Hickson Element

[carlie]

Anyone have information on the Hickson Element ?

Thanks,

carlie

[Guest Jim S.]

Might have some element to do with a Red Neck's Son. LoL :) B)

Sorry I couldn't help it, it's 04:40 A.M. and I am a bit goofy from my meds and this is another sleepless night. I think my Bio clock is all messed up.

I have no idea what it is or what it means, I hope someone else can answer you, you now have my interest peaked.

Jim S.

Edited March 6, 2006 by Jim S.

[Guest Berta]

This grew out of the Hickson V. West decision of 1998.

The veteran had not provided basis for a 'well grounded claim'.

The CAVC uses this term as the Hickson element to refer to the basic elements of a claim to state in their decision if these Hickson elements have been satisfied:

At least this is my take on Hickson-

http://webisys.vetapp.gov/isysquery/irldfc/9/doc

and this case shows how they apply it:

http://webisys.vetapp.gov/isysquery/irle0a/2/doc

[carlie]

This is the one I'm questioning and it's from 2005.

It starts in about 3/4 of the way down.

carlie

Citation Nr: 0527433

Decision Date: 10/11/05 Archive Date: 10/25/05

DOCKET NO. 03-30 643 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Houston,

Texas

THE ISSUES

1. Entitlement to service connection for tendonitis of the

knees.

2. Entitlement to service connection for a back disorder

with muscle spasm.

3. Entitlement to service connection for tinnitus.

4. Entitlement to service connection for removal of a tooth.

5. Entitlement to service connection for headaches.

6. Entitlement to service connection for residuals of heat

exhaustion.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

A. Contreras, Associate Counsel

INTRODUCTION

The veteran served on active duty from December 1990 to May

1997.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from a January 2003 decision by the

Department of Veterans' Affairs (VA) Regional Office (RO) in

Houston, Texas.

The veteran testified at a hearing before the undersigned

Veterans Law Judge in August 2004.

FINDINGS OF FACT

1. The veteran does not have a current diagnosis of

tendonitis of the knees which was caused or aggravated by any

incident of service.

2. The veteran does not have a current diagnosis of a back

disorder with muscle spasm which was caused or aggravated by

any incident of service.

3. The veteran does not have a current diagnosis of tinnitus

which was caused or aggravated by any incident of service.

4. The veteran does not have a current disability with

regard to removal of a tooth which was caused or aggravated

by any incident of service.

5. The veteran does not have a current disability with

regard to headaches which were caused or aggravated by any

incident of service.

6. The veteran does not have a current disability of

residuals of heat exhaustion which was caused or aggravated

by any incident of service.

CONCLUSIONS OF LAW

1. Tendonitis of the knees was not incurred in or aggravated

by service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R.

§ 3.303 (2004).

2. A back disorder with muscle spasm was not incurred in or

aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002);

38 C.F.R. § 3.303 (2004).

3. Tinnitus was not incurred in or aggravated by service.

38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303

(2004).

4. A disability with regard to removal of a tooth was not

incurred in or aggravated by service. 38 U.S.C.A. § 1110,

1131 (West 2002); 38 C.F.R. § 3.303 (2004).

5. A headache disability was not incurred in or aggravated

by service, nor may it be presumed to have been incurred in

service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West

2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).

6. Residuals of heat exhaustion were not incurred in or

aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002);

38 C.F.R. § 3.303 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claim Assistance Act (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), codified

in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38

C.F.R § 3.159, amended VA's duties to notify and assist a

claimant in developing information and evidence necessary to

substantiate a claim.

Under 38 U.S.C.A. § 5103, VA must notify the claimant of the

information and evidence not of record that is necessary to

substantiate the claim, which information and evidence that

VA will seek to provide and which information and evidence

the claimant is expected to provide. Furthermore, in

compliance with 38 C.F.R. § 3.159(:), the notification should

include the request that the claimant provide any evidence in

the claimant's possession that pertains to the claim.

The record reflects that the veteran was provided with notice

of the January 2003 rating decision from which the current

appeal originates. He was provided with a statement of the

case in July 2003, which notified him of the issues

addressed, the evidence considered, the adjudicative actions

taken, the decision reached, the pertinent law and

regulations, and the reasons and bases for the decision.

In September 2002, prior to promulgation of the January 2003

rating decision, the RO provided adequate notice to the

veteran regarding what information and evidence would be

needed to substantiate his claims for service connection, as

well as what information and evidence would need to be

submitted by the veteran, what information and evidence would

be obtained by VA, and the need for the veteran to submit any

evidence in his possession that pertains to the claims. The

content of the September 2002 and July 2003 letters fully

complied with the requirements of 38 U.S.C.A. § 5103(a) and

38 C.F.R. § 3.159(B).

With respect to VA's duty to assist the veteran, the Board

notes that pertinent medical records from all relevant

sources identified by the veteran, and for which he

authorized VA to request, were obtained by the RO. 38

U.S.C.A. § 5103A. In this regard, the Board notes that the

record contains the pertinent private treatment records.

However, with regard to the veteran's service medical

records, the January 2003 rating decision and the July 2003

statement of the case advised the veteran that attempts to

obtain his service medical records had failed. He was

further advised in the March 2004 supplemental statement of

the case that the National Personnel Records Center did not

have the veteran's service medical records. The veteran has

not alleged that there are any other obtainable outstanding

service medical or other medical records with regards to

these issues. The Board consequently finds that VA's duty to

assist the veteran in obtaining records in connection with

the instant appeal has been fulfilled.

In sum, the facts relevant to this appeal have been properly

developed and there is no further action to be undertaken to

comply with the provisions of the VCAA or the implementing

regulations. Therefore, the veteran has not been prejudiced

as a result of the Board proceeding to the merits of the

claims. See Bernard v. Brown, 4 Vet. App. 384, 392-94

(1993).

Factual Background

Extensive efforts were made to locate the veteran's service

medical records; however, to this date, the records have not

been found.

A letter submitted by a private dentist, dated October 2001,

indicates that the veteran had an edentulous space where his

lower left 1st molar had been extracted. His lower left 2nd

and 3rd molars were tilted mesially as a result of the 1st

molar extraction. The dentist fitted the veteran with a

unilateral partial to prevent extrusion of the upper 1st

molar, further mesial tipping of the lower posterior molars,

and distal movement of the lower left premolars.

An October 2001 private medical record indicates that the

veteran complained of pain in his right foot and peeling of

his feet. On examination, the skin on the plantar surface of

both feet was peeling. There was no redness or lesions. The

assessment was dermatophytosis of the foot; and pain in limb.

An August 2002 private medical record indicates that the

veteran complained of weakness, being tired, and nausea for

two days. He complained of muscle aches and headaches for

two days, relieved with Aleve. The veteran stated that he

worked outside as a mailman, and had not been able to keep up

with his daily fluid intake. The assessment was heat

fatigue, transient; volume depletion (dehydration); and

allergic rhinitis, due to pollen.

In an October 2002 statement, the veteran indicated that

since boot camp he had problems with tendonitis of the knees,

for which he was prescribed Motrin. He indicated that in

1992 he had a tooth removed, and was told that the tooth

would move forward and cover the hole. He stated that he had

back spasms as a result of changing a tire on a five ton

truck. He indicated that his headaches and earaches were due

to long hours on communication watch. Lastly, he stated that

he suffered from heat fatigue when he was instructed to train

in a climate to which he was not yet acclimatized.

At the August 2004 hearing, the veteran testified in relevant

part that his knee problems began in boot camp. He stated

that since service, he self-medicated with Motrin. He noted

that he injured his back in service while changing a tire,

and treatment consisted of 60 days of light duty, Motrin, and

no strenuous work. With regard to tinnitus, the veteran

stated that he was a radio operator in service, and was

subjected to a lot of high frequency noise. The veteran

indicated that while he was in service, he had a tooth

removed, but no further treatment was offered with regard to

his teeth. As far as his headaches, the veteran stated that

he would get headaches in service. Finally, the veteran

stated that he became a "heat casualty" from training in a

climate he was not accustomed to. He indicated that he was

given four IVs in order to rehydrate.

Analysis

The veteran contends that he developed tendonitis of the

knees, a back disorder with muscle spasm, tinnitus, a tooth

problem, headaches, and heat exhaustion while in service.

The Board notes that efforts to obtain his service medical

records have been futile. The veteran has not indicated that

he has copies of his service medical records. The United

States Court of Claims for Veterans Appeals (Court) has held

that, where the service medical records are presumed

destroyed, the Board's obligation to explain its findings and

conclusions and to consider carefully the benefit-of-the-

doubt rule is heightened. See O'Hare v. Derwinski, 1 Vet.

App. 365 (1991). The Board is satisfied that the evidence of

record shows that VA has made every effort to secure any

additional service records for the veteran.

In general, service connection may be granted for a

disability resulting from disease or injury incurred in or

aggravated by service. 38 U.S.C.A. §§ 1110, 1131.

In order to establish service connection for the claimed

disorder, the following must be present: Medical evidence of

a current disability; medical, or in certain circumstances,

lay evidence of in-service incurrence or aggravation of a

disease or injury; and medical evidence of a nexus between

the claimed in-service disease or injury and the current

disability. See Hickson v. West, 12 Vet. App. 247, 253

(1999).

Additionally, if a condition noted during service is not

shown to be chronic, then generally a showing of continuity

of symptomatology after service is required for service

connection. 38 C.F.R. § 3.303(. Some chronic diseases are

presumed to have been incurred in service, although not

otherwise established as such, if manifested to a degree of

ten percent or more within one year of the date of separation

from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. §

3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. §

3.309(a) (listing applicable chronic diseases, including

organic diseases of the nervous system).

Service connection may also be granted on the basis of a

post-service initial diagnosis of a disease, where the

physician relates the current condition to the period of

service. In such instances, however, a grant of service

connection is warranted only when "all the evidence,

including that pertinent to service, establishes that the

disease was incurred during service." 38 C.F.R. § 3.303(d).

The Board has carefully reviewed the claims file and

considered the veteran's assertions regarding his tendonitis

of the knees, a back disorder with muscle spasm, tinnitus, a

tooth problem, headaches, and heat exhaustion.

The first Hickson element is medical evidence of a current

disability. With regard to the veteran's claim for heat

exhaustion and headaches, the medical evidence indicates that

the veteran currently suffers from transient heat fatigue, to

include headaches, and dehydration. Therefore, the first

Hickson element is satisfied with regard to the disabilities

of residuals of heat exhaustion and headaches.

With regard to the veteran's claims for tendonitis of the

knees, a back disorder with muscle spasm, tinnitus, and a

tooth problem, there is no post-service supportive medical

evidence showing that the veteran currently has any such

existing disabilities. Specifically, with regard to the

veteran's claimed tooth condition, the October 2001 private

medical record indicates that the veteran had a molar

extracted, and a partial was put into place in order to

prevent tipping and movement of the other molars. However,

there is no evidence that the veteran has a current

disability with regard to his mouth or his teeth. Therefore,

the first Hickson element of a current disability is not

satisfied with regard to the disabilities of tendonitis of

the knees, a back disorder with muscle spasm, tinnitus, and a

tooth problem.

The second Hickson element is medical or lay evidence of an

injury during military service. As previously stated, the

veteran's service medical records have not been located. The

second Hickson element is therefore not satisfied as to any

of the veteran's claimed disabilities.

As for the third Hickson element, medical evidence of a nexus

between the claimed disability and an in-service injury,

there is no medical evidence that relates the veteran's two

current disabilities, transient heat fatigue, to include

headaches, to his service. With regard to the claimed

disabilities of tendonitis of the knees, a back disorder with

muscle spasm, tinnitus, and a tooth problem, as stated above,

there is no current medical evidence of any such

disabilities; thus it follows that there is no evidence of a

nexus between these claimed disabilities and service.

Accordingly, the third Hickson element is not satisfied with

regard to any of the veteran's claimed disabilities,

including the two disabilities that are demonstrated by the

current medical evidence.

While the veteran believes he currently has tendonitis of the

knees, a back disorder with muscle spasm, tinnitus, a tooth

problem, headaches, and heat exhaustion as a result of in-

service injuries, he is not competent to provide evidence

that requires medical knowledge. Grottveit v. Brown, 5 Vet.

App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492

(1992). As the preponderance of the evidence is against the

claim, and the benefit-of-the-doubt standard of proof does

not apply. 38 U.S.C.A. § 5107(. Accordingly, the claims

for service connection for tendonitis of the knees, a back

disorder with muscle spasm, tinnitus, a tooth problem,

headaches, and heat exhaustion must be denied.

ORDER

Entitlement to service connection for tendonitis of the knees

is denied.

Entitlement to service connection for a back disorder with

muscle spasm is denied.

Entitlement to service connection for tinnitus is denied.

Entitlement to service connection for removal of a tooth is

denied.

Entitlement to service connection for headaches is denied.

Entitlement to service connection for residuals of heat

exhaustion is denied.

____________________________________________

D. C. Spickler

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

[Guest Berta]

They are defining the three Hickson elements in this case as

1. current documented disability.

2. evidence of inservice event.

3. medical nexus of the two above.

Actually - Hickson elements are just the basic formats and requirements of most SC claims.

Hickson went all the way to the CAVC but his claim failed to satisfy all of these 3 elements -thus the 'Hickson element' reference.

[carlie]

Berta,

Thanks -- I've never seen or heard mention of this before.

carlie