Citation Nr: 0724170 Decision Date: 08/03/07 Archive Date: 08/15/07 DOCKET NO. 05-00 087A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for neurologic amyotrophy (variously diagnosed as infectious neuritis, post polio syndrome, and a right shoulder disorder). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Jessica J. Wills, Associate Counsel INTRODUCTION The veteran served on active duty from May 1957 to March 1961. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied the benefits sought on appeal. The veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. The Board reopened the veteran's claim and remanded the merits of case for further development in October 2006. That development was completed, and 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 veteran was not found to have residuals of polio, neurologic amyotrophy, or a right shoulder disorder on his official service entrance medical examination, and the presumption of soundness has not been rebutted. 3. The veteran has not been shown to currently have neurologic amyotrophy that is causally or etiologically related to his military service. CONCLUSION OF LAW Neurologic amyotrophy was not incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the RO did provide the appellant with notice in January 2004, prior to the initial decision on the claim in April 2004, as well as in May 2005 and November 2006. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the veteran in the notice letters about the information and evidence that is necessary to substantiate his claim for service connection. Specifically, the January 2004, May 2005, and November 2006 letters stated that the evidence must show that that he had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. Additionally, the December 2004 statement of the case (SOC) and the May 2005 and March 2007 supplemental statements of the case (SSOC) notified the veteran of the reasons for the denial of his application and, in so doing, informed him of the evidence that was needed to substantiate his claim. In addition, the RO notified the veteran in the notice letters about the information and evidence that VA will seek to provide. In particular, the January 2004, May 2005, and November 2006 letters indicated that reasonable efforts would be made to help him obtain evidence necessary to support his claim and that VA was requesting all records held by Federal agencies, including service medical records, military records, and VA medical records. The veteran was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claim. The RO also informed the veteran about the information and evidence that he was expected to provide. Specifically, the January 2004, May 2005, and November 2006 letters notified the veteran that he must provide enough information about his records so that they could be requested from the agency or person that has them. The letters also requested that he complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, if there were any private medical records that he would like VA to obtain on his behalf. In addition, the January 2004 and May 2005 letters stated that it was still the veteran's responsibility to support his claim with appropriate evidence. Further, the January 2004, May 2005, and November 2006 letters informed him that it was his responsibility to ensure that VA receives all requested records that are not in the possession of a Federal department or agency. Although the notice letters that were provided to the veteran did not specifically contain the "fourth element," the Board finds that the appellant was otherwise fully notified of the need to give to VA any evidence pertaining to his claim. In this regard, the RO has informed the appellant in the rating decision, SOC, and SSOCs of the reasons for the denial of his claim and, in so doing, informed him of the evidence that was needed to substantiate that claim. All the law requires is that the duty to notify is 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). As noted above, because each of the four notice requirements has been fully satisfied in this case, any error in not providing a single notice to the appellant covering all content requirements is harmless error. Further, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above, which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. In this regard, the Board notes that the November 2006 letter and the March 2007 SSOC informed him that a disability rating was assigned when a disability was determined to be service- connected and that such a rating could be changed if there were changes in his condition. The letter and SSOC also explained how disability ratings and effective dates were determined. In addition, the duty to assist the appellant has also been satisfied in this case. The veteran's service medical records as well as his VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The veteran was also afforded a VA examination in December 2006. VA has further assisted the veteran and his representative throughout the course of this appeal by providing them with a SOC, which informed them of the laws and regulations relevant to the veteran's claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition under section 1111 for conditions not noted at entrance to service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable". Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established. Black's Law Dictionary 1067 (5th ed. 1979). Thus, where the presumption of sound condition is rebutted, the veteran is not entitled to service connected benefits because it has been shown that his disability pre-existed service and was not aggravated in service. See Wagner, 370 F.3d at 1094- 1096. In such cases, where the presumption of sound condition at entrance to service cannot be rebutted, the assumption of the fact for which the presumption stands -- that is, that the veteran was in sound condition at entry to service as to the disability for which he seeks service connection -- must be assumed as a matter of law. Accordingly, service connection may not be granted on the basis of aggravation of a preexisting disease or injury in such a case. Rather, where the government fails to rebut the presumption of soundness under section 1111, the veteran's claim must be considered one for service incurrence or direct service connection. See Wagner, 370 F.3d at 1094-1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the veteran is not entitled to service connection for neurologic amyotrophy. In this case, the presumption of soundness applies because the veteran's physical examination at the time he enlisted in the service in May 1957 did not find him to have residuals of polio, neurologic amyotrophy, or a right shoulder disorder. The medical evidence of record does show that the veteran was diagnosed and treated for polio prior to his period of service. However, the May 1957 examining physician specifically indicated that there were no residuals. Although there is some evidence indicating that the veteran may have had a preexisting disorder, including his own statements and letters from private physicians, the Board finds that there is insufficient evidence establishing that residuals of polio, neurologic amyotrophy, or a right shoulder disorder clearly and unmistakably existed prior to service. Thus, as a matter of law, the presumption of soundness cannot be rebutted, and the Board must find that residuals of polio, neurologic amyotrophy, and a right shoulder disorder did not preexist his period of service. Therefore, the Board's analysis must turn to the issue of whether a current disorder was incurred during the veteran's active service. See Wagner v. Principi, 370 F.3d 1089, 1094- 1096 (Fed. Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). VAOPGCPREC 3-03 (July 16, 2003). The veteran's service medical records are negative for any complaints, treatment, or diagnosis of polio or residuals thereof, neurolgic amyotrophy, or a right shoulder disorder. In fact, the veteran's February 1961 separation examination found his upper extremities to be normal, and he did not seek treatment for several years following his separation from service. Therefore, the Board finds that residuals of polio, neurologic amyotrophy, and a right shoulder disorder did not manifest during service or for many years thereafter. The Board does observe that private medical records dated in October 1980 indicate that the veteran injured his right arm in service. However, medical opinions premised upon an unsubstantiated account of a claimant are of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant); Wood v. Derwinski, 1 Vet. App. 190, 191-192 (1991)(an opinion may be discounted if it materially relies on a layperson's unsupported history as the premise for the opinion); see LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional). The Board also acknowledges the numerous lay statements submitted in November 2003 indicating that the veteran had written a letter during his period of service in which he stated that he had injured his right arm. While lay witnesses are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Nevertheless, the Board observes that these individuals did not state that they had actually witnessed the injury, nor did they submit a copy of the original, contemporaneous letter. Moreover, the Board notes that the individuals are not competent to testify what the veteran's diagnosis was at that time. With regard to the years-long evidentiary gap in this case between active service and the earliest complaints of residuals of polio, neurologic amyotrophy, and a right shoulder disorder, the Board notes that this absence of evidence constitutes negative evidence tending to disprove the claim that the veteran had an injury or disease in service which resulted in chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the lack of any objective evidence of continuing complaints, symptoms, or findings for many years between the period of active duty and the first complaints or symptoms of residuals of polio, neurologic amyotrophy, or a right shoulder disorder is itself evidence which tends to show that such a disorder did not have its onset in service or for many years thereafter. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). In addition to the lack of evidence showing that residuals of polio, neurologic amyotrophy, and a right shoulder disorder manifested during service or within close proximity thereto, the medical evidence does not link a current diagnosis to his military service. As discussed above, the veteran did not have any complaints, treatment, or diagnosis of neurologic amyotrophy for several years following his separation from service, and there was no event, injury, or disease in service to which a current disorder could be related. Moreover, the December 2006 VA examiner observed that the veteran has been variously diagnosed with a neurologic amyotrophy and infectious neuritis, but stated that post polio syndrome (PPS) is a more appropriate and current diagnosis for the right shoulder disorder. Private medical records dated in August 2006 also indicate that the veteran most likely has a current diagnosis of PPS. To the extent that the veteran's current disorder is related to his polio, the fact remains that service connection has not been established for the latter disorder. In addition, the December 2006 VA examiner opined that it was less than likely that the veteran's right shoulder disorder and current residuals of PPS had their onset in service. As such, the Board concludes that neurologic amyotrophy did not manifest during service and has not been shown to be causally or etiologically to an event, disease, or injury in service. Therefore, the Board finds that a preponderance of the evidence is against the veteran's claim for service connection for neurologic amyotrophy. Because the preponderance of the evidence is against the veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for neurologic amyotrophy is not warranted. Although the veteran contends that he currently has such a disorder that is related to his military service, the veteran is not a medical professional, and therefore his beliefs and statements about medical matters do not constitute competent evidence on matters of medical etiology or diagnosis and absent a professional medical opinion linking a current disorder to service, service connection cannot be granted. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). ORDER Service connection for neurologic amyotrophy is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs