Citation Nr: 0811507 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 04-41 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for peripheral neuropathy of the lower extremities. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J.G. Reinhart, Associate Counsel INTRODUCTION The veteran served on active duty from September 1967 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his November 2004 substantive appeal, the veteran requested a hearing before a member of the Board. In a December 2007 letter, the RO informed the veteran that a hearing had been scheduled in January 2008. In December 2007, the veteran submitted a writing in which he cancelled his hearing request and stated that he had nothing new to add. One of the matters the Board must address is which issue or issues are properly before it at this time. Under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case (SOC) is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO; the veteran must timely express disagreement with the decision; VA must respond by issuing a statement of the case that explains the basis for the decision to the veteran; and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his or her argument in a timely-filed substantive appeal. 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.203. See also 38 U.S.C.A. § 7104; 38 C.F.R. §§ 19.4, 20.101 (the Board has jurisdiction to resolve questions as to its own jurisdiction). See also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (it is a well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, and that a potential jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party at any stage in the proceedings, and, once apparent, must be adjudicated). In April 2006, the veteran initiated an appeal of an RO decision that denied service connection for a skin disorder. That appeal was not perfected and is not before the Board at this time. In October 2005, the RO denied the veteran's claim for entitlement to service connection for a skin disorder. He subsequently initiated an appeal of that decision by the filing of a notice of disagreement in April 2006. In July 2006, the RO responding by issuing a statement of the case. The veteran failed to perfect his appeal to the Board. As the process outlined above was not completed, the veteran's appeal of the October 2005 RO decision is not before the Board or VA at this time. FINDING OF FACT The veteran's peripheral neuropathy did not have onset during his active service, did not manifest until more than thirty years after his most recent active service exposure to an herbicide agent, and is not otherwise etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1110, 1116 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed in 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that he or she was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f). If a veteran was exposed to Agent Orange during active military, naval, or air service, certain specified diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). The list of diseases includes acute and subacute peripheral neuropathy. See 38 C.F.R. § 3.309(e). For purposes of the presumption, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. Id. VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630- 27641 (2003). Based on the above, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, a veteran must show that he or she served in the Republic of Vietnam during the Vietnam War era. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). Brock v. Brown, 10 Vet. App. 155, 162 (1997). However, even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) In this case, the record shows that the veteran served in the Republic of Vietnam during the Vietnam War. Thus, he is presumed to have been exposed to an herbicide agent during service. However, the earliest evidence that the veteran has peripheral neuropathy comes more than 30 years after separation from service and there is no competent evidence to establish (or even indicate) that the veteran's current peripheral neuropathy is related to his service, including as to exposure to an herbicide agent. Service medical records are absent for report of neurological symptoms involving his extremities. An August 1969 report of separation medical examination shows normal clinical evaluations of the veteran's lower extremities and neurologic system. On an associated report of medical history, the veteran indicated that he did not then have nor ever had neuritis or paralysis. This is evidence against his claim because these records show that peripheral neuropathy did not have onset during the veteran's service. Post service, the first medical evidence mentioning the veteran's neurological system is found in clinic notes from the Family Care Clinic, dated in May 1999. Those records list physical examination findings including that the veteran had no edema of the extremities, had bilateral peripheral pulses of 1 plus, had no focal neurologic deficit, his central nervous system was intact, and sensitivity, coordination, properception, and gait were all normal. In other words, the veteran's lower extremities were neurologically normal. This is evidence against his claim because these records show that, almost 30 years after separation from service, the veteran did not have peripheral neuropathy. A September 1999 emergency room report from Shamrock General Hospital marks the first evidence that the veteran has a neurological deficit. That report shows that the veteran was brought to the hospital following a motor vehicle accident in which he sustained close head injury and chest and pelvic trauma, including multiple fractures. He was diagnosed, in part, with polyneuritis. June 2000 records from "F.L.", M.D., mark the first mention of neurologic deficits specific to the veteran's lower extremities. Dr. F.L. described the injuries from the September 1999 accident and reported that the veteran complained of weakness, frequent falls, difficulty walking, and numbness and decreased sensitivity in both lower extremities. These records tend to show that the veteran's peripheral neuropathy is unrelated to his service and, instead, are the result of his September 1999 accident, providing more evidence against this claim. VA outpatient clinic notes contain a September 2003 report of an electromyography study describing nerve conduction results for the veteran's lower extremities and stating an impression that the findings suggested neuropathic process. An assessment listed in December 2003 VA clinic notes states that the veteran had peripheral neuropathy by nerve conduction study. To the extent that the veteran, a layperson, asserts that his peripheral neuropathy is etiologically related to his service, including exposure to an herbicide agent, such opinion is not competent evidence. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds that the question of whether peripheral neuropathy, first manifesting 30 years after exposure to an herbicide agent, is related to that exposure, is far too complex a medical question to be subject to the opinion of a layperson. Thus, all post service medical evidence shows that the veteran was first found to have peripheral neuropathy more than 30 years after his last possible exposure to an herbicide agent during service, and even then, only following a motor vehicle accident in September 1999. The presumptive provisions described above are not for application because the veteran's peripheral neuropathy manifested not within weeks or months of his last exposure to an herbicide agent during service, but more than thirty years after that exposure. No competent medical evidence of record attributes his peripheral neuropathy to his service, including to exposure to an herbicide agent. Based on the above, the preponderance of the evidence is against the veteran's claim for entitlement to service connection for peripheral neuropathy. Hence, his claim must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the- doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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 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). Proper notice from 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) 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). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of letters sent to the veteran in November 2003 and March 2006 that fully addressed all four notice elements. The November 2003 letter was sent prior to the initial RO decision in this matter. The letter informed the veteran of what evidence was required to substantiate the claims and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information, which would include that in his possession, to the RO. Here, the duty to notify as to assignment of disability ratings and effective dates was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In this case, the VCAA duty to notify, with regard to assignment if disability ratings and effective dates, was satisfied subsequent to the initial RO decision by way of the letter sent to the veteran in March 2006 that fully addressed all four notice elements. The letter informed the veteran as to how VA assigns disability ratings and effective dates, what evidence was required to substantiate these elements, and of the veteran's and VA's respective duties in obtaining evidence. The veteran was again asked to submit evidence and/or information, which would include that in his possession, to the RO. Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of a supplemental statement of the case issued in November 2006, after the notice was provided. For these reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, all competent evidence of record shows that the veteran's peripheral neuropathy manifested many decades after service and there is no evidence of disease, injury, or an event during service related to his peripheral neuropathy. For this reason, the Board declines to afford the veteran a medical examination or obtain a medical opinion. The Board finds that both service and post-service medical records provide evidence against this claim, rather than indicating some form of association. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records and VA outpatient treatment records. The veteran submitted private treatment records from the Shamrock General Hospital, the Family Care Clinic, and "F.L.", M.D. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs