Citation Nr: 1342834 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-35 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a right hip disability. 4. Entitlement to service connection for human papillomavirus (HPV). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from August 2004 to November 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO) in Denver, Colorado. The Board notes that the Veteran also initiated an appeal with respect to a January 2010 rating decision denying service connection for posttraumatic stress disorder. While she requested an additional 30 days to submit a Form 9, Appeal to the Board, in response to a June 2011 Statement of the Case, a timely Form 9 is not of record. As such, this matter is not before the Board. A review of the Veteran's Virtual VA and VBMS electronic claims file reveals additional VA outpatient treatment records dated through July 2012, after the last adjudication of the claims. As these records are either redundant of records already associated with the claims file or not pertinent to the claims herein decided, remand for initial RO consideration of this evidence is not required. The issue of entitlement to service connection for HPV is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A low back disability due to disease or injury is not shown by the record. 2. A right shoulder disability due to disease or injury is not shown by the record. 3. A right hip disability due to disease or injury is not shown by the record. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. A right shoulder disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. A right hip disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a November 2008 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claims for service connection. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that she would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has substantiated her status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of her claims, in the November 2008 letters. The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. In this case, VA obtained all of the identified post-service VA treatment records. The Board notes that the Veteran has indicated that she received treatment at a private chiropractor. However, while she was informed that she was required to submit these records or her authorization and consent for VA to obtain these records on her behalf in the November 2008 letter, she has not done so. The Veteran was also provided with a VA examination in February 2009 as to the nature and etiology of the claimed disabilities herein decided. Because the examiner reviewed the claims file, interviewed and examined the Veteran, and provided an opinion with a supportive rationale, the Board finds that the examination is adequate. The Board acknowledges the Veteran's statements to the effect that the February 2009 VA examination was inadequate. In these statements, the Veteran indicated that the examiner seemed to be in a hurry to get to his son's sporting event and that she believed that the examiner did not spend sufficient time examining the claimed disabilities. The Board's review of the examination report reveals that the examiner reviewed the Veteran's claims file, took a complete medical history from the Veteran, and performed a physical examination of the Veteran's back, right shoulder, and right hip, including x-rays. The examiner indicated why he could not provide any diagnoses for the claimed disabilities. The Veteran had not alleged with any specificity why she believes an additional examination will substantiate her claims for any of the claimed disabilities; rather, she has only indicated that she felt that more than an x-ray should have been done. As such, the Board finds that this examination is adequate for adjudication purposes and that remand for another VA examination is not warranted. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims on appeal are thus ready to be considered on the merits. II. Factual Background The Veteran's service treatment records include a May 2008 report reflecting that she complained of low back and right shoulder pain with an onset 2 years prior. She stated that when she stood for more than 15 minutes, her low back started to bother her. She indicated that she felt tightness in her back, and when she bent forward to stretch her back, it "popped." She reported that the pain subsided after sitting down for 10 minutes. The pain was localized in the low back. With respect to the right shoulder, she noted that she felt a popping sensation with full range of motion. She noticed that her shoulder hurt most after going to the gym and after wearing her flak. She also reported that she experienced pain when she lay down on the shoulder. Objectively, there was no edema, ecchymosis, or tingling or numbness sensation to the legs or feet. There was grinding to the right shoulder with range of motion. There was also minimal weakness to the right shoulder. An assessment of lumbago and right shoulder injury was indicated. Stretching exercises were demonstrated and the she was prescribed Naproxen. She was advised to return if her symptoms worsened. Following her discharge from service, the Veteran was seen for VA examination in February 2009. The Veteran reported that she felt a tight sensation in the low back area, lasting up to a few hours at a time. The sensation was relieved by bending forward. She also felt a popping sensation that occurred upon relief of the stiffness. She indicated that sitting down relieved the stiffness within 5 minutes. She noted that her low back pain limited her activities in that she did not perform low back exercises when weight training. She denied any other limitations. With respect to the right shoulder, the Veteran reported that she felt some tightness and pain sensation in the right anterior shoulder during cold weather and when she performed shoulder weight training exercises. She also noted that she experienced left shoulder tightness during and after playing volleyball. Pain was relieved in minutes once it occurred by stopping activity. However, with cold weather, the aching could last for hours. She indicated that her right shoulder condition limited her activities in that she limited her shoulder weight training exercises. As regards the claimed right hip disability, the Veteran reported onset of bilateral and lateral hip area pain 1 year prior to examination. She indicated that the right hip was worse than the left, and it occurred in the iliac crest region. She indicated that the hip pain occurred about once a month on average. Exercises such as running or weight training brought on these symptoms, and they occurred after she stopped these activities. Stretching and repositioning relieved the symptoms in 30 to 60 minutes. Concerning her usual activities, when the symptoms occurred, she stretched and relieved the symptoms. Otherwise, there was no effect on her activities or occupation. On physical examination, the examiner observed that the Veteran arrived ambulatory with normal gait and station. She moved quickly and easily with no distress, and did not require use of an assistive device. Examination of the back revealed a normal lumbar lordosis. There was no spasm or tenderness to palpation. Straight leg raising was negative. Great toe dorsiflexion was symmetrical and normal. There was normal sensation in all 4 extremities. Range of motion testing revealed flexion to 103 degrees and extension to 35 degrees. Right and left lateral rotation were each to 49 degrees, while right and left lateral motion was to 27 degrees. There was no observed manifestation of pain with initial range of motion testing and after repetitive motion. There was no additional limitation of motion after repetitive range of motion. Examination of both hips showed no redness, swelling, or tenderness. Range of motion testing revealed flexion to 121 degrees bilaterally. She had 45 degrees of abduction bilaterally. There was no observed manifestation of pain initially or after repetitive motion, and no additional limitation after repetitive motion. There was no pain with internal and external femur rotation. As regards the right shoulder, the musculature was symmetrical and normal. There was no redness, swelling, or tenderness. The examiner did not hear or feel any crepitus. Range of motion testing revealed 170 degrees of abduction, 162 degrees of forward flexion, 90 degrees of external motion and 60 degrees of internal motion. Her range of motion of the right shoulder was noted to be similar to the left. The examiner indicated that these ranges of motion were considered for the Veteran's body habitus. There was no observed manifestation of pain with range of motion initially or after repetitive motion, and no additional limitation after repetitive motion. The examiner indicated that there was no fatigue, lack of endurance, incoordination, or weakness of any of the joints examined after repetitive use. X-rays of the lumbar spine, right shoulder, and right hip were within normal limits. The examiner concluded by indicating that there was insufficient information for a diagnosis related to a low back condition, right hip condition, or right shoulder condition-acute or chronic or residuals thereof. He noted that the examination was normal for each of the claimed disabilities. On the Veteran's August 2010, she noted that she had seen a chiropractor who had "found issues that could be related to [her] pain." VA outpatient treatment records dated from 2009 to 2012 do not document any complaint, treatment, or finding with respect to the claimed low back, right shoulder, and right hip disabilities. III. Analysis At the outset, the Board notes that the provisions of 38 U.S.C.A. § 1154(b) do not apply, as it has not been claimed that the disabilities were incurred while engaging in combat. 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, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 U.S.C.A. § 1101. With respect to the current appeal, this list includes arthritis. See 38 C.F.R. § 3.309(a). Since the appellant does not have arthritis or an enumerated chronic disease, 38 C.F.R. § 3.303(b) is not applicable. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. Here, the VA examiner was unable to diagnose a low back, right shoulder, or right hip disability, and x-rays were normal. The Veteran's post-service VA treatment records likewise do not provide a diagnosis related to the Veteran's alleged back, right shoulder, and right hip pain. For veterans, 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. §§ 1110, 1131. Thus, in order for a veteran to qualify for entitlement to compensation under those statutes, the veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). The mere fact of a veteran reporting of symptoms, such as pain does not necessarily warrant a finding that she has met the disability due to disease or injury requirement. Rather, an underlying disease or injury is required. Sanchez-Benitez v. Principi, 259 F. 3d 1356 (Fed. Cir. 2001). In this case, an underlying disease or injury associated with the Veteran's claimed low back, right shoulder, and right hip pain and symptoms has not been shown. Rather, it has been established that there is no underlying pathology. The Board acknowledges the assessment of lumbago in service; however, this assessment amounts to a finding of low back pain with again no underlying disease or injury identified. As regards the notation of "right shoulder injury" in service, February 2009 VA examiner indicated that there was insufficient evidence to assign a right shoulder diagnosis and a right shoulder x-ray was normal. The examiner indicated that he reviewed the report of right shoulder injury in service in reaching this conclusion. Accordingly, despite the in-service notation, the Board finds that the weight of the evidence is against a finding of diagnosis (disease or injury) of a right shoulder disability. Finally, the Board has also considered the Veteran's statements to the effect that she has low back, right shoulder, and right hip disabilities that are related to her military service. As a lay person, the Veteran is competent to report on that which she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the record is devoid of any evidence showing a current disability, and she has not provided any lay evidence that would suggest the existence of a disability. Rather, she has only indicated that a chiropractor had found "issues" that could be related to her pain. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where, as here, competent evidence indicates that the Veteran does not have the disability due to disease or injury for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For the foregoing reasons, the preponderance of the evidence is against the claims for service connection for a low back disability, right shoulder disability, and right hip disability. The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a right hip disability is denied. REMAND The Board finds that further development on the claim for service connection for HPV is warranted. A September 2008 in-service gynecological examination report reflects that the Veteran was seen for an HPV test. The results report reflects that "HPV DNA high risk" was detected. Following service, a February 2009 VA outpatient treatment report notes that the Veteran had a history of abnormal Pap smears with colonoscopy times 2 and that she was positive for HPV. An assessment of abnormal Pap smear with HPV was indicated. A December 2009 report reflects that Pap smear results were positive for high-risk HPV. A September 2011 VA treatment report notes that the Veteran needed follow-up after an abnormal Pap smear with high grade HPV. A December 2011 VA outpatient treatment report also notes a diagnosis of HPV. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. Given that the Veteran's service treatment records reflect findings pertinent to development of HPV, and post-service findings noting diagnosis of HPV shortly after the Veteran's discharge from service, the Board finds that a medical opinion-based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale-would be helpful in resolving the claim for service connection. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should arrange for the Veteran to undergo examination. The entire claims file must be made available to the examiner designated to examine the Veteran. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should in indicate whether a diagnosis of HPV is appropriate Then, the examiner should determine if there is any disability associated with HPV. In providing the requested opinion, the examiner is asked to address the HPV screening results in service as well as post-service VA outpatient treatment records documenting HPV shortly after the Veteran's discharge from service. 2. Then, the RO/AMC should readjudicate the Veteran's claim. If the benefits sought on appeal are not granted, the Veteran and her representative should be provided a Supplemental Statement of the Case and afforded the requisite 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. 2013). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs