulder rotator cuff tendinitis. 2. Entitlement to service connection for a right shoulder condition. 3. Entitlement to service connection for a left knee condition. 4. Entitlement to service connection for a right knee condition. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for a left foot condition. 7. Entitlement to service connection for a right foot condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from March 1986 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that the RO considered the May 2008 rating decision to be final, requiring the Veteran to submit new and material evidence. However, the record reflects that the Veteran submitted evidence relevant to his claims within one year of the date of this decision - namely, private treatment records and a statement in support of his claim. 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Veteran testified at a hearing before the undersigned at the RO in Boston, Massachusetts in April 2012. A written transcript of this hearing has been prepared and associated with the evidence of record. Virtual VA shows that additional VA treatment records were associated with the record after the issuance of the March 2012 supplemental statement of the case. A review of these records shows that they are not pertinent to the issue being decided herein. Therefore, the Board may proceed with appellate review. 38 C.F.R. §§ 19.37(b); 20.1304 (2013). The issues of entitlement to service connection for left shoulder rotator cuff tendinitis and right shoulder disorder 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. VA received written notification from the Veteran in April 2012 expressing his intent to withdraw his claim of entitlement to service connection for bilateral hearing loss. The Board received this request prior to the promulgation of a decision. 2. VA received written notification from the Veteran in April 2012 expressing his intent to withdraw his claim of entitlement to service connection for a left foot disability. The Board received this request prior to the promulgation of a decision. 3. VA received written notification from the Veteran in April 2012 expressing his intent to withdraw his claim of entitlement to service connection for a right foot disability. The Board received this request prior to the promulgation of a decision. 4. There is no medical evidence or credible lay evidence of an in-service left knee injury. 5. There is no medical evidence or credible lay evidence of an in-service right knee injury. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of a Substantive Appeal concerning the issue of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2013). 2. The criteria for withdrawal by the Veteran of a Substantive Appeal concerning the issue of entitlement to service connection for a left foot disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2013). 3. The criteria for withdrawal by the Veteran of a Substantive Appeal concerning the issue of entitlement to service connection for a right foot disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2013). 4. The criteria for establishing entitlement to service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 5. The criteria for establishing entitlement to service connection for a right knee disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Issues By a rating decision dated May 2008, the RO, in relevant part, denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and bilateral foot conditions. The Veteran filed a Notice of Disagreement (NOD) in May 2009, which contested these findings. In September 2009, the RO promulgated a Statement of Case (SOC) that continued the holdings of the May 2008 rating decision. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a) (2012). Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c) (2012). In a written statement received in April 2012, the Veteran stated that he wanted to withdraw his claims of entitlement to service connection for bilateral hearing loss, a left foot condition and a right foot condition. Hence, there remain no allegations of error of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these issues, and the appeal of these issues is dismissed. Duty to Notify VA has a duty to notify and assist veterans 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). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. A letter sent to the Veteran in October 2007 addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records and VA treatment records. The RO also obtained private treatment records identified by the Veteran. While the Veteran identified having received additional treatment from an acupuncturist at the 2012 Board hearing, the Board does not find it necessary to ask the Veteran to provide these records or provide a consent form to allow VA to obtain these records because the Board finds that there is no credible evidence of an in-service injury to the knees. Absent an in-service event, there can be no credible link between any current disability and service. The Board also recognizes that the Veteran has not been afforded a VA examination for his claimed bilateral knee disabilities. However, an examination is not required in this case. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. In this case, no examination is necessary in order to adjudicate the claims of entitlement to service connection for bilateral knee disabilities because there is no evidence establishing that an injury occurred in service. As detailed below, the Board does not find that there is credible evidence that the Veteran sustained an injury to his knees during service. Also, as already noted, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned in April 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge who chairs a hearing to 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. Here, the undersigned noted the issues on appeal and the Veteran provided testimony regarding the occurrence of the injuries and onset and nature of his symptomatology. Again, the denial of the claim turns on a lack of credible evidence of an in-service injury. Thus, there is no showing of prejudicial error under Bryant. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) evidence of a current disability; (2) evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2013). In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). A recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Bilateral Knee Disabilities The Veteran contends that he is entitled to service connection for bilateral knee conditions. Specifically, the Veteran has asserted that he suffers from disabilities of the knees as secondary to an in-service motor vehicle accident. As outlined below, however, the evidence fails to credibly reflect that the Veteran sustained bilateral knee injuries during service as the evidence contemporaneous to service is inconsistent with the Veteran's current assertions. As such, service connection is not warranted. The Veteran's service treatment records clearly reflect that he was involved in a motor vehicle accident in May 1988. The record reflects that the Veteran was sideswiped on the right side of his vehicle by a truck. The Veteran was noted to have been wearing his seat belt. The Veteran complained of low back pain following the accident, but there is no mention of pain or injury associated with the knees. Subsequent service records fail to reflect that the Veteran ever sought treatment for knee pain or complained of any symptomatology associated with the knees. The Board may weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated. See Kahana v. Shinseki, 24 Vet. App. 428, 439-40 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, as opposed to cases in which there is evidence that is relevant either because it speaks directly to the issue or allows a reasonable inference to be drawn by the Board as fact finder). For this negative inference to be made, the Board must make two findings-first, that the record being evaluated is complete in relevant part, and second, that the injury, disease, or related symptoms would ordinarily have been recorded had they occurred. Id. at 440. Here, the Veteran's service treatment records are complete and it is an indisputable fact that these records do not show that the Veteran was treated for knee complaints following the motor vehicle accident. The Veteran's contacts with the service medical department in connection with the motor vehicle accident were on multiple occasions and at no time does the Veteran report on or complain of knee problems. A complaint of knee pain in connection with a documented motor vehicle accident would ordinarily have been recorded had it been present. Thus, the evidence contemporaneous to service is inconsistent with the Veteran's current recollections. Moreover, an evaluation of the lower extremities was subsequently deemed to be normal during the Veteran's February 1989 separation examination, and the Veteran himself denied having, or ever having had, a "trick" or locked knee or bone, joint or other deformity in his February 1989 Report of Medical History associated with this examination. Indeed, the Veteran recalled the motor vehicle accident but only mentioned his back. The separation February 1989 Report of Medical History was certified and signed by the Veteran. Thus, again, the evidence contemporaneous to service is inconsistent with the Veteran's current recollections. The Board finds the evidence contemporaneous to service dispositive on the issue of whether the evidence of record shows in-service incurrence of an injury as it is closer in time to the actual events. Consequently, there is no medical or credible lay evidence of an in-service injury to the knees. As there is no medical or credible lay evidence of an in-service injury to the knees, there can be no credible link of a current disability to service. As such, the preponderance of the evidence is against the claims and the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claims of entitlement to service connection for disabilities of the left and right knees must be denied. ORDER The appeal concerning entitlement to service connection for bilateral hearing loss is dismissed. The appeal concerning entitlement to service connection for a left foot disability is dismissed. The appeal concerning entitlement to service connection for a right foot disability is dismissed. The claim of entitlement to service connection for a left knee disability is denied. The claim of entitlement to service connection for a right knee disability is denied. REMAND Bilateral Shoulder Disabilities The Veteran contends that he is entitled to service connection for bilateral shoulder disabilities. Specifically, he has alleged that he currently suffers from shoulder disabilities as the result of "bulk head doors slam[ing] on both shoulders" and as a result of a car wreck during service in 1988. See VA Form dated in September 2009. As noted above, service treatment records reflect that he was involved in a motor vehicle accident in April 1988. Service treatment records also show that the Veteran complained of pain in his left shoulder after bumping it on an object coming up a ladder in October 1987. The assessment was abrasion of the left shoulder. The Veteran underwent a QTC examination in December 2007 in connection with his claim; however, the examiner did not provide a nexus opinion. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that the December 2007 VA examination is inadequate and will afford the Veteran another VA examination to include a nexus opinion. The record also reflects that at the 2012 Board hearing, the Veteran reported that he received additional treatment for his shoulders from an acupuncturist (Dr. F). The identified records should also be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he complete and return an authorization form (VA Form 21-4142) to permit VA to obtain treatment records on his shoulders he identified at the Board hearing as having received from Dr. F. Notice to the Veteran of inability to obtain any identified records should comply with 38 C.F.R. § 3.159(e). The Veteran should also be advised that in the alternative, he can provide these records of treatment. 2. Schedule the Veteran for an appropriate VA examination in connection with his bilateral shoulder claim. The claims file should be provided to and reviewed by the examiner. All tests deemed necessary should be conducted and the results reported. Following examination of the Veteran and review of the claims file, the examiner should opine as to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran has right shoulder and left shoulder disabilities etiologically related to the Veteran's documented in-service injury to his left shoulder in October 1987 and/or in-service motor vehicle accident in April 1988? The examiner should provide a rationale for all opinions expressed. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 3. Thereafter, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be issued 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). ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs