Citation Nr: 1017828 Decision Date: 05/13/10 Archive Date: 05/26/10 DOCKET NO. 09-30 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for neuropathy of the right upper extremity (claimed as neuropathy of the hands). 2. Entitlement to service connection for neuropathy of the left upper extremity (claimed as neuropathy of the hands). 3. Entitlement to service connection for neuropathy of the right lower extremity (claimed as neuropathy of the feet). 4. Entitlement to service connection for neuropathy of the left lower extremity (claimed as neuropathy of the feet). 5. Entitlement to service connection for stomach cancer. 6. Entitlement to service connection for residuals of a broken nose. 7. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Robben, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1943 to March 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, denied entitlement to service connection for the claimed disabilities here on appeal. The Veteran provided testimony before the undersigned Acting Veterans Law Judge at a videoconference hearing in March 2010. A transcript is of record. The issues of entitlement to service connection for service connection for residuals of a broken nose and bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran withdrew his claims for service connection for neuropathy of the right and left upper extremities and right and left lower extremities at his March 2010 videoconference hearing before the Board, prior to the promulgation of a decision in the appeal. 2. Stomach cancer has not been shown to be etiologically related to active duty service and was not manifest within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the claims for service connection for neuropathy of the right and left upper extremities and right and left lower extremities have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2009). 2. Stomach cancer was not incurred or aggravated during active duty service, and its incurrence or aggravation during service may not be presumed. 38 U.S.C.A. §§ 1110, 1112 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Under the VCAA, 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 request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in July 2008, prior to the initial adjudication of this matter, the RO notified the Veteran of the evidence needed to substantiate his claims for service connection. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by the July 2008 letter. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various Federal agencies, including records from the Social Security Administration, and private medical records. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for getting an examination under the VCAA is low. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board acknowledges that the Veteran has not been afforded a VA examination or medical opinion in response to his claim for service connection for stomach cancer but has determined that no such examination or opinion is required. As explained below, there is no record of treatment or diagnosis of stomach cancer in service. The disease was diagnosed more than 55 years after discharge from service and there is no medical or lay evidence linking continuous symptoms of stomach cancer with active duty service. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2009). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2009). In this case, the Veteran has withdrawn the appeal concerning the claims for service connection for neuropathy of the right and left upper extremities and right and left lower extremities; hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to the claims for service connection for neuropathy of the right and left upper extremities and right and left lower extremities, and that portion of the appeal is dismissed. Service Connection for Stomach Cancer Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). 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. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first 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). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant tumors, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran contends that he incurred stomach cancer as a result of active duty service. At the outset, the Board notes that the Veteran was previously denied service connection for stomach ulcers in August 1951. That claim was not appealed and became final. 38 C.F.R. § 20.1103 (2009). The claim currently before the Board is a separate claim for malignant tumors of the stomach and is unrelated to the claim for ulcers. The record clearly establishes that the Veteran was diagnosed with stomach cancer in July 2001, for which he underwent gastrectomy and chemotherapy for treatment. Therefore, a current disability is clearly established. The record does not, however, demonstrate an in-service injury or a connection between such an injury and the Veteran's stomach cancer. Service treatment records are negative for any complaints, treatment, or diagnosis of stomach cancer in service or within one year after discharge. In fact, the treatment or diagnosis of skin cancer was more than 55 years after discharge from service. The absence of any evidence for a long period of time after service weighs against a finding that the Veteran's low back condition was related to service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, the record does not include medical or lay evidence linking the Veteran's stomach cancer to service. No medical doctor has ever opined as to such a relationship between stomach cancer and service. Furthermore, the Veteran has not reported a continuity of symptomatology. During the March 2010 videoconference hearing before the Board, the Veteran reported that he did not have any symptoms prior to 2001 and did not receive treatment for any stomach related illness in service or within one year of discharge. He also acknowledged that he could not state whether his disability was connected to service. Notably, the Veteran has not been shown to possess the requisite medical training or credentials needed to render a diagnosis or a competent opinion as to medical causation. Accordingly, his lay opinion does not constitute medical evidence and lacks probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996). As the record does not contain any evidence of symptoms, treatment, or diagnosis of stomach cancer in service or within one year of discharge, or any evidence of a link between the Veteran's stomach cancer and service, the preponderance of the evidence is against the claim for service connection on a direct and presumptive basis, and it must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER The appeal as to the claim for service connection for neuropathy of the right upper extremity (claimed as neuropathy of the hands) is dismissed. The appeal as to the claim for service connection for neuropathy of the left upper extremity (claimed as neuropathy of the hands) is dismissed. The appeal as to the claim for service connection for neuropathy of the right lower extremity (claimed as neuropathy of the feet) is dismissed. The appeal as to the claim for service connection for neuropathy of the left lower extremity (claimed as neuropathy of the feet) is dismissed. Entitlement to service connection for stomach cancer is denied. REMAND VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). A veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. During the March 2010 hearing before the Board, the Veteran reported that he was hit with a baseball in the nose while on active duty. He stated that there was significant blood and that the medics packed it but could not do anything else. No X-rays were taken at the time. The Veteran stated that since service, he has had sinus problems, including increased cold and allergy symptoms and complications therefrom. He reported that his nose, particularly on the left side, has contributed to these issues. The record contains several private treatment records indicating treatment for various nasal and respiratory illnesses by the Veteran's treating physician, Dr. J. D., from December 1986 to December 2005. No opinion as to whether the Veteran has residuals of a broken nose is of record. Given that there is evidence of record showing current frequent inflammation of the nose and other respiratory and nasal complications, and given that the Veteran has reported a credible in-service injury and a continuity of symptomatology since service, VA has a duty to provide the Veteran with an examination to determine whether the injury to the Veteran's nose is etiologically related to his current nasal issues. With regard to the claim for service connection for bilateral hearing loss, the Veteran was provided with a VA audiological examination in October 2008 where the claims folder was reviewed and an audiogram and an examination was conducted. Bilateral, mild to severe, sensorineural hearing loss was diagnosed and the examiner concluded that the Veteran's current bilateral hearing loss was not etiologically related to service. In support of this conclusion, the examiner stated that although there is no doubt that this Veteran was exposed to intense noise from enemy firepower during World War II, his January 1944 separation physical examination showed that he had normal hearing in both ears with no complaints of hearing loss in either ear. Unfortunately, the examiner's conclusion is not based on an accurate understanding of the facts as the January 1944 examination was actually for the Veteran's enlistment into the service. No separation examination for this Veteran is of record. The Board is concerned that the examination would not withstand judicial scrutiny and, therefore, must remand the claim for service connection for bilateral hearing loss to obtain a new etiology opinion. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with a VA ear, nose, and throat examination by a qualified VA doctor. The examiner should review the claims folder and note such review in the examination report or in an addendum. All necessary diagnostic tests, including an X-ray, must be performed and subsequent reports must be associated with the claims file. The examiner should state whether the Veteran has current residuals of a broken nose or any other nasal condition and then provide an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that any current residuals of a broken nose or any other current nasal conditions are etiologically related to the credible in- service injury reported by the Veteran or otherwise had its onset in active service. The rationale for all opinions should be provided. The examiner is advised that the Veteran is competent to report his history and symptoms and that his reports must be considered in formulating the requested opinion. 2. The Veteran should be scheduled for a VA audiological examination to determine whether current bilateral hearing loss was incurred in service. The examiner should review the claims folder and note such review in the examination report or in an addendum. In light of the acoustic trauma the Veteran incurred during service, the examiner should provide an opinion as to whether there is at least a 50 percent probability (at least as likely as not) that bilateral hearing loss is etiologically related to service and noise exposure therein. The rationale for all opinions should be provided. The examiner is advised that the Veteran is competent to report his history and symptoms and that his reports must be considered in formulating the requested opinion. 3. If the determinations of the claims for service connection for residuals of a broken nose and bilateral hearing loss remain denied, issue a Supplemental Statement of the Case to the Veteran and his representative and allow an adequate period for him to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on this matter. 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. 2009). ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs