Citation Nr: 0001436 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 98-06 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for post traumatic stress disorder (PTSD), a bilateral elbow disability and a bilateral shoulder disability. 2. Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.L. Salas, Associate Counsel INTRODUCTION The veteran had verified service from June 1967 to October 1971, from March 1973 to August 1976, and from September 1984 to November 1996. This appeal arose from September 1997 and September 1998 rating decisions by the Department of Veterans Affairs (VA) Boise, Idaho Regional Office (RO). In September 1997, the RO denied the veteran's claims for entitlement to service connection for PTSD and for bilateral elbow and shoulder disabilities. In September 1998 the RO granted entitlement to service connection for bilateral hearing loss and an initial noncompensable evaluation was assigned. See Fenderson v. West, 12 Vet. App. 119 (1999). The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. The claims for entitlement to service connection for PTSD and entitlement to an initial compensable evaluation for bilateral hearing loss are addressed in the remand portion of the decision. FINDINGS OF FACT 1. The claim of entitlement to service connection for a bilateral elbow disorder is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. The claim of entitlement to service connection for a bilateral shoulder disorder is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. The claim for entitlement to service connection for a bilateral elbow disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim for entitlement to service connection for a bilateral shoulder disorder is not well grounded. 38 U.S.C.A. § 5107. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service medical records show that the veteran received treatment for a question of a Grade I left shoulder separation in November 1975 after a motor vehicle accident. X-rays were negative. Several subsequent examinations of the shoulder and elbow were negative. On examination in December 1989 the veteran reported a trick elbow or shoulder with shoulder pain (which shoulder was affected was not specified) and shooting pains on bumping his right elbow. He denied a history of fracture. He noted that he had received treatment of the right elbow in 1984. Examination was negative. In May 1993 the veteran was treated for pain in both elbows and the right shoulder. He reported that he had been doing increased physical training. Examination appeared normal. The assessment was overuse syndrome. He was placed on a temporary physical profile with respect to use of his upper and lower extremities. On another visit in May 1993 the veteran reported the same symptoms. The next month the veteran underwent an orthopedic consultation. The primary complaint was of knee pain. He also complained of right shoulder pain since his youth, and left and right elbow pain. He reported elbow pain when leaning on his elbow, lifting weights or otherwise putting pressure on the elbow. The pain was over the olecranon and within the joint. He complained primarily of right arm pain with occasional left-sided symptoms. Discomfort was in the area of the ulnar nerve. Right shoulder pain was in the glenohumeral area. There was tenderness over the coracoid and described pain near the infraspinatus tendon. Impingement testing was negative. There was full range of motion of the shoulders and elbows. X-rays were only reported to show arthritis of the knees. The diagnosis was olecranon bursitis of the elbows with possibly some arthritic changes in the joint, and tendonitis of the shoulder. In April 1994 the veteran complained of left shoulder pain with an onset date of November 1993. Examination of the shoulder was unremarkable with no positive results indicated. The assessment was of a mild left shoulder strain. The veteran requested a permanent profile in May 1994. The assessment was left shoulder pain. An orthopedic consultation made no specific diagnosis with respect to the left shoulder. An orthopedic visit in October 1994 resulted in an impression of mild shoulder impingement. A permanent profile was planned. On the retirement examination in June 1995, the upper extremities were found to be normal. However, in the summary of defects pertaining to the examination results for upper extremities, feet, lower extremities, and spine the examiner provided an impression of degenerative joint disease/osteoarthritis with olecranon bursitis. On the veteran's report of medical history he reported, among many other things, treatment of the right elbow and left shoulder. The physician's summary made general diagnoses of diffuse degenerative joint disease and bursitis. It was not specified whether these diagnoses pertained to the elbows or shoulders. In a report of medical assessment dated in June 1996, the veteran reported a long history of bilateral shoulder and bilateral elbow pain. On VA examination in August 1997 the veteran reported no treatment for shoulder or elbow pain since service. He did complain of pain in the shoulders and elbows developing in the 1970s in the military. He asserted that he was on a physical profile the last two years of service but had no specific treatment except for Motrin since his military discharge. X-rays of the shoulders shoulder no significant degenerative changes of the shoulders. X-rays of the left elbow showed a tiny left olecranon spur. Otherwise, the x- rays were normal. The assessment of the VA examiner was that there were no clinical findings suggestive of any abnormality of the shoulders or elbows. Post service military hospital records showed no treatment of the elbows or shoulders. At his hearing in September 1998 the veteran asserted that he had treatment of his shoulders and elbows in service and continued to have problems with both. He did not report any recent treatment of the shoulders or elbows. Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which service connection is sought must be considered on the basis of the places, types and circumstances of the veteran's service as shown by service records, the official history of each organization in which the veteran served, medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a) (1999). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain in service will permit service connection of arthritis, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where 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)(1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Arthritis may be presumed service connected if manifested to a compensable degree of 10 percent or more within a year after service. 38 C.F.R. §§ 3.307, 3.309 (1999). Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). For a claim for service connection to be well grounded, there must be competent evidence of a current disability in the form of a medical diagnosis, of incurrence or aggravation of disease or injury in service in the form of lay or medical evidence, and of a nexus between in service injury or disease and current disability in the form of medical evidence. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996); Epps v. Brown, 126 F.3d 1464, 1468 (Fed. Cir. 1997). In addition, in the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The second and third elements of the Caluza test can also be satisfied by evidence that a condition was "noted" in service or during an applicable presumptive period; evidence showing post service continuity of symptomatology; and medical or, in certain circumstances, lay evidence between the present disability and the post service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his lay opinion because he is not a medical health professional and does not constitute competent medical authority. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for a well-grounded claim, Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), a claim based only on the veteran's lay opinion is not well grounded. In determining whether a claim is well grounded, the claimant's evidentiary assertions are presumed true unless inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that if the veteran fails to submit a well- grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Brown, 5 Vet. App. 91, 93 (1993); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); 38 C.F.R. § 3.159(a) (1998). See also McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). In Morton v. West, 12 Vet. App. 477 (1999), the Court concluded that the Secretary, by regulation, Manual, and/or Compensation and Pension (C&P) policy cannot eliminate the condition precedent placed by Congress upon the inception of his duty to assist. Absent the submission and establishment of a well-grounded claim, the Court held that the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, 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 1991); 38 C.F.R. § 3.102 (1999). Analysis The Board reiterates the three requirements for a well grounded claim: (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 injury or disease and a current disability. See Caluza, supra. The Board's review of the evidentiary record discloses that while the service medical records show the veteran was on occasion treated for elbow and shoulder symptomatology variously diagnosed, the post service VA examination has failed to demonstrate the current existence of any chronic acquired abnormality of either shoulder or elbow which has been linked to service. The VA examiner concluded that there was no significant abnormality of the shoulders and elbows. In the absence of medical evidence of a current disability or either shoulder or elbow, the claim is not well grounded. Brammer, 3 Vet. App. 223, 225. There is no showing of the existence of arthritis of the shoulders or elbows within a year after service to a compensable degree to warrant presumptive service connection. Moreover, while the veteran has reported shoulder and elbow pain since service, there is no competent clinical objective evidence of any ascertainable abnormality of either shoulder or elbow to account for such pain which has been linked to service. An olecranon spur shown on x-rays after service has not, on the basis of competent medical authority, been linked to the service reported diagnosis of olecranon bursitis. In essence, the veteran's claim is based solely on his lay opinion. While a lay person may report his symptomatology, he does not have the competency of a trained health care professional to express opinions as to diagnosis and/or etiology as to any claimed disorder. Assertions as to these matters are therefore not presumptively credible. King, 5 Vet. App. 19, 21. As it is the province of trained health care professionals to enter conclusions that require medical opinions as to causation, Grivois, 6 Vet. App. 136, 139, the veteran's lay opinion is an insufficient basis upon which to find his claim well grounded. Espiritu, 2 Vet. App. 492. Accordingly, as a well-grounded claim must be supported by evidence, not merely allegations, Tirpak, 2 Vet. App. 609, 611, the appellant's claim for entitlement to service connection for a disorder of the shoulders and elbows must be denied as not well grounded. Pursuant to 38 U.S.C.A. § 5103(a) (West 1991), if VA is placed on notice of the possible existence of information that would render the claim plausible, and therefore well grounded, VA has the duty to advise the veteran of the necessity to obtain the information. McKnight v. Gober, 131 F.3d 1483, 1484-1485 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 80 (1995). In this case, the RO informed the veteran of the evidence he needed to submit to support his claim, thus fulfilling its duty in this instance. The veteran has not indicated the existence of any evidence that has not already been obtained and/or requested that would well ground his claim. 38 U.S.C.A. § 5103(a); McKnight, Epps, supra. As the claims for service connection are not well grounded, the doctrine of reasonable doubt has no application to the veteran's case. ORDER The veteran not having submitted a well-grounded claim for entitlement to service connection for a bilateral elbow disorder, the appeal is denied. The veteran not having submitted a well-grounded claim for entitlement to service connection for a bilateral shoulder disorder, the appeal is denied. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The RO has determined that the veteran did not receive a diagnosis of PTSD. However, the Board observes that in his VA Form 9, received in April 1998, the veteran stated that he did receive a diagnosis from the VA Clinic in Pocatello, Idaho. It does not appear that these obviously pertinent records were obtained and associated with the veteran's claims folder. As noted above, absent the submission and establishment of a well-grounded claim, the VA Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim. See Morton, 12 Vet. App. 477; Epps, 126 F.3d 1464. However, it has been held that records generated by VA are constructively part of the record on appeal as they are within the constructive (if not actual notice) of VA adjudicators. See Bell v. Derwinski, 2 Vet. App. 611 (1992). If documents generated by VA agents or employees, including physicians, predate the Board's decision, are within the Secretary's control, and could reasonably be expected to be part of the record, then "such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." Id. at 612-613. See also Dunn v. West, 11 Vet. App. 462 (1998). In Dunn, the Court found that a finding by the Board in an appeal to reopen a claim for entitlement to service connection for PTSD that there was no competent diagnosis of PTSD "might have been justifiable if the BVA had reviewed and addressed all of the evidence of record. However, the BVA made its decision without obtaining and reviewing the records of the Princeton Veterans Center which were constructively part of the record." Id. If after available pertinent VA records are associated with the claims folder the RO determines that the veteran's claim is at least well grounded under Cohen v. Brown, 10 Vet. App. 128 (1997) and Gaines v. West, 11 Vet. App. 353, 357 (1998), the RO should complete any necessary development of the veteran's claim. With respect to the claim for entitlement to an initial compensable evaluation for bilateral hearing loss, as was noted above, in September 1998 entitlement to service connection for bilateral hearing loss was granted. An initial noncompensable evaluation was assigned. In August 1999, the veteran's representative contended that the veteran disagreed with the assignment of a noncompensable evaluation. When a notice of disagreement (NOD) is filed, failure to issue a statement of the case (SOC) is a procedural defect requiring a remand. Godfrey v. Brown, 7 Vet. App. 398 (1995). However, an appeal shall be returned to the Board only if perfected through filing of a timely substantive appeal. Smallwood v. Brown, 10 Vet. App. 93 (1997). In the recent case of Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that in appeals from an initial assignment of a disability evaluation, ratings may be staged (i.e., different ratings may be assigned for different periods of time. On remand, consideration needs to be given to whether any staging of ratings is appropriate. Therefore, pursuant to VA's duty to assist the veteran in the development of facts pertinent to his claims under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999), the Board is deferring adjudication of the issues of entitlement to service connection for PTSD and entitlement to an initial compensable evaluation for bilateral hearing loss pending a remand to the RO for further development as follows: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should request the veteran to identify with specificity the date when he was diagnosed with PTSD at the VA medical center in Pocatello, and obtain the pertinent medical records which should be associated with the claims file. 3. Thereafter, the RO should review the claims file to ensure that the requested development has been completed. After undertaking any development deemed essential in addition to that specified above to the extent permitted by law, readjudicate the issue of entitlement to service connection for PTSD. 4. A SOC should be provided on the issue of entitlement to an initial compensable evaluation for bilateral hearing loss. The RO should give consideration to all applicable laws, regulations, and cases to include whether staging of ratings is appropriate pursuant to Fenderson. If the benefits requested on appeal are not granted to the veteran's satisfaction, the RO should issue a Supplemental Statement of the Case (SSOC). A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for appellate review if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals