Citation Nr: 0814131 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 03-09 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for residuals of a laceration of the left arm, with ulnar neuropathy, to include as due to the veteran's service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from August 1966 to August 1969. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In August 2006, the Board remanded the veteran's case to the RO for further development. In June 2006, the veteran testified during a hearing conducted at the Board's main office in Washington, D.C. A transcript of that hearing is of record. In August 2006, the Board denied the veteran's claims for service connection for renal calculi, claimed as a kidney disorder, and for an initial rating in excess of 20 percent for diabetes mellitus. At that time, the Board remanded the veteran's claim for service connection for the residuals of a laceration of the left arm, with ulnar neuropathy, to the RO for further development. In September 2007, the Board characterized the veteran's claim on appeal as entitlement to service connection for residuals of a laceration of the left arm, to include as secondary to his (service-connected) diabetes mellitus, and remanded the matter to the RO for further development. Finally, the Board notes that, in its August 2006 decision and in its September 2007 remand, the Board referred the matter of the veteran's claim for entitlement to special monthly compensation on account of the loss of use of a creative organ to the RO for consideration. However, it appears that the RO has still not taken any action regarding this issue. As such, the Board once again refers the veteran's claim for special monthly compensation on account of the loss of use of a creative organ to the RO for appropriate development and adjudication. FINDINGS OF FACT 1. Service connection has been granted for diabetes mellitus rated 20 percent disabling. 2. The objective and probative medical evidence of record preponderates against a finding that the veteran has residuals of a laceration of the left arm, with ulnar neuropathy, as due to his period of active military service or to his service-connected diabetes mellitus. CONCLUSION OF LAW Residuals of a laceration of the left arm with ulnar neuropathy were not incurred during active service and no current residuals of a laceration of the left arm are proximately due to, the result of, or aggravated by service- connected disease or injury. 38 U.S.C.A. §§ 1110, 5103- 5103A, 5107 (West 2002 & Supp. 2007; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007); Allen v. Brown, 7 Vet. App. 439 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA 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; 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (hereinafter referred to as "the Court") held, in part, 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 (AOJ) decision on a claim for VA benefits. The Court acknowledged in Pelegrini that where the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to content complying notice and proper subsequent VA process. Pelegrini, supra, at 120. The VA General Counsel has issued a precedent opinion interpreting the Court's decision in Pelegrini. In essence, and as pertinent herein, the General Counsel endorsed the notice requirements noted above, and held that, to comply with VCAA requirements, the Board must ensure that complying notice is provided unless the Board makes findings regarding the completeness of the record or as to other facts that would permit [a conclusion] that the notice error was harmless, including an enumeration of all evidence now missing from the record that must be a part of the record for the claimant to prevail on the claim. See VAOPGCPREC 7-2004 (July 16, 2004). Considering the decision of the Court in Pelegrini and the opinion of the General Counsel, the Board finds that the requirements of the VCAA have been satisfied in this matter, as discussed below. Also, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom Hartman v. Nicholson, 483 F.3d 1311 (Fed Cir. 2007), that held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) applied to all five elements of a service connection claim. Id. In a September 2006 letter, and in the December 2007 supplemental statement of the case, the RO provided the veteran with notice consistent with the Court's holding in Dingess/Hartman. Further, as the appellant's claim for service connection for residuals of a laceration to the left arm is being denied, as set forth below, there can be no possibility of prejudice to him. As set forth herein, no additional notice or development is indicated in the appellant's claim. In an August 2001 letter, issued prior to the December 2001 rating decision, and in January 2004, January and October 2005, and September 2006 letters, the RO informed the appellant of its duty to assist him in substantiating him claim under the VCAA and the effect of this duty upon him claim. We therefore conclude that appropriate notice has been given in this case. The appellant responded to the RO's communications with additional evidence and argument, thus curing (or rendering harmless) any previous omissions. The Board concludes that the notifications received by the appellant adequately complied with the VCAA and subsequent interpretive authority, and that he has not been prejudiced in any way by the notice and assistance provided by the RO. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Likewise, it appears that all obtainable evidence identified by the appellant relative to his claim has been obtained and associated with the claims file, and that he has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The veteran was afforded a VA examination in October 2001 and testified during a hearing before the undersigned in June 2006. Thus, for these reasons, any failure in the timing or language of VCAA notice by the RO constituted harmless error. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Factual Background The veteran contends that, in June 1998, he experienced a diabetic attack that caused him to fall on a glass and cut his left ulnar nerve. Thus, he contends that service connection is warranted for residuals of a laceration of the left arm including as due to his service-connected diabetes mellitus. The record shows that, in a December 2001 rating decision, the RO granted service connection for diabetes mellitus, effective from April 2000. A 20 percent rating has been assigned. A private hospital medical record documents that, in June 1998, the veteran was treated in a private hospital emergency room after doing yard work all day and feeling dizzy. It was noted that he fainted after knocking a glass of water out of his wife's hand and lacerated his left arm. The veteran was found to have a division of the ulnar nerve. The available record indicates that his past medical history included adult onset diabetes for which he took Tolazamide. Upon clinical examination, a laceration of the left ulnar nerve was diagnosed and the veteran was scheduled for exploration and primary repair. VA medical records, dated from 1995 to 2006, reflect the veteran's treatment for a laceration of the ulnar nerve of the left hand after the June 1998 surgery. The records show he underwent an ulnar nerve transposition in June 1998. An August 1999 VA outpatient record shows that he had no apparent ulnar nerve function in the left arm. Results of an electromyography (EMG) performed in September 1999 indicate that the veteran had left ulnar neuropathy. According to March through August 2000 VA outpatient medical records, the veteran fell onto a drinking glass two years earlier and experienced a left ulnar nerve laceration/transsection for which he underwent attempted repair at a private hospital. A March 2000 record notes that the veteran was initially treated with an attempted repair and noted that he now had a left hand ulnar nerve deficient hand. In August 2000, it was noted that the veteran had an ulnar nerve deficit of his left hand with ulnar nerve clawing of the fifth digit and severe atrophy of the interosseous muscles. An October 2001 VA examination report indicates that the veteran was right hand dominant and was diagnosed with diabetes mellitus approximately seven years earlier. He was told he was borderline and uncertain of the significance of the condition, placed on medication, and seen by VA since that time. The veteran reported that he had hypoglycemic episodes that caused confusion, jitteriness, and dizziness, with episodes of passing out. He said that, in 1997, after cutting the lawn and returning the mower, he passed out while trying to enter the house, knocked a glass out of his wife's hand and injured his arm. He had surgery that resulted in left arm weakness, contracture of the left hand, atrophy of the muscles of the area and limited use of the hand since that time. Left ulnar neuropathy was noted and that the veteran experienced symtoms of drowsiness, dizziness, confusion, disorientation, and weakness during hypoglycemic episodes. In an October 2004 signed statement, the veteran's wife said that, in June 1998, on the morning of his accident, the veteran took all his prescribed medications. Although he usually took his medications in the morning and ate breakfast approximately 30 minutes later, on that morning he mowed the lawn before eating. She observed that he was extremely weak, fatigued, and irritated after he finished and that she advised him to eat something but he did not. They returned a rented lawn mower and, on the way home, the veteran evidently experienced visual difficulties while driving as he ran off the road several times. He said he also began to shake and complained of headaches. At home, he remained in his car and asked her to get a glass of water from behind the house. When she returned, he was dizzy and staggered to the porch rail and collapsed while trying to unlock the front door that caused him to fall on the glass that he knocked out of her hand. During his June 2006 Board hearing, the veteran testified that, prior to his left arm injury, he was diagnosed as a borderline diabetic and placed on prescribed medication by VA (see hearing transcript, page 11). On the day of his accident, he said that he mowed the lawn without eating and blacked out after returning a rented lawn mower. On the way home he had difficulty driving. He got home and staggered to the door where he asked his wife to retrieve a glass he left in the back yard. He said she returned to the front door and that was all he recalled. He said that he blacked out, fell on the glass that was knocked from her hand, and injured his left arm. He said he felt his arm should be related to his diabetes because he had no use of his left arm and hand (Id. at 12). The veteran said he was treated at St. Mary's Hospital for his left arm laceration because there was no emergency care at the McGuire VA Medical Center where he was usually treated (Id. at 20). The veteran indicated that he was hospitalized for about one week and treatment included placing his arm in a splint and undergoing therapy, although it was not helpful and his arm developed a hook (Id. at 21). III. Legal Analysis Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain neurological disorders become manifest to a degree of 10 percent within one year from the 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service- connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310; see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In addition, when aggravation of a non-service-connected condition is proximately due to or the result of a service-connected disability, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also 38 C.F.R. § 3.310(b) (2007). Also, with regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The veteran has contended that service connection should be granted for residuals of a laceration of the left arm, with ulnar neuropathy, including as due to his service-connected diabetes mellitus. Although the evidence shows that, in June 1998, the veteran underwent a left ulnar nerve transposition after he experienced dizziness and fell on a glass and lacerated his arm, and currently has left ulnar neuropathy, no competent medical evidence has been submitted to show that this disability is related to service or any incident thereof, including his service-connected diabetes mellitus. On the other hand, the record reflects that his upper extremities were normal on separation from service and the first post service evidence of record of a left arm laceration is from 1998, more than thirty years after the veteran's separation from service. Moreover, there is simply no probative medical evidence to support the veteran's contention that his diabetes mellitus caused the dizziness that led to his falling on a glass and lacerating his harm. Neither the available June 1998 private hospital record nor the subsequent VA medical records indicate that the veteran's fall was caused by a diabetic attack. Nor does the private hospital medical record reflect that orange juice or diabetic medication was administered when the veteran was initially seen in the emergency room for treatment of his lacerated left arm. Rather, the private and VA records simply report that the veteran experienced an episode of dizziness. In short, no medical opinion or other medical evidence relating the veteran's residuals of a left arm laceration, with ulnar neuropathy, to service or any incident of service, including his service-connected diabetes mellitus, has been presented. In addition, neither the veteran or his wife meet the burden of presenting evidence as to medical cause and effect, or a diagnosis, merely by presenting their own statements, because as laypersons they are not competent to offer medical opinions. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. 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. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). There is no evidence showing, and the veteran does not assert, that he has had sufficient medical training to provide competent medical evidence as to the etiology of his claimed residuals of a laceration to the left arm, including as due to his service- connected diabetes mellitus. The Board finds a lack of competent medical evidence to warrant a favorable decision. The Board is not permitted to engage in speculation as to medical causation issues, but "must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision." Smith v. Brown, 8 Vet. App. 546, 553 (1996). Here, the appellant has failed to submit competent medical evidence to provide a nexus between any in-service injury or disease and the conditions that caused and contributed to his currently claimed residuals of a laceration of the left arm, including as due to his service-connected diabetes mellitus. The preponderance of the evidence is therefore against the appellant's claim of entitlement to service connection for residuals of a laceration to the left arm, including as due to his service-connected diabetes mellitus. We have considered the doctrine of reasonable doubt. Under that doctrine, when there is an approximate balance between evidence for and against a claim, the evidence is in equipoise, there is said to be a reasonable doubt, and the benefit of such doubt is given to the claimant. 38 U.S.C.A. § 5107(b); see Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); 38 C.F.R. § 3.102. However, when the evidence for and against a claim is not in equipoise, then there is a preponderance of evidence either for or against the claim, there is no reasonable doubt, and the doctrine is inapplicable. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Based upon the evidence of record, service connection for residuals of a laceration of the left arm, with ulnar neuropathy, including as due to his service-connected diabetes mellitus, is not warranted. ORDER Service connection for residuals of a laceration of the left arm, with ulnar neuropathy, including as due to the veteran's service-connected diabetes mellitus, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs