Citation Nr: 0809725 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 06-12 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for residuals of cerebrovascular accident with vascular dementia. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD B. A. Jonas, Associate Counsel INTRODUCTION The veteran served on active duty from February 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The veteran's August 2005 Notice of Disagreement asserts that he suffers from war dreams. The issue of post-traumatic stress disorder is referred to the RO for appropriate action. FINDINGS OF FACT The veteran's residuals of cerebrovascular accident with vascular dementia are not related to his active military service. CONCLUSION OF LAW Residuals of cerebrovascular accident with vascular dementia were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 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). The service medical records are negative for any complaints, diagnosis, or treatment regarding the cardiovascular system. The December 1968 separation examination indicates that the lungs and chest, heart, and vascular system were normal. Therefore, service connection cannot be established on a direct basis because there was no disease or injury in service. The veteran asserts that the cerebrovascular accident with vascular dementia is secondary to diabetes mellitus. The veteran is not competent to give medical opinions. In May 2005, a VA examiner opined that hypertension and coronary artery disease are by far the more likely cause of the veteran's stroke, rather than the diabetes. The VA examiner based this medical opinion on a review of the veteran's history. He notes the veteran's long history of coronary artery disease and hypertension as opposed to the diabetes, which had its onset in 2002. Because the medical evidence shows that diabetes was not likely the cause of the cerebrovascular accident and there was no in-service evidence to serve as a direct basis for service connection, the claim must be denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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; and (3) that the claimant is expected to provide. Proper notice must also ask the claimant to provide any evidence in his or her possession that pertains to the claim. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, an April 2005 rating decision deferred a decision on entitlement to service connection for the disability at issue in this appeal, and stated that the service connection issue had been raised by VA treatment records and the veteran's examination for housebound status or need for aid and attendance. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in September 2005 correspondence fulfills the provisions of 38 U.S.C.A. § 5103(a). The Board acknowledges that under 38 U.S.C.A. § 5103(a) notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, notice had been given regarding an earlier claim in July 2002, and was given during the appeal concerning the claim inferred by the RO from VA treatment records. The veteran has been afforded a meaningful opportunity to participate in the adjudication of his claim, to include the opportunity to present pertinent evidence. Consequently, any error in the timing of the notice was harmless and the appellant was not prejudiced. Simply put, there is no evidence of any VA error in notifying the appellant that reasonably affects the fairness of this adjudication. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). The Board acknowledges that the veteran was not provided notice of the appropriate disability rating and effective date of any grant of service connection. The failure to provide this notice is harmless because the preponderance of the evidence is against the appellant's claim for service connection and any questions as to the appropriate disability rating or effective date to be assigned are moot. In addition, VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim. The veteran's VA treatment records and VA examinations have been associated with the claims folder. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. ORDER Entitlement to service connection for residuals of cerebrovascular accident with vascular dementia is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs