Citation Nr: 0828120	
Decision Date: 08/19/08    Archive Date: 08/28/08

DOCKET NO.  04-12 028A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, 
Texas


THE ISSUE

Entitlement to service connection for muscle spasms, to 
include as secondary to service-connected sarcoidosis.


REPRESENTATION

Appellant represented by:	Mark R. Lippman, Attorney at 
Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The veteran had active service from March 1965 to February 
1967.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of a January 2003 rating decision which 
denied, in pertinent part, the veteran's claim of service 
connection for muscle spasms, to include as secondary to 
service-connected sarcoidosis.  This decision was issued to 
the veteran and his service representative in April 2003.  
The veteran disagreed with this decision in July 2003.  

In February 2004, the Board remanded the veteran's appeal to 
the RO via the Appeals Management Center (AMC) in Washington, 
D.C., for the issuance of a Statement of the Case on his 
service connection claim for muscle spasms, to include as 
secondary to service-connected sarcoidosis.  See Manlincon v. 
West, 12 Vet. App. 238, 240-241 (1999).  The veteran 
perfected a timely appeal on this claim in April 2004.  

In August 2006, the Board again remanded the veteran's appeal 
to the RO/AMC.


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of the veteran's appeal has been obtained.

2.  The veteran's claimed muscle spasms were not incurred in 
service or caused or aggravated by service-connected 
sarcoidosis.


CONCLUSION OF LAW

The veteran's claimed muscle spasms were not incurred in 
service nor may they be so presumed; they were not caused or 
aggravated by his service-connected sarcoidosis.  38 U.S.C.A. 
§§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 
C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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 a May 2002 letter, VA notified the veteran of the 
information and evidence needed to substantiate and complete 
his claim, 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).  This 
letter informed the veteran to submit medical evidence 
relating his claimed muscle spasm to active service, 
including as secondary to service-connected sarcoidosis, and 
noted other types of evidence the veteran could submit in 
support of his claim.  The veteran also was informed of when 
and where to send the evidence.  After consideration of the 
contents of this letter, the Board finds that VA has 
substantially satisfied the requirement that the veteran be 
advised to submit any additional information in support of 
his claim.  See Pelegrini v. Principi, 18 Vet. App. 112 
(2004).

Although the notification did not advise the veteran of the 
laws regarding degrees of disability or effective dates for 
any grant of service connection, the Board finds that failure 
to satisfy the duty to notify in that regard is not 
prejudicial.  Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 
2007).  As will be explained below in greater detail, 
although complete content-complying VCAA notice was not 
provided prior to the January 2003 rating decision which 
denied the benefits sought on appeal, the evidence is against 
granting service connection for muscle spasms, to include as 
secondary to service-connected sarcoidosis.  Thus, any 
failure to notify and/or develop this claim under the VCAA 
cannot be considered prejudicial to the veteran.  See 
Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The claimant 
also has had the opportunity to submit additional argument 
and evidence and to participate meaningfully in the 
adjudication process.  Mayfield v. Nicholson, 444 F.3d 1328 
(Fed. Cir. 2006).

The Board observes that VCAA notice is not required because 
the issue presented involves a claim that cannot be 
substantiated as a matter of law.  See Sabonis v. Brown, 
6 Vet. App. 426, 430 (1994) (holding that, where the law and 
not the evidence is dispositive the Board should deny the 
claim on the ground of the lack of legal merit or the lack of 
entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) 
(VA is not required to provide notice of the information and 
evidence necessary to substantiate a claim where that claim 
cannot be substantiated because there is no legal basis for 
the claim or because undisputed facts render the claimant 
ineligible for the claimed benefit).  In this case, the 
veteran is seeking service connection for a symptom-muscle 
spasms-and not for any underlying disability.  See generally 
Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), 
vacated in part and remanded on other grounds sub nom., 
Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001).  
In any event, 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 May 2002 VCAA notice letter was provided prior to 
January 2003 RO decision denying the benefits sought on 
appeal; thus, this notice was timely.  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; see also Smith 
v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

The Board also finds that VA has complied with the VCAA's 
duty to assist by aiding the veteran in obtaining evidence 
and affording him the opportunity to give testimony before 
the Board.  In response to a letter from the RO asking him 
whether he wanted a new hearing on his claims since the 
Veterans Law Judge who had held the earlier hearing 
subsequently had retired from the Board, the veteran notified 
VA in November 2003 that he did not want another Board 
hearing.  It appears that all known and available records 
relevant to the issue here on appeal have been obtained and 
are associated with the veteran's claims file; the veteran 
does not contend otherwise.  

As to any duty to provide an examination and/or seek a 
medical opinion, the Board notes that in the case of a claim 
for disability compensation, the assistance provided to the 
claimant shall include providing a medical examination or 
obtaining a medical opinion when such examination or opinion 
is necessary to make a decision on the claim.  An examination 
or opinion shall be treated as being necessary to make a 
decision on the claim if the evidence of record, taking into 
consideration all information and lay or medical evidence 
(including statements of the claimant) contains competent 
evidence that the claimant has a current disability, or 
persistent or recurring symptoms of disability; and indicates 
that the disability or symptoms may be associated with the 
claimant's act of service; but does not contain sufficient 
medical evidence for VA to make a decision on the claim.  38 
U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The veteran 
has been provided with VA examinations which address the 
contended causal relationship between his claimed muscle 
spasms and active service, to include as secondary to 
service-connected sarcoidosis.  In summary, 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 muscle spasms as 
secondary to his service-connected sarcoidosis.

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; 38 C.F.R. § 3.303(a).  Service 
connection may be granted for any disease diagnosed after 
discharge, when all of the evidence, including that pertinent 
to service, establishes that the disease was incurred in 
service.  38 C.F.R. § 3.303(d).  

If there is no evidence of a chronic condition during service 
or an applicable presumptive period, then a showing of 
continuity of symptomatology after service may serve as an 
alternative method of establishing the second and/or third 
element of a service connection claim.  See 38 C.F.R. § 
3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  
Continuity of symptomatology may be established if a claimant 
can demonstrate (1) that a condition was "noted" during 
service; (2) evidence of post-service continuity of the same 
symptomatology; and (3) medical or, in certain circumstances, 
lay evidence of a nexus between the present disability and 
the post-service symptomatology.  Evidence of a chronic 
condition must be medical, unless it relates to a condition 
to which lay observation is competent.  If service connection 
is established by continuity of symptomatology, there must be 
medical evidence that relates a current condition to that 
symptomatology.  See Savage, 10 Vet. App. at 495-498.

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 
nonservice-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).

Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to 
implement the Veterans Court's decision in Allen v. Principi, 
7 Vet. App. 439 (1995), which addressed the subject of the 
granting of service connection for the aggravation of a 
nonservice-connected condition by a service-connected 
condition.  See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006).  The 
amended 38 C.F.R. § 3.310(b) clearly institutes additional 
evidentiary requirements and hurdles which must be satisfied 
before aggravation may be conceded and service connection 
granted.  Ultimately, it is the veteran's responsibility to 
support his or her claim by providing evidence of the 
baseline level of severity; it is not enough merely that an 
examiner concludes that there is "aggravation."  See 71 
Fed. Reg. 52,745 (Sept. 7, 2006).  Consideration should be 
given to the requirements of the revised § 3.310.  
Additionally, for claims filed prior to the effective date of 
the revised § 3.310 (October 10, 2006), consideration should 
be given as to whether this change in law may be given 
retroactive effect or whether the old law (i.e., the Allen 
decision itself) is for application.  See generally Kuzma v. 
Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003.

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.

A review of the veteran's service medical records indicates 
that, at his induction (or enlistment) physical examination 
in March 1965, clinical evaluation was normal.  The veteran 
denied any relevant medical history.  He was not treated for 
muscle spasms during active, including as secondary to 
sarcoidosis.  At the veteran's separation physical 
examination in December 1996, clinical evaluation was 
unchanged except for a small umbilical hernia.  The veteran's 
medical history also was unchanged.

The post-service medical records show that, on VA examination 
in February 1995, the veteran's complaints included muscle 
spasms secondary to sarcoidosis.  The VA examiner reviewed 
the veteran's claims file, including his service medical 
records and electronic medical records.  Physical examination 
showed a normal gait and no limited mobility.  

The veteran was hospitalized at a VA Medical Center in April 
1995 for treatment of, among other things, chronic muscle 
aches, fatigue, and weakness.  The veteran's history included 
increasing soreness in his whole body since 1986.  His pain 
was most severe in the low back and hip muscles.  There also 
was some limited range of motion due to muscle stiffness, 
especially in flexion of the back and with movement of the 
hips.  An electromyograph (EMG) showed normal sensory and 
motor conductions in the left arm and leg and borderline 
myopathyic units at the proximal arms and legs.  The muscles 
showed no evidence of membrane irritability.  The diagnoses 
included chronic muscle aches, fatigue, and weakness.

In a March 2001 opinion, C.N.B., M.D. (Dr. C.B.) stated that, 
following a review of the veteran's service medical records 
and post-service medical records, it was his opinion that the 
veteran's "sarcoidosis-related sacroiliac joint arthritis 
(sclerosis) was likely the primary cause of his back pain and 
spasm because he had low back pain (LBP) and arthralgies in 
1986."  Dr. C.B. also opined that the veteran's sacroiliac 
joint sclerosis was secondary to his sarcoidosis "because 
sarcoidosis is a known cause of sacroiliac joint sclerosis at 
an early age" and the veteran did not have any other 
potential etiological risks for this sclerosis.

On VA outpatient treatment in December 2001, the veteran's 
complaints included muscle spasms on top of his bilateral 
shoulders and around the neck.  His standing range of motion 
was restricted in flexion to 90 out of 180 degrees, extension 
was limited to 55 of 60 degrees, abduction was limited to 55 
of 180 degrees, external rotation was limited to 20 out of 90 
degrees, and internal rotation was limited to 20 out of 
70 degrees.  His left shoulder range of motion was within 
normal limits.  The veteran was unable to reach beyond his 
back pocket using his right shoulder.  

On VA examination in July 2007, the veteran's complaints 
included fasciculations of the upper and lower extremities 
with muscle cramping predominantly in the left lower 
extremity.  He denied any weakness or atrophy of the muscle 
groups.  His muscle symptoms occurred every day for a short 
period of time.  During flare-ups, he was unable to ambulate 
without pain or discomfort.  Physical examination showed 
normal gait and posture, full strength in the upper proximal 
muscle groups and lower proximal muscle groups.  The 
diagnoses included a normal muscle examination.  In a 
September 2007 addendum, the VA examiner stated that, after 
thoroughly reviewing the veteran's claims and the physical 
examination performed in July 2007, he found no evidence that 
the etiology of the veteran's muscle spasms is due to his 
service-connected sarcoidosis.  The VA examiner opined that 
the veteran's degenerative arthritis of the lumbar spine 
caused his non-disabling acute muscle spasms.  In a November 
2007 addendum, the VA examiner opined that it was less likely 
as not that the veteran's claimed muscle spasm were caused by 
or a result of his service-connected disabilities or any 
conditions related to his service-connected disabilities.  

On VA outpatient treatment in December 2007, the veteran's 
complaints included hip pain which inhibited his walking.  
The impressions included muscle weakness which "may be 
related to sarcoidosis."

The Board finds that the preponderance of the evidence is 
against the veteran's claim of service connection for muscle 
spasms, to include as secondary to service-connected 
sarcoidosis.  The Board notes initially that the veteran's 
service medical records show no complaints of or treatment 
for muscle spasms during active service, to include as 
secondary to service-connected sarcoidosis.  It appears that 
the veteran first was treated for muscle spasms in February 
1995, or 28 years after his separation from service in 
February 1967.

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).

The post-service medical records show that the veteran does 
not currently experience any disability due to muscle spasm 
which could be related to active service, including as 
secondary to service-connected sarcoidosis.  The VA examiner 
specifically determined in July 2007 that the veteran's 
muscles were normal.  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 current disability.

The veteran relies heavily on Dr. C.B.'s March 2001 as 
support for his secondary service connection claim for muscle 
spasms.  In March 2001, Dr. C.B. concluded that, following a 
review of the veteran's service medical records and post-
service medical records, the veteran's "sarcoidosis-related 
sacroiliac joint arthritis (sclerosis) was likely the primary 
cause of his back pain and spasm because he had low back pain 
(LBP) and arthralgies in 1986."  Although his opinion states 
that "service medical records and post-service medical 
records" were reviewed, it is not clear whether Dr. C.B. had 
access to or reviewed the veteran's claims file prior to 
offering his opinion.  Dr. C.B. also did not provide a 
medical nexus opinion between the veteran's muscle spasms and 
service-connected sarcoidosis; in this regard, the Board 
notes that service connection is not in effect for sacroiliac 
joint arthritis or low back pain.  Thus, it is clear that the 
March 2001 opinion is merely a recitation of the veteran's 
own contention; there is no indication that the examiner was 
rendering a medical opinion as to the date of onset based on 
the clinical or objective evidence.  See Kowalski v. 
Nicholson, 19 Vet. App. 171 (2005).

The veteran seeks service connection for a symptom-muscle 
spasms-and not for any underlying disability.  See Sanchez-
Benitez, 239 F.3d at 1356.  The VA examiner specifically 
concluded in September 2007 that there was no evidence that 
the etiology of the veteran's muscle spasms was due to his 
service-connected sarcoidosis.  This same VA examiner 
concluded in November 2007 that it was less likely as not 
that the veteran's claimed muscle spasm were caused by or a 
result of his service-connected disabilities.

Following VA outpatient treatment in December 2007, another 
VA examiner concluded that the veteran's muscle weakness 
"may" be related to service-connected sarcoidosis.  Current 
regulations provide that service connection may not be based 
on a resort to speculation or even remote possibility.  See 
38 C.F.R. § 3.102 (2006); Stegman v. Derwinski, 3 Vet. App. 
228, 230 (1992); and Tirpak v. Derwinski, 2 Vet. App. 609, 
611 (1992).  Accordingly, even if the VA examiner's 
conclusion in December 2007 is viewed in the light most 
favorable to the veteran, this evidence does not establish 
service connection for muscle spasms, to include as secondary 
to service-connected sarcoidosis.

Additional evidence in support of the veteran's secondary 
service connection claim for muscle spasms is his own lay 
assertions.  As a lay person, however, the veteran is not 
competent to opine on medical matters such as the etiology of 
medical disorders.  The record does not show, nor does the 
veteran contend, that he has specialized education, training, 
or experience that would qualify him to provide an opinion on 
this matter.  Accordingly, the veteran's lay statements are 
entitled to no probative value.  See Bostain v. West, 11 Vet. 
App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. 
App. 492 (1992).  See also Routen v. Brown, 10 Vet. App. 183, 
186 (1997).  Absent medical evidence establishing a nexus 
between the service-connected sarcoidosis and muscle spasms, 
the veteran has not presented a valid secondary service 
connection claim.  See Wallin, 11 Vet. App. at 512.  As the 
veteran has not presented a valid secondary service 
connection claim, consideration of the former or revised 
§ 3.310 is not required.  

As the preponderance of the evidence is against the veteran's 
claim, 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).


ORDER

Entitlement to service connection for muscle spasms, to 
include as secondary to service-connected sarcoidosis, is 
denied.



____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs