Citation Nr: 0810140 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-24 298 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for amyotrophic lateral sclerosis (ALS). ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The veteran served on active duty from November 1985 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 RO decision, which denied a claim for service connection for ALS. This claim was remanded by the Board in February 2005 in order to afford the veteran adequate notice of VA's duty to notify and assist and to issue a statement of the case (SOC). The Board would like to note that the veteran's Social Security Administration (SSA) records and certain VA Medical Center (VAMC) treatment records were associated with the claims folder after the June 2005 SOC was issued. A supplemental statement of the case (SSOC) for this claim was not issued. However, as the SSA records and VAMC treatment records give no indication that the veteran has a diagnosis of ALS or receives treatment for ALS, these records are not pertinent to the veteran's claim for service connection for ALS and the Board will proceed to adjudicate on the merits of the claim. FINDING OF FACT The veteran is not shown by competent medical evidence to have ALS that is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW ALS was not incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim, 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 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (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 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) request that the claimant provide any evidence in his possession that pertains to the claim. VCAA letters dated in April 2002 and March 2005 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records, SSA records, VA medical records, and private medical records are in the file. All records identified by the veteran have been obtained, to the extent possible. VA has fulfilled its duty to assist. With a service connection claim, 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. 38 C.F.R. § 3.159(c)(4)(i) (2007). The veteran was examined in September 2002 and November 2002. These examination reports and opinions are thorough and complete. The examiner at the September 2002 examination noted that the claims file had been reviewed. Therefore, the Board finds these examination reports and the opinions of the examiners sufficient upon which to base a decision. 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, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the 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 claim. 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). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a 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 (West 2002). 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) (2007). 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) (2007). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and amyotrophic lateral sclerosis becomes manifest to a degree of 10 percent within one year of date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Gutierrez v. Principi 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). The veteran has contended that he has ALS as the result of his active duty service. See Claim, February 2002. Specifically, he has alleged that he developed ALS as a result of vaccinations he was given in service in preparation for the Persian Gulf War and as a result of unloading equipment sent from Saudi Arabia. See VA examination report, August 2003; notice of disagreement, October 2002; veteran's statement, May 2002. The Board notes that the entirety of the veteran's service medical records are absent any complaints, treatment, or diagnosis of ALS, and there is no indication in the medical evidence of record that the veteran has a current diagnosis of ALS. In September 2002, the veteran underwent a VA examination. The examiner reviewed the claims folder and noted the veteran's complaints of generalized pain and joint aching, particularly in the lower back, left shoulder, and left wrist. After thoroughly examining the veteran, the examiner did not render a diagnosis of ALS. The examiner specifically opined that the veteran's complaint is unfounded. In November 2002, the veteran was again examined. At this neurological consultation, the examiner noted the veteran's complaints of constant low back pain since 1985, frequent neck pain, and intermittent tingling sensation and numbness of fingers of the right hand for about 3 or 4 years. After thoroughly examining the veteran, the examiner noted that no objective neurological deficit was revealed. A diagnosis of ALS was not rendered. The threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the veteran's sincere belief in his claim, the competent medical evidence of record does not show the veteran to have ALS; thus, there may be no service connection for this claimed disability. Under 38 C.F.R. § 3.317, a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of § 3.317 may be service connected, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2006 and by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1) (2007). In this case, there is no evidence that the veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War, as required under 38 C.F.R. § 3.317(d)(1), nor does the veteran contend that he actually served in this region. Further, he argues that he has a diagnosed illness, namely ALS. This regulation is not applicable. The Board acknowledges the veteran's assertions that he developed ALS as the result of certain vaccinations he was given in service in preparation for the Persian Gulf War and as a result of unloading equipment sent from Saudi Arabia. See VA examination report, August 2003; notice of disagreement, October 2002; veteran's statement, May 2002. No medical evidence, however, has been submitted to support this contention. The veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for ALS must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for ALS is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs