Citation Nr: 1746924 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 13-09 175A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right forearm disability. 2. Entitlement to service connection for a right hand disability. 3. Entitlement to service connection for a right ankle disability. 4. Entitlement to service connection for acute sinusitis. 5. Entitlement to service connection for a chronic cough. 6. Entitlement to service connection for a lung condition. 7. Entitlement to an initial rating in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from August 1980 to August 1984. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2012 rating decision in which the RO granted service connection for tinnitus, but denied service connection for right forearm tingling, left forearm pain, a left hand condition, a right hand condition, left knee pain, right knee pain, lower left leg pain, lower right leg pain, right ankle pain, hearing loss, acute sinusitis, a chronic cough, a lung condition, and headaches. The Veteran filed a notice of disagreement (NOD) in May 2012. In written correspondence dated June 26, 2012, the Veteran's representative indicated the Veteran's desire to withdraw his NOD as to the claims for service connection for left forearm tingling, a left hand condition, left knee pain, right knee pain, lower left leg pain, lower right leg pain, and hearing loss. The Veteran's representative reported that the Veteran desired to continue his appeal as to the claims for service connection for a right ankle disability, acute sinusitis, a lung condition, a chronic cough, and headaches. The statement made no mention of the right hand and right forearm claims. A statement of the case (SOC) was issued in December 2012, which addressed entitlement to a higher initial rating for tinnitus and claims for service connection for a right ankle disability, acute sinusitis, a lung condition, a chronic cough, headaches, a right hand disability, and a right forearm disability. After being granted an extension of time in which to file a substantive appeal, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2013. On his Form 9, he checked the box indicating his desire to appeal only certain issues addressed in the SOC. Specifically, the Veteran stated that wanted to pursue an appeal of the denials of service connection for headaches, sinusitis, a chronic cough, and a lung condition. However, in providing reasons for why he believed his case had been decided incorrectly, the Veteran discussed his right ankle problems and also argued that his claim for service connection for right hand a right forearm pain had been incorrectly adjudicated, as it was his left hand that was injured in service. In an August 2015 rating decision, the RO awarded service connection for migraine headaches. A disability rating and effective date was also assigned. The Veteran did not disagree with any aspect of the RO's decision awarding service connection, to include the disability rating or effective date assigned. The RO's August 2015 action thus resolved the claim for service connection for headaches and no downstream issue is currently before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability). In December 2016, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. As discussed in further detail below, during that hearing, the Veteran expressed his desire to withdraw certain claims from appellate consideration. The Veteran also discussed that fact that his right hand a right forearm claims had been erroneously adjudicated, as it was his left hand and forearm that had been injured in service, as well as presented testimony concerning the claim for service connection for a right ankle disability. As regards the identified issues on appeal, the Board notes that, although in his Form 9 the Veteran indicated that he was appealing only certain issues addressed in the SOC (namely, service connection for headaches, sinusitis, a chronic cough, and a lung condition), the RO considered the appeal to also encompass the issues of entitlement to service connection for right ankle, right hand, and right forearm disabilities, as well as the evaluation of the Veteran's tinnitus. See, e.g., June 2016 VA Form 8 , Certification of Appeal. The Veteran's claimed right ankle, right hand, and right forearm disabilities were also mentioned in VA Form 9 when he discussed reasons for why he believed his case was decided incorrectly, and entitlement to service connection for right ankle, right hand, and right forearm disabilities were also the issues discussed during the Veteran's December 2016 hearing. Under these circumstances, the Board also considers these issues to be on appeal, along with the others claims certified for appeal, save for the claim for service connection for headaches (which, as noted, was granted during the pendency of the appeal and prior to certification by the RO). CF Percy v. Shinseki, 23 Vet. App. 37 (2010). While the Veteran previously had a paper claims file, this appeal is now being processed primarily utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. There are additional documents stored electronically in a Virtual VA file, consisting of, inter alia, adjudicatory determinations, notification letters, and various VA examination reports. All such records have been reviewed. As a final preliminary matter, the Board notes that the Veteran has argued that the RO mischaracterized or erroneously adjudicated claims for service connection for right hand and right forearm disabilities, arguing that it was his left hand that was injured in in service. The Board points out that in the August 2012 rating decision, the RO denied claims for service connection for a left hand disability and left forearm tingling. Although the Veteran had initially disagreed with the RO's denial of those claims, the Veteran, through his representative, withdrew his NOD as to those issues via written correspondence dated on June 26, 2012. If the Veteran desires to petition to reopen those claims, he is free to do so. At present, however, those matters are not properly before the Board. FINDINGS OF FACT 1. During his November 2016 hearing, the Veteran expressed his desire to withdraw from appeal the issues of entitlement to service connection for sinusitis, a chronic cough, and a lung condition, and to an initial rating in excess of 10 percent for tinnitus; the Veteran's desire to withdraw his appeal as to these matters is recorded in the hearing transcript. 2. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 3. The Veteran does not have, and at no point pertinent to the current claim has had, a currently diagnosed disability of the right ankle. 4. There is no evidence or allegation as to any in-service injury or disease with respect to the right hand and/or forearm., CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of the appeal as to the issue of entitlement an initial rating in excess of 10 percent for tinnitus are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 2. The criteria for withdrawal of the appeal as to the claim for service connection for sinusitis are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 3. The criteria for withdrawal of the appeal as to the claim for a chronic cough are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 4. The criteria for withdrawal of the appeal as to the claim for service connection for a lung condition are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 5. The criteria for service connection for a right ankle disability are not met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). 6. The criteria for service connection for a right hand disability are not met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). 7. The criteria for service connection for a right forearm disability are not met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2016). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During a pre-briefing conference held prior to the December 2016 hearing, the Veteran expressed his desire to withdraw from appeal the issues of entitlement to a rating in excess of 10 percent for tinnitus and to service connection for acute sinusitis, a chronic cough, and a lung condition. The Veteran's desire to withdraw his appeal as to these claims is recorded in the hearing transcript. (Parenthetically, the Board notes that the Veteran also expressed his desire to withdraw his appeal as to the issue of entitlement to service connection for headaches; however, as discussed in Introduction, above, the Veteran's claim for service connection for headaches was granted by the RO in August 2015, and, hence, is no longer on appeal). As the Veteran has expressed his desire to withdraw his appeal as to matters before the Board, there is no longer any remaining allegation of error of fact or law concerning the issues of entitlement to a higher rating for tinnitus, and to service connection for acute sinusitis, a chronic cough, and a lung condition. Accordingly, the Board does not have jurisdiction to review the appeal as to these matters, and they must be dismissed. II. Claims Decided A. Due Process Considerations 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, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). After a complete or substantially complete application for benefits is filed, the notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112; see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A September 2011 pre-adjudication letter provided pertinent notice to the Veteran in connection with his various claims for service connection, filed in August 2011. That letter indicated what information and evidence was needed to substantiate the claims, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. It also informed the Veteran how VA determines the assignment of disability ratings and effective dates. The record also reflects that, consistent with applicable duty-to-assist provisions, VA has made reasonable efforts to develop the Veteran's claims, to include obtaining or assisting in obtaining all relevant records and other evidence pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service treatment records, private treatment records, VA treatment records, and a VA examination report reflecting a medical opinion. Also of record and considered in connection with the claim is the transcript of Board hearing, along with various written statements, provided by the Veteran, and by his representative, on his behalf. Notably, there is no evidence or argument indicating any error or omission in the assistance provided. As for the December 2016 hearing, the Board notes that, during the hearing, the undersigned enumerated the issues on appeal, to include the matters herein decided, and elicited testimony from the Veteran regarding his theory of the claim. The undersigned also suggested the submission of evidence showing a current diagnosis and nexus to service. Notably, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), to include identification of any prejudice in the conduct of the hearing. The hearing was legally sufficient. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with each claim herein decided. As such, there is no prejudice to the Veteran in the Board proceeding to a decision on the claims, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). B. Right Ankle Disability Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2016). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id., see Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102. In the instant case, the Veteran contends that he suffers from a right ankle disability that is attributable to service. During his December 2016 hearing, the Veteran reported that during service, he sustained several injuries to his right ankle for which he received treatment, to include crutches and casting. He stated that ankle problems persisted after service and that in or around 2000. he began to have severe pain and other foot problems, to include bone spurs and plantar fasciitis. A review of the Veteran's serviced treatment records (STRs) shows that in February 20182, he was seen for injury to the right ankle. It was indicated that he had twisted his right ankle while running, but that x-rays were negative for fracture. The ankle was swollen and was wrapped with an ace bandage. The Veteran was given crutches and placed on a temporary profile. An April 1982 treatment entry indicates that the Veteran's ankle was still bothering him. Examination was negative and the assessment was an unhealed sprain. In May 1983, the Veteran's again injured his right ankle when he fell off a roof. His ankle was noted to be tender, but no fracture was seen on x-ray. The assessment was a right ankle sprain, and the Veteran was given a posterior splint to wear until the swelling decreased after which he was to switch to a walking cast. He was again placed on a temporary profile. A separation examination report is not of record. In December 2011, the Veteran was afforded a VA examination in connection with his claim. At that time, he reported having twice injured his ankle during service. Post-service symptoms were noted to include intermittent pain and the Veteran reported having sustained several more ankle sprains. X-rays were taken, the reports of which were interpreted to reveal a marginal spur, distal tibia, with maintained tibiotalar joint space, and a large plantar calcaneal spur. No specific disability of the right ankle was diagnosed. The examiner stated that although there are symptoms present, there is no clinical objective evidence of a diagnosable disease. Regarding the in-service injuries, the examiner explained that acute joint sprain is an injury to the ligaments of joint, which is almost always a self-limited injury lasting several days to several months. The examiner also stated that although severe injury to a joint, such as fracture crossing the joint line or injury causing internal derangement, does increase the likelihood of eventual degenerative joint disease of that joint, there is no significant medical evidence supporting a causal relationship between one or several episodes of joint sprain and the eventual development of degenerative joint disease. In May 2012, the examiner who had examined the Veteran in December 2011 provided an additional opinion, stating that upon review of the claims file in its entirety, there was no change in the prior opinion that the Veteran did not have a diagnosable disability of the right ankle. After a review of the record, the Board finds that service connection for the Veteran's claimed right ankle disability is not warranted. Although the Veteran is noted to complain of right ankle pain, he has not been diagnosed as having any specific disability of the right ankle. When examined in December 2011, the Veteran reported recurrent ankle sprains since service. Physical examination of the Veteran, however, failed to reveal any evidence of disability resulting from any ankle sprain. Notably, range-of-motion testing was all within normal limits for the right ankle, with no evidence of painful motion. Imagining studies similarly failed to reveal any degenerative joint disease or other disability of the right ankle. The examiner also explained that ankle sprains are acute injuries to the ligaments and generally resolve within weeks or months. The examiner further indicated there to be insufficient clinical and laboratory evidence to warrant a finding of a right ankle disability. This opinion was reiterated by the same examiner in May 2012. VA treatment records dated through 2013 also fail to reveal any diagnosed disability of the right ankle. Additionally, during his December 2016 hearing, when asked whether any clinician had ever diagnosed him as having a right ankle disability, the Veteran indicated diagnoses of bone spurs in his feet and plantar fasciitis, but did not report having been given a specific diagnosis with regard to the right ankle. Notably, without a diagnosed or identifiable underlying malady or condition, pain alone does not, in and of itself, constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed.Cir.2001). Further, while lay evidence can be competent and sufficient to establish a diagnosis of a condition, the Veteran has not proffered evidence of a current disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (discussing when lay evidence can be competent and sufficient to establish a diagnosis of a condition). 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. Thus, evidence of current disability is a fundamental requirement for a grant of service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (citing Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997)). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Notably, symptoms such as pain, without a diagnosed or identifiable underlying malady or pathology, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez, supra. Thus, to establish entitlement to compensation, the evidence must show, fundamentally, the existence of a current disability, and, in the absence of an identified disease or injury, service connection may not be granted. See Sanchez-Benitez, supra. Here, despite the Veteran's noted ankle sprains in service and complaints of right ankle pain, there is no competent, probative evidence establishing that the Veteran has, or at any time period pertinent to the current claim has had, a right ankle disability. Rather, as explained above, the medical evidence on this point weighs against the claim. Thus, there is no competent, probative evidence of a right ankle disability upon which to predicate an award of service connection, and neither the Veteran nor his representative has presented or identified any medical evidence or opinion establishing that he does, in fact, have a shoulder disability for compensation purposes. Simply stated, other than his own assertions of pain, the Veteran has not proffered any competent evidence to even suggest a current shoulder disability. Notably, moreover, as the Veteran has neither the medical training nor expertise to competently diagnose a right ankle disability involving internal processes on the basis of his own lay assertions. See, e.g., Jandreau, supra; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)) . Given the complete lack of competent evidence establishing a currently diagnosed disability that could reasonably be encompassed within the scope of the Veteran's claim, the Veteran's claim for service connection for a right ankle disability must be denied. See 38 U.S.C.A. § 1110; Caluza, 7 Vet. App. at 506 (holding that service connection cannot be awarded in the absence of competent evidence of current disability); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability"). In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); ).Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990. C. Right Hand and Right Forearm Disabilities As noted above, establishing service connection requires, among other things, evidence showing the in-service incurrence or aggravation of a disease or injury; See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As regards to the adjudicated claims for right hand and right forearm disabilities, there is no evidence or assertion of injury to the right hand or right forearm in service. Although the Veteran's STRs document that in August 1981 he sustained a puncture wound to the left hand when he accidentally drove a screwdriver through his left hand, there is no evidence of any injury to the right hand/forearm. The Veteran himself has also not alleged having sustained any injury to his right hand/forearm. Indeed, as noted in his VA Form 9 and recorded in the December 2016 hearing transcript, the Veteran stated that the right hand and right forearm claims were erroneously adjudicated, as it was his left hand that was injured during service. There also is no evidence or allegation of any complaint, finding or diagnosis pertinent to the right hand or right forearm during service. In short, there is no evidence or allegation as to any in-service injury or disease with respect to the right hand and/or forearm. In view of the above, and in consideration of the Veteran's own lay statements, the Board cannot find that any in-service incurrence or aggravation of a disease or injury to right hand or forearm has been shown. Consequently, service connection is not warranted for a right hand or a right forearm disability, as a crucial element of service connection has not been shown. In reaching the conclusion to deny each claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no medical or lay evidence supports a required element of both claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER An initial rating in excess of 10 percent for tinnitus is dismissed. Service connection for acute sinusitis is dismissed. Service connection for a chronic cough is dismissed. Service connection for a lung condition is dismissed. Service connection for a right ankle disability is denied. Service connection for a right hand disability is denied. Service connection for a right forearm disability is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs