Citation Nr: 0844989 Decision Date: 12/31/08 Archive Date: 01/07/09 DOCKET NO. 05-19 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a cerebral abscess, claimed as a stroke, to include as secondary to service- connected disability. 2. Entitlement to service connection for a seizure disorder, to include as secondary to service-connected disability. 3. Entitlement to an evaluation in excess of 60 percent for renal insufficiency with hypertension. 4. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus with erectile dysfunction and left eye cataract. 5. Entitlement to initial evaluations in excess of 10 percent each for peripheral neuropathy of the upper extremities and lower right extremity. 6. Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The veteran had active military service from July 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In September 2008, the veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issues of entitlement to an evaluation in excess of 60 percent for renal insufficiency with hypertension, entitlement to an evaluation in excess of 20 percent for diabetes mellitus with erectile dysfunction and left eye cataract, entitlement to initial evaluations in excess of 10 percent each for peripheral neuropathy of the upper extremities and lower right extremity, and entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A cerebral abscess has not been related by competent medical evidence to active service or to service-connected disability. 2. A seizure disorder has not been related by competent medical evidence to active service or to service-connected disability. CONCLUSIONS OF LAW 1. A cerebral abscess was not incurred in or aggravated by service and is not causally related to service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). 2. A seizure disorder was not incurred in or aggravated by service and is not causally related to service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2006). Letters dated in May 2005, January 2005, and March 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must request that the claimant provide any evidence in his possession that pertains to the claim based upon 38 C.F.R. § 3.159(b). The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. However, although this notice is no longer required, the Board notes that the veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The May 2004 and January 2005 letters told him to provide any relevant evidence in his possession. See Pelegrini, 18 Vet App. at 120. The March 2006 letter advised the veteran of how VA determines disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although not all these letters were sent prior to initial adjudication of the veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, and the claim was readjudicated and additional supplemental statements of the case (SSOCs) were provided to the veteran in October 2005, October 2006, and June 2007. The veteran's service medical records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. To date, the RO has not afforded the veteran a VA examination, with an opinion as to the etiology of his claimed disability. Such an opinion is "necessary" under 38 U.S.C.A. § 5103A(d) when: (1) there is competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the veteran suffered an event, injury or in service or has a disease or symptoms of a disease within a specified period, (3) there is an indication the current disability or symptoms maybe associated with service, and (4) there is not sufficient medical evidence to make a decision. See 38 U.S.C.A. § 5103A(c)(4). In this case, as no medical evidence has been presented showing the possibility that a cerebral abscess or a seizure disorder is related to the veteran's military service or related to a service-connected disability, the Board finds that an etiology opinion is not "necessary." As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The veteran contends that he suffered a stroke and seizures as a result of a service-connected disability. The evidence shows that the veteran presented to a private hospital emergency room by EMS on April 11, 2004 with complaints of four episodes lasting several minutes of left local and left arm weakness some involuntary tremor. Head CT showed right frontal low intensity edema most likely infarction, and clinical impression was cerebral vascular accident (stoke). At the veteran's request, he was transferred to VA facility in improved condition. An inter- facility transfer form notes a diagnosis of CVA. The veteran was admitted to VA hospital and loaded on Dilantin. His second day of hospitalization, the veteran had a generalized seizure (left arm shaking, right eye deviation, and left facial twitching). He underwent an MRI of the brain which noted local enhancing lesion involving the right parietal region with mass effect edema. The veteran had several more seizures, and the Dilantin level was increased from 11. The veteran underwent a craniotomy on April 16, 2004 in which pus was encountered consistent with a brain abscess. An infectious disease specialist diagnosed cerebral abscess - Fusibacterium. The veteran had a couple more episodes of numbness and tingling in the left arm which did not generalize. The Dilantin level was increased from 17 to 22 as the dose was increased to 400 mg. The veteran suffered no more epileptiform activity. The veteran was seen by VA primary care provider on April 25, 2004. Medication list showed the veteran was prescribed four 100 mg Dilantin capsules a day. On May 10, 2004, the veteran presented to private hospital emergency room by car with complaints of slurred speech and vomiting. The clinical impression was cerebral abscess status post recent craniotomy and Dilantin toxicity. The veteran was transferred to VA facility. The veteran was admitted to VA hospital with complaints of headache, nausea/vomiting, slurred speech, and worsening disequilibrium. Lab results indicated Dilantin level was 43. Diagnosis was Dilantin toxicity, and Dilantin was held throughout hospital day. The veteran was discharged home with instruction to take two 100 mg Dilantin capsules by mouth at bedtime to prevent seizures. Subsequent VA follow-up reports note that the last seizure was in April/May 2004. A January 2007 Neurology follow-up note states that the veteran has had no seizure activity since initiation of Dilantin therapy. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The first question that must be addressed, therefore, is whether incurrence of any brain disorder is factually shown during service. The Board concludes it was not. The service medical records are absent complaints, findings or diagnoses of any brain disorder, including any cerebral abscesses or seizures. Thus, there is no medical evidence that shows that the veteran suffered from a brain disorder during service. Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Such evidence is lacking here. In light of the lack of any relevant history reported between the veteran's date of discharge and 2004, service connection is not warranted under 38 C.F.R. § 3.303(b). When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury pursuant to 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen with language that requires that a baseline level of severity of the nonservice- connected disease or injury must be established by medical evidence created before the onset of aggravation. With respect to whether the veteran has a current chronic disability, the Board notes that evidence indicates that although the veteran's symptoms reported in April 2004 appeared initially to be a CVA or stroke, MRI of the brain dated in May 2004 showed no evidence of acute infarction or hemorrhage. In addition, in June 2004, the veteran underwent a VA examination in which the VA examiner noted that it could not be determined whether the veteran's symptoms including slurred speech and balance abnormality were from the abscess or from Dilantin toxicity. The examiner noted, however, that the veteran's symptoms had fully resolved since the veteran's hospitalization. The examiner diagnosed the veteran with status post recent hospitalization for brain abscess with neurosurgery and full recovery and additional diagnosis on recent hospitalization of Dilantin toxicity resolved by adjustment of his dose and monitoring of the results down to a normal level. Thus, even assuming that the veteran has chronic residuals as a result of his brain abscess or seizures, the question remains whether there is medical evidence of a relationship between the disabilities and military service. However, no medical professional has ever related a cerebral abscess, a seizure disorder, or residuals from either to the veteran's military service or to a service-connected disability. The April 29, 2004 discharge summary includes a diagnosis of seizures secondary to cerebral abscess. A June 2, 2004 Infectious Disease Clinic report notes that the veteran's right frontoparietal abscess status post craniotomy 4/16/2004 found to be infectious with culture growing fusibacterium supposedly is from tooth abscess at time status post also tooth extraction. A July 2004 VA medical report notes that the right frontal-parietal brain abscess (fusibacterium) in April 2004 was attributed to dental infection. In the absence of competent medical evidence that a current brain or seizure disability exists and that the disability was caused by or aggravated by the veteran's military service or service-connected disability, the criteria for establishing service connection for a cerebral abscess or service connection for a seizure disorder have not been established. 38 C.F.R. § 3.303. Finally, the Board has reviewed and acknowledges the veteran's own statements that he suffered a stroke and seizures as a result of service-connected disability and/or treatment for service-connected disabilities. However, although the veteran is competent to provide evidence regarding symptomatology, he is not competent to provide evidence regarding diagnosis or etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Only a medical professional can provide evidence of a diagnosis or etiology of a disease or disorder. Thus, the veteran is not qualified to diagnose a stroke or to state that his symptoms are due to service-connected disability and/or treatment for service- connected disability. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for a cerebral abscess, claimed as a stroke, is denied. Entitlement to service connection for a seizure disorder is denied. REMAND With respect to the issues of entitlement to an evaluation in excess of 20 percent for diabetes mellitus with erectile dysfunction and left eye cataract, entitlement to initial evaluations in excess of 10 percent each for peripheral neuropathy of the upper extremities and lower right extremity, and entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity, a Notice of Disagreement (NOD) with respect to these issues addressed by the December 2007 rating decision was received in December 2007. The RO must now issue a statement of the case (SOC) and provide the veteran with an opportunity to perfect his appeal as to these issues. Therefore, the appropriate Board action is to remand the issue to the RO for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). With respect to the issue of entitlement to an evaluation in excess of 60 percent for renal insufficiency with hypertension, in order to satisfy the duty to notify provisions for an increased-compensation claim, VA must notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. If the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement to the claimant. The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The veteran was not specifically advised that he needed to provide evidence demonstrating the effect worsening of his service-connected disability has on the claimant's employment and daily life or of the Diagnostic Code criteria necessary for entitlement to a higher disability rating. Therefore, it is apparent that the Board must remand this case to ensure that the veteran is properly notified of the VCAA and to determine whether all evidence needed to consider the claim has been obtained. In addition, the veteran essentially testified in September 2008 that his symptoms related to renal insufficiency had worsened and that he was told that his kidneys were function at around 40 to 53 percent. The United States Court of Appeals for Veterans Claims (Court) has held that when a veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Thus, the veteran should be provided an opportunity to report for a current VA examination to ascertain the current severity of his service-connected renal insufficiency with hypertension. Accordingly, the case is REMANDED for the following action: 1. The veteran and his representative should be provided an SOC as to the issues of entitlement to an evaluation in excess of 20 percent for diabetes mellitus with erectile dysfunction and left eye cataract, entitlement to initial evaluations in excess of 10 percent each for peripheral neuropathy of the upper extremities and lower right extremity, and entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity. The veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. 2. Compliance with the VCAA should be ensured, including notifying the veteran that, to substantiate a claim, the veteran must provide, or ask VA to obtain, medical or lay evidence demonstrating the effect that worsening has on the claimant's employment and daily life. The veteran must also be provided general notice of the requirements under the diagnostic code under which the veteran's service- connected renal insufficiency with hypertension is rated (Diagnostic Code 7541) as well as examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. 3. The veteran should be afforded a VA examination to ascertain the severity of his renal insufficiency with hypertension. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished including studies that measure albumin, albuminuria, and kidney function in terms of blood urea nitrogen and creatinine levels. The examiner should be asked to specifically address whether the veteran's renal dysfunction is (1) manifested by persistent edema and albuminuria with BUN 40 to 80 milligrams percent; or, creatinine 4 to 8 milligrams percent; or, generalized poor health, characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, (2) requires regular dialysis, or precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN with more than 80 milligrams percent; or, creatinine, more than 8 milligrams percent; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 4. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs