Citation Nr: 1338784 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 07-40 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a kidney disability. 2. Entitlement to service connection for residuals of a concussion. 3. Entitlement to service connection for a cervical spine disability ("neck disability"). 4. Entitlement to service connection for a lumbar spine disability ("back disability"). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1985 to June 1986 as well as several periods of active duty training. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This case was previously before the Board in September 2011, wherein it was remanded to obtain private treatment records and to schedule the Veteran for appropriate VA examinations. Review of the record reflects the referenced VA treatment records have been associated with the claims file, and the Veteran underwent examinations for his neck and back disabilities in January 2012. Furthermore, the Appeals Management Center (AMC) sought another medical opinion in December 2012 to address etiology of the neck and back disabilities and to provide a nexus opinion. The claim was then readjudciated by the RO. Therefore, the Board is satisfied that there has been substantial compliance with the remand directives and appellate review may continue. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. A kidney disability has not been shown. 2. Residuals of a concussion have not been shown. 3. A neck disability has not been shown. 4. The Veteran's back disability is not related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a kidney disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for service connection for residuals of a concussion have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 3. The criteria for service connection for a neck disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 4. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a)(2013). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Significant to this case, service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran contends that service connection is warranted for a kidney disability, residuals of a concussion, a neck disability, and a back disability due to in-service injuries sustained when he fell into water as part of a helocast operations training in September 1988. In a July 2008 statement, the Veteran described the incident, and in his February 2006 VA Form 21-526, he listed the date of injury as September 1988. As an initial matter, the Board acknowledges that the Veteran was injured as part of helocast operations training in September 1988 (this point is not at issue in this case). The Veteran's personnel records include an Army Incident Investigation Report that confirms an accident occurred on September 17, 1988. The report indicates the Veteran was on duty and that "[p]ersonnel exited from UH-1H and sustained high impact injuries when they entered the water." The Board notes that the Veteran submitted information from the Washington National Guard Joint Forces website and Wikipedia.org describing helocasting exercises. Therefore, the Board confirms the receipt of such information provided by the Veteran but finds that the accident report in his personnel record more probative for establishing that he was injured during a helocast training exercise. Next, service treatment records contain a discharge summary from September 18, 1988. The Veteran was diagnosed with multiple soft tissue contusions and a mild renal contusion. There was no documentation of a concussion or a neck or back injury. The Veteran was given Motrin, and he was precluded from physical training for four weeks. Subsequent service treatment records are absent any treatment for or symptoms related to a kidney disability, residuals of a concussion, a neck disability, or a back disability. Such findings provide factual evidence against the Veteran's claim. The evidence of record also includes treatment from "Dr. R.D.M." The records, which include October 2005 to August 2011, show that the Veteran was treated primarily for back pain. However, the October 2005 entry refers to the helocast accident, noting "back sprain, neck." The remaining treatment records from Dr. R.D.M. reflected the Veteran's pain and limitations in range of motion of the back at that time. In a series of office notes from February 2011 through August 2011, Dr. R.D.M. specifically asked the Veteran to rate, on a scale of one to ten, the intensity of his condition, with zero being nothing and ten being the worst/original intensity. The Veteran provided several responses, with the highest response occurring in August 2011. The Veteran responded with a six out of ten intensity level. The entry noted that the Veteran had "struggled with his back on a summit attempt of Mt. Rainer in Washington." This evidence identifies the Veteran's reported history of a helocast accident, but also suggests his recent back pain is due to physical activity unrelated to service, providing more evidence against the claim. The medical records from Clarke Chiropractic contain treatment notes for back and neck pain from March 1999 through May 2002. When asked to identify his injuries on the patient history form from March 1999, the Veteran attributed his low back pain to twisting his back while driving, and he also identified an injury sustained at the gym when using a leg press machine. When asked to list any previous falls or accidents, the Veteran did not provide any information about the helocast accident; he only identified a hockey accident in which he broke his arm. Based on a review of the record as a whole, the Board finds that such histories reported by the Veteran for treatment purposes are of more probative value than more recent assertions and histories given for VA disability compensation purposes. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Therefore, the Veteran himself has provided evidence against his own claim that his helocast accident caused any current chronic disability or, more importantly, a back or neck problem caused by his service many years earlier from 1988 to 2013. In effect, his histories are providing factual evidence against his own claim. The remaining records from Clarke Chiropractic provide further evidence of the Veteran's low back pain, including some tightness noted in approximately June 2000 through 2001. An October 2001 entry noted unusual symptoms, including nausea, and identified back bruising without trauma. In addition, records from Jacobson Chiropractic confirm treatment from March 2005 through October 2011. The records include a diagnosis of lumbar segmental dysfunction and lumbar sprain/strain. In January 2012, the Veteran was afforded a VA examination to evaluate his back and neck. The Veteran reported being injured when jumping out of the helicopter and landing flat on his back in September 1988. He remembered having blood in his urine due to the impact of hitting the water, and he reported that he was told he had a concussion. With regard to his back, the examiner provided a diagnosis of lumbar pain and intervertebral disc syndrome (IVDS). The Veteran indicated he had a permanent "kink" since the incident in September 1988 and reported experiencing spasms to the point of incapacitation about four times per year. The examiner noted the total duration of all incapacitating episodes over the course of the previous twelve months was at least one week but less than two weeks. During a range of motion test, there was no objective evidence of painful motion, and the Veteran did not demonstrate additional limitation of range of motion upon repetitive testing. There was no indication of muscle atrophy and muscle strength testing yielded normal results. The examination of reflexes and the sensory examination were also normal. However, the examiner indicated there were signs of radiculopathy, which was marked as mild in both the right and left side. Finally, the examiner noted the Veteran's back disability would affect his occupation due to restrictions on manual labor; the Veteran would have a limited ability to lift, pull, or carry light and heavy loads for prolonged and short periods of time. With regard to the Veteran's neck disability, the Veteran indicated his neck was occasionally painful and felt kinked. The Veteran denied flare-ups. The range of motion of his neck was not limited following repetitive testing, and the examiner indicated the Veteran had no functional loss or impairment. In addition, the Veteran exhibited guarding and/or muscle spasm of his neck, but it did not result in abnormal gait or spinal contour. Muscle strength was normal, and there was no finding of muscle atrophy. Moreover, the reflex examination yielded normal results, and there was no finding of radiculopathy. The examiner indicated the Veteran did not have intervertebral disc syndrome of the cervical spine (neck). Lastly, the examiner noted the Veteran's neck condition would not affect or impose work restrictions in the fields of labor, including sedentary jobs, and would not affect his reliability, productivity, ability to concentrate or follow instruction, or ability to interact with co-workers and supervisors. The Board notes that the examiner indicated the Veteran had a diagnosis of cervical disc disease from September 18, 1988. However, as previously discussed, the discharge record from September 1988 only diagnosed soft tissue contusion and mild renal contusion. However, the remainder of the examination is consistent with the Veteran's reports and therefore the examination retains some probative value. In short, the VA examiners based the aforementioned conclusions on a review of the claims file as well as a review of the Veteran's documented and reported history, including his statements regarding the helocast accident. The examiners provided conclusions with a supportive rationales, and the January 2012 VA medical opinions are therefore probative with regard to the presence and severity of any neck or back disability experienced by the Veteran. See Nieves -Rodriguez v. Peake, 22 Vet. App. 295 (2008). However, the January 2012 examinations did not include a discussion of the etiology of either the back or neck disability. Therefore, acting on behalf of the RO, the AMC requested another medical opinion to address this flaw in the evaluation. The examiner reviewed the claims file and concluded that it was less likely than not that the Veteran's cervical spine disorder (neck) and his lumbar spine disorder (back) incurred in, was caused by or was aggravated by the claimed in-service injury, event, or illness. The examiner explained that the Veteran's discharge note from the helocast fall only diagnosed the Veteran with multiple soft tissue contusions and mild renal contusion. The examiner acknowledged the Veteran's ongoing back and neck problems, but also noted that there were no complaints related to his back or neck during active duty. Thus, a review of the evidence shows that the Veteran has reported back and neck pain, and he has a current back disability. However, the Veteran has never been diagnosed with a neck disability, kidney disability, or residuals of a concussion. The Board notes that the Veteran is competent to describe symptoms he experienced, whether in service or during the years since discharge, based on his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, "pain" alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a "disability". Simply stated, in the present appeal, there is simply no objective evidence establishing a neck disability, kidney disability, or residuals of a concussion, notwithstanding multiple medical evaluations. Although the Veteran was diagnosed with a mild renal contusion in 1988, there is no indication that the contusion resulted in a permanent disability at the current time, and significant evidence against such a finding; there is no treatment or symptoms related to the kidney in the evidence of record, nor has the Veteran described, beyond identifying "bruised kidneys" in his VA Form 21-526, any current kidney condition. Similarly, there is no evidence of residuals of a concussion. Although the Veteran is competent to report that a medical professional told him he had a concussion, the evidence of record does not contain any treatment or reported symptoms for residuals of a concussion after the 1988 accident, a problem/disability that may be related to this concussion. Finally, in terms of the reported neck disability, the Veteran has only identified neck pain, which is supported by a review of the private medical records and the January 2012 VA examination results. Accordingly, the service connection criteria requiring the presence of a current "disability" have not bee met and service connection cannot be granted for symptoms of a disability, to include the Veteran's claim for a kidney disability, residuals of a concussion, and a neck disability. See Brammer, 3 Vet. App. at 225. In any event, even if the Board were to assume the Veteran has a kidney disability, residuals of a concussion, and neck disability, and that that the Veteran was injured in helocast accident in 1988, the preponderance of the evidence is still against a finding that any current symptoms experienced by the Veteran, over twenty years since the fall, are related to an in-service injury or event. In terms of the kidney disability, aside from the mild renal contusion noted on the September 1988 discharge note, there is no other complaint or treatment for kidney problems both during and after service. Similarly, there is no treatment or complaint of residuals of a concussion since the helocast incident. The Veteran himself has provided little in terms of factual evidence that would support these claims, and has instead provide some evidence against this claims in his prior histories cited above. In terms of the neck disability, the Veteran has demonstrated symptoms such as neck pain and spasms; however, the Veteran himself has attributed his neck pain to injuries sustained at the gym or due to driving. Moreover, the December 2012 medical opinion concluded that it was less likely than not that the Veteran's neck condition was less likely than not incurred in, caused by or aggravated by the claimed in-service injury, event, or illness. With regard to the back disability, the January 2012 examination contains a finding of IVDS, and private medical records noted lumbar segmental dysfunction and lumbar sprain/strain. However, the preponderance of the evidence is against a finding that the Veteran's back disability is related to his in-service injury. As previously discussed, the Veteran was examined after the fall and the only diagnoses offered were for soft tissue contusions and mild renal contusions. In addition, the December 2012 medical opinion, taking into consideration the results of the January 2012 VA examination and the reports of the Veteran contained therein, concluded that the Veteran's back disability was less likely than not related to an in-service injury. Moreover, the Veteran himself has provided evidence against his claim. In seeking treatment for back pain, the Veteran indicated his low back pain was due to twisting his back while driving and injuring himself at the gym (post-service problems). Importantly, the Veteran did not consistently refer to the helocast accident when seeking treatment, as noted above. Therefore, the Board finds that the most probative evidence of record (including many of the Veteran's own prior statements) does not provide a basis to establish a link between the current back disability and service, nor does it provide a basis to grant service connection for a kidney disability, residuals of a concussion, and a neck disability. Accordingly, the Board finds that a preponderance of the evidence is against the claim for entitlement to service connection for a back disability, kidney disability, neck disability, and residuals of a concussion; this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As discussed below, VA has fulfilled its duties under the VCAA. When VA receives a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b). Proper notice from VA 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. 38 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the VCAA duty to notify was satisfied by a February 2006 letter that informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. The Veteran also received notice in March 2006, in compliance with the ruling in Dingess, which included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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 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. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has not provided a medical opinion with regard to the Veteran's reported kidney disability or residuals of a concussion. However, as explained in further detail above, there is no competent and credible evidence that the Veteran had a these disabilities during or after service. Moreover, the Board recognizes that the third prong of McLendon, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. However, in the present appeal, despite receiving proper VCAA notice, the Veteran has not provided nor does the evidence of record show a current kidney disability or residuals of a concussion that are associated with an in-service injury or event. Hence, under McLendon, the Board is not required to have the Veteran undergo a VA compensation examination for a medical nexus opinion with regard to these issues. Id. As noted above, some of the Veteran's own prior statements support these findings. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In connection with the current appeal, the evidence of record includes the Veteran's service treatment records, the Veteran's personnel records, statements in support of the claim by the Veteran and his representative, private medical records, a VA examination from January 2012, and a supplemental medical opinion from December 2012 addressing the Veteran's reported neck and back disabilities. Collectively, the examination and supplemental opinion were adequate because the Veteran's relevant medical history was reviewed, pertinent examination findings were recorded, and there was a sufficient analysis to support the conclusions rendered. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's 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). ORDER Entitlement to service connection for a kidney disability is denied. Entitlement to service connection for residuals of a concussion is denied. Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a back disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs