Citation Nr: 1815396	
Decision Date: 03/16/18    Archive Date: 03/23/18

DOCKET NO. 14-32 153A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1. Entitlement to service connection for anemia.

2. Entitlement to an initial disability rating in excess of 30 percent for service-connected diaphragmatic hernia, status post nissen fundoplication.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

E. Duthely, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1992 to May 1997. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

In November 2017, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge seated at the RO. A transcript is included in the claims file.

The issue of an initial disability rating in excess of 30 percent for service-connected diaphragmatic hernia, status post nissen fundoplication is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran does not have a current diagnosis of anemia.


CONCLUSION OF LAW

The criteria for service connection for anemia have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Service Connection for Anemia

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110 ; Degmetich v. Brown, 104 F.3d. 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In the absence of proof of a present disability due to disease or injury that occurred in service, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Sanchez-Benitez v. Principi, 259 F.3d. 1356 (2001).

The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d 1372, 1377. 

The Veteran contends his anemia is a result of his active service. However, the Board finds that a preponderance of the evidence is against a finding of a current diagnosis of anemia, and the Veteran's claim will be denied.

Upon VA examination in August 2010, the VA examiner opined that the Veteran did not demonstrate a current diagnosis of anemia and that his earlier diagnosis of anemia had resolved. Upon VA examination in November 2017 for the Veteran's stomach condition, the VA examiner did not note a current diagnosis of anemia.

The Board finds the August 2010 and November 2017 VA examiner's opinions to be the most probative evidence of record regarding the current nature, diagnosis, and etiology of the Veteran's anemia. The examiners took the Veteran's history and reviewed the objective record. The examiners also provided clear and persuasive rationales with citation to the record, and the bases of such rationales are consistent with the record.

The Veteran's treatment records are also absent of a current diagnosis of anemia. The most recent instance of anemia in the Veteran's treatment records was August 2003, nearly seven years prior to the filing of this claim. 

As the evidence demonstrates no current disability of anemia upon which to base a grant of service connection, at any time during the appeal period, there can be no valid claim for that benefit. See Shedden, 381 F.3d at 1167; Brammer, 3 Vet. App. at 225; Rabideau v. Derwinski, 2 Vet. App. 141, 143-44. Because a current disability has not been shown by competent evidence, the Board does not reach the additional questions of in-service injury, disease, or event, or the relationship between any such current disability and service.

Accordingly, service connection for anemia is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56.

Duties to Notify and Assist

VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided in an August 2010 letter. As to VA's duty to assist, the Veteran's available service treatment records, VA medical records, and identified private treatment records have been obtained. The Veteran was afforded a VA examination in August 2010. Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal.



ORDER

Service connection for anemia is denied.


REMAND

The July 2011 rating decision granted service connection for diaphragmatic hernia, status post nissen fundoplication and assigned a 30 percent disability rating. The Veteran submitted a timely notice of disagreement in November 2011. Subsequently, June 2013, March 2015, April 2016, and February 2017 rating decisions denied an evaluation in excess of 30 percent for diaphragmatic hernia, status post nissen fundoplication. The RO has not yet provided a statement of the case with respect to this issue. 

The Board therefore finds that the Veteran's disagreement has not been satisfied. The receipt of the notice of disagreement vests jurisdiction with the Board for purposes of ensuring that a statement of the case is prepared on this issue. Where a notice of disagreement is filed, but a statement of the case has not been issued, the Board must remand the claim to direct that a statement of the case be issued. See 38 C.F.R. § 19.9 (c); Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

1. Request that the Veteran identify and secure any outstanding VA or private medical records. Attempt to obtain any records identified by the Veteran and associate these records with the claims file.

2. Provide a statement of the case to the Veteran and his representative regarding the issues of entitlement to increased evaluation for his diaphragmatic hernia, status post nissen fundoplication. If, and only if, the Veteran perfects the appeal to any issues, such issues must be returned to the Board for appellate review. Please note that the Veteran has already been afforded a hearing before the undersigned Veterans Law Judge on this issue.

The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012).




______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs