judge_norm: JOY A MCDONALD

condition: tinnitus

text:
Citation Nr: 0506000
Decision Date: 03/03/05    Archive Date: 03/15/05

DOCKET NO.  03-29 314	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana

THE ISSUE

Entitlement to an initial evaluation in excess of 10 percent
for service-connected bilateral tinnitus, to include
entitlement to separate evaluations for each ear.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

E. Pomeranz, Counsel

INTRODUCTION

The appellant had active military service from February 1946
to August 1947, and from October 1951 to October 1954.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal of an April 2003 rating action by the
Department of Veterans Affairs (VA) Regional Office (RO)
located in Indianapolis, Indiana.

FINDING OF FACT

The appellant is receiving the maximum schedular evaluation
for tinnitus.

CONCLUSION OF LAW

An initial rating in excess of 10 percent for tinnitus, to
include separate evaluations for each ear, is not warranted.
38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. � 4.87, Diagnostic
Code 6260 (2004).

REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection for bilateral tinnitus was granted by
rating action dated in April 2003, and a 10 percent
disability evaluation was assigned under the provisions of
38 C.F.R. � 4.87, Diagnostic Code 6260, effective from
February 5, 2003.  The appellant asserts that a separate 10
percent evaluation for each ear should be established.

Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities
(Schedule), found in 38 C.F.R. Part 4 (2004).  The rating
schedule is primarily a guide in the evaluation of disability
resulting from all types of diseases and injuries encountered
as a result of or incident to military service.  The ratings
are intended to compensate, as far as can practicably be
determined, the average impairment of earning capacity
resulting from such diseases and injuries and their residual
conditions in civilian occupations.  38 U.S.C.A. � 1155; 38
C.F.R. � 4.1 (2004).  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 (2004).
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).

Where an increase in the disability rating is at issue, the
present level of the appellant'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 tinnitus.  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 facts of this case are not in dispute.  In the
appellant's February 2003 VA audiological examination, he was
diagnosed with bilateral tinnitus.  By an April 2003 rating
action, the RO granted the appellant's claim for service
connection for tinnitus and assigned a 10 percent disability
rating under Diagnostic Code 6260 for the appellant's
service-connected tinnitus, effective from February 5, 2003.

As noted above, the appellant's service-connected tinnitus
has been rated under 38 C.F.R. � 4.87, Diagnostic Code 6260,
which provides that a maximum 10 percent evaluation is
warranted for recurrent tinnitus.  On a claim for an original
or an increased rating, the claimant will generally be
presumed to be seeking the maximum benefit allowed by law and
regulation, and it follows that such a claim remains in
controversy where less than the maximum available benefit is
awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  If a
veteran is at the maximum evaluation and no other criteria
are applicable, there is no case in controversy.  In order
for a claim to proceed, there must be a benefit.  In this
case, the maximum rating allowed for tinnitus under the
applicable diagnostic code is 10 percent.  38 C.F.R. � 4.87,
Diagnostic Code 6260.  As such, a higher schedular rating
cannot be granted.

In a claim for the evaluation of tinnitus, the Board is
required to discuss the applicability of 38 C.F.R. � 4.25(b)
(2003).  Wanner v. Principi, 17 Vet. App. 4 (2003).  The
Schedule, however, explicitly prohibits pyramiding of
disability evaluations under 38 C.F.R. � 4.14 (2003).  VA has
provided for separate ratings for "like organs" when it has
intended to, and if separate ratings in the case of bilateral
tinnitus were warranted, it would have been so provided.
See, e.g., 38 C.F.R. � 4.115b, Diagnostic Code 7523 (2003)
(providing separate ratings for atrophy of one testis and
both testes), C.F.R. � 4.115b, Diagnostic Code 7524 (2003)
(providing separate ratings for removal of one testis and
both), and 38 C.F.R. � 4.116, Diagnostic Code 7626 (2003)
(providing separate ratings for surgery on one breast and on
both breasts).

The appellant asserts that he experiences occasional tinnitus
in both ears and that he is therefore entitled to a separate
10 percent rating for tinnitus for each ear under Diagnostic
Code 6260.  The Board finds no merit in this argument.  VA
considers tinnitus a single disability, whether heard in one
ear, both ears, or somewhere undefined in the head; no matter
where the condition is manifested, the average impairment on
earning capacity is the same.  Therefore, a single rating for
tinnitus is warranted.  While the Schedule provides for
separate rating for some other ear disabilities (see
generally 38 C.F.R. � 4.87, Diagnostic Codes 6200-6210
(2003)), it specifically does not address a "bilateral"
condition in Diagnostic Code 6260 for tinnitus.  Tinnitus has
been defined by the Court as a ringing, buzzing noise in the
ears.  See YT v. Brown, 9 Vet. App. 195, 196 (1996); Kelly v.
Brown, 7 Vet. App. 471 (1995) (citing Dorland's Illustrated
Medical Dictionary 1725 (27th ed. 1988)).  Thus, the Board
finds that either tinnitus is present or it is not, and that
a single evaluation is appropriate whether it is perceived as
being bilateral or unilateral.

Moreover, the VA General Counsel held that Diagnostic Code
6260, as in effect prior to June 10, 1999, and as amended as
of that date, authorizes a single 10 percent disability
rating for tinnitus, regardless of whether tinnitus is
perceived as unilateral, bilateral, or simply in the head.
It was further held that separate ratings for tinnitus
identified as being in both ears may not be assigned under
either version of Diagnostic Code 6260, or any other
diagnostic code.  VAOPGCPREC 2-03; 69 Fed. Reg. 25178 (2004).

Precedent opinions of the General Counsel are binding on the
Board.  38 U.S.C.A. � 7104(c) (West 2002).  Furthermore,
effective June 13, 2003, Diagnostic Code 6260 was amended to
state more explicitly that only a single 10 percent
evaluation will be assigned for tinnitus, whether it is
perceived in one ear, both ears, or somewhere else in the
head.  See 38 C.F.R. � 4.87, Diagnostic Code 6260, Note (2)
(2003); 68 Fed. Reg. 25,822-23 (2003).  The provisions of 38
C.F.R. � 4.25 are inapplicable to the facts of this case.

The Board therefore concludes that Diagnostic Code 6260
provides for a maximum 10 percent rating for recurrent
tinnitus, whether perceived as unilateral or bilateral.  See
38 C.F.R. � 4.87, Diagnostic Code 6260 (2003); Cromley v.
Brown, 7 Vet. App. 376, 378 (1995) (10 percent is the highest
level possible under the regulations for tinnitus); see also
Smith v. Brown, 7 Vet. App. 255, 259 (1994) (there is no
statutory, regulatory, or case authority which requires the
Board to make a determination of 10 percent for tinnitus for
each ear).

This is an appeal from the initial rating for the tinnitus,
and so the Board has considered whether a "staged" rating
is appropriate.  See Fenderson, 12 Vet. App. at 126.  In this
instance, the record does not show varying levels of
disability for the appellant's tinnitus and, therefore, does
not support the assignment of a staged rating for that
disability.  See 38 C.F.R. � 3.400 (2003).

In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the Court
held that in a case where the law is dispositive of the
claim, it should be denied because of lack of legal
entitlement under the law.  Accordingly, the claim for a
rating in excess of 10 percent, to include separate
evaluations for each ear, must be denied as a matter of law.

The Board has considered whether further development of this
claim is warranted under the Veterans Claims Assistance Act
(VCAA) or previously existing law.  See 38 U.S.C.A. �� 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R.
�� 3.102, 3.156(a), 3.159, 3.326 (2002).  Because the claim
is being denied as a matter of law, no further development
under the VCAA or previously existing law is warranted.
Mason v. Principi, 16 Vet. App. 129, 132 (2002); see
generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001);
Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also
Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc)
(holding that the VCAA is not applicable where it could not
affect a pending matter and could have no application as a
matter of law); see also VAOPGCPREC 2-04; 69 Fed. Reg. 25180
(2004).

ORDER

An initial evaluation in excess of 10 percent for service-
connected bilateral tinnitus, to include entitlement to
separate evaluations for each ear, is denied.

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

 Department of Veterans Affairs


series: legacy

judge_norm: GARY L GICK

disposition: denied

condition: back

condition: hip

disposition: remanded

text:
Citation Nr: 0507000
Decision Date: 03/10/05    Archive Date: 03/21/05

DOCKET NO.  01-06 571	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia

THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a low back
disorder.

4.  Entitlement to service connection for a hip disorder.

5.  Entitlement to a rating in excess of 10 percent for the
residuals of shell fragment wounds to the right foreleg.

6.  Entitlement to a rating in excess of 10 percent for the
residuals of shell fragment wounds to the left foreleg.

7.  Entitlement to a rating in excess of 10 percent for the
residuals of shell fragment wounds to the right knee with
degenerative changes.

8.  Entitlement to a rating in excess of 10 percent for the
residuals of shell fragment wounds to the left knee with
degenerative changes.

9.  Entitlement to a rating in excess of 10 percent for the
residuals of shell fragment wounds to the right thigh.

10.  Entitlement to a rating in excess of 10 percent for the
residuals of shell fragment wounds to the left thigh.

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from
July 1952 to June 1954.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2000 rating decision by the
Atlanta, Georgia, Regional Office (RO) of the Department of
Veterans Affairs (VA).  In a June 2001 rating decision the RO
re-adjudicated the veteran's service connection claims on the
merits.  In September 2003, the Board remanded the case to
the RO for additional development.

The increased rating claims on appeal are addressed in the
REMAND portion of the decision below and are REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.

FINDINGS OF FACT

1.  VA has made all reasonable efforts to assist the veteran
in the development of his service connection claims and has
sufficiently notified him of the information and evidence
necessary to substantiate these claims.

2.  The evidence demonstrates no present hearing loss
disability for VA compensation purposes.

3.  The evidence demonstrates no present tinnitus disability
related to any incident of active service.

4.  The evidence demonstrates no present low back disability
related to any incident of active service nor as a result of
a service-connected disability.

5.  The evidence demonstrates no present hip disability
related to any incident of active service nor as a result of
a service-connected disability.

CONCLUSIONS OF LAW

1.  A hearing loss disability was not incurred in or
aggravated by active service.  38 U.S.C.A. �� 1110, 5107
(West 2002); 38 C.F.R. �� 3.303, 3.385 (2004).

2.  A tinnitus disability was not incurred in or aggravated
by active service.  38 U.S.C.A. �� 1110, 5107 (West 2002);
38 C.F.R. � 3.303 (2004).

3.  A back disability was not incurred in or aggravated by
active service nor as a result of a service-connected
disability.  38 U.S.C.A. �� 1110, 5107 (West 2002); 38 C.F.R.
�� 3.303, 3.310 (2004).

4.  A hip disability was not incurred in or aggravated by
active service nor as a result of a service-connected
disability.  38 U.S.C.A. �� 1110, 5107 (West 2002); 38 C.F.R.
�� 3.303, 3.310 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA) (codified at 38 U.S.C.A. � 5100 et seq.) became
law.  Regulations implementing the VCAA have been published.
38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2004).  The
VCAA and the implementing regulations apply in the instant
case.  A review of the record shows the veteran was notified
of the VCAA by correspondence dated in March 2001.

The Board finds that any defect with respect to the timing of
the VCAA notice requirement was harmless error.  While the
notice provided to the veteran was not given prior to the
first agency or original jurisdiction (AOJ or RO)
adjudication of the claim, the notice was provided by the AOJ
prior to the transfer and certification of the veteran's case
to the Board.  The service connection issues on appeal were
also re-adjudicated, de novo, in a June 2001 rating decision
and a supplemental statement of the case was issued in April
2004.  The veteran has been provided every opportunity to
submit evidence and argument in support of his claims and to
respond to VA notices.

A VCAA notice consistent with 38 U.S.C. � 5103(a) and
38 C.F.R. � 3.159(b) must:  (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim.

In this case, the VCAA notice letter provided to the veteran
generally informed him of the evidence not of record that was
necessary to substantiate his service connection claims and
identified which parties were expected to provide such
evidence.  Although the letter did not specifically address
the VCAA "fourth element," the Board finds that the veteran
was otherwise fully notified of the need to give to VA any
evidence pertaining to the claims.  In fact, 38 C.F.R.
� 3.159(b)(1), which includes this "fourth element," was
cited in the April 2004 supplemental statement of the case.
In light of the actual notice provided, the Board finds that
any content deficiency in the notice letter was non-
prejudicial error.

All the VCAA requires is that the duty to notify be
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. � 20.1102 (harmless error).  Here, because each of
the content requirements of a VCAA notice has been fully
satisfied, any error in not providing a single notice to the
veteran covering all content requirements is harmless error.

The revised VCAA duty to assist requires that VA make
reasonable efforts to assist the claimant in obtaining
evidence necessary to substantiate a claim.  See 38 C.F.R.
� 3.159.  In this case, the veteran's service medical records
and all identified and authorized post-service medical
records relevant to the issues addressed in this decision
have been requested or obtained.  The Board finds further
attempts to obtain additional evidence would be futile.

In claims for disability compensation the VCAA duty to assist
requires VA provide medical examinations or obtain medical
opinions when necessary for an adequate decision.  The Board
notes that specific medical opinions pertinent to the issues
on appeal were obtained in September 1999 and March 2004.
The Board finds the available medical evidence is sufficient
for an adequate determination of the issues addressed in this
decision.  Therefore, the duty to assist and duty to notify
provisions of the VCAA have been fulfilled.

Service Connection Claims

Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in line
of duty or for aggravation of preexisting injury suffered or
disease contracted in line of duty.  38 U.S.C.A. � 1110 (West
2002); 38 C.F.R. � 3.303 (2004).  A disability which is
proximately due to or the result of a service-connected
disease or injury shall be considered service connected.
38 C.F.R. � 3.310 (2004).  When aggravation of a nonservice-
connected disability is proximately due to or the result of a
service-connected disorder, the veteran shall be compensated
for the degree of disability over and above the degree of
disability existing prior to the aggravation.  Allen v.
Brown, 7 Vet. App. 439 (1995).

In the case of a veteran who engaged in combat with the enemy
in active service with a military, naval, or air organization
of the United States during a period of war, the Secretary of
the VA shall accept as sufficient proof of service-connection
of any disease or injury alleged to have been incurred in or
aggravated by such service satisfactory lay or other evidence
of service incurrence or aggravation of such injury or
disease, if consistent with the circumstances, conditions, or
hardships of such service, notwithstanding the fact that
there is no official record of such incurrence or aggravation
in such service.  38 U.S.C.A. � 1154(b) (West 2002);
38 C.F.R. � 3.304(d) (2004).

Pertinent case law also provides that 38 U.S.C.A. � 1154(b)
does not create a presumption of service connection for a
combat veteran's alleged disability, and that the veteran is
required to meet his evidentiary burden as to service
connection such as whether there is a current disability or
whether there is a nexus to service which both require
competent medical evidence.  See Collette v. Brown, 82 F.3d
389, 392 (1996).

In addition, service connection may be granted for any
disease diagnosed after discharge, when all of the evidence,
including that pertinent to service, establishes the disease
was incurred in service.  38 C.F.R. � 3.303(d).  For the
showing of chronic disease in service, there are required a
combination of manifestations sufficient to identify a
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word chronic.
Continuity of symptomatology is required only where the
condition noted during service is not, in fact, shown to be
chronic or when the diagnosis of chronicity may be
legitimately questioned.  When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. � 3.303(b).

In order to prevail on the issue of service connection on the
merits, there must be medical evidence of (1) a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in- service disease or injury and the present disease
or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).
The U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) has held that a veteran seeking disability benefits
must establish the existence of a disability and a connection
between service and the disability.  Boyer v. West, 210 F.3d
1351, 1353 (Fed. Cir. 2000).

The United States Court of Appeals for Veterans Claims
(Court) has held that where the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence is required.  Grottveit v. Brown, 5 Vet. App. 91
(1993); see also Espiritu v. Derwinski, 2 Vet. App. 492
(1992).  The Federal Circuit has also recognized the Board's
"authority to discount the weight and probity of evidence in
light of its own inherent characteristics and its
relationship to other items of evidence."  Madden v. Gober,
125 F.3d 1477, 1481 (Fed. Cir. 1997).

The Court has held that the Board must determine how much
weight is to be attached to each medical opinion of record.
See Guerrieri v. Brown, 4 Vet. App. 467 (1993).  Greater
weight may be placed on one medical professional's opinion
over another, depending on factors such as reasoning employed
by the medical professionals and whether or not, and the
extent to which, they reviewed prior clinical records and
other evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994).

It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence.  38 C.F.R. � 3.102 (2004).

Hearing Loss and Tinnitus Claims

A hearing loss disability for VA compensation purposes is
defined by regulation and impaired hearing is considered to
be a disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40
decibels or greater; or when the auditory thresholds for at
least three of the frequencies 500, 1000, 2000, 3000, or 4000
Hertz are 26 decibels or greater; or when speech recognition
scores using the Maryland CNC Test are less than 94 percent.
See 38 C.F.R. � 3.385 (2004).

Once the requirements of 38 C.F.R. � 3.385 have been met and
a present hearing "disability" under applicable VA laws and
regulations is found, a determination must be made as to
whether the current hearing disorder is related to service.
In particular, the Court has held that 38 C.F.R. � 3.385
operates to establish when a measured hearing loss is, or is
not, a "disability" for which compensation may be paid,
provided that the requirements for service connection are
otherwise met.  Hensley v. Brown, 5 Vet. App. 155 (1993).
Even if a veteran does not have a hearing loss disability for
VA compensation purposes recorded during service, service
connection may still be established if post-service evidence
satisfies the criteria of 38 C.F.R. � 3.385 and the evidence
links the present hearing loss to active service.  Id. at
158.  The threshold for normal hearing is 0 to 20 decibels.
Id. at 157.

In this case, service medical records are negative for
complaint, diagnosis, or treatment for hearing loss or
tinnitus.  The veteran's June 1954 separation examination
revealed hearing acuity on spoken and whispered voice of
15/15.

In statements and personal hearing testimony the veteran
asserted that he had hearing loss and constant tinnitus as a
result of acoustic trauma during combat in Korea.

VA medical records dated in December 2000 show the veteran
complained of difficulty hearing in group conversation and
complained of intermittent bilateral tinnitus.  It was noted
that audiometric testing revealed normal hearing bilaterally
with mild hearing loss at 8000 hertz.

On authorized VA audiological evaluation in March 2004, pure
tone thresholds, in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
20
20
10
15
20
LEFT
20
20
15
20
20

The examiner noted the veteran's hearing was within normal
limits for VA compensation purposes and that he denied any
present hearing loss or tinnitus.

Based upon the evidence of record, the Board finds that
entitlement to service connection for hearing loss and
tinnitus are not warranted.  The medical evidence
demonstrates no present hearing loss disability for VA
compensation purposes.  There is also no competent evidence
demonstrating the veteran's reported tinnitus was incurred as
a result of any incident of active service.

Although the veteran believes he has hearing loss and
tinnitus as a result of active service, he is not a licensed
medical practitioner and is not competent to offer opinions
on questions of medical causation or diagnosis.  Grottveit, 5
Vet. pp. 91; Espiritu, 2 Vet. App. 492.  In the absence of a
current hearing loss disability satisfying the requirements
of 38 C.F.R. � 3.385 or competent evidence linking a
diagnosis of tinnitus to service, the veteran's claims must
be denied.  Therefore, the Board finds entitlement to service
connection is not warranted.

When all the evidence is assembled VA is then 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); Ortiz v. Principi, 274
F. 3d 1361 (Fed. Cir. 2001).  The Board finds the
preponderance of the evidence is against the veteran's
claims.

Back and Hip Claims

In this case, service medical records are negative for
complaint, diagnosis, or treatment for low back or hip
disorders.  The veteran's June 1954 separation examination
revealed normal clinical evaluations of the spine and lower
extremities.

In statements and personal hearing testimony the veteran
asserted that he had back and hip disorders as a result of
his service-connected shrapnel wounds to the lower
extremities.

VA examination in September 1999 revealed obvious decreased
range of motion in the hips, with left hip motion more
painful than right.  X-rays were essentially normal.

On VA examination in March 2004 the veteran reported
occasional back pain that was not disabling and stated he had
no significant hip problems.  The examiner noted the veteran
walked without a limp and was in no pain.  There was a free
range of motion of the hips.  Range of motion studies of the
back revealed flexion to 80 degrees, extension to 45 degrees,
right and left bending to 40 degrees, and rotation to 45
degrees, bilaterally.  X-rays of the low back and hip were
normal.  It was noted that there were very small osteophytes
on the anterior aspects of several vertebrae, but that this
was normal for a person the veteran's age.  The examiner
stated there were no significant back problems at that time.

Based upon the evidence of record, the Board finds that
entitlement to service connection for low back and hip
disabilities are not warranted.  The medical evidence
demonstrates no present hip disability and demonstrates no
present low back disability as a result of any incident of
active service.  Although the September 1999 VA examiner
noted obvious decreased range of motion in the hips, it was
also noted that X-rays were essentially normal.  No
additional comments or rationale as to etiology were provided
and there is no evidence the examiner reviewed the veteran's
claim file in association with that examination.  A
March 2004 VA examiner noted there was no evidence of any
significant low back or hip disorders and specifically noted
that low back X-ray findings were normal for a person of the
veteran's age.  That examination is shown to have been based
upon an examination of the veteran and the examiner noted the
claims folder was available for review.  Therefore, the Board
finds the March 2004 VA examiner's opinion is persuasive.

The only evidence of a back or hip disorder related to active
service or a service-connected disability is the veteran's
own opinion.  While he is competent to testify as to symptoms
he experiences, he is not competent to provide medical
opinions.  See Grottveit, 5 Vet. App. 91; Espiritu, 2 Vet.
App. 492.  Therefore, the Board finds entitlement to service
connection is not warranted.  The preponderance of the
evidence is against these claims.

ORDER

Entitlement to service connection for hearing loss is denied.

Entitlement to service connection for tinnitus is denied.

Entitlement to service connection for a low back disorder is
denied.

Entitlement to service connection for a hip disorder is
denied.

REMAND

As noted above, there has been a significant recent change in
VA law.  A review of the record indicates the veteran was
provided a VCAA notice letter in March 2001; however, that
correspondence only addressed his service connection claims
on appeal.  The Board finds he was not adequately notified of
the VCAA as it applied to his increased rating claims.  See
38 U.S.C.A. � 5103(a) (West 2002); 38 C.F.R. � 3.159(b)(1)
(2004); see also Quartuccio v. Principi, 16 Vet. App. 183
(2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).

The revised VCAA duty to assist requires that VA make
reasonable efforts to assist the claimant in obtaining
evidence necessary to substantiate a claim and in claims for
disability compensation requires that VA provide medical
examinations or obtain medical opinions when necessary for an
adequate decision.  See 38 C.F.R. � 3.159.

In this case, the veteran claims his service-connected
residuals of shell fragment wounds to the lower extremities
are more severely disabling that reflected by his present
disability evaluations.  In testimony in support of the
claims in October 2001 he stated he experienced pain to the
lower extremities, dislocation and locking of the knees, and
occasional scar sensitivity.  Service medical records show
the veteran sustained multiple wounds to the lower
extremities with retained fragments, without evidence of
nerve or artery involvement.  Although the veteran has been
rated for injuries to muscle groups XI and XIV, the Board
notes there is no medical evidence identifying which specific
muscle groups sustained injury.  Therefore, the Board finds
additional development is required prior to appellate review.

Accordingly, this matter is REMANDED for the following:

1.  The RO should ensure that the
notification requirements set forth at 38
U.S.C.A. � 5103(a) and 38 C.F.R.
� 3.159(b)(1) are fully complied with and
satisfied as to the increased rating
claims on appeal.  This includes
notifying the claimant (1) of the
information and evidence not of record
that is necessary to substantiate these
claims, (2) of the information and
evidence that VA will seek to provide,
(3) of the information and evidence that
the claimant is expected to provide, and
(4) to request or tell the claimant to
provide any evidence in his possession
that pertains to the claims.

2.  The veteran should be scheduled for
an appropriate examination for an opinion
as to the current nature of his service-
connected residuals of shell fragment
wounds to the left and right forelegs,
thighs, and knees.  The examiner should
be requested identify the specific muscle
groups involved in the veteran's injuries
and to assess his present disabilities in
light of his complaints of lower
extremity pain, dislocation and locking
of the knees, and occasional scar
sensitivity.  The claims folder must be
available to, and reviewed by, the
examiner.

3.  After completion of the above and any
additional development deemed necessary,
the RO should review the issues remaining
on appeal.  The RO must consider all
applicable laws and regulations.  If the
benefits sought remain denied, the
veteran and his representative should be
furnished an appropriate supplemental
statement of the case and be afforded the
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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, �
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. �� 5109B, 7112).

______________________________________________
	Gary L. Gick
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: RAYMOND F FERNER

text:
Citation Nr: 0508000
Decision Date: 03/17/05    Archive Date: 03/30/05

DOCKET NO.  02-10 109	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio

THE ISSUE

Whether new and material evidence has been submitted to
reopen a claim for service connection for tinnitus in the
left ear.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The appellant

ATTORNEY FOR THE BOARD

Jessica J. Wills, Associate Counsel
INTRODUCTION

This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a January 2002 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Cleveland, Ohio, which denied the benefit sought on
appeal.  The veteran, who had active service from March 1943
to March 1946, appealed that decision to BVA, and the case
was referred to the Board for appellate review.  The Board
remanded the case for further development in July 2004, and
that development was completed by the Appeals Management
Center.  The case has since been returned to the Board for
appellate review.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.

2.  The Board's May 1986 decision denied service connection
for tinnitus in the left ear.

3.  The evidence received since the Board's May 1986
decision, by itself or in conjunction with previously
considered evidence, is not so significant that it must be
considered to fairly decide the merits of the claim.

CONCLUSIONS OF LAW

1.  The Board's May 1986 decision, which denied entitlement
to service connection for tinnitus in the left ear, is final.
38 U.S.C.A. �� 7103, 7104 (West 2002); 38 C.F.R. �� 20.1100,
20.1104 (2004).

2.  The evidence received subsequent to the Board's May 1986
decision is not new and material, and the claim for service
connection for tinnitus in the left ear is not reopened.
38 U.S.C.A. �� 5103, 5103A, 5107, 5108 (West 2002); 38 C.F.R.
�� 3.102, 3.156(a), 3.159, 20.1105 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As a preliminary matter, the Board is required to address the
Veterans Claims Assistance Act of 2000 (VCAA) that became law
in November 2000.  The VCAA provides, among other things,
that the VA will make reasonable efforts to notify a claimant
of the relevant evidence necessary to substantiate a claim
for benefits under laws administered by the VA.  The VCAA
also requires the VA to assist a claimant in obtaining that
evidence.  38 U.S.C.A. �� 5103, 5103A (West 2002); 38 C.F.R.
� 3.159 (2004).

First, the VA has a duty under the VCAA to notify a claimant
and any representative of the information and evidence needed
to substantiate a claim.  Collectively, the January 2002
rating decision, as well as the July 2002 Statement of the
Case and the December 2004 Supplemental Statement of the Case
issued in connection with the appellant's appeal have
notified him of the evidence considered, the pertinent laws
and regulations, and the reasons his claim was denied.  In
addition, a letter was sent to the veteran in September 2004
that specifically informed him of the substance of the VCAA.
Consistent with 38 U.S.C.A. � 5103(a) and 38 C.F.R.
� 3.159(b) the September 2004 letter essentially satisfied
the notice requirements by: (1) Informing the appellant about
the information and evidence not of record that is necessary
to substantiate the claim; (2) informing the appellant about
the information and evidence the VA will seek to provide;
(3) informing the appellant about the information and
evidence the claimant was expected to provide; and (4)
informing the appellant to provide any evidence in the
appellant's possession that pertains to the claim, or
something to the effect that the claimant should "give us
everything you got pertaining to your claim."  This "fourth
element" of the notice requirement comes from the language of
38 C.F.R. � 3.159(b)(1).

The Board acknowledges that the September 2004 letter was
provided to the appellant after the initial unfavorable
decision in this case.  However, in another case regarding
the timing of the VCAA notice, the United States Court of
Appeals for Veterans Claims (Court) has held that in such
situations, the appellant has a right to a VCAA content-
complying notice and proper subsequent VA process.  See
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  That notice
was provided to the appellant pursuant to the Board's request
in the July 2004 remand, and the RO subsequently reviewed the
appellant's claim and continued the denial of the benefit
sought on appeal.

All the VCAA requires is that the duty to notify be satisfied
and that a claimant is given an opportunity to submit
information and evidence in support of their claim.  Once
this has been accomplished, all due process concerns have
been satisfied.  See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. � 20.1102 (harmless error).  Under these
circumstances, the Board finds that the notification
requirements of the VCAA have been satisfied.  Pelegrini v.
Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16
Vet. App. 183 (2002).

Second, the VA has a duty to assist a claimant in obtaining
evidence necessary to substantiate a claim.  In this regard,
the veteran's VA outpatient records have been obtained and
associated with the claims file.  The Board acknowledges that
attempts to obtain the veteran's service medical records were
unsuccessful.  These records are presumed destroyed by the
fire at the National Personnel Records Center in St. Louis,
Missouri in 1973.  Additionally, a request for military
personnel records was made in October 1988.  However, there
were no Surgeon General Office (SGO) records dated from
January 1944 to December 1944 that pertained to an ear injury
or tinnitus.  The veteran and his representative have not
made the Board aware of any additional evidence that needs to
be obtained prior to appellate review, and the Board observes
that after receiving the September 2004 letter, the appellant
submitted a statement in October 2004 indicating that he had
nothing further to submit.

Therefore, the Board finds that all relevant evidence
necessary for an equitable disposition of the veteran's
appeal has been obtained.  Simply put, the Board finds that
disposition of the appellant's claim to reopen his claim for
service connection for tinnitus in the left ear is
appropriate.

Applicable law provides that service connection may be
granted for a disability resulting from disease or injury
incurred in or aggravated by active military service.
38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. �� 3.303, 3.304
(2004).  In addition, service connection may be granted for
any disease diagnosed after discharge, when all of the
evidence, including that pertinent to service, establishes
that the disease was incurred in service.  38 C.F.R.
� 3.303(d) (2004).  In order to establish service connection,
a claimant must generally submit (1) medical evidence of a
current disability, (2) medical evidence, or in certain
circumstances lay testimony, of service incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus or relationship between the current disability and
the in-service disease or injury.  Pond v. West, 12 Vet. App.
341, 346 (1999).

The Board observes that the veteran's claim for service
connection for tinnitus in the left ear was previously
considered and denied by the Board in a decision dated May
1986.  In that decision, the Board found that the veteran's
tinnitus in the left ear was not incurred in or aggravated by
service.  More specifically, the decision noted that the
veteran did not receive treatment until many years after his
separation from service and that there was no evidence
relating his current disorder to his military service.  The
appellant was provide a copy of that decision and the Board's
decision in the matter is final. See 38 U.S.C.A. �� 7103,
7104(b); 38 C.F.R. � 20.1100.

In July 2001, the veteran essentially requested that his
claim for tinnitus in the left ear be reopened.  The RO
denied reopening the claim on the basis that new and material
evidence had not been submitted.  As a general rule, a claim
shall be reopened and reviewed if new and material evidence
is presented or secured with respect to a claim that is
final.  38 U.S.C.A. � 5108; 38 C.F.R. � 3.156.  When a
veteran seeks to reopen a final decision, the first inquiry
is whether the evidence presented or secured after the last
disallowance of a claim is "new and material."  Under the
version of 38 C.F.R. � 3.156(a) applicable to this case, new
and material evidence is defined as evidence not previously
submitted which bears directly and substantially upon the
specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
conjunction with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim.  38 C.F.R. � 3.156(a); Hodge
v. West, 155 F.3d 1356 (Fed. Cir. 1998).  The Board
acknowledges that there has been a regulatory change in the
definition of new and material evidence that is applicable to
all claims filed on or after August 29, 2001.  As the
veteran's claim in this case was filed prior to August 29,
2001, the earlier version of the definition of new and
material evidence remains applicable in this case.

When determining whether a claim should be reopened, the
credibility of the newly submitted evidence is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992).  In order for
evidence to be sufficient to reopen a previously denied
claim, it must be both new and material.  If the evidence is
new, but not material, the inquiry ends and the claim cannot
be reopened.  Smith v. West, 12 Vet. App. 312 (1999).
Furthermore, "material evidence" could be "some new
evidence [that] may well contribute to a more complete
picture of the circumstances surrounding the origin of the
veteran's injury or disability, even where it will not
eventually convince the Board to alter its rating decision."
Hodge, 155  F.3d at 1363.  If it is determined that new and
material evidence has been submitted, the claim must be
reopened.  The VA may then proceed to the merits of the claim
on the basis of all of the evidence of record, but only after
ensuring that the duty to assist has been satisfied.

As previously indicated, the Board's May 1986 decision denied
service connection for defective hearing.  The evidence
associated with the claims file subsequent to that decision
includes VA outpatient records dated from September 1999 to
December 2001 and the veteran's June 2004 hearing testimony
as well as his own statements submitted in support of his
claim.  The VA outpatient records document the veteran's
current diagnosis of hearing loss and indicate that he used
hearing aids, but these records are negative for any
complaints, treatment, or diagnosis of tinnitus.  The
veteran's hearing testimony and statements contend that a
doctor had cut his left eardrum during his period of service
and that his current disorder is related to that injury in
service.

The Board has thoroughly reviewed the evidence associated
with the claims file subsequent to the Board's May 1986
decision.  However, the Board finds that such evidence is not
new and material within the meaning of laws and regulations
set forth above, and as such, there is no basis to reopen the
claim for service connection for hearing loss.

With respect to the VA outpatient records, the Board finds
that they are certainly new in that they were not of record
at the time of the May 1986 decision.  However, those records
are not probative in that they do not document any
complaints, treatment, or diagnosis of tinnitus.  Therefore,
the Board finds that these VA medical records are not
material, as they are not so significant that they must be
considered to fairly decide the merits of the claim.

As for the veteran's statements and hearing testimony, the
Board finds that the veteran's assertions alone cannot be
dispositive of the issue.  The Board notes that the veteran
lacks the expertise to provide an opinion that requires
specialized knowledge, skill, experience, training or
education, such as an opinion as to the etiology of his
current tinnitus. See Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992).  Indeed, in Moray v. Brown, 5 Vet. App. 211
(1993), the United States Court of Appeals for Veterans
Claims (Court) noted that lay persons are not competent to
offer medical opinions or diagnoses and that such evidence
does not provide a basis on which to reopen a claim of
service connection.  Thus, the veteran's assertions are not
deemed to be "new and material evidence" and cannot serve to
reopen the claim.  See 38 U.S.C.A. � 5108; 38 C.F.R. � 3.156.

Significantly, the evidence missing at the time of the
Board's May 1986 decision continues to be absent.
Specifically, there remains no competent medical evidence
which indicates that the veteran's current tinnitus in the
left ear that was incurred or aggravated in service or is any
way causally or etiologically related to his service.
Accordingly, the Board finds that new and material evidence
has not been presented to reopen the veteran's previously
denied claim for service connection for tinnitus in the left
ear.

ORDER

New and material evidence not having been submitted, the
claim for service connection for hearing loss is not reopened
and service connection for tinnitus in the left ear remains
denied.

____________________________________________
	RAYMOND F. FERNER
	Acting Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


disposition: granted

text:
Citation Nr: 0509000
Decision Date: 03/25/05    Archive Date: 04/01/05

DOCKET NO.  03-14 962A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in St.
Petersburg, Florida

THE ISSUE

Entitlement to service connection for a neck disorder,
diagnosed as cervical disc disease with radiculopathy.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel

INTRODUCTION

The record indicates that the veteran had active military
service from February 1974 to November 1994.

This matter comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from a rating decision of
September 2002, by the St. Petersburg, Florida, Regional
Office (RO).

FINDINGS OF FACT

1.  All notification and relevant evidence necessary for an
equitable disposition of the veteran's appeal has been
obtained by the RO.

2.  The record reflects that the veteran sustained a neck
injury when he was involved in an in-service accident.

3.  The probative and competent medical evidence of record
establishes that the veteran's neck disorder, diagnosed as
cervical disc disease with radiculopathy, is medically
related to active service.

CONCLUSION OF LAW

Resolving reasonable doubt in favor of the veteran, the Board
finds that his currently diagnosed cervical spine disorder,
cervical disc disease with radiculopathy, was incurred in
active service.  38 U.S.C.A. �� 1110, 1131, 5103, 5103A, 5107
(West 2002); 38 C.F.R. �� 3.102, 3.303 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA).

During the pendency of this appeal, on November 9, 2000, the
President signed into law the VCAA, Pub. L. No. 106-475, 114
Stat. 2096 (2000).  This Act is applicable to all claims
filed on or after the date of its enactment, November 9,
2000, or filed before that date and not yet final.  This new
law eliminates the concept of a well-grounded claim and
redefines VA's obligations insofar as properly notifying and
assisting veterans in developing their claims.  In view of
the Board's decision to allow the veteran's claim for service
connection for a cervical spine disorder, there is no need to
discuss VA's compliance with the VCAA.

II.  Factual background.

The service medical records indicate that the veteran was
seen in an emergency room on July 4, 1981, with complaints of
pain in the lower back from a motor vehicle accident.  No
clinical findings or diagnosis was reported.  The veteran was
seen the following day, complaining of pain in his neck,
back, and legs; it was noted that the veteran was riding in a
van the previous night that was hit from behind.  Following
an examination, the veteran was diagnosed with severe
musculoskeletal spasms.  The veteran was provided a cervical
collar.  On July 6, 1981, the veteran was again seen with
complaints of headaches, pain in the neck and down the
scapula.  The diagnosis was cervical strain; the veteran was
sent to his quarters.

Post service VA treatment records, dated from December 1993
through April 1997, including the report of a VA examination,
conducted in February 1995, reflect ongoing clinical
evaluation and treatment for several disabilities including
cervical spine disorder.  During a clinical visit in June
1996, it was noted that the veteran had pain in the neck and
upper arm associated with neck motion; it was reported that
he had a neck injury while in the United States Navy in 1993.
It was noted that an x-ray study of the cervical spine
revealed degenerative joint disease at C5-6 level.  A
treatment report, dated in April 1997, reflects a diagnosis
of cervical degenerative joint disease with radiculitis.  The
veteran was again seen in May 1997 for complaints of neck
pain; the diagnosis was cervical arthritis.

On the occasion of a VA examination in February 1999, it was
reported that the veteran sustained an injury to his
lumbosacral spine in April 1993, when he fell sixteen feet
off a ladder on board ship.  It was also reported that, on
one occasion, the veteran was treated with physical therapy
for complaints relative to his cervical spine.  The
examination report consists of an evaluation of the lumbar
spine.

Received in March 2001 were VA progress notes, dated from
June 2000 to February 2001, reflecting ongoing clinical
evaluation and treatment for several disabilities, including
complaints of chronic neck and left shoulder pain.  These
records reflect a diagnosis of degenerative disc disease,
cervical spine.  A magnetic resonance imaging (MRI) of the
cervical spine, performed in January 2001, reflect an
impression of marked degenerative spondylosis and disk
disease about the lower cervical spine from C4 to C7.

The veteran was afforded a VA compensation examination in
April 2002, at which time it was noted that the veteran
developed back problems after falling down a ladder while
aboard ship; he did not fracture anything, but he had a
recurrent problem with his back since then.  It was also
noted that the veteran had bilateral hand pain, more
pronounced on the right; he described this as being some
numbness and the pain appeared to be coming from the neck
down his arm to the hand area.  He had been examined for
cervical spine problems and had a cervical spine MRI done
which revealed that he had significant disc disease in the
cervical spine with some protrusion at the C5-C6 level.  The
examiner stated that the veteran's low back, hand, and
cervical neck problems were related to onset in the service,
and he had symptomatology at that time.

Another VA examination was conducted in August 2002, at which
time the examiner noted that the veteran had a long history
of cervical spine pain dating back to the early 1990's.  The
examiner stated that it was his belief that the veteran
suffers from chronic osteoarthritis of the cervical spine,
which causes the predominant neck pain that he suffers on a
daily basis.  In addition, he had evidence of a previous MRI
of bulging disc which could further exacerbate his neck pain,
secondary to muscle spasm.  The examiner explained that, as
degenerative joint disease is a chronic problem, he believed
"it is as likely as not that his symptoms were exacerbated
by his 20 years in the service."  Received in October 2002
were VA treatment reports, dated from January 2001 through
October 2002, reflecting results of radiographic studies of
the cervical spine, which show findings of disk disease in
the cervical spine.

III.  Legal analysis.

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
duty.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303.  Where
there is a chronic disease shown as such in service,
subsequent manifestations of the same chronic disease at any
later date, however remote, are service connected, unless
clearly attributable to intercurrent causes.  When a
condition noted during service is not shown to be chronic, or
the fact of chronicity in service is not adequately
supported, then a showing of continuity of symptomatology
after discharge is required to support the claim.  38 C.F.R.
� 3.303(b).

In order 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).  The United States Court of Appeals for the
Federal Circuit has confirmed that "a veteran seeking
disability benefits must establish . . . the existence of a
disability [and] a connection between the veteran's service
and the disability."  Boyer v. West, 210 F.3d 1351, 1353
(Fed. Cir. 2000).  See D'Amico v. West, 209 F.3d 1322, 1326
(Fed. Cir. 2000); Maggitt v. West, 202 F.3d 1370, 1375 (Fed.
Cir. 2000) (to same effect).

When there is an approximate balance of positive and negative
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(b) (West 2002).

As noted above, in order for service connection to be
granted, three elements must be present: (1) a current
disability; (2) in-service incurrence of such disability; and
(3) medical nexus.  See Hickson, supra.  The Board has
reviewed the evidence of record, and for reasons which will
be expressed in greater detail below, the Board finds that a
cervical spine disorder was incurred directly as a result of
the veteran's active service.

The first Hickson element is not at issue.  It is clear that
the veteran has a current cervical spine disability.  VA
treatment records, including results of an MRI study, dated
in January 2001, reflect an impression of marked degenerative
spondylosis and disk disease about the lower cervical spine
from C4 to C7.  VA examinations in April and August 2002
reflect a diagnosis of degenerative disc disease of the
cervical spine.

With respect to the second Hickson element, the veteran's
service medical records show that he was treated on two
occasions for complaints of neck pain in July 1981 following
an automobile accident; he was diagnosed with cervical
strain.  A cervical collar was prescribed.  On his separation
examination, in September 1994, the veteran reported a
history of recurrent back pain; however, clinical evaluation
was negative for any cervical spine disorder.  Thus, the
service medical records do not show incurrence of a chronic
cervical spine disability in service, but do show an injury
affecting the cervical spine with apparent resolution of
symptoms at separation.  The Board believes that the evidence
concerning the July 1981 motor vehicle accident effectively
satisfies the second Hickson element.

With respect to the third Hickson element, as noted earlier
in this decision the veteran was examined in April 2002 and
again in August 2002.  In April 2002, the VA examiner stated
that the veteran's low back, hand, and cervical neck problems
were related to onset in the service.  Subsequently, in
August 2002, the VA examiner opined that, as degenerative
joint disease is a chronic problem, he believed "it is as
likely as not that the veteran's symptoms were exacerbated by
his 20 years in the service."

VA treatment records reflect complaints of neck pain and a
finding of degenerative disc disease of the cervical spine in
May 1996 and thereafter.  The veteran has reported that the
neck pain began during service, as a result of the incident
that caused his low back pain.  One VA examiner has stated
that the veteran's neck problem is related to service; and
another VA examiner has offered his opinion that it is at
least as likely as not that the veteran's symptoms were
exacerbated by his 20 years in the service.  There is no
opinion to the contrary regarding the etiology of the
veteran's cervical spine disorder.  In this regard, the Board
notes that service connection does not require certainty, but
only that the evidence is in equipoise.  Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).  Resolving reasonable doubt
in the veteran's favor, the Board finds that service
connection for a cervical spine disorder, to include
degenerative disc disease of the cervical spine is warranted.
38 U.S.C.A. � 5107 (West 2002).

ORDER

Service connection for a cervical spine disorder, to include
degenerative disc disease of the cervical spine, is granted.

____________________________________________
	Gary L. Gick
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: P M DILORENZO

text:
Citation Nr: 0510000
Decision Date: 04/06/05    Archive Date: 04/15/05

DOCKET NO.  03-19 326	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1.  Entitlement to service connection for sleep apnea.

2.  Entitlement to service connection for chronic fatigue
syndrome.

3.  Entitlement to service connection for diverticulitis.

ATTORNEY FOR THE BOARD

Nancy Rippel, Counsel

INTRODUCTION

The veteran served on active duty from July 1986 to July
1993, including approximately eight months of active service
in Southwest Asia.  His claims come to the Board of Veterans'
Appeals (Board) on appeal from a September 2002 rating
decision rating decision of the Waco, Texas, Department of
Veterans Affairs (VA) Regional Office (RO), that denied
service connection for sleep apnea, chronic fatigue syndrome,
and diverticulitis.

In his April 2003 notice of disagreement, the veteran asked
that his disabilities be considered as due to undiagnosed
illness.  See 38 U.S.C.A. � 1117; 38 C.F.R. � 3.317.  His
claims were adjudicated on this basis in an August 2003
supplemental statement of the case.  However, in September
2003 the veteran responded that he did not want his claim to
be reflected as an undiagnosed illness and that it was never
his intention to change his original claim.  He said that the
fact of the matter was that he had been diagnosed with all
that he claimed.  He again stated "do not submit the
'undiagnosed illness' portion that sidetracks my claim."
Accordingly, the Board will not adjudicate the veteran's
claim for service connection for sleep apnea, chronic fatigue
syndrome, and diverticulitis as due to undiagnosed illness.

In a rating decision dated in August 2003, the RO granted
service connection for irritable bowel syndrome.  In a
February 2004 rating decision, the RO denied service
connection for metabolic syndrome, diabetes mellitus, obesity
and hyperlipidemia.  These issues are not on appeal.

FINDING OF FACT

Sleep apnea, diverticulitis, and chronic fatigue syndrome did
not have their onset during active service or result from
disease or injury in service.

CONCLUSION OF LAW

The veteran is not entitled to service connection for sleep
apnea, diverticulitis, and chronic fatigue syndrome.  38
U.S.C.A. � 1110 (West 2002); 38 C.F.R. �� 3.303, 3.304
(2004).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to notify and assist

VA has a duty to notify claimants for VA benefits of
information necessary to submit to complete and support a
claim and to assist claimants in the development of evidence.
38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West
2002); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a)
(2004).  In this case, VA's duties have been fulfilled to the
extent possible.

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 has satisfied its duty to notify by means of a letter from
the RO to the veteran dated in March 2004.  He was told what
was required for his service connection claims and of his and
VA's respective responsibilities in terms of obtaining
information and evidence.  He was also asked to submit
evidence pertinent to the claims to the RO.  The March 2004
letter was not mailed to the appellant prior to the initial
RO adjudication of his claim.  Assuming for the sake of
argument that pre-decision notice is required, any defect in
this regard is harmless error.  See 38 U.S.C.A. � 7261(b)(2)
(West 2002).  The appellant did not provide any additional
evidence in response to the letter that was not fully
considered by the RO in the supplemental statement of the
case (SSOC) issued in October 2004.  There is simply no
indication that disposition of his claim would have been
different had he received pre-adjudicatory notice pursuant to
38 U.S.C. � 5103(a) and 38 C.F.R. � 3.159(b).  Therefore,
adequate notice to the veteran, as required by 38 U.S.C.A.
� 5103(a), was provided.  See 38 U.S.C.A. � 7261(b)(2) (West
2002).

VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. � 5103A(a) (West 2002); 38 C.F.R. � 3.159(c), (d)
(2004).  All identified, pertinent evidence, including
private medical records as discussed below, has been obtained
and associated with the claims file.  There is no indication
of any relevant records that the RO has failed to obtain.  In
fact, in January 2002, in response to a VA request for
additional information, the veteran responded that he had no
additional evidence to submit.

Assistance shall also 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.  38
U.S.C.A. � 5103A(d) (West 2002); 38 C.F.R. � 3.159(c)(4)
(2004).  The veteran underwent VA examinations in August 2002
and July 2003, and adequate medical opinions were provided.

Accordingly, having determined that the duty to notify and
assist has been satisfied to the extent possible, the Board
turns to an evaluation of the veteran's claims.

II.  Service connection

Service connection means that the facts, shown by evidence,
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, 1131 (West
2002); 38 C.F.R. �� 3.303(a), 3.304 (2004).

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); VCAA.

The Board must assess the credibility and weight of all the
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which 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); Wilson v.
Derwinski, 2 Vet. App. 614, 618 (1992; Hatlestad v.
Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).

Service medical records show no complaints or findings
related to sleep apnea or chronic fatigue syndrome.  In May
1992, the veteran complained of abdominal pain, nausea, and
diarrhea.  He was diagnosed as having viral gastroenteritis.
There were no finding or diagnosis of diverticulitis.  On
separation examination in April 1992, clinical evaluation was
normal.

After service, in July 1999 the veteran underwent a
colonoscopy which showed diverticulosis and inflamed
diverticulitis.

Treatment records from Muhammad Kahn, M.D., dated from
October 2000 to February 2002 show a diagnosis of sleep apnea
in October 2000.  In April 2001, the veteran complained of
left lower quadrant pain of one day duration.  During
examination at that time, the veteran reported a history of
diverticulitis.  On a return visit in April 2001, the left
lower quadrant pain had resolved.  In September 2001, the
veteran was seen by Dr. Kahn for treatment of diarrhea and
vomiting.  The assessment was viral infection.

In August 2002, the veteran was afforded a VA examination.
The veteran brought with him a letter he received from the
Secretary of Defense telling him that he was exposed to some
gases when US troops destroyed a large ammunition depot.
Very minute amounts of Sarin and related gases were released
and some of the people who were within a close environment
were exposed.  At that time, the veteran reported that he had
a history of sleep apnea.  The examining physician noted that
the veteran had sleep apnea confirmed by a sleep study (Dr.
Kahn).  The veteran also reported that his private doctor had
prescribed a C-pap machine that greatly improved his
symptoms.  The veteran reported that his chronic fatigue was
much better as well with this machine.  He reported he did
not snore and stop breathing at times anymore.  The veteran
reported he used to have hot flashes every two weeks and now
had them only every month or so.  He gave a history of sleep
apnea since 1993 along with weight gain.  It was also noted
he was a diabetic.  The veteran reported that he had chronic
fatigue since 1993 connected with his sleep apnea as well as
bouts of diarrhea and abdominal cramping lasting a day or two
at a time.  These reportedly occur two to four times per
month.  It was noted that colonoscopy showed only some
diverticula with definite evidence of irritable bowel
syndrome.  No headaches or dizzy spells were reported.  He
reported feeling sort of weak but not short of breath.  There
were no respiratory symptoms, no changes in mental capacity
or sexual potency.  The diagnoses included sleep apnea due to
undiagnosed illness; chronic fatigue syndrome, getting
better, due to undiagnosed illness; irritable bowel syndrome,
persistent also due to undiagnosed illness, and
diverticulitis of the colon due to unknown illness.  The
examiner could find no new complaints and concluded he could
not tie the symptoms to Sarin or related gas exposure.

In his April 2003 notice of disagreement, the veteran stated
that he was not aware of diverticulitis, sleep apnea, or
chronic fatigue syndrome during service and that his first
recollection of these condition was in about 1995.  He argued
that they were caused by Sarin and Cyclo-Sarin gas during
service in March 1991.

At the veteran's VA chronic fatigue syndrome examination in
July 2003, he reported that during his time in the Persian
Gulf he was a helicopter mechanic and mail room operator.
The veteran reported that chronic fatigue symptoms began
about 1 1/2 to 2 years prior to the examination.  Initially,
his energy level would drop at certain times.  He reported
that he was employed in road construction and ran a mower
crew.  His job usually involved riding in the air conditioned
tractor cab and he found any heavy physical activity very
difficult.  The examiner recorded a history as reflected in
the records of Dr. Kahn and the August 2002 VA examination
report.  It was noted that the veteran was diabetic but that
he denied current medication.  He noted he had dieted and
reduced his weight from 252 to into the 240s.  There was no
history of recurrent low grade fever; the veteran reported
that whenever he felt flush and took his temperature, it was
normal.  There was no evidence or history of pharyngitis,
palpable tender cervical or axillary nodes, or muscle
soreness that was not present before service.  There were no
chronic headaches or migratory joint pains, nor was there a
history of neuropsychologic symptoms, but there was a history
of sleep disturbance, diagnosed as sleep apnea.

Physical examination showed the veteran was obese.  Lungs
were clear, reflexes were normal.  Chest X-ray was normal,
EKG was normal.  Diagnoses included: 1.  Metabolic syndrome,
a. diabetes mellitus, Type II, for which the veteran is on no
specific medication; b. hypertension, essential, well-
controlled with medication; c. marked obesity, especially
abdominal, and d. hyperlipidemia, 2.  Sleep apnea for which
he has been prescribed a c-pap machine, 3.  Chronic fatigue
syndrome claimed by the veteran.

The examiner concluded that, as to the complaints of chronic
fatigue syndrome, several factors probably contributed.  The
veteran fit the diagnosis for metabolic syndrome, with
diabetes, hypertension, hyperlipidemia and abdominal obesity.
The examiner noted that the veteran's heightened abdominal
girth, body mass and sleep apnea probably contributed to
fatigue.  Further, two of the medications the veteran took
for hypertension reportedly could cause fatigue.  Also, the
examiner noted that the veteran worked full time, and there
were no reports of inability to perform his actual job
duties.  Moreover, there was no history of incapacitating
episodes requiring bed rest or treatment by a physician.
Further, the VA examiner noted that the veteran's prime
physician had not to that date prescribed medication for
chronic fatigue syndrome.  Based on these factors, the VA
examiner concluded it was impossible for him to associate
present symptoms and findings to the service in the Persian
Gulf 12 years earlier.

In January 2004, the veteran was evaluated by neurologist
Krishnababu Chunduri, M.D., at the referral of Dr. Kahn.  The
veteran complained of weakness and fatigue as well as
paresthesias and low back pain going into the lower
extremities.  He noted a six or seven month history of hand
weakness, tingling and numbing.  He reported severe fatigue
with the upper extremities with regular activities.  He
reported daily neck and shoulder pain for about one year.  He
reported significant fatigue all over.  He reported short
term memory problems for about a year.  Also, he has had one
episode of slurred speech a few months earlier.  He reported
hot spells all over the body with intermittent burning
sensation of the eyes.  He reported fatigue with chewing gum
but not eating.  He denied headaches, loss of consciousness,
seizures, etc.  The examiner noted the exposure to Sarin and
cyclosarin in the Gulf War.  He noted the veteran worked in
construction.  During neurological examination, motor system
showed mild giveaway-type weakness in all extremities.  Tone
was normal and no abnormal involuntary movements were  noted.
The impression was rule out, based on the complaints,
peripheral neuropathy, radicular syndrome, neuromuscular
syndrome, neuromuscular junctional and primary muscle
disease.  The doctor ordered testing, to include nerve
studies, MRI, laboratory testing, and Lyme disease testing,
to rule out these possibilities.

In February 2004, Dr. Chunduri noted that the veteran's nerve
conduction studies, nerve stimulation studies, and EMG
studies were essentially normal.  Spinal studies showed
cervical disc bulge and lumbar disc herniation.  The doctor
observed that, at that point, neurological complaints were
unchanged and he was unsure of the cause of the veteran's
multiple neurological symptoms.  He ordered MRI of the brain
to rule out demyelinating disease as well as other testing.

In March 2004, Dr. Chunduri noted the MRI of the brain was
normal.  HIV testing was non-reactive.  The veteran's wife
reported his fatigue was worsening.  Neurologically, he was
unchanged.  The examiner was at a loss to explain the
symptoms other than those related to the cervical and lumbar
spine findings.  Dr. Chunduri advised the veteran he was at a
loss to explain his neurological complaints and advised him
to seek the opinion of another neurologist.

The service medical records are negative for any complaints
or findings of sleep apnea, chronic fatigue syndrome, or
diverticulitis.  The veteran himself reported that his first
recollection of these conditions was in about 1995, after his
separation from service.  The record shows that the he was
first diagnosed with diverticulitis in 1999 and with sleep
apnea in 2000.  The evidence is conflicting as to whether or
not he actually suffers from chronic fatigue syndrome.
Regardless, there is no competent, medical evidence relating
any of these disabilities to an in-service disease or injury,
including exposure to Sarin or related gases.  To the
contrary, the VA examiner in August 2002 stated that he could
not tie the veteran's complaints to exposure to Sarin or
related gases.  The VA examiner in August 2003 also stated
that it would be impossible to associate the veteran's
present symptoms and findings to his Persian Gulf War
service.

In short, there is no medical evidence relating the current
disabilities to any in-service disease or injury.  The only
evidence of such a relationship is the veteran's contentions.
The actual medical evidence does not support the claim.
While the veteran is competent to describe the symptoms that
he experienced, his statements are without significant
probative value in regard to the issue at hand, as the
veteran has not been shown to possess the medical training or
expertise needed to render a competent opinion as to
diagnosis or medical causation.  See Espiritu v. Derwinski, 2
Vet. App. 492, 494-95 (1992).  Thus, the veteran's personal
belief that his current disabilities are related to service
cannot serve to prove that they had their onset during active
service or are related to any in-service disease or injury.

For the reasons and bases provided above, the Board concludes
that the evidence in this case preponderates against the
claims for service connection for sleep apnea,
diverticulitis, and chronic fatigue syndrome.  The evidence
in this case is not so evenly balanced so as to allow
application of the benefit-of-the-doubt rule.

ORDER

Entitlement to service connection for sleep apnea,
diverticulitis, and chronic fatigue syndrome is denied.

____________________________________________
	P. M. DILORENZO
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs