Citation Nr: 0724376 Decision Date: 08/07/07 Archive Date: 08/20/07 DOCKET NO. 03-18 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for residuals of a motor vehicle accident, to include headaches, degenerative joint disease of the cervical spine, degenerative changes in the lumbar spine, joint space narrowing in the bilateral shoulders, and dizziness. 2. Entitlement to service connection for panic attacks as a residual of a motor vehicle accident. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The veteran served on active duty from March 1959 to February 1961. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2002 rating decision of the Louisville, Kentucky, VA Regional Office (RO). This case has previously come before the Board. In July 2006, the matter was remanded to the agency of original jurisdiction (AOJ) for additional development. The case has been returned to the Board for further appellate review. In his June 2003 VA Form 9, the veteran requested a video conference hearing before a member of the Board. In January 2006, the veteran withdrew his request for a hearing. FINDINGS OF FACT 1. Residuals of a motor vehicle accident, to include headaches, degenerative joint disease of the cervical spine, degenerative changes in the lumbar spine, mild joint spacing of the bilateral shoulders, dizziness, are attributable to service. 2. Panic attacks were not manifest in service and are not attributable to service. CONCLUSIONS OF LAW 1. Residuals of a motor vehicle accident, to include headaches, degenerative changes of the cervical spine, degenerative changes in the lumbar spine, mild joint spacing of the bilateral shoulders, and dizziness were incurred in active service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2005); 38 C.F.R. § 3.303 (2006). 2. Panic attacks were not incurred or aggravated in service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2005); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2006). The notice 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, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). The RO sent correspondence in December 2001; a rating decision in July 2002; and a statement of the case in May 2003. The December 2001 letter preceded the RO's initial adjudication. The above documents discussed specific types of evidence, the applicable legal requirements, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA has made all efforts to notify and to assist the veteran with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the veteran's possession. The Board finds that any defect with regard to the timing or content of any of the notices sent prior to the RO's initial adjudication or the final RO adjudication is harmless. The Board finds that even if there is any defect with regard to the timing or content of any of the notices sent that defect is harmless because of the thorough and informative notices provided throughout the adjudication and because the veteran has had a meaningful opportunity to participate effectively in the processing of the claim with RO adjudication after receipt of the required notice. VA effectively complied with all of the required elements under its duty to notify claimants prior to the last RO adjudication. The veteran has not demonstrated how any defective notice has prejudiced him in the essential fairness of the adjudication. There has been no prejudice to the veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Overton v. Nicholson, 20 Vet. App. 427 (2006); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine), on remand, 20 Vet. App. 537 (2006) (discussing Board's ability to consider "harmless error"); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd in part, Hartman v. Nicholson, __ F.3d __, No. 2006-7303, 2007 WL 1016989 (Fed. Cir. Apr. 5, 2007); cf. Locklear v. Nicholson, 20 Vet. App. 410, 415-16 (2006) (duty to notify does not extend in perpetuity or impose duty on VA to provide notice on receipt of every piece of evidence or information). Thus, VA satisfied its duty to notify the veteran. Also, all relevant, identified, and available evidence has been obtained, and VA has notified the veteran of any evidence that could not be obtained. VA examinations are of record. See 38 C.F.R. § 3.159 (2006). Thus, VA has fulfilled its duty to assist the veteran. Criteria & Analysis In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the veteran asserts that he has residual disability manifested by headaches, a neck, back, and shoulder disorder, dizzy spells, and panic attacks from a motor vehicle accident in which he was involved while stationed in Germany during service between August 1959 and February 1961. More specifically, and as noted in correspondence received in February 2001, he alleges that while driving a jeep with an attached trailer during field maneuvers, he hit a patch of ice and lost control causing the jeep to roll over, crushing his head, neck, and shoulders. In correspondence received in January 2002, he submitted a photocopy of a wrecked jeep and added that after the accident, he was taken to the field first aid room with pain in the neck, head, and shoulders. Initially, the Board notes that in regard to verification of the claimed in-service motor vehicle accident, in the July 2006 remand, the Board requested that the AOJ take steps to determine whether there were any morning reports, unit records, or other documents that would further verify that the veteran was involved in a jeep accident during service in Germany. Service personnel records reflect that the veteran was approved for a driver's license in October 1959 at Stuttgart Post in Germany, and a DD FORM 398, dated in April 1959, notes his duty assignment was a seventh army motor messenger-courier. The records reflect that the veteran was involved in a motor vehicle accident on November 10, 1959. The DA Form 348 notes that he was cautioned but not at fault. The Board notes that the record reflects various dates of the claimed in-service motor vehicle accident. For example, in January 2001, the veteran provided details in regard to the accident, stating that he was unable to recall the exact date upon which it occurred. In May 2002, he noted that the jeep accident occurred in the winter of 1960. In a January 2003 private treatment record, a head, neck and shoulder injury were noted in association with an injury sustained during service in January 1959. In correspondence received in October 2003, the veteran stated that he injured his neck, shoulder, and back in a jeep accident during service in 1959. On VA examination in September 2006, the in-service motor vehicle accident was noted to have occurred in 1961. Regardless of the varying accounts of the date of the accident, the service records document an in-service motor vehicle accident in November 1959. Thus, the Board accepts the veteran's account of the in-service motor vehicle accident. The issue of whether the veteran has residual disability related to the in-service motor vehicle accident requires competent evidence. The veteran is competent to report that he hit his neck, back and shoulders on the roll bar at the time of the accident, as noted in a private January 2003 letter. The veteran, however, is not a medical professional and his opinion is not competent in regard to matters requiring medical expertise. Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992) (lay persons are not competent to offer evidence that requires medical knowledge). The Board notes that although the January 2003 private physician assistant opined that the veteran's neck, back, and shoulder pain were likely related to service, no underlying disease or injury was identified by that examiner. See Sanchez-Benitez v. West, 259 F.3d 1356 (Fed. Cir. 2001). On VA x-ray examination in September 2006, however, the impressions were headaches, degenerative joint disease of the cervical spine, degenerative changes of the lumbar spine, dizziness, and mild joint space narrowing of the bilateral shoulders. The physician specifically related headaches, cervical, and lumbar spine degenerative changes, bilateral shoulder pathology, and dizziness to the in-service motor vehicle accident. The Board notes that a February 1993 private record reflects complaints of headaches and dizziness in association with having had a tray fall oh his neck/scalp, and a February 1994 private record notes post concussion syndrome with dizzy spells and headaches in association with the February 1993 head injury. While the Board has doubt as to whether headaches and dizziness are residuals of the in- service motor vehicle accident, that doubt is being resolved in favor of the veteran. Having reviewed the record, the Board finds the September 2006 VA opinion to be probative in regard to etiology, as the physician reviewed the claims file, provided a detailed examination report, and clearly and unambiguously related the initial onset of headaches and dizziness to the in-service motor vehicle accident. In sum, service records show that the veteran was involved in a motor vehicle accident in service, and there is competent evidence relating residual disability, to include headaches, degenerative joint disease of the cervical spine, degenerative changes of the lumbar spine, and mild joint space narrowing of the bilateral shoulders, dizziness, to the in-service incident. The Board finds the probative evidence, to include the VA medical opinion and the veteran's credible lay statements, supports a finding that service connection for residuals of a motor vehicle accident, to include headaches, degenerative joint disease of the cervical spine, degenerative changes of the lumbar spine, mild joint space narrowing of the bilateral shoulders, dizziness, is warranted. In regard to panic attacks, the Board finds that service connection is not warranted. Service medical records are negative for complaints or findings of panic attacks. The January 1961 separation examination report shows that psychiatric examination was normal and his psychiatric status was assigned a profile of "1." On the accompanying medical history, he specifically denied having or having had excessive worry and nervous trouble of any sort. The veteran is competent to report his symptoms. He can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno Therefore, he cannot provide a competent opinion regarding diagnosis and causation. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in an of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Jandreau v. Nicholson, No. 2007-4019 WL 1892301 Vet. App. July 3, 2007), the Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr v. Nicholson, No. 04-0534 WL 1745833 Vet. App. June 15, 2007). In that regard, the Board notes that private records of treatment, dated in February 1993 and February 1994, note complaints of panic attacks after a tray fell on his head in 1993. A July 1997 record notes that panic attacks had had an onset "abruptly" eight months earlier. The Board finds the contemporaneous service medical records which are silent for panic attacks, coupled with the post-service evidence showing an onset of panic attacks many years post service and no competent nexus opinion to be more probative in regard to etiology. In sum, the evidence is in favor of service connection for residuals of a motor vehicle accident, to include headaches, degenerative joint disease of the cervical spine, degenerative changes in the lumbar spine, joint space narrowing in the bilateral shoulders, dizziness. Consequently, the benefits sought on appeal are granted. The preponderance of the evidence is against the claim for service connection for panic attacks as a residual of an in- service motor vehicle accident. Consequently, the benefits sought on appeal in regard to panic attacks are denied. ORDER Service connection for residuals of a motor vehicle accident, to include headaches, degenerative joint disease of the cervical spine, degenerative changes of the lumbar spine, mild joint space narrowing of the bilateral shoulders, dizziness is granted. Service connection for panic attacks is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs