Citation Nr: 1337016 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 12-11 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for residuals of a concussion. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Megan Marzec, Associate Counsel INTRODUCTION The Veteran had active service in the Air Force from August 1969 to August 1973. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board notes that, in addition to the paper claims files, there is a Virtual VA file associated with the Veteran's claim. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran has a back disability that is etiologically related to service. 2. The Veteran currently does not have residuals of a concussion. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. The criteria for service connection for residuals of a concussion have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103 (a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed a letter in May 2010 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The May 2010 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claims. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file and the VA Medical Center treatment notes have been obtained. The Veteran reported receiving private treatment for residuals of a concussion. The VA requested treatment records, however the doctor responded that the Veteran did not receive treatment during the period on appeal. According to the private treatment facility, the Veteran had not been seen in the facility since 2006. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Additionally, the Board acknowledges that no VA medical examination or medical opinion has been obtained in response to the claims of entitlement to service connection for a back disability and for residuals of a concussion. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the current disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. With regard to the first McLendon criterion, the Veteran has provided evidence of a current back disability. However, the Board has determined that residuals of a concussion are not currently shown. With regard to the second McLendon criterion, the Veteran's service treatment reports do not show any relevant treatment, findings, or diagnoses with regard to residuals of a back disability or a concussion. The Veteran stated that he injured his head and back during an automobile accident. However, as discussed below, there was no treatment for a back or head injury at that time. With regard to the third McLendon criterion, the Veteran has not submitted evidence that his current back disability is associated with the Veteran's service or with another service-connected disability. The evidence of record suggests that the Veteran's current back disability is related to a work-place incident. Additionally, the Veteran has not submitted evidence indicating that any residuals of a concussion are associated with the Veteran's service or with another service-connected disability. Given the foregoing, examinations, and etiological opinions, need not be obtained. McLendon; see also 38 C.F.R. § 3.159 (c)(4) (2013); Wells v. Principi, 327 F.3d 1339, 1341 (Fed. Cir. 2002). Further, the Board notes that in the Veteran's May 2012 substantive appeal, the Veteran requested a travel board hearing. In February 2013, the Veteran failed to appear at a hearing before the Board. Without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn. See C.F.R. § 20.704 (d) (2013). Accordingly, the Board will address the merits of the claim. Legal Criteria 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. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002)); see also Caluza v. Brown, 7 Vet. App. 498 (1995). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that arthritis is listed as a chronic disease under 38 C.F.R. § 3.309(a); therefore the claimed cervical spine disability may be subject to service connection based on continuity of symptomatology assuming that it involves arthritis. Moreover, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, may be presumed to have been incurred in service if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. § 1507 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis The Veteran has asserted that he has a back disability that had its onset during active service and the residuals of a concussion that occurred during active service. According to the Veteran's substantive appeal, the Veteran's back injury and concussion stem from an automobile accident that occurred during active service and "causes pain from my head to my legs all the time." A review of the STRs of record is negative for treatment for or a diagnosis of a back disability or a concussion while the Veteran was in active service. In July 1969, the Veteran was afforded an entrance examination. At that time, the Veteran specifically checked "yes" on the health questionnaire to the question of whether he had a history of head injury. The Veteran noted that when he was in sixth grade he fell and hit his head on concrete. Additionally, the Veteran's spine and head were noted to be clinically normal upon examination. In October 1970, the Veteran was treated after an automobile accident. The examiner noted a small abrasion on the Veteran's right knee and treated the injury with aspirin. In August 1971, the Veteran was treated for a lump and pain in the back of his head and neck. The examiner diagnosed a neck strain and advised the Veteran to use a heat pack on the back of his neck. In May 1973, the Veteran was afforded a separation examination. There is no indication from the examination report that the Veteran reported any back disability or residuals of a concussion at the time of his separation from active service. At that time, the Veteran specifically checked "no" on the health questionnaire to the questions of whether he had recurrent back pain and whether he had a head injury. The Veteran also checked "yes" and "don't know" on the health questionnaire to the question of whether he had a head injury. Additionally, the Veteran's spine and head were noted to be clinically normal upon examination at the time of his separation. There is no other indication that the Veteran had any lasting residuals from his neck strain, and there is no indication that the Veteran suffered a concussion in service. Entitlement to service connection for a back disability A review of post-service medical records shows that the Veteran has received treatment at the VA Medical Center for various conditions, including back pain. According to VA psychiatric treatment notes from May and June 2003, the Veteran was diagnosed with a herniated disc. A review of Virtual VA records shows that the Veteran was treated at the VA Medical Center for chronic back pain, bulging lumbar discs, and herniated discs from 2000 until 2012. In July 2009, the Veteran was diagnosed with degenerative disc disease after an MRI. According to July 1998 and June 2003 treatment notes, the Veteran's back problems were secondary to a work-place incident. There is no evidence of record that the Veteran's current back disability is related to his active service. While the Veteran might sincerely believe that his back disability is related to an automobile accident that occurred in active service and lay persons are competent to provide opinions on some medical issues, the issue of whether the Veteran's current back disability is related to a reported accident more than 40 years ago falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Importantly, the Veteran not articulated symptoms that have persisted since service, so there is no competent or credible evidence lay evidence of record that could serve as "nexus" evidence of continuity of symptomatology. In this regard, the Board notes that while he filed for a claim of PTSD in 2003, he did not file a claim in the instant appeal until many years later, in 2010. And as described above, the evidence indicates an intercurrent cause of the back pain, a work-related accident in 1998. The Veteran has presented no evidence, lay or otherwise, that he experienced back pain prior to 1998. In sum, there is no evidence of symptoms of a back disability until many decades after separation from service. Such a long interval of time between service separation and the earliest documentation of the disease is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In sum, there is no evidence of record that the Veteran sustained a back disability in service. Evidence of record shows that the Veteran sustained a back disability in 1998 in a work-place incident. The Veteran has provided no evidence relating his current back disability to his active service. Therefore, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a back disability is not warranted. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for residuals of a concussion A review of the post-service treatment records shows that there is no indication that the Veteran has been treated for the residuals of a concussion. The threshold question in any claim seeking service connection is whether the Veteran, in fact, has the disability for which service connection is sought. The Board finds it significant that the Veteran has presented no evidence dated during the appeal period showing actual diagnoses related to the claimed disabilities. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a current disability, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44. In light of these circumstances, the Board finds that service connection may not be awarded. The Veteran has not articulated the nature of his claimed concussion residuals. He indicated that he suffered from "pain from my head to . . .", but it has not been characterized as a headache or residual scar, etc. The Veteran has a responsibility to cooperate with VA in its efforts to assist in the claim's development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.). The Board has carefully reviewed all of the medical evidence of record, including the electronic "Virtual VA" file, but none of the medical records, which cover care for a multitude of maladies, concern any symptoms described or associated with concussion residuals. In sum, there is no evidence of record indicating that the Veteran incurred a concussion during active service. After separation from active service, there is no indication that the Veteran has been treated for residuals of a concussion, and the Veteran has not alleged any specific symptoms. Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to service connection for a back disability is not warranted. 38 U.S.C.A § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a back disability is denied. Service connection for residuals of a concussion is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs