judge_norm: MARJORIE A AUER

disposition: granted

condition: psychiatric

text:
Citation Nr: 0606000
Decision Date: 03/02/06    Archive Date: 03/14/06

DOCKET NO.  01-10 162	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico

THE ISSUES

1. Whether new and material evidence has been received to
reopen the claim of entitlement to service connection for a
psychiatric disorder to include schizophrenia.

2. Entitlement to an increased disability evaluation for left
(minor) fourth metacarpal gunshot wound residuals, including
bone graft residuals, currently evaluated as 20 percent
disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel

INTRODUCTION

The veteran had active service from October 1967 to September
1969.

This matter came before the Board of Veterans' Appeals
(Board) on appeal from a February 2001 and April 2002 rating
decisions of the San Juan, the Commonwealth of Puerto Rico,
Regional Office (RO) which respectively denied an increased
disability evaluation for the veteran's left (minor) fourth
metacarpal gunshot wound residuals including bone graft
residuals, and determined that new and material evidence had
not been received to reopen service connection for a
psychiatric disorder to include schizophrenia.

In March 2004 the Board remanded the appeal primarily for
procedural due process and notification purposes, to obtain
additional clinical information, and for consideration of
amended regulations concerning finger, hand, and skin
disabilities regarding the veteran's left (minor) fourth
metacarpal gunshot wound residuals. A rating decision in
April 2005 granted service connection for a left hand scar
evaluated as 10 percent disabling.

As indicated in the March 2004 Board remand, an informal
claim of entitlement to an increased disability evaluation
for the veteran's left leg bone graft scar residuals has been
received. That issue is not ripe for appellate review and is
referred to the RO for further development and consideration.

As will be discussed herein, the issue of service connection
for a psychiatric disorder to include schizophrenia has been
reopened. That issue along with an increased rating for left
(minor) fourth metacarpal gunshot wound residuals, including
bone graft residuals will be addressed in the REMAND portion
of the decision below and they are REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, D.C.

FINDINGS OF FACT

1.  A Board decision dated in September 1993 denied service
connection for a neuropsychiatric disorder; the decision is
last final disallowance of the claim.

2.  Additional evidence received since the September 1993
Board decision includes evidence that is neither cumulative
nor redundant, and raises a reasonable possibility of
substantiating the veteran's claim.

CONCLUSION OF LAW

1.  The September 1993 Board decision which denied
entitlement to service connection a psychiatric disorder is
final. 38 U.S.C.A. �� 5108, 7104 (West 2002); 38 C.F.R. �
3.156 (2005).

2.  Evidence received since the final September 1993 Board
decision which denied service connection for a psychiatric
disorder, to include schizophrenia, is new and material to
reopen the claim. 38 U.S.C.A. �� 5108, 7104 (West 2002); 38
C.F.R. � 3.156 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

VA has fulfilled its duty to notify and to assist the
appellant in the development of his claim.  The law requires
that when a complete or substantially complete application
for benefits is filed, VA must notify a claimant and his or
her representative, if any, of any information and medical or
lay evidence necessary to substantiate the claim.
38 U.S.C.A. �� 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
� 3.159(b) (2005).  Notice must inform a claimant of (1) any
information and evidence not of record needed to substantiate
the claim; (2) what information VA will seek to provide; and
(3) what information the claimant is expected to provide.
Under 38 C.F.R. � 3.159(b)(1), VA must also ask the claimant
to submit any pertinent evidence in his or her possession.

The original rating decisions on appeal were adjudicated in
February 2001 and April 2002.  Subsequent to remand by the
Board, in March 2004 the appellant was furnished notice
complying with the notice requirements for both claims on
appeal.  The lack of any pre-decisional notice is not
prejudicial.  Sufficient notice was provided by the RO prior
to the re-transfer and re-certification of the veteran's case
to the Board, and the content of the notice fully complied
with the requirements of 38 U.S.C. � 5103(a) and 38 C.F.R. �
3.159(b).

The Board further notes that the appellant is represented and
has been provided with every opportunity to submit evidence
and argument in support of his claims and to respond to VA
notices. Moreover, neither the appellant nor her
representative have alleged any prejudice with respect to the
timing of the VCAA notification, nor has any been shown.

The law places an enhanced duty on VA to assist claimants in
obtaining evidence needed to substantiate a claim.  In this
case, the veteran's service medical records are on file and
the RO has obtained all available post-service VA and private
medical records that have been identified on the veteran's
behalf.  For the reasons set forth above, and given the facts
of this case, the Board finds that no further notification or
assistance is necessary, and deciding the appeal at this time
in not prejudicial to the veteran.  38 U.S.C.A. � 5103A (West
2002); 38 C.F.R. � 4.7.

I.  Whether New and Material Evidence has been Received to
reopen Service Connection for a Psychiatric Disorder to
include Schizophrenia

Law and Regulations

In general, Board decisions are final. 38 U.S.C.A. � 7104; 38
C.F.R. � 20.1100. Pursuant to 38 U.S.C.A. � 5108, a finally
disallowed claim may be reopened when new and material
evidence is presented or secured with respect to that claim.
The veteran's claim was filed in October 2001.

VA regulations provide that new evidence means existing
evidence not previously submitted to agency decision makers.
Material evidence means existing evidence that, by itself or
when considered with previous evidence of record, related to
an unsubstantiated fact necessary to substantiate the claim.
New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened, and
must raise a reasonable possibility of substantiating the
claim. See 38 C.F.R. � 3.156(a).

For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight is presumed. Justus v. Principi, 3
Vet. App. 510, 513 (1992).

Analysis

Service connection for a nervous condition was initially
denied by an August 1974 rating decision that was not
appealed. A Board decision dated in January 1987 denied
service connection for schizophrenia, and a Board decision in
October 1990 a rating decision in December 1990, and a
September 1993 Board decision declined to reopen the
veteran's claim.  The September 1990 Board decision is the
last final disallowance of the veteran's claim.

The September 1993 Board decision considered evidence
contemplated in the previous Board and rating denials,
including service medical records revealing treatment for a
personality disorder during service, along with VA
psychiatric records, including a psychiatric expert medical
opinion, and hearing and lay testimony.  Additional evidence
submitted at the time of the 1993 Board decision primarily
consisted of post service medical records revealing current
treatment of schizophrenia and residuals of brain trauma from
a post-service accident. The evidence also included hearing
and lay testimony primarily from the veteran's spouse
regarding the veteran's psychiatric problems and its
relationship to his period of service.  It was determined
that the evidence received was redundant and insufficient to
reopen the claim of service connection for a neuropsychiatric
disorder.

The appellant attempted to reopen the claim of service
connection for a psychiatric disorder to include
schizophrenia in October 2001.  Evidence received in
conjunction with the reopened claim includes a private
psychiatric report dated in October 2001.  The examination
report includes a medical history that reports he veteran had
psychiatric problems during service. The diagnosis was
chronic catatonic schizophrenia.  The examiner opined in a
comment that the veteran's mental condition was service
connected.

The October 2001 private psychiatric examination report was
not considered previously, and therefore is neither
cumulative nor redundant evidence. The medical opinion
suggesting an etiological relationship between the veteran's
current psychiatric condition or disability and service
potentially establishes a component of service connection,
and as a result, it must be concluded that this evidence
raises a reasonable possibility of substantiating the
veteran's claim. 38 C.F.R. � 3.156(a); see also Hickson v.
West, 12 Vet. App. 247, 251 (1999).

Therefore, the Board concludes that the claim of service
connection for a psychiatric disorder to include
schizophrenia has been reopened.

ORDER

The veteran's claim of entitlement to service connection for
a psychiatric disorder to include schizophrenia has been
reopened. To this extent, the appeal is granted subject to
the provisions in the following remand section of this
decision.

REMAND

The Board has reopened the claim of entitlement to service
connection for a psychiatric disorder to include
schizophrenia on the grounds that new and material evidence
has been submitted.  The claim is remanded to ensure full and
complete compliance with the law regarding notification for
substantiation of the claim and the VA duty-to-assist.
Further, in light of additional medical evidence suggesting
that the veteran's current psychiatric disorder is related to
his period of military service, the Board finds that further
evidentiary development to determine any etiological
relationship is warranted before the reopened service
connection claim can be decided on its merits.

Regarding the issue of an increased disability evaluation for
left (minor) fourth metacarpal gunshot wound residuals,
including bone graft residuals, quite curiously a review of
the veteran's service medical records seems to indicate that
he was left hand dominant at the time of his service gunshot
wound injury.  Post-service clinical records indicate he was
right hand dominant.  Due to the equivocal nature of these
findings, the Board concludes that additional clinical data
would be helpful.

Accordingly, the case is REMANDED for the following action:

1.  The AMC should review the record
and take any necessary action to
ensure compliance with VA law
regarding all notice and assistance
requirements.  The AMC should ensure
that the appellant has been properly
advised of (a) the information and
evidence not of record that is
necessary to substantiate her claim,
(b) the information and evidence
that VA will seek to provide, and
(c) the information and evidence
that the appellant is expected to
provide. VA must also ask the
claimant to submit any pertinent
evidence in his or her possession

2.  Schedule the veteran for a VA
psychiatric examination to determine the
nature, extent and etiology of any mental
disorder(s) found on examination. All
necessary testing should be accomplished.
The claims folder must be made available
to the examiner for review in connection
with the examination. The examiner should
record pertinent medical complaints,
symptoms, and clinical findings. The
examiner should clearly report all
psychiatric disorders found on
examination. As to each such acquired
psychiatric disorder found to be present,
the examiner should express an opinion as
to whether it is as likely as not (e.g.,
a 50 percent or greater probability) that
such disorder is causally related to the
veteran's period of active service. A
detailed rationale for all opinions
expressed should be furnished.

3.  Obtain a VA medical opinion to
determine whether at the time of the left
hand gunshot wound that the veteran
sustained during service, he was right or
left hand dominant. The claims folder
must be made available to the clinician
for review in connection with the medical
opinion.  Any rationale for the opinion
should be expressed by the clinician, if
possible.

4. After completion of the above, the RO
should review the expanded record and
undertake a de novo merits analysis of
the claim of service connection for a
psychiatric disorder, and determine if
the benefits sought for both claims on
appeal can be granted. Unless the
benefits sought are granted, the
appellant and her representative should
be furnished an appropriate supplemental
statement of the case and be afforded an
opportunity to respond. Thereafter, the
case should be returned to the Board for
appellate review.

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. 2005).

______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: MICHELLE L KANE

disposition: denied

text:
Citation Nr: 0607000
Decision Date: 03/10/06    Archive Date: 03/23/06

DOCKET NO.  04-41 436	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri

THE ISSUE

Entitlement to service connection for the cause of the
veteran's death.

REPRESENTATION

Appellant represented by:	Missouri Veterans Commission

ATTORNEY FOR THE BOARD

P. Olson, Associate Counsel

INTRODUCTION

The veteran had active military service from May 1948 to
November 1968; he died in March 2003.  The appellant is the
veteran's widow.

This matter comes before the Board of Veterans' Appeals
(Board or BVA) on appeal from a December 2003 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO) in Saint Louis, Missouri.

FINDINGS OF FACT

1.  The veteran had verified active service from May 1948 to
November 1968, and his service records document that he had
foreign service in Germany, Korea and Japan.

2.  A certificate of death dated in March 2003 indicates that
the veteran died on March [redacted], 2003 at the age of 73, with the
immediate cause of death reported as widely metastatic
anaplastic carcinoma; other significant conditions
contributing to death but not resulting in the underlying
cause were chronic obstructive pulmonary disease, diabetes,
and hypertension.

3.  The medical evidence does not demonstrate that the
veteran's cancer, diabetes, hypertension, or obstructive
pulmonary disease was manifested during the decedent's period
of active service or within one year after his separation
from service.

4.  At the time of the veteran's death, he had no service-
connected disabilities.

5.  The evidence does not demonstrate that the veteran served
in the Republic of Vietnam at any time from January 9, 1962
to May 7, 1975.

6.  The preponderance of the competent and probative evidence
of record is against a finding that a service-connected
disability caused or contributed substantially or materially
to the veteran's death.

CONCLUSION OF LAW

The cause of the veteran's death was not related to an injury
or disease incurred in or aggravated by active service.  38
U.S.C.A. �� 1110 (West 2002); 38 C.F.R. �� 3.303, 3.307,
3.309, 3.310, 3.312 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant contends that the cause of the veteran's death
was related to his active military service.  In essence, she
has alleged that the veteran died from lung cancer that was
caused by his exposure to Agent Orange when he served in the
Republic of Vietnam.

In order for service connection for the cause of a veteran's
death to be granted, it must be shown that a service-
connected disability caused the death, or substantially or
materially contributed to cause death.  A service-connected
disability is one that was incurred in or aggravated by
active service, one that may be presumed to have been
incurred during such service, or one that was proximately due
to or the result of a service-connected disability.  38
C.F.R. � 3.312.

The death of a veteran will be considered as having been due
to a service-connected disability when such disability was
either the principal or contributory cause of death.  38
C.F.R. � 3.312(a).  The service-connected disability will be
considered the principal (primary) cause of death when such
disability, singly or jointly with some other condition, was
the immediate or underlying cause of death or was
etiologically related thereto.  38 C.F.R. � 3.312(b).  The
service-connected disability will be considered a
contributory cause of death when it contributed so
substantially or materially to death, that it combined to
cause death, or that it aided or lent assistance to the
production of death.  It is not sufficient to show that it
casually shared in producing death, but rather it must be
shown that there was a causal connection.  38 C.F.R. �
3.312(c)(1).

After a review of all the evidence of record, the Board finds
that there is no competent and probative evidence that any of
the various medical disorders that were implicated in the
veteran's death were related to his period of active military
service.

Service connection means that the facts establish that a
particular injury or disease resulting in disability was
incurred in the line of duty in the active military service
or, if pre-existing such service, was aggravated during
service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303(a).  The
first question that must be addressed, therefore, is whether
incurrence of any of the medical disorders implicated in the
veteran's death is factually shown during service.  The Board
concludes they were not.  The service medical records are
negative for any complaints of, treatment for, or findings of
cancer, hypertension, obstructive pulmonary disease, or
diabetes.

The Board notes that in June 1966, the veteran complained of
chest pains of 1 month duration with 10 to 15 episodes of
sharp chest pains lasting from two to 30 minutes located over
anterior sternum without radiation.  Blood pressure reading
was 158/80 and pulse was 96.  X-rays of chest were within
normal limits.  Diagnosis was chest wall pain.  An
electrocardiographic record dated in June 1966 indicted
normal EKG.  No other complaints after that episode were
noted.

On the clinical examination for retirement from service, all
the veteran's systems were evaluated as normal and the
veteran's blood pressure reading was 126/88.  The
electrocardiograph was normal.  The only defects noted were
tattoos the veteran had on his shoulders and left calf.  On
the Report of Medical History completed by the veteran in
conjunction with his retirement physical, the veteran noted
that he had never had chronic cough, shortness of breath,
pain or pressure in chest, high or low blood pressure, tumor,
growth, cyst, or cancer, sugar or albumin in urine.

As for statutory presumptions, service connection may also be
established for a current disability on the basis of a
presumption under the law that certain chronic diseases
manifesting themselves to a certain degree within a certain
time after service must have had their onset in service.
38 U.S.C.A. �� 1112, 1131 and 1137; 38 C.F.R. �� 3.303,
3.304, 3.307 and 3.309(a).  Cancer, hypertension, and
diabetes mellitus can be service-connected on such a basis.
However, there is no evidence that the first showing of those
diseases was within the year after the appellant's discharge
from service.

For veterans who served in Vietnam between January 9, 1962,
and May 7, 1975, the provisions of 38 U.S.C.A. � 1116 and 38
C.F.R. �� 3.307(a)(6) and 3.309(e) establish a presumption of
service connection for certain listed diseases that become
manifest to a compensable degree during a claimant's lifetime
or within the time limits established in law for specific
diseases.  Service connection on a presumptive Agent Orange
basis is available for diseases such as cancers of the lung
and diabetes mellitus under current law.  38 U.S.C.A. �
1116(a)(2); 38 C.F.R. � 3.309(e).

However, the competent evidence of record indicates that the
veteran did not have qualifying active service in the
Republic of Vietnam so as to allow a grant of service
connection for lung cancer or diabetes mellitus on a
presumptive basis.  The record received from the National
Personnel Records Center in November 2003 documents that
there was no evidence in the veteran's file to substantiate
any service in the Republic of Vietnam.  A review of the
veteran's personnel records reveal that the veteran served on
active military duty from May 1948 to November 1968 with
foreign service in Germany, Korea and Japan.

As for exposure to herbicides outside of Vietnam, VA has
information regarding Agent Orange use in Korea along the
demilitarized zone (DMZ).  The United States Department of
Defense (DoD) has confirmed that Agent Orange was used from
April 1968 through July 1969 along the DMZ.  If it is
determined that a veteran who served in Korea during this
time period belonged to one of the units identified by DoD,
then it is presumed that he or she was exposed to herbicides
containing Agent Orange, and the presumptions outlined in 38
C.F.R. � 3.309(e) will apply.

With regard to the veteran's service in Korea, his service
personnel records indicate he was stationed in Korea from
December 1951 to November 1952.  Here, while the veteran
served in Korea, he veteran did not have the requisite
service period to establish exposure.  DoD has only confirmed
use of Agent Orange in Korea from April 1968 to July 1969.
No exceptions on this time period are given.  As the veteran
served more than 10 years before the period of Agent Orange
exposure, any presumption of exposure cannot be applied at
this time.  There is no indication herbicides were used in
Japan.

Alternatively, when a chronic disease is not present during
service, service connection may be established under
38 C.F.R. � 3.303(b) by evidence of continuity of
symptomatology.  Such evidence is lacking here.  Although the
appellant has submitted private medical records in support of
her claim, the earliest is dated in 2001, long after the
veteran's discharge from service.

When a disease is first diagnosed after service, service
connection can still be granted for that condition if the
evidence shows it was incurred in service.  38 C.F.R.
� 3.303(d).  To prevail on the issue of service connection
there must be medical evidence of a current disability;
medical evidence, or in certain circumstances, lay evidence
of in-service occurrence or aggravation of a disease or
injury; and medical evidence of a nexus between an in-service
injury or disease and the current disability.  See Hickson v.
West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12
Vet App. 341, 346 (1999).  In this case, the veteran
ultimately died from metastatic carcinoma of the lung with
chronic obstructive pulmonary disease, diabetes, and
hypertension contributing to his death.  The remaining
question, therefore, is whether there is medical evidence of
a relationship between any of those conditions and military
service.

No medical professional has ever related any of these
conditions to the veteran's military service.  The veteran's
treating physician, Dr. DMS, noted that the appellant had
informed him that the veteran served in the military in Japan
and had the potential to be in the military theater where
there was some chance of exposure to Agent Orange.  As noted
above, there is no indication herbicides were ever used in
Japan and no indication the veteran served in areas and
during time periods when herbicides were used.

The Board also notes that the veteran was not service
connected for any disorder during his lifetime.  The Board
recognizes the appellant's sincere belief that her husband's
death was related in some way to his military experience or
to his purported exposure to Agent Orange in service.
Nevertheless, in this case, the appellant has not been shown
to have the professional expertise necessary to provide
meaningful evidence regarding the causal relationship between
the decedent's death and his active military service.  See
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).

Therefore, although the Board is sympathetic with the
appellant's loss of her husband, we find a lack of competent
medical evidence to warrant a favorable decision.  The Board
is not permitted to engage in speculation as to medical
causation issues, but must provide a medical basis other than
its own unsubstantiated conclusions to support its ultimate
decision.  Here, the appellant has failed to submit or
identify competent medical evidence to provide a nexus
between any in-service injury or disease and the conditions
that caused and contributed to cause the veteran's death.

Accordingly, the Board concludes that the preponderance of
the evidence is against the claim for service connection for
the cause of the veteran's death, and the benefit of the
doubt rule enunciated in 38 U.S.C.A. � 5107(b) is not for
application.  In this case, for the reasons and bases
discussed above, a reasonable doubt does not exist regarding
the appellant's claim that the veteran's death is related to
service.  There is not an approximate balance of evidence.

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duties to notify and assist claimants in substantiating
a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326(a) (2005).

The notice requirements were met in this case by a letter
sent to the claimant in October 2003.  That letter advised
the claimant of the information necessary to substantiate her
claim, and of her and VA's respective obligations for
obtaining specified different types of evidence.  See
Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R.
� 3.159(b) (2005).

The RO's 2003 letter did not specifically tell the claimant
to provide any relevant evidence in her possession.
Nevertheless, as a practical matter, the Board finds that she
has been notified of the need to provide such evidence, for
the following reasons.  The October 2003 letter informed her
that additional information or evidence was needed to support
her claim, and asked her to send the information or evidence
to VA.  When considering the notification letters, the rating
decision on appeal, and the statement of the case (SOC), as a
whole, the Board finds that she was aware that it was
ultimately her responsibility to give VA any evidence
pertaining to the claim.  Moreover, there is no allegation
from the claimant that she has any evidence in her possession
that is needed for a full and fair adjudication of the claim.
The claimant has not alleged that VA failed to comply with
the notice requirements of the VCAA, and she was afforded a
meaningful opportunity to participate effectively in the
processing of her claim.  See Mayfield v. Nicholson, 19 Vet.
App. 103 (2005).

In concluding that the VCAA notice requirements have been
satisfied, the Board has relied on communications other than
the RO's formal notice letter to the claimant.  However, what
the VCAA seeks to achieve is to give the claimant notice of
the elements discussed in Pelegrini II.  Once that is done-
whether by a single notice letter or via more than one
communication-the essential legal requirements have been
met.  Here, because each of the four elements of proper VCAA
notice have been met, any error in not providing a single
notice to the claimant covering all content requirements was
harmless.  See, e.g., 38 C.F.R. � 20.1102 (2005); Mayfield,
supra.

The notice required by 38 U.S.C.A. � 5103(a) should be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also
Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  That was
done in this case.

The Board also concludes VA's duty to assist has been
satisfied.  The veteran's service medical records and service
personnel records are in the file.  The claimant has at no
time referenced outstanding records that she wanted VA to
obtain or that she felt were relevant to the claim.  As for
obtaining a medical opinion, since there is no evidence the
veteran was exposed to Agent Orange during service or that
the conditions leading to his death were in any way related
to his military service, there is no obligation to obtain any
medical opinions.

Thus, the Board finds that VA has satisfied the duty to
assist the appellant.  In the circumstances of this case,
additional efforts to assist or notify him in accordance with
the VCAA would serve no useful purpose.  See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (remands which would only result
in unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided).  VA has
satisfied its duties to inform and assist the appellant at
every stage of this case.  Therefore, the Board may proceed
to consider the merits of the claim, as indicated above.

ORDER

Service connection for the cause of the veteran's death is
denied.

____________________________________________
Michelle L. Kane
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: JOY A MCDONALD

condition: liver

text:
Citation Nr: 0608000
Decision Date: 03/20/06    Archive Date: 03/29/06

DOCKET NO.  00-14 940	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky

THE ISSUES

1.  Entitlement to an initial, compensable evaluation for
hepatitis.

2.  Entitlement to an initial, compensable evaluation for
lipomas of the abdomen and thigh.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

C. Dillon, Counsel

INTRODUCTION

The veteran served on active duty from February 1977 to
February 1999.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky.

FINDINGS OF FACT

1.  The veteran's hepatitis is not productive of demonstrable
liver damage with mild gastrointestinal disturbance.

2.  The veteran's hepatitis is not productive of intermittent
fatigue, malaise, and anorexia, or; incapacitating episodes,
with symptoms such as fatigue, malaise, nausea, vomiting,
anorexia, arthralgia, and right upper quadrant pain, having a
total duration of at least one week but less than two weeks
during the past twelve-month period.

3.  The veteran's lipomas are minimal in size and demonstrate
no more than slight exfoliation, exudation, or itching.

4.  The veteran's lipomas have not resulted in any scarring
or functional limitation of the thigh or abdomen.

CONCLUSIONS OF LAW

1.  The criteria for an initial, compensable evaluation for
hepatitis have not been met.  38 U.S.C.A. �� 1155, 5103A,
5107 (West 2002); 38 C.F.R. � 4.114, Diagnostic Code 7345
(2001); 38 C.F.R. � 4.114, Diagnostic Codes 7345, 7354
(2005).

2.  The criteria for an initial, compensable evaluation for
lipomas of the abdomen and thigh have not been met.  38
U.S.C.A. �� 1155, 5103A, 5107 (West 2002); 38 C.F.R. � 4.118,
Diagnostic Codes 7806, 7819 (2002); 38 C.F.R. �� 4.73,
Diagnostic Codes 5317-5319; 4.118, Diagnostic Codes 7803-
7805, 7819 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

At the outset, the Board notes that VA has met all statutory
and regulatory notice and duty to assist provisions.  See 38
U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002 & Supp. 2005); 38 C.F.R. �� 3.102, 3.156(a), 3.159,
3.326 (2005).  Letters dated in May 2001 and April 2005
satisfy the duty to notify provisions.  As for the duty to
assist, the claims file contains all available evidence
pertinent to the claims, including VA examination reports
dated in August 1999, July 2000, and February 2002.  The
veteran contends that re-examinations are required to address
the current severity of the claimed disabilities.  There is,
however, no competent evidence suggesting his hepatitis and
lipomas have worsened in recent years, and the duty to assist
does not require a remand for re-examination solely because
of the passage of time since an otherwise adequate VA
examination was conducted.  VAOPGCPREC 11-95, 60 Fed. Reg.
43186 (1995); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999);
Snuffer v. Gober, 10 Vet. App. 400 (1997).  There is no
indication in the record that additional evidence relevant to
the issues decided herein is available and not part of the
claims file.  As there is no indication that any failure on
the part of VA to provide additional notice or assistance
reasonably affects the outcome of this case, the Board finds
that any such failure is harmless.  See Mayfield v.
Nicholson, 19 Vet. App. 103 (2005); see also Dingess/Hartman
v. Nicholson, Nos. 01-1917, 02-1506 (U.S. Vet.App. March 3,
2006).

Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
the VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity.  38 U.S.C.A. � 1155;

38 C.F.R. Part 4 (2005).  In considering the severity of a
disability it is essential to trace the medical history of
the veteran.  38 C.F.R. �� 4.1, 4.2, 4.41 (2005).
Consideration of the whole recorded history is necessary so
that a rating may accurately reflect the elements of
disability present.  38 C.F.R. � 4.2; Peyton v. Derwinski,
1 Vet. App. 282 (1991).  While the regulations require review
of the recorded history of a disability by the adjudicator to
ensure a more accurate evaluation, the regulations do not
give past medical reports precedence over the current medical
findings.  Where an increase in the disability rating is at
issue, the present level of the veteran's disability is the
primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58
(1994).  However, this claim is based on the assignment of an
initial rating for a disability following an initial award of
service connection for that disability.  In Fenderson v.
West, 12 Vet. App. 119 (1999), the United States Court of
Appeals for Veterans Claims (Court) held that the rule
articulated in Francisco did not apply to the assignment of
an initial rating for a disability following an initial award
of service connection for that disability.  Id.; Francisco, 7
Vet. App. at 58.

The rating criteria for hepatitis and the rating criteria for
skin disorders were revised during the veteran's appeal.  The
RO provided the revised rating criteria to the veteran in the
September 2005 supplemental statement of the case, and
considered those criteria in continuing the noncompensable
ratings that have been assigned.  The veteran was then given
the opportunity to submit evidence and argument in response.
The Board finds, therefore, that it can consider the original
and revised version of the rating criteria without prejudice
to the veteran.  See Bernard v. Brown, 4 Vet. App. 384
(1993).

Hepatitis

During the course of the veteran's appeal, the regulations
pertaining to liver disorders were revised.  Specifically, 38
C.F.R. � 4.114 was amended and Diagnostic Codes 7311, 7312,
7343, 7344, and 7345 were revised.  Diagnostic Code 7313 was
removed and Diagnostic Codes 7351 and 7354 were added.  Prior
to

the July 2, 2001, regulatory change, Diagnostic Code 7345 was
the appropriate rating code for infectious hepatitis.  38
C.F.R. � 4.114, Diagnostic Code 7345 (2001).  Following the
regulation change, Diagnostic Code 7345 was amended and is
currently used to rate chronic liver disease without
cirrhosis, to specifically exclude hepatitis C.  Diagnostic
Code 7354 now contains the criteria for evaluating hepatitis
C.  38 C.F.R. � 4.114, Diagnostic Codes 7345, 7354 (2005).

Under the former criteria, a 10 percent evaluation under
Diagnostic Code 7345 required that the disease be productive
of demonstrable liver damage with mild gastrointestinal
disturbance.  A 30 percent was warranted for minimal liver
damage with associated fatigue, anxiety, and gastrointestinal
disturbance of lesser degree and frequency than required for
a 60 percent evaluation, but necessitating dietary
restriction or other therapeutic measures.  A 60 percent
evaluation required moderate liver damage and disabling
recurrent episodes of gastrointestinal disturbance, fatigue,
and mental depression.  Finally, a 100 percent rating under
this code was warranted when the disease was productive of
marked liver damage manifested by liver function tests and
marked gastrointestinal symptoms, or with episodes of several
weeks duration, aggregating three or more a year, and
accompanied by disabling symptoms requiring rest therapy.

The revised regulations adds Diagnostic Code 7354, which
specifically governs the evaluation of hepatitis C, as well
as non-A, non-B hepatitis.  Pursuant to this regulation, a 10
percent rating requires that the disease be productive of
intermittent fatigue, malaise, and anorexia, or;
incapacitating episodes, with symptoms such as fatigue,
malaise, nausea, vomiting, anorexia, arthralgia, and right
upper quadrant pain, having a total duration of at least one
week but less than two weeks during the past twelve-month
period.  Further, a 20 percent rating is warranted if the
hepatitis C is productive of daily fatigue, malaise, and
anorexia, without weight loss or hepatomegaly, requiring
dietary restriction or continuous medication, or;
incapacitating episodes, with symptoms such as fatigue,
malaise, nausea, vomiting, anorexia, arthralgia, and right
upper quadrant pain, having a total duration of at least two
weeks, but less than four weeks, during the past twelve-month
period.  A 40

percent evaluation is in order in cases of daily fatigue,
malaise, and anorexia, accompanied by minor weight loss and
hepatomegaly, or; incapacitating episodes, with symptoms such
as fatigue, malaise, nausea, vomiting, anorexia, arthralgia,
and right upper quadrant pain, having a total duration of at
least four weeks, but less than six weeks, during the past
twelve-month period.  Further, a 60 percent rating requires
daily fatigue, malaise and anorexia with substantial weight
loss, or other indication of malnutrition, and hepatomegaly;
or incapacitating episodes, with symptoms such as fatigue,
malaise, nausea, vomiting, anorexia, arthralgia, and right
upper quadrant pain, having a total duration of at least six
weeks, during the past twelve-month period, but not occurring
constantly.  38 C.F.R. � 4.114, Diagnostic Code 7354 (2005).
Finally, a 100 percent rating requires near constant
debilitating symptoms such as fatigue, malaise, nausea,
vomiting, anorexia, arthralgia, and right upper quadrant
pain.  Id.  A note following the rating criteria provides
that, for purposes of evaluating conditions under Diagnostic
Code 7354, an "incapacitating episode" means a period of
acute signs and symptoms severe enough to require bed rest
and treatment by a physician.  Id. at Note (2).

In this case, neither the old nor the revised regulation
provides for a compensable evaluation for the veteran's
service-connected hepatitis.  The competent evidence arguably
shows demonstrable liver damage, but it does not show that
the veteran currently experiences a compensable severity of
hepatitis.  Rather, the overwhelming majority of associated
signs or symptoms set forth in the rating criteria have not
been reported and in several instances during VA examinations
were specifically denied or otherwise ruled out.  In February
2002, the veteran reported the presence of fatigue, but it is
not associated with anorexia; the evidence shows he is over
200 pounds and has actually gained weight since filing his
claim.  For instance, an August 1999 VA examination report
describes the veteran as a 218-pound individual with good
nutrition.  The only diagnosed symptom at the time of the
July 2000 VA examination was chronic abdominal pain,
secondary to hepatitis.  Upper right quadrant pain was the
most consistently reported complaint, but it was not
associated with evidence reflecting incapacitating episodes
having a total duration of at least one week but less than
two weeks during any twelve-month period.

The Board notes there remains some question as to whether the
veteran currently has hepatitis and, if so, which type.  The
medical evidence reflects the current diagnosis of hepatitis
was established by results of a December 1998 biopsy.
Although symptoms, such as right upper quadrant pain, were
reported by the veteran during the August 1999 VA
examination, the examiner intimated the diagnosis of
hepatitis may have been premature; he diagnosed a "history
of hepatitis, still being evaluated" and noted that while
there were elevated liver function tests, the hepatitis
panels were normal.  The July 2000 VA examiner stated the
veteran has hepatitis C, confirmed by a 1998 biopsy, but the
examiner then acknowledged a copy of the biopsy was not
available for review.  The most recent VA examiner in
February 2002 ordered a complete laboratory work-up, and the
resulting addendum based on the laboratory findings included
the statement that "[t]he biopsy shows . . . changes [that]
are very mild and do not suggest a specific diagnosis or
indicate any significant form of liver disease."
Additionally, recent VA treatment records have interpreted
abnormal liver function test results as evidence of nothing
more than a fatty liver.  Further clarification, however, is
unnecessary.  In this case, the Board has evaluated the
veteran's hepatitis, regardless of virus type, as if it is
indeed active and the cause of his fatigue and right upper
quadrant pain.  As explained above, these were the only
chronic symptoms established by the medical evidence, and
they do not support a compensable evaluation under either the
old or revised regulation.

Accordingly, a compensable evaluation is not warranted for
the veteran's hepatitis.
The evidence in this case is not so evenly balanced so as to
allow application of the benefit-of-the-doubt rule as
required by law and VA regulations.  38 U.S.C.A. � 5107(b);
38 C.F.R. �� 3.102, 4.3 (2005).  As the criteria for a
compensable evaluation have not been shown by the medical
evidence of record at anytime during the appeal period, the
preponderance is against the veteran's claim, and it must be
denied.

Lipomas

The RO has evaluated this disability pursuant to the
diagnostic code which rates impairment resulting from benign
skin growths.  See 38 C.F.R. � 4.118, Diagnostic Code 7819.
According to the old rating criteria, new and benign skin
growths are rated, by analogy, to eczema, depending upon the
location, extent, and repugnance or otherwise disabling
character of manifestations.  38 C.F.R. � 4.118, Diagnostic
Code 7819 (2002).  Under the former criteria for Diagnostic
Code 7806 for eczema, a noncompensable evaluation was
warranted for slight, if any, exfoliation, exudation or
itching, if on a nonexposed surface or small area.  A 10
percent evaluation was warranted for exfoliation, exudation
or itching, if involving an exposed surface or extensive
area.  A 30 percent evaluation was warranted for constant
exudation or itching, extensive lesions, or marked
disfigurement.  A 50 percent evaluation required ulceration
or extensive exfoliation or crusting and systemic or nervous
manifestations or exceptionally repugnant disfigurement.  38
C.F.R. � 4.118, Diagnostic Code 7806 (2002).

According to the revised rating criteria, benign skin
neoplasms are evaluated as disfigurement of the head, face,
or neck; scars; or impairment of function.  38 C.F.R.
� 4.118, Diagnostic Code 7819 (2005).  As the veteran's
service-connected multiple lipomas involve his abdomen and
thigh and not his head, face, or neck, the Board finds that
Diagnostic Code 7800, which rates impairment resulting from
disfigurement of the head, face, or neck; Diagnostic Code
7801, which rates impairment resulting from scars of the
head, face, or neck that are deep and cause limited motion;
and Diagnostic Code 7802, which rates impairment resulting
from scars of the head, face, or neck that are superficial
and do not cause limited motion are not appropriate for the
service-connected multiple lipomas disorder in the present
case.

According to Diagnostic Code 7803, a 10 percent disability
evaluation will be warranted with evidence of a superficial
service-connected scar that is unstable.  38 C.F.R. � 4.118,
Diagnostic Code 7803 (2005).  An unstable scar is one where,
for any reason, there is frequent loss of covering of the
skin over the scar.  38 C.F.R. � 4.118, Diagnostic Code 7803,
Note (1) (2005).  A superficial scar is one not associated
with the underlying soft tissue damage.  38 C.F.R. � 4.118,
Diagnostic Code 7803, Note (2) (2005).

Diagnostic Code 7804 stipulates that a 10 percent disability
evaluation will be warranted with evidence that a superficial
service-connected scar is painful on examination.  38 C.F.R.
� 4.118, Diagnostic Code 7804 (2005).  A superficial scar is
one not associated with underlying soft tissue damage.  38
C.F.R. � 4.118, Diagnostic Code 7804, Note (1) (2005).  In
such a case, a 10 percent evaluation will be assigned for a
scar on the tip of a finger or toe even though amputation of
the part would not warrant a compensable evaluation.  38
C.F.R. � 4.118, Diagnostic Code 7804, Note 2 (2005).

In addition, Diagnostic Code 7805 provides that other scars
will be rated based on the limitation of function of the
affected part, in this case, impairment resulting from
disability to the muscles of the thigh and abdominal wall.
38 C.F.R. �� 4.73, 4.118, Diagnostic Codes 5317-5319, 7805
(2005).

The medical findings of record do not support a compensable
evaluation for the service-connected multiple lipomas of the
veteran's thigh and abdomen under either the old or revised
rating criteria.  No evidence of exfoliation, exudation, or
itching, involving an exposed surface or extensive area has
been shown.  Furthermore, the pertinent medical evidence of
record does not illustrate that the multiple lipomas of the
veteran's thigh and abdomen are superficial, unstable, or
painful or results in limitation of function of his thigh or
abdomen.

On VA examination in August 1999, the veteran reported a
history of lipomas but then noted they were asymptomatic at
that time.  The VA examiner noted that he reviewed a surgical
consult that described the lipomas as benign.  One lipoma was
measured as 1 centimeter, and two others were measured as 1/2
centimeter each.  On VA examination later the same month, the
only skin disorder diagnosis was pruritus, and the only
objective finding was some redness upon stroking the skin.
On VA examination in February 2002, the veteran's skin
disorder was diagnosed as mild psoriatic dermatitis of the
abdomen.  Examination at that time revealed a few less than 1
centimeter scaly, slightly erythematous patches.  Consistent
with the minimal findings on VA examination reports, the VA
treatment records fail to

document any treatment for lipomas.  Furthermore, the
evidence does not reflect any finding of infection of these
growths or the need for their drainage or surgical removal.
Finally, without history of surgical intervention, there is
no evidence of scarring.

Accordingly, a compensable evaluation is not warranted for
the veteran's lipomas.
The evidence in this case is not so evenly balanced so as to
allow application of the benefit-of-the-doubt rule as
required by law and VA regulations.  38 U.S.C.A.
� 5107(b); 38 C.F.R. �� 3.102, 4.3.  As the criteria for a
compensable evaluation have not been shown by the medical
evidence of record at anytime during the appeal period, the
preponderance is against the veteran's claim, and it must be
denied.

Extraschedular

In exceptional cases where schedular evaluations are found to
be inadequate, the RO may refer a claim to the Chief Benefits
Director or the Director, Compensation and Pension Service,
for consideration of "an extra-schedular evaluation
commensurate with the average earning capacity impairment due
exclusively to the service-connected disability or
disabilities."  38 C.F.R. � 3.321(b)(1) (2005).  "The
governing norm in these exceptional cases is:  A finding that
the case presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards."  Id.  In this regard, the schedular evaluations
in this case are not inadequate.  A compensable rating is
provided for certain manifestations of the veteran's claimed
disabilities, but the medical evidence reflects that those
manifestations are not present in this case.  Moreover, the
Board finds no evidence of an exceptional disability picture.
The veteran has not required hospitalization due to either
service-connected disability, and marked interference with
employment has not been shown.  Accordingly, the RO's
decision not to refer the claim for an initial compensable
evaluation for hepatitis to the Chief Benefits Director or
the Director, Compensation and Pension Service was correct,
and RO's failure to consider or to document its consideration
of

this section with regard to the claim for an initial
compensable evaluation for lipomas was not prejudicial to the
veteran.

ORDER

An initial, compensable evaluation for hepatitis is denied.

An initial, compensable evaluation for lipomas of the abdomen
and thigh is denied.

____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: BARRY F BOHAN

condition: tinnitus

condition: gi

disposition: remanded

condition: back

text: 4. Entitlement to service connection for a cervical spine disability. [is remanded]

text:
Citation Nr: 0609000
Decision Date: 03/29/06    Archive Date: 04/07/06

DOCKET NO.  04-12 290	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri

THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service-connection for hemorrhoids.

4.  Entitlement to service connection for a cervical spine
disability.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

K. Morgan, Associate Counsel

INTRODUCTION

The veteran served on active duty from April 1966 until
January 1970.  Service in Vietnam is indicated by the
evidence of record.

This case comes before the Board of Veterans' Appeals (the
Board) on appeal from an April 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office in St.
Louis, Missouri, (the RO) which denied the veteran's claims
of entitlement to service connection for hemorrhoids and a
cervical spine disability and from a January 2005 RO rating
decision which denied the veteran's claims of entitlement to
service connection of hearing loss and tinnitus.

The issue of the veteran's entitlement to service connection
for a cervical spine disability is  addressed in the REMAND
portion of the decision below and is REMANDED to the RO via
the VA Appeals Management Center (AMC) in Washington, DC.

FINDINGS OF FACT

1.  The veteran does not suffer from a hearing loss
disability for VA rating purposes.

2.  The competent and probative medical evidence of record
does not indicate that tinnitus is related to noise exposure
in service.

3.  The veteran does not suffer from a current disability
which manifests as hemorrhoids.

CONCLUSIONS OF LAW

1.  Hearing loss was not incurred in or aggravated by the
veteran's military service.  38 U.S.C.A. � 1110; 38 C.F.R.
��  3.303, 3.385 (2005).

2.  Tinnitus was not incurred in or aggravated by the
veteran's military service.  38 U.S.C.A. � 1110; 38 C.F.R.
� 3.303 (2005).

3.  Hemorrhoids were not incurred in or aggravated by the
veteran's military service.  38 U.S.C.A. � 1110 (West 2002);
38 C.F.R. � 3.303 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran is seeking entitlement to service connection for
bilateral hearing loss, tinnitus and hemorrhoids.  [As is
discussed elsewhere in this decision, a fourth issue,
entitlement to service connection for a cervical spine
disability, is being remanded for additional evidentiary
development.]

In the interest of clarity, the Board will initially discuss
certain preliminary matters. The Board will then address the
pertinent law and regulations and their application to the
facts and evidence.  The issues will then be analyzed and a
decision rendered.

The Veterans Claims Assistance Act of 2000

The Board has given consideration to the Veterans Claims
Assistance Act of 2000 (the VCAA).  The VCAA includes an
enhanced duty on the part of VA to notify a claimant as to
the information and evidence necessary to substantiate claims
for VA benefits.  The VCAA also redefines the obligations of
VA with respect to its statutory duty to assist claimants in
the development of their claims.
See 38 U.S.C.A. �� 5103, 5103A (West 2002).

The Board has carefully considered the provisions of the VCAA
and the implementing regulations in light of the record on
appeal, and for reasons expressed immediately below finds
that the development of the issue has proceeded in accordance
with the provisions of the law and regulations.

The VCAA alters the legal landscape in three distinct ways:
standard of review, notice and duty to assist.  The Board
will now address these concepts within the context of the
circumstances presented in this case.

Standard of review

After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record.  See 38
U.S.C.A. � 7104(a) (West 2002).  When there is an approximate
balance of evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
38 U.S.C.A. � 5107 (West 2002); 38 C.F.R. � 3.102 (2005).

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the
United States Court of Appeals for Veterans Claims (the
Court) stated that "a veteran need only demonstrate that
there is an 'approximate balance of positive and negative
evidence' in order to prevail."  To deny a claim on its
merits, the preponderance of the evidence must be against the
claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.

Notice

The VCAA requires 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 VA 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.
See 38 U.S.C.A. � 5103 (West 2002); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002) [a letter from VA to an
appellant describing evidence potentially helpful to the
appellant but not mentioning who is responsible for obtaining
such evidence did not meet the standard erected by the VCAA].

After having carefully reviewed the record, the Board has
concluded that the notice requirements of the VCAA have been
satisfied with respect to the issues on appeal.  The Board
observes that the veteran was informed of the relevant law
and regulations pertaining to his hearing loss and tinnitus
claims in the October 2005 SOC and pertaining to his
hemorrhoid claim in the March 2004 SOC.  Specifically, both
SOCs detailed the evidentiary requirements for service
connection.

Crucially, the AOJ, informed the veteran of VA's duty to
assist him in the development of his claims in a letter dated
October 25, 2002 and specifically referencing his hemorrhoid
claim and in another letter dated September 24, 2004
specifically referencing his hearing loss and tinnitus
claims.   These letters advised the veteran of the provisions
relating to the VCAA.  Specifically, the veteran was advised
in these letters that VA would obtain all evidence kept by
the VA and any other Federal agency, including VA facilities
and service medical records.  He was also informed that VA
would, on his behalf, make reasonable efforts to obtain
relevant private medical records not held by a Federal agency
as long as he completed a release form for such.  These
letters specifically informed the veteran that for records he
wished for VA to obtain on his behalf  he must provide enough
information about your records so that VA can request them
from the person or agency that has them.

Finally, the Board notes that these letters specifically
notified the veteran that he could submit or describe any
additional evidence that may be relevant to his claim.  The
September 2004 letter notified him that "If there is any
other evidence or information that you think will support
your claim, please let us know.  If you have any evidence in
your possession that you think will support your claim,
please send it to us."  Similar notice with respect to the
hemorrhoid claim was contained in the March 2004 SOC.  These
requests comply with the requirements of 38 C.F.R.
� 3.159 (b) in that the veteran was informed that he could
submit or identify evidence other than what was specifically
requested by the RO.

In short, the record indicates that the veteran received
appropriate notice under 38 U.S.C.A. � 5103 and Quartuccio.

In Dingess v. Nicholson, No. 01-1917 (U.S. Vet. App. March 3,
2006), the Court observed that a claim of entitlement to
service connection consists of five elements:  (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.  Because a service
connection claim is comprised of five elements, the Court
further held that the notice requirements of section 5103(a)
apply generally to all five elements of that claim.
Therefore, upon receipt of an application for a service
connection claim, section 5103(a) and section 3.159(b)
require VA to review the information and the evidence
presented with the claim and to provide the claimant with
notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application.  This includes
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded.

In this case, element (1), veteran status, is not at issue.
Moreover, elements (4) and (5), degree of disability and
effective date, are rendered moot via the RO's denial of
service connection.  In other words, any lack advisement as
to those two elements is meaningless, because a disability
rating and effective date were not assigned.  The veteran's
claim of entitlement to service connection was denied based
on elements (2) and (3), current existence of a disability
and relationship of such disability to the veteran's
service.  As explained above, he has received proper VCAA
notice as to his obligations, and those of VA, with respect
to those two crucial elements.

Moreover, because the Board concludes below that the
preponderance of the evidence is against the veteran's claims
for service connection, any questions as to the appropriate
disability rating or effective date to be assigned are
rendered moot.

Thus, there is no prejudice to the veteran in Board's
considering this case on its merits.  See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) [strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran].

The veteran is obviously aware of what is required on him and
of VA.  Indeed, he has personally submitted evidence and
argument in support of his claim, the tenor of which leads
the Board to conclude that he is well informed and aware of
his obligations.  Because there is no indication that there
exists any evidence which could be obtained which would have
an effect on the outcome of this case, no further VCAA notice
is necessary.  See Dela Cruz v. Principi, 15 Vet. App. 143,
149 (2001) [VCAA notice not required where there is no
reasonable possibility that additional development will aid
the veteran].

Duty to assist

In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate claims for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim.  The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim.  An examination is deemed "necessary" if the record
does not contain sufficient medical evidence for VA to make a
decision on the claim.  See 38 U.S.C.A. � 5103A (West 2002);
38 C.F.R. � 3.159 (2005).

The Board finds that reasonable efforts have been made to
assist the veteran in obtaining evidence necessary to
substantiate his claim, and that there is no reasonable
possibility that further assistance would aid in
substantiating it.  In particular, the RO has obtained the
service medical records, service personnel records, private
treatment records and VA treatment records.  The veteran has
identified no additional information or evidence that should
be obtained.

The Board observes in passing that the veteran evidently
applied for Social Security Administration (SSA) disability
benefits sometime in the past.  There is, however, any
indication that SSA benefits were awarded.  Moreover, and
crucially, there is no indication that SSA would possess any
evidence, not now in the possession of VA, which is pertinent
to the veteran's claims.  Cf. Brock v. Brown, 10 Vet. App.
155, 161-2 (1997) [VA is not obligated to obtain records
which are not pertinent to the issue on appeal.]
Accordingly, inquiry to SSA is not warranted.

The duty to assist also includes providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. 38 U.S.C.A. � 5103A(d) (West 2002); 38 C.F.R.
� 3.159(c)(4) (2005).  An audiology examination was provided
in September 2005 by an appropriately credentialed provider.
The results of this examination will be discussed in greater
detail below.   Also as will be discussed in greater detail
below, the medical evidence of record does not indicate a
current diagnosis of hemorrhoids.  Therefore, a VA
examination was not necessary for the appropriate development
of that claim.  Cf.  Charles v. Principi, 16 Vet. App. 370
(2002).

Accordingly, the Board finds that under the circumstances of
this case, the VA has satisfied the notification and duty to
assist provisions of the law and that no further actions
pursuant to the VCAA need be undertaken on the veteran's
behalf.

The Board additionally observes that all appropriate due
process concerns have been satisfied.  See 38 C.F.R. � 3.103
(2005).  The veteran and his representative have been
accorded the opportunity to present evidence and argument in
support of his claims.  The veteran did not elect to present
personal testimony at a hearing.

Accordingly, the Board will proceed to a decision on the
merits as to these three issues.

1.  Entitlement to service connection for hearing loss.

Pertinent laws and regulations
Service connection - in general

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R.
� 3.303 (2005).

In order to establish service connection for a claimed
disorder, there must be (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 current
disability.  See Hickson v. West, 12 Vet. App. 247, 253
(1999).

Service connection may not be granted unless a current
disability exists. See Brammer v. Derwinski, 3 Vet. App. 223
(1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143
(1992).  A "current disability" means a disability shown by
competent medical evidence to exist. See Chelte v. Brown, 10
Vet. App. 268 (1997).

Service connection - hearing loss

For certain chronic disorders, including sensorineural
hearing loss, service connection may be granted if the
disease becomes manifest to a compensable degree within one
year following separation from service. 38 U.S.C.A. �� 1101,
1110, 1112, 1113 (West 2002); 38 C.F.R. �� 3.307, 3.309
(2005).

Impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or
greater; or when the auditory thresholds for at least three
of these frequencies are 26 decibels or greater; or when
speech recognition scores using the
Maryland CNC Test are less than 94 percent.  38 C.F.R.
� 3.385 (2005).

Analysis

Concerning Hickson element (1), current disability, the
preponderance of the medical evidence of record is against a
finding that the veteran currently has, or ever had,
bilateral hearing loss as defined by VA.  See 38 C.F.R. �
3.385.  Hearing test results conducted during the veteran's
service were within normal limits.  Additionally, there is no
record of any post-service treatment or diagnosis of any
hearing problem, a period of well over three decades.

In September 2005, a VA hearing examination was conducted by
a certified audiologist. CNC speech recognition scores were
98 percent bilaterally.  The audiometric examination showed
the following puretone thresholds:

Hertz (Hz)	500	1000	2000	3000	4000	Avg.
Left		20	10	15	25	25	19
Right		20	15	15	20	20	18

As discussed above, 38 C.F.R. � 3.385 requires that the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, and 4000 hertz, in ISO units, is 40 decibels or
greater; or when the auditory thresholds for at least three
of these frequencies are 26 decibels or greater; or when
speech recognition scores are less than 94 percent.
The medical evidence of record fails to demonstrate any
auditory threshold of 40 dB or greater and does not reflect
three or more auditory thresholds of 26 dB or greater for
either ear.  CNC speech recognition is not less than 94
percent.

It is well settled that VA disability benefits are not
available if a disability does not exist.   See Degmetich v.
Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155
F.3d 1353 (Fed. Cir. 1998) [service connection cannot be
granted if the claimed disability does not exist].  On that
basis the claim fails.

The Board is aware of the veteran's contentions regarding
hazardous noise exposure causing hearing loss.  To the extent
that the veteran is contending that he now has hearing loss
for VA purposes, it is well established that lay persons
without medical training, such as the veteran, are not
competent to attribute symptoms to a particular cause or to
otherwise comment on medical matters such as diagnosis.  See
Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see
also 38 C.F.R. � 3.159 (a)(1) [competent medical evidence
means evidence provided by a person who is qualified through
education, training, or experience to offer medical
diagnoses, statements, or opinions].

The veteran has submitted evidence as to the etiology of
hearing loss,  including a magazine article submitted
directly to Board without a waiver of RO consideration.  This
article discusses how even a single instance of hazardous
noise exposure can cause hearing loss.  Remand for
consideration of this article is not required by 38 C.F.R.
� 20.1304(c) (2005), however, because in the absence of
hearing loss for VA purposes, evidence regarding any causal
relationship between noise exposure and hearing loss cannot
be pertinent.

Accordingly, the criteria for the establishment of service
connection have not been met and the benefit sought on appeal
is therefore denied.
2.  Entitlement to service connection for tinnitus.

Analysis

The veteran is seeking entitlement to service connection of
tinnitus.  Essentially, he contends that he has suffered from
a ringing in the ears since service and that such was due to
noise exposure during service.

At the September 2005 VA examination, tinnitus was diagnosed.
Therefore, Hickson element (1) has been met.  Moreover,
although there is no evidence of tinnitus or acoustic injury
on service, it appears that the nature of the veteran's
duties in the United States Air Force may have exposed him to
high levels of noise.

The resolution of the appeal hinges upon the matter of nexus
between in-service noise exposure and tinnitus.  Resolution
of this issue requires competent medical evidence, which can
be provided neither by the Board or by the veteran himself.
See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the
Board is prohibited from exercising its own independent
judgment to resolve medical questions] and Espiritu, supra.

There is of record only one competent medical nexus opinion,
that of the  September 2005 VA audiology examiner.  In that
report, the certified audiologist noted his review of the
veteran's claims folder his and examination of the veteran.
Based upon this information, the examiner determined that
although the veteran had been exposed to noise in service, it
was not as least as likely as not that the veteran's tinnitus
was related to in-service hazardous noise exposure.  The
audiologist in essence determined that since the amount of
noise exposure in the service was not enough to cause hearing
loss, it was also not enough to cause tinnitus.  The
audiologist further noted that the veteran did not have any
ear problems in service and that he had never sought
treatment for such after service.

Therefore, the only source of competent medical evidence
weighs against the claim.
Of record are the veteran's lay statements and lay statements
of D.B. to the effect that the veteran's tinnitus was caused
by service.  However, as discussed above such lay statements
are competent medical nexus evidence.  See Espiritu, supra;
see also Cromley v. Brown, 7 Vet. App. 376, 379 (1995).

With respect to the veteran's contentions that he has
experiences tinnitus continually after service, the Board is
of course aware of the provisions of 38 C.F.R. � 3.303(b),
relating to chronicity and continuity of symptomatology.
Here, however, there is no objective medical evidence of ear
injury, or complaints of tinnitus in service, and no
indication of complaints of tinnitus for decades thereafter.
Supporting medical evidence is required.  See Voerth v. West,
13 Vet. App. 117, 120-1 (1999) [there must be medical
evidence on file demonstrating a relationship between the
veteran's current disability and the claimed continuous
symptomatology, unless such a relationship is one as to which
a lay person's observation is competent].  Such evidence is
lacking in this case.  Continuity of symptomatology after
service is therefore not demonstrated.

The veteran has not received treatment for tinnitus and there
is no indication from the veteran's post-service medical
records of ongoing complaints of tinnitus to establish nexus
by continuity of symptomatology.

Accordingly, element (3), medical nexus, is not met and the
claim fails on that basis.  The benefit sought on appeal is
therefore denied.

3.  Entitlement to service connection for hemorrhoids.

Analysis

The veteran is seeking entitlement to service connection for
hemorrhoids.

Discussion

As has been discussed above, in order for service connection
to be granted a current disability must exist.

Of record are the veteran's medical records from 1970 to the
present.  These records are devoid of any clinical references
to hemorrhoids.

The veteran has asserted that in 1974 he underwent hemorrhoid
surgery at a private hospital.  The private hospital's
treatment records have been obtained and reflect a variety of
service provided from 1970 to 1980; however treatment for
hemorrhoids is not among those records.  A June 2000 record
of another private hospital indicates the veteran's report of
a past surgical history of hemorrhoidectomy.  However, none
of the private treatment records or VA treatment records
associated with the veteran's VA claims folder indicates any
current treatment for, or diagnosis of, hemorrhoids.

Significantly, a recent listing of the veteran's current
health concerns and diagnosis, made part of his VA treatment
record in November 2005, lists nine current conditions, none
of which are hemorrhoids.

The evidence of record it therefore appears that to the
extent that the veteran ever had hemorrhoids, there are no
current residuals of that disability.  See Sanchez-Benitez v.
West, 13 Vet. App. 282 (1999) [service connection may not be
granted for a diagnosis of a disability by history].

Accordingly, as discussed in greater detail above, in the
absence of a current disability, service connection is not
available.  See Brammer, Rabideau and Chelte,  all supra.
The claim fails on that basis.   The criteria for the
establishment of service connection have not been met and the
benefit sought on appeal is therefore denied.

Additional comment

At the time of the veteran's entrance examination in 1965, a
history of hemorrhoids was noted. Because as discussed above
the appeal is being denied based on no current disability,
the question of whether hemorrhoids preexisted service is
moot.

ORDER

Entitlement to service connection for hearing loss is denied.

Entitlement to service connection for tinnitus is denied.

Entitlement to service connection for hemorrhoids is denied.

REMAND

4.  Entitlement to service connection for a cervical spine
disability.

The veteran is also seeking entitlement to service connection
for a cervical spine disability.  Essentially, he contends
that his cervical spine disability had its origins in service
when he fell off of a ladder.   For the reasons explained
immediately below, the Board had determined that a remand is
in order.

Reasons for remand

Medical records

In February 2003, the veteran submitted a nexus opinion from
Dr. M.J.F.  The letter indicated that the Dr. F. had been
treating the veteran for "many years" and identified his
offices as the W. Clinic.  However, a review of the evidence
of record indicates that although the veteran has provided VA
with an appropriate signed authorization to obtain the
records, the evidence does not include any of Dr. F.'s or the
W. Clinic's treatment records.  The record does show that the
RO sent a letter to Dr. F. in November 2002 requesting
treatment records; however, the claims folder does not
indicate whether or not a response was received.

In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim.  The veteran has identified the
existence of medical records which he asserts have bearing
upon the claim.  The RO must therefore make reasonable
efforts to obtain these records.  See 38 U.S.C.A. � 5103A.

Accordingly, the Board believes that additional attempts to
obtain Dr. F.'s records should be made.

Nexus evidence

To establish service connection, there must be (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 current disability. See Hickson, supra.  In Charles
v. Principi, 16 Vet. App. 370, 374-75 (2002) the Court held
that where there is evidence of record satisfying the first
two requirements for service connection (current disability
and in-service disease or injury), but there was not of
record competent medical evidence addressing the third
requirement (a nexus between the current disability and
active service), VA errs in failing to obtain such a medical
nexus opinion.

It is undisputed that the veteran has been diagnosed with
disabilities of the cervical spine.  A June 2005 VA treatment
record included diagnoses of cervical spine arthritis,
cervical radiculopathy and spinal stenosis C5-6 and C6-7.
Element (1) is therefore met.

Concerning in-service incurrence of disease or injury, such
is not of record in the veteran's service medical records.
However, the veteran has produced his own statement and a lay
statement of a fellow service member to the effect that the
veteran suffered a fall from a ladder in 1968.  The Board has
determined that for the limited purposes of this remand,
there is evidence that element (2), in-service incurrence of
disease or injury may be met.

There is of record only one source of nexus evidence, that is
the February 2003 opinion of Dr. F.  In it, Dr. F. concluded
that "the type" of injury described by the veteran is
likely to be related to a portion of the veteran's current
disability.  The basis for this vague conclusion was not
stated.  The Court has held that medical opinions which are
speculative, general or inconclusive in nature cannot support
a claim.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993);
Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine
v. Brown, 9 Vet. App. 521, 523 (1996).

Accordingly, as there is no other nexus evidence in the file,
the Board has determined that a medical opinion is needed.

Accordingly, the case is REMANDED for the following action:

1.   VBA should make an additional
attempt to obtain the veteran's records
from Dr. F. and the W. Clinic.  Any
records received should be added to the
veteran's claims folder.  If the records
are unavailable that should be noted in
the claims folder.

2. After the completion of the foregoing,
VBA should refer the veteran's claims
folder to a medical professional for
review. The reviewer should be requested
to provide an opinion as to whether the
veteran's current cervical spine
disability is as least as likely as not
related to events in service, to include
the fall from a ladder as described by
the veteran.
If the reviewer deems physical
examination of the veteran appropriate,
he or she should request that examination
and/or diagnostic testing of the veteran
be scheduled, this should be
accomplished. A report should be prepared
and associated with the veteran's VA
claims folder.

3.  After undertaking any additional
development it deems to be necessary, VBA
should readjudicate the veteran's claim.
If the claim remains denied, in whole or
in part, VBA should issue a supplemental
statement of the case, and the veteran
and his representative should be allowed
an appropriate period of time for
response.  Thereafter, the claims folder
should be returned to the Board for
further appellate review, if otherwise in
order.

The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded.  See
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 for
additional development or other appropriate action must be
handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B,
7112 (West Supp. 2005).

______________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: JEFF MARTIN

condition: knee

condition: skin

text:
Citation Nr: 0610000
Decision Date: 04/06/06    Archive Date: 04/13/06

DOCKET NO.  04-07 574A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona

THE ISSUES

1.  Entitlement to service connection for degenerative joint
disease of the lumbar spine.

2.  Entitlement to service connection for degenerative joint
disease of the right knee.

3.  Entitlement to service connection for a skin disorder
characterized as actinic keratosis, seborrheic keratosis, and
senile keratosis.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of
the United States

ATTORNEY FOR THE BOARD

Nancy Rippel, Counsel

INTRODUCTION

The veteran had active naval service from December 1942 to
November 1945.

This case comes before the Board of Veterans' Appeals (Board)
from a March 2003 rating decision of the Department of
Veterans Affairs (VA) Regional Office in Phoenix, Arizona,
that denied the above claims.

In March 2006, the Board granted the veteran's motion to
advance the case on the docket.

FINDING OF FACT

Degenerative joint disease of the lumbar spine, degenerative
joint disease of the right knee and a skin disorder
characterized as actinic keratosis, seborrheic keratosis, and
senile keratosis did not have their onset during active
service or result from disease or injury in service.

CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for
degenerative joint disease of the lumbar spine have not been
met.  38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. �� 3.303,
3.307. 3.309 (2005).

2.  The criteria for entitlement to service connection for
degenerative joint disease of the right knee have not been
met.  38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. �� 3.303,
3.307. 3.309 (2005).

3.  The criteria for entitlement to service connection for a
skin disorder characterized as actinic keratosis, seborrheic
keratosis, and senile keratosis have not been met.  38
U.S.C.A. � 1110 (West 2002); 38 C.F.R. � 3.303 (2005).

REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  Duty to notify and assist

On November 9, 2000, the President signed into law the VCAA.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000), now codified at 38 U.S.C.A. �� 5102,
5103, 5103A, 5107 (West 2002).  This legislation provides,
among other things, for notice and assistance to claimants
under certain circumstances.  VA issued final rules to amend
adjudication regulations to implement the provisions of VCAA.
See 38 C.F.R �� 3.102, 3.156(a), 3.159 and 3.326(a).

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.  In what can be considered a
fourth element of the requisite notice, VA must "also request
that the claimant provide any evidence in the claimant's
possession that pertains to the claim."  38 C.F.R. �
3.159(b)(1); see 38 U.S.C.A. � 5103A(g).

VA satisfied its duty to notify by means of letters from the
RO to the appellant in October 2002 (as to the back and skin
claims), December 2002 (as to the right knee claim), and
November 2003 (as to all three claims), as well as by means
of the discussion in the January 2004 statement of the case
(SOC) and the Supplemental Statement of the Case (SSOC)
issued in December 2004.  He was advised of what was required
to substantiate his claims and of his and VA's
responsibilities regarding his claims.  He was also asked to
submit information and/or evidence, which would include that
in his possession, in support of his claim.  He responded
with evidence and argument in November 2003 and March 2004.

The U.S. Court of Appeals for Veterans Claims (Court) held in
Mayfield v. Nicholson, 19 Vet. App. 220 (2005), that all
sections of VA's notice letter should be construed in
connection with each other to determine whether the document,
read as a whole, addresses all aspects of the requisite
notice under the provisions of the VCAA and the notice letter
must be read in the context of prior relatively
contemporaneous communications to the appellant from the AOJ.
In addition, a complying notice need not necessarily use the
exact language of the controlling statute or regulation
specifying VA's notice obligations, so long as that notice
properly conveys to a claimant the essence of the regulation.
Based on a review of the notification provided the appellant
in this case and the above analysis, the Board finds that VA
notification was in substantial compliance with the
requirements of 38 U.S.C.A. � 5103(a) and 38 C.F.R. �
3.159(b)(1) as these documents, read as a whole, fulfilled
the essential purposes of the VCAA.

The Court in Pelegrini held, in part, that a VCAA notice, as
required by 38 U.S.C. � 5103(a), must be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The October
2002 letter provided information about the VCAA as to the
claims for service connection for the back and skin prior to
the initial decision.  The December 2002 letter provided
information about the VCAA as to the claim for service
connection for the right knee following a denial of the claim
in 1998 prior to the passage of the VCAA.  This letter
advised the veteran that the knee claim was being
readjudicated by the RO because of the recent passage of the
VCAA.  The November 2003 VCAA letter addressed all three
issues on appeal.  To any extent that the veteran was not
provided full and adequate notice prior to the adjudication
of his claims, it is harmless error as all evidence submitted
was considered by VA in the SSOC.  There is no indication
that the outcome of the case has been affected.  VA has
provided the appellant a meaningful opportunity to
participate effectively in the processing of his claims.  See
Mayfield v. Nicholson, 19 Vet. App 103 (2005).

During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which
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.  The Court held that the VCAA notice must include
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded.

In the present appeal, the VCAA notice to the veteran did not
include the type of evidence necessary to establish a
disability rating or effective date.  Despite the inadequate
notice, the Board finds no prejudice to the veteran in
proceeding with the issuance of a final decision.  See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the
Board addresses a question that has not been addressed by the
agency of original jurisdiction, the Board must consider
whether the veteran has been prejudiced thereby).  As the
Board concludes below that the preponderance of the evidence
is against the veteran's claims for service connection, any
questions as to the appropriate disability rating or
effective date to be assigned are rendered moot.

Under the VCAA, VA also has a duty to assist claimants in
obtaining evidence needed to substantiate a claim.  38
U.S.C.A. � 5103A (West 2002); 38 C.F.R. �3.159(c) (2005).
All available service medical records have been furnished.
Beckley and Prescott VA medical center treatment records are
associated with the claims folder.  Private treatment records
identified by the veteran have been requested.  It is noted
that the Lafayette clinic, identified by the veteran as a
treating source in close proximity to service, has been
contacted and has twice indicated it has no records
pertaining to the veteran.  The Board finds no indication of
any additional pertinent, outstanding private medical
evidence specifically identified by the veteran that has not
been requested, nor is there any indication that additional
outstanding Federal department or agency records exist that
should be requested in connection with the claim adjudicated
in this decision.  38 U.S.C.A. � 5103A(b), (c)(3) (West
2002); 38 C.F.R. � 3.159(c)(1), (2) (2005).

Under the VCAA, the duty to assist includes providing a
medical examination or obtaining a medical opinion when such
is necessary to make a decision on a claim.  See 38 C.F.R. �
3.159(c)(4).  An examination or opinion is necessary to make
a decision on the claim when the record (1) contains
competent evidence that the claimant has a current disability
or persistent or recurrent symptoms of the disability; (2)
contains evidence which indicates that the disability or
symptoms may be associated with the claimant's active duty;
and (3) does not contain sufficient medical evidence for VA
to make a decision.  See 38 U.S.C.A. � 5103A(d).  An
examination is not necessary for VA to make a decision under
the circumstances of this case.  Post service disability has
been noted.  However, the record does not contain evidence
that the disabilities and symptoms claimed by the veteran may
be associated with the his active duty.  Thus, the Board
finds that no additional action is necessary.

II.  Service connection

The veteran urges that he injured his back in service when he
was moving a side of beef.  He notes that this occurred
during his duties as a cook, and that he was layed up in a
field hospital sick bay in the Admiralty Islands for a period
of three weeks.  He believes his more recent right knee
problems are related to that incident.  He also alleges he
was treated for jungle rot in service, which he believes is
related to more recent findings of keratosis.

Service connection means the facts demonstrate that a disease
or injury, which results in current disability, was incurred
or aggravated in active military service or, it is
proximately due to or the result of service-connected disease
or injury.  38 U.S.C.A. �� 1110, 5107 (West 2002 & Supp.
2005); 38 C.F.R. �� 3.303, 3.310 (2005).

In order to prevail on the issue of service connection for
any particular disability, there must be medical evidence of
a current disability; medical evidence, or in certain
circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between an in-service injury or disease and the current
disability.  See Hickson v. West, 12 Vet. App. 247, 253
(1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).

In determining whether service connection is warranted for a
disability, 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.  Gilbert v. Derwinski, 1 Vet. App.
49 (1990).  To do so, the Board must assess the credibility
and weight of all the evidence, including the medical
evidence, to determine its probative value, accounting for
evidence that it finds to be persuasive or unpersuasive, and
providing reasons for rejecting any evidence favorable to the
appellant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992).

The medical evidence contains diagnoses of current
disability, including degenerative joint disease of the
lumbar spine dating from 2000, degenerative joint disease of
the right knee dating from 1999, and a skin disorder
characterized as actinic keratosis, seborrheic keratosis, and
senile keratosis dating from 2001.  Moreover, while there is
no record of medical treatment for the alleged incident in
service, the Board does not challenge the veracity of the
veteran's statements as to his slipping and falling with a
side of beef in naval wartime service.  However, there was no
chronic disease shown in service, as evidenced by the fact
that his separation physical examination in November 1945
reflects normal spine, joints and skin.

There is no medical evidence of a nexus between an in-service
injury or disease and the current disabilities, and as such,
a critical element of the claim is missing.  See Hickson v.
West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12
Vet App. 341, 346 (1999).

Evidence of record fails to disclose a relationship between
the currently diagnosed disorders and service.  To the
contrary, no health care provider has opined there is such a
relationship, no medical records show the disorders in
service or degenerative joint disease within a presumptive
one-year period following service as set forth at 38 C.F.R.
�� 3.307, 3.309, and no treatment or diagnosis for any of
these conditions was noted for over 50 years following
service.  Although the veteran has attempted to locate
records of treatment contemporaneous with service, the
request for such records to the Lafayette Clinic yielded two
negative responses.

In sum, with no evidence of in-service chronic disease, nor
chronic disease shown within the one year period following
service, nor continuity of symptomatology since service to
link the current disorders to service, nor other probative
evidence linking the current disorders, diagnosed over 50
years after service, to service, the preponderance of the
evidence is against the claims, and they must be denied.

Contrary to the veteran's contentions that the aforementioned
disabilities are related to his service, there is no
competent medical evidence of a relationship.  The Board has
noted the copies of letters sent by the veteran during the
war to his wife, as well as his arguments as to why he thinks
his current disabilities are due to service.  While the
veteran is competent to describe the symptoms that he
experiences, his statements are without significant probative
value in regard to the issues at hand, as he has not been
shown to possess the medical training or expertise needed to
render a competent opinion as to diagnosis or medical
causation.  See Routen v. Brown, 10 Vet. App. 183, 186
(1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9
Vet. App. 195, 201 (1996); Espiritu v. Derwinski, 2 Vet. App.
492, 494-95 (1992).

When all the evidence is assembled 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.  Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990).  Here, the
preponderance of the evidence is against the veteran's
claims, and they must be denied.

ORDER

Service connection for degenerative joint disease of the
lumbar spine is denied.

Service connection for degenerative joint disease of the
right knee is denied.

Service connection for a skin disorder characterized as
actinic keratosis, seborrheic keratosis, and senile keratosis
is denied.

______________________________________________
JEFF MARTIN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs