Citation Nr: 0814053 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 06-16 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a disability of the right upper extremity. 2. Entitlement to service connection for a disability of the right lower extremity. ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The veteran served in the United States Army Reserves from November 1996 to November 2004. He had active duty for training (ACDUTRA) from January 1997 to April 1997 and he served on active duty from February 2003 to July 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board notes that the veteran requested to be scheduled for a travel Board hearing at the local VA office in his April 2006 VA Form 9. However, the veteran withdrew his request for a hearing in May 2007. The issue of entitlement to service connection for a disability of the right upper extremity is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if additional action is required on his part. FINDING OF FACT The competent medical evidence does not show a current diagnosis of a disability of the right lower extremity. CONCLUSION OF LAW Service connection is not warranted for a disability of the right lower extremity. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on VA to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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 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 agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). An August 2004 VCAA letter informed the appellant of what evidence was required to substantiate his claim for service connection for a disability of the right lower extremity. This letter also informed him of his and VA's respective duties for obtaining evidence. The VCAA letter requested the veteran to provide any evidence in his possession and he was informed that it was ultimately his responsibility to ensure that VA received any evidence not in the possession of the Federal government. Therefore, the Board finds that the requirements of the VCAA regarding the duty to notify have been met and that VA has no further duty prior to Board adjudication. 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. In this case, the disability rating and the effective date portion of the duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the appellant in March 2006. The Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of the supplemental statement of the case issued in April 2006 after the notice was provided. See 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). Furthermore, this error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. With regard to the duty to assist, the claims file contains some service medical records, VA treatment records, and two VA examination reports. The file contains a formal finding of unavailability of service records. The VA attempted to locate the veteran's service medical records on three different occasions. The claim file contains only partial copies of the veteran's service medical records from 1013th QM CO, which include complaints of the veteran of tingling and numbness in his upper and lower right extremities and an electrodiagnostic study. The VA notified the veteran by letter stating that the VA could not locate the veteran's service records and requested the veteran to submit copies of any military service medical records he has in his possession. Any further efforts by the VA to obtain the service records have been exhausted; thus, the VA has fulfilled its duty to assist in regards to locating the veteran's service records. Additionally, the claims file contains the veteran's statements in support of his claim. The Board has carefully reviewed such statements and concludes that he has not identified further available evidence not already of record. There is no other indication in the file that there are additional relevant records that have not yet been obtained. Based on the foregoing, the Board finds that all relevant facts have been developed properly and sufficiently in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. II. Merits of the Claim for Service Connection The veteran filed a claim for entitlement to service connection for a right lower extremity disability. The veteran contends that while serving on active duty in Jordan he began to feel numbness and tingling in his right foot and it spread up his right leg to his hip. The RO denied his claim in a January 2005 rating decision. The veteran appeals this decision. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). In assessing the veteran's service connection claim for a disability of the lower extremity, the Board must first determine whether the veteran is diagnosed with the claimed disability. There is no indication in the medical records that the veteran is currently diagnosed with a disability of the right lower extremity. A VA medical progress note dated August 2004 made a tentative assessment of neuropathy of the right leg; however, the treating physician recommended a nerve conduction study before going any further. The veteran underwent a VA examination in August 2004. The VA examiner conducted an electromyograph, which revealed that the veteran's leg was normal. At that time, the examiner asserted that there was insufficient clinical data to warrant a diagnosis of any acute or chronic disorder or residuals thereof. The examiner added an addendum to the VA examination report in October 2004 after receiving a revised electromyography report that noted he was unable to make any definitive changes in his prior conclusions. The veteran underwent three magnetic resonance imaging scans of the cervical spine. The February 2005 scan showed an area of signal abnormality within the left side of the cord at C2- 3 and the radiologist stated that the significance of the finding was uncertain. However, the April 2005 and the December 2005 scans showed normal contour and caliber of the cervical spinal cord and there was no evidence of enhancement within the cervical spinal cord. The veteran underwent a magnetic resonance imaging scan of the brain in April 2005 that revealed a small focus of enhancement in the posterior aspect of the pons, which was of uncertain significance; although, the radiologist thought it might represent a capillary telangiectasia. The scan also showed no significant white matter changes to suggest demyelinating process. The December 2005 magnetic resonance imaging scan of the brain showed that the pontine lesion was unchanged and was most likely a vascular anomaly. In addition, a 5 mm in diameter focus of exaggerated signal character on the T2 sequence abutting the posterior body of the left lateral ventricle was identified. The report noted that there was no abnormal enhancement. A 4 mm in diameter focus of exaggerated signal involving the deep white matter with the left posterior frontal lobe region was also identified in the report. A VA resident, after consulting with the attending physician who agreed with the resident's assessment, stated that as of December 2005, it was unlikely that the veteran had multiple sclerosis based on the above information. In March 2006, the veteran underwent another VA examination. The veteran stated that right leg numbness has not been bothering him for the past several months or year and the examination of the veteran's legs was normal. In August 2006, a neurological physician noted that the veteran's symptoms have resolved and his examination was normal. He also noted that the veteran's brain and spinal magnetic resonance imaging scans do not show plaques. The examiner's impression was that a diagnosis of multiple sclerosis, although still possible, seemed less likely given the nature of the veteran's symptoms and stability of his imaging. Therefore, the competent medical evidence of record shows that the veteran does not have a current disability in the right lower extremity. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board notes that it has closely reviewed and considered each of the veteran's statements. Lay persons can provide an eyewitness account of a veteran's visible symptoms, such as in this case where the veteran complains of tingling and numbness in his right lower extremity. Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). However, the veteran is not competent to assert that he has a neurological disability, because lay persons are not competent to offer medical opinions. Therefore, lay assertions regarding a medical diagnosis of a neurological disorder have no probative value. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Without evidence of a current disability, the Board must find that entitlement to service connection for a disability of the right lower extremity is not warranted. The benefit of the doubt doctrine is not applicable in this case, because the preponderance of the evidence is against the claim for service connection. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a right lower extremity disability is denied. REMAND The veteran filed a claim for entitlement to service connection for a disability of the right upper extremity. Two VA examinations for the claimed disability were conducted in August 2004 and May 2006. The May 2006 examiner diagnosed the veteran with subjective sensory neuropathy of the right hand. That examination report noted that the veteran had decreased sensation in the ulnar distribution of the right hand. The VA examiner reviewed the veteran's service medical records and VA medical records in determining the diagnosis. However, the VA examiner did not give an etiology or a nexus opinion for the veteran's subjective sensory neuropathy of the right hand. The service medical records indicate that the veteran complained of tingling and numbness in his right hand in July 2003 and a July 2003 electrodiagnostic study revealed evidence of mild right cubital tunnel syndrome (ulnar nerve entrapment at the elbow). The VA examiner did not rule out that this disorder might be related to the veteran's current disability. VA's assistance includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); also see McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, a remand to obtain a nexus opinion regarding the veteran's disability of his right upper extremity is warranted. Accordingly, the case is REMANDED for the following action: 1. Copies of updated treatment records, VA and non-VA, covering the period from August 25, 2006, to the present, should be obtained and added to the record. 2. The RO should provide the veteran with a VA neurological examination of his right upper extremity. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether any disability of the right upper extremity found on examination is at least as likely than not (i.e., a 50 percent or greater probability) related to the veteran's active military service. The examiner should provide a complete rationale for the conclusions reached. Please send the claims folder to the examiner for review in conjunction with the examination. 3. Upon completion of the foregoing, the RO should readjudicate the veteran's claim of entitlement to service connection for a disability of the right upper extremity, based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, the RO should provide the veteran with a supplemental statement of the case and the opportunity to respond thereto. 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. 2007). ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs