Citation Nr: 0733115 Decision Date: 10/22/07 Archive Date: 11/02/07 DOCKET NO. 05-40 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for peripheral neuropathy of the right upper and bilateral lower extremities, to include as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD Hallie E. Brokowsky INTRODUCTION The veteran had active service from July 1968 to July 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Columbia, South Carolina. FINDING OF FACT Peripheral neuropathy of the right upper and bilateral lower extremities was initially demonstrated years after service, and has not been shown by competent evidence to be causally related to the veteran's active service - including presumed exposure to Agent Orange. CONCLUSION OF LAW Peripheral neuropathy of the right upper and bilateral lower extremities was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 5103, 5103A, 5107 (West 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2005); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VA satisfied its duty to notify by means of August 2004 and July 2005 letters from the agency of original jurisdiction (AOJ) to the appellant. The letters informed the appellant of what evidence was required to substantiate his claim for service connection and of his and VA's respective duties for obtaining evidence, as well as requested that the veteran submit any additional evidence in his possession pertaining to his claim of entitlement to service connection for peripheral neuropathy of the right upper and bilateral lower extremities. In addition, a March 2006 letter explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of service connection, in compliance with Dingess/Hartman. Nevertheless, because the instant decision denies the veteran's claim for service connection for peripheral neuropathy of the right upper and bilateral lower extremities, no disability rating or effective date will be assigned. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was decided after the issuance of initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Duty to Assist With regard to the duty to assist, the claims file contains the veteran's service medical records, and reports of VA and private post-service treatment and examination. Additionally, the claims file contains the veteran's own statements in support of his claim, including a transcript of his testimony before the undersigned Veterans Law Judge (VLJ). The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record for the time period at issue, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Legal Criteria Service Connection, Generally A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). Aggravation A veteran is considered to be in sound health when examined, accepted, and enrolled for service - except as to defects, infirmities, or disorders noted at the time of his entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service, and was not aggravated by such service. See 38 U.S.C.A. § 1111. In a precedent opinion, VAOPGCPREC 3-2003 (July 16, 2003), VA's General Counsel discussed the requirements for rebutting the presumption of sound condition when entering the military under 38 U.S.C. § 1111 and 38 C.F.R. § 3.304. The General Counsel held that, to rebut the presumption of sound condition under 38 U.S.C. § 1111, 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. The veteran claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. The provisions of 38 C.F.R. § 3.304(b) were amended effective May 4, 2005 (See 70 Fed. Reg. 23029 (May 4, 2005)) and are now consistent with 38 U.S.C.A. § 1111. VA's General Counsel went on to hold that the provisions of 38 C.F.R. § 3.306(b), providing that aggravation may not be conceded unless the pre-existing condition increased in severity during service, are not inconsistent with 38 U.S.C. § 1111. Section 3.306(b) properly implements 38 U.S.C. § 1153, which provides that a pre-existing injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service. The requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C. § 1153 and does not apply to determinations concerning the presumption of sound condition under 38 U.S.C. § 1111. 38 U.S.C. § 1111 requires VA to bear the burden of showing the absence of aggravation. Agent Orange A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 C.F.R. § 3.307(a). Furthermore, the diseases listed at 38 C.F.R. § 3.309(e) shall, in turn, be presumptively service connected if this requirement is met, even though there is no record of such disease during service. They are: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas. 38 C.F.R. § 3.309(e). The Board notes additionally that, as a result of amendments to 38 C.F.R. § 3.309(e), Type-II Diabetes Mellitus was added to the list of diseases for which presumptive service connection can be established. The change was effective July 9, 2001. See 66 Fed. Reg. 23166, 23169 (May 8, 2001). A presumption of service connection based on exposure to herbicides is not warranted, however, for any condition for which the Secretary of VA has not specifically determined a presumption of service connection is warranted. See Notice, 64 Fed. Reg. 59232-59243 (1999). The diseases listed at 38 C.F.R. § 3.309(e) must have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda must have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. See 38 C.F.R. § 3.307(a)(6)(ii). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishing entitlement to service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Analysis Based on the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for peripheral neuropathy of the right upper and bilateral lower extremities. 38 C.F.R. § 3.102. The initial question is whether peripheral neuropathy of the right upper and bilateral lower extremities was present prior to service. The record discloses that the veteran reported a medical history of childhood polio, with atrophy of the left hand and arm, in conjunction with treatment for numbness of the arms and legs in March 1972. An undated industrial medical examination report shows that a neurological examination was normal. Clinical evaluation of the extremities was also normal. In Crowe v. Brown, 7 Vet. App. 238 (1994), the Court indicated that the presumption of soundness attaches only where there has been an induction medical examination, and where a disability for which service connection is sought was not detected at the time of such examination. The Court noted that the regulation provides expressly that the term "noted" denotes only such conditions as are recorded in examination reports, and that history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1) (2007). The Board concludes, accordingly, that the presumption of soundness at entrance attaches. This presumption is not rebutted by clear and unmistakable evidence of record that the veteran had a peripheral neuropathy of the right upper and bilateral lower extremities prior to service that was not aggravated by service. As previously mentioned, the Board acknowledges that the veteran's service medical records show treatment for numbness of the arms and legs, and that the veteran had atrophy of the left arm and hand as a result of childhood polio. However, the veteran's June 1972 separation examination showed a normal clinical evaluation of the upper and lower extremities, and the musculoskeletal system. There is no indication that the veteran reported any complaints regarding his extremities at his discharge. Moreover, the veteran did not report any problems with his right upper and bilateral lower extremities at his August 1972 VA examination. See 38 C.F.R. § 3.303(a) (service connection requires that the facts "affirmatively [show] inception or aggravation . . . ."). This is probatively significant and given a lot of weight and credibility because this was at a time contemporaneous to the alleged incident in question. See, e.g., Struck v. Brown, 9 Vet. App. 145, 155-56 (1996). Moreover, there is no objective evidence of continuance of symptomatology during the years following the veteran's discharge from service so as to establish chronicity. According to private treatment records from D. M. G., M.D., (Dr. G) the veteran was not treated for his right upper and bilateral lower extremities until September 1985, over 13 years after his service in the military had concluded, and he was not diagnosed with peripheral neuropathy until August 2001, over 29 years after his discharge from the military. See Savage, supra (requiring medical evidence of chronicity and continuity of symptomatology). The Board notes that, in the absence of demonstration of continuity of symptomatology, or a competent nexus opinion, the initial demonstration of current disability years after service is too remote from service to be reasonably related to service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Likewise, the veteran reported a history of a childhood polio, affecting his left upper and right lower extremities to Dr. G in 1985. Moreover, physical examination by Dr. G in September 1985 showed stigmata of the veteran's polio, as well as bilateral carpal tunnel syndrome of the upper extremities. See 38 C.F.R. § 3.303(b) (subsequent, isolated manifestations of a chronic disorder are not service connected where they are clearly attributable to intercurrent causes). Furthermore, although the veteran is presumed to have been exposed to Agent Orange during his service in Vietnam, and peripheral neuropathy is a condition entitled to presumptive service connection in accordance with 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307(a)(6), 3.309(e), the veteran is not entitled to service connection on this basis, as his peripheral neuropathy was diagnosed well outside the one year presumptive period. See also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability . . ."). More significantly, none of the veteran's treating providers, nor the January 2006 VA examiner have proffered a nexus opinion concluding that his current peripheral neuropathy of the right upper and bilateral lower extremities is in any way related to his military service. See 38 C.F.R. § 3.303(a) (service connection requires that the facts "affirmatively [show] inception or aggravation . . . ."). Indeed, the January 2006 VA examiner found that his peripheral neuropathy of the right upper and bilateral lower extremities could not be found to have been related to his service without resorting to speculation; however, service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. See Bloom v. West, 12 Vet. App. 185, 187 (1999). As such, there is no competent clinical evidence that relates the veteran's peripheral neuropathy of the right upper and bilateral lower extremities to service. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) ("In order for service connection for a particular disability to be granted, a claimant must establish he or she has that disability and that there is 'a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service.'" Citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). The only evidence portending that the veteran's peripheral neuropathy of the right upper and bilateral lower extremities is in any way related to his service in the military, including his presumed Agent Orange exposure, comes from him personally. As a layman, the veteran simply does not have the necessary medical training and/or expertise to determine the cause of this condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). See, too, Savage v. Gober 10 Vet. App. at 495-498, indicating that, even in situations of continuity of symptomatology after service, there still must be medical evidence relating the current condition at issue to that symptomatology. Id. As such, his allegations, alone, have no probative value without medical evidence substantiating them. So the preponderance of the evidence is against the claim, in turn, meaning the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Entitlement to service connection for peripheral neuropathy of the right upper and bilateral lower extremities, to include as secondary to Agent Orange exposure, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs