Citation Nr: 0813052 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 05-03 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of a stroke as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities as secondary to service-connected diabetes mellitus. 3. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from January 1968 to December 1969, from April to August 1975, and from December 1975 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied, in pertinent part, the veteran's claims of service connection for residuals of a stroke, peripheral neuropathy of the bilateral upper extremities, and for peripheral neuropathy of the bilateral lower extremities, each as secondary to service-connected diabetes mellitus. The veteran disagreed with this decision in April 2004. He perfected a timely appeal in January 2005 and requested a Travel Board hearing. The veteran failed to report for his Travel Board hearing in January 2008; thus, his Travel Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2007). FINDINGS OF FACT 1. Without good cause, the veteran failed to report for multiple VA examinations scheduled for the purpose of determining the etiology of his claimed residuals of a stroke, peripheral neuropathy of the bilateral upper extremities, and peripheral neuropathy of the bilateral lower extremities. 2. There is no competent medical evidence that the veteran's claimed residuals of a stroke were caused or aggravated by his service-connected diabetes mellitus. 3. The veteran does not have peripheral neuropathy of the bilateral upper extremities that was caused or aggravated by his service-connected diabetes mellitus. 4. The veteran does not have peripheral neuropathy of the bilateral lower extremities that was caused or aggravated by his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The veteran's claimed residuals of a stroke were not caused or aggravated by his service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.655 (2007). 2. The veteran's peripheral neuropathy of the bilateral upper extremities was not caused or aggravated by his service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.655 (2007). 3. The veteran's peripheral neuropathy of the bilateral lower extremities was not caused or aggravated by his service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.655 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in July 2003 and November 2006, VA notified the veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the veteran to submit medical evidence, statements from persons who knew the veteran and had knowledge of his disabilities during service, and noted other types of evidence the veteran could submit in support of his claims. The veteran was informed of when and where to send the evidence. He also was advised that he was being scheduled for VA examination and of the consequences for failing to report for such examination. The November 2006 letter also advised the veteran to submit medical evidence showing that his claimed residuals of a stroke, peripheral neuropathy of the bilateral upper extremities, and peripheral neuropathy of the bilateral lower extremities were caused or aggravated by his service-connected diabetes mellitus. After consideration of the contents of these letters, the Board finds that VA has substantially satisfied the requirement that the veteran be advised to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service- connection claim was provided in March and April 2006, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the Veterans Court held 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 decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the July 2003 letter was issued before the January 2004 rating decision which denied the benefits sought on appeal; thus, the notice was timely. Since the veteran's claims are being denied in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the veteran. See Dingess, 19 Vet. App. at 473. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that the veteran failed to report for several VA examinations scheduled in September 2004 for the purpose of determining the current nature and etiology of his claimed residuals of a stroke, peripheral neuropathy of the bilateral upper extremities, and peripheral neuropathy of the bilateral lower extremities. As noted, a July 2003 letter from the RO informed him that failure to report for a scheduled VA examination may have adverse consequences, including the possible denial of his claim. The January 2005 Supplemental Statement of the Case also informed the veteran that he had failed to report for multiple VA examinations and that failure to report for a scheduled VA examination may have adverse consequences, including the possible denial of his claim. The veteran failed to respond. As will be explained below in greater detail, the veteran's failure to report for VA examinations requires that his claims be rated based on the evidence of record. See 38 C.F.R. § 3.655(a)-(b) (2007). Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and no further action is necessary to meet the requirements of the VCAA. The veteran contends that he incurred residuals of a stroke, peripheral neuropathy of the bilateral upper extremities, and peripheral neuropathy of the bilateral lower extremities as a result of his service-connected diabetes mellitus. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e). Acute and subacute peripheral neuropathy are among the diseases listed in § 3.309 for which presumptive service connection is available based on in-service herbicide exposure. The Secretary of Veterans Affairs also has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. See Brock v. Brown, 10 Vet. App. 155 (1997). Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Reiber v. Brown, 7 Vet. App. 513, 515-16 (1995); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). For valid secondary service connection claims, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). An amendment to 38 C.F.R. § 3.310, effective October 10, 2006, implements the holding in Allen v. Brown, 7 Vet. App. 439 (1995), for secondary service connection on the basis of the aggravation of a non-service-connected disorder by service-connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen by adding language that requires that a baseline level of severity of the non- service-connected disease or injury must be established by medical evidence created before the onset of aggravation. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The veteran's service medical records show that he was not treated for residuals of a stroke, peripheral neuropathy of the bilateral upper extremities, or peripheral neuropathy of the bilateral lower extremities during active service. The veteran's DD Form 214 shows that he was awarded the Vietnam Service Medal, the Vietnam Campaign Medal, and the Combat Infantryman's Badge. The post-service medical evidence shows that, on VA examination in August 2003, the veteran complained of peripheral neuropathy of all extremities manifested by daily burning, tingling, and numbness. The veteran was not sleeping well at night because of his numbness in all extremities. He needed his wife's assistance to get out of bed. Physical examination showed no sensory or motor impairment, no paralysis, neuritis, neuralgia, muscle wasting or atrophy, or painful joints on motion. X-rays of the veteran's right hip were normal. The VA examiner noted that the veteran did not show up for a nerve conduction study and it was rescheduled for October 2003. The diagnosis was a history of peripheral neuropathy which could not be confirmed. In an October 2003 addendum to this examination report, the VA examiner concluded that the veteran's nerve conduction study findings of the upper extremities were compatible with mild to moderate bilateral carpal tunnel syndrome and the nerve conduction study findings of the right lower extremity did not reveal any abnormalities. On VA outpatient treatment in October 2003, the veteran complained of constant pain in his left forearm and hand and some numbness/tingling in his forearm and left third and fourth fingers. Objective examination showed somewhat tender dorsal left forearm muscles with no swelling, warmth, or redness, and a full range of motion in all joints in the left upper extremity with no swelling, redness, or warmth. Neurological examination showed intact sensation in the bilateral upper extremities. The assessment was bilateral carpal tunnel syndrome and left upper extremity pain which seemed musculoskeletal. On VA outpatient treatment in January 2004, the veteran complained of occasional bilateral leg numbness after walking some distance. Neurological examination showed normal motor and sensory testing in the lower extremities. The assessment included bilateral carpal tunnel syndrome. In an addendum to this treatment note, dated later in January 2004, the VA examiner noted that magnetic resonance imaging (MRI) scan of the veteran's brain only showed some possible chronic white matter small vessel changes and no distinct infarcts. On VA outpatient treatment in March 2004, the veteran was seen complaining of diplopia. It was noted that he also had a painful sensation from his low back going up to the back of his head, neck, and both arms. The veteran's October 2003 nerve conduction study showed mild to moderate bilateral carpal tunnel syndrome and a normal right leg. The veteran's January 2004 MRI scan of the brain showed mild cerebral white matter and pontine ischemic disease but was otherwise negative. Neurological examination showed full visual fields, pupils equal, round, and reactive to light and accommodation, normal muscle tone and strength throughout all extremities, good pinprick, position, and vibration in the upper extremities, and decreased pinprick and vibratory sense in both feet distally with intact position. The assessment was bilateral hand numbness and neck pain and evidence of peripheral polyneuropathy likely due to diabetes mellitus. In an addendum to this treatment report, dated later in March 2004, the VA examiner noted that the veteran did not have blood tests as he had recommended. The Board finds that the preponderance of the evidence is against the veteran's claim of service connection for residuals of a stroke as secondary to service-connected diabetes mellitus. The veteran was not treated for a stroke or its residuals during or after active service. As noted in the Introduction, the veteran failed to report for VA examination scheduled in September 2004 for the purpose of determining the etiology of his claimed residuals of a stroke; accordingly, this claim will be rated based on the evidence of record. See 38 C.F.R. § 3.655(a)-(b). Neither the veteran's service medical records nor the post-service medical evidence show any complaints of or treatment for residuals of a stroke. Indeed, the January 2004 MRI of the brain was largely unremarkable. The United States Court of Appeals for Veterans Claims (Veterans Court) has held that "[t]he duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Where entitlement to a benefit cannot be established or confirmed without a current VA examination and the veteran, without good cause, fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. §§ 3.655(a)-(b) (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or death of an immediate family member. In this case, neither the veteran nor his service representative has explained why he failed to report without good cause for multiple VA examinations scheduled in September 2004. The Veterans Court also has held that a veteran has an obligation to assist in the adjudication of his claims and must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination and submitting to the Secretary all medical evidence supporting his claim. Olson v. Principi, 3 Vet. App. 480 (1992). Individuals for whom examinations have been authorized and scheduled are required to report for same. 38 C.F.R. §§ 3.326, 3.327 (2007). A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Simply put, service connection is not warranted in the absence of proof of a present disability. Absent evidence of current disability due to residuals of a stroke, the preponderance of the evidence is against the claim. The Board also finds that the preponderance of the evidence is against the veteran's claims of service connection for peripheral neuropathy of the bilateral upper extremities and for peripheral neuropathy of the bilateral lower extremities, each claimed as secondary to service-connected diabetes mellitus. The veteran was not treated for peripheral neuropathy in his upper or lower extremities during active service. It appears that he was first treated for peripheral neuropathy in August 2003, more than 26 years after his separation from service in July 1977, when VA examination showed only a history of peripheral neuropathy which could not be confirmed on examination. With respect to negative evidence, the fact that there was no record of any complaint, let alone treatment, involving the veteran's condition for many years is significant. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). As noted elsewhere, the veteran failed to report for multiple VA examinations scheduled for the purpose of determining the etiology of his peripheral neuropathy. Thus, these claims will be rated based on the evidence of record. See 38 C.F.R. § 3.655(a)-(b). Nerve conduction studies in October 2003 showed only bilateral carpal tunnel syndrome in the upper extremities and a normal right lower extremity. The Board acknowledges that the veteran was diagnosed a having "evidence of peripheral polyneuropathy" which the VA examiner stated was "likely due to diabetes" in March 2004. The veteran, however, did not show up for blood work deemed necessary by the VA examiner in March 2004 to work up the "evidence of peripheral polyneuropathy." And, as noted, the veteran also subsequently failed to report for a VA examination scheduled in September 2004 for the purpose of determining the etiology of his peripheral neuropathy. In summary, the Board finds that, although there is medical evidence of peripheral neuropathy and diabetes mellitus, absent a medical nexus between the veteran's currently diagnosed peripheral neuropathy and his service-connected diabetes mellitus, he has not presented a valid secondary service connection claim. As the veteran is not competent to opine on medical matters such as the etiology of medical disorders, his lay statements are entitled to no probative value. Finally, the preponderance of the evidence is against service connection for peripheral neuropathy as due to Agent Orange exposure. There is no evidence of acute or subacute peripheral neuropathy within a year of the veteran's departure from Vietnam. See 38 U.S.C.A § 1116; 38 U.S.C.A. §§ 3.307, 3.309. In the absence of a medical nexus between the veteran's peripheral neuropathy of the bilateral upper extremities or bilateral lower extremities and his service-connected diabetes mellitus, the Board finds that service connection for peripheral neuropathy of the bilateral upper extremities and for peripheral neuropathy of the bilateral lower extremities, each as secondary to service-connected diabetes mellitus, is not warranted. As the preponderance of the evidence is against the veteran's claims, the benefit-of- the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for residuals of a stroke as secondary to service-connected diabetes mellitus is denied. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities as secondary to service- connected diabetes mellitus is denied. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities as secondary to service- connected diabetes mellitus is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs