Citation Nr: 1120129 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 10-26 121 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for Norplant removal with residual left arm numbness and tingling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1985 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge at an April 2011 video teleconference hearing. FINDINGS OF FACT 1. The implantation of Norplant in service was an elective procedure, rather than a disease or injury in service. 2. To the extent that the numbness and tingling in the Veteran's arm was caused by the removal of Norplant, this occurred after her service. CONCLUSION OF LAW Norplant removal with residual left arm numbness and tingling was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. 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 his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in November 2007, prior to the issuance of the rating decision that is appealed herein, which explained the parameters of VA's duty to assist her with developing evidence in support of her claim. The letter also explained what the evidence needed to show in order to establish service connection for a claimed disability. In addition to providing the above cited notices, VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate his or her claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, post-service treatment records, written statements by the Veteran, and a transcript of the Veteran's testimony at the April 2011 hearing. The Veteran was also afforded a VA contract examination in connection with her claim. The Veteran identified records from Bethesda Navy Hospital that she believed would show that Norplant was implanted in service. The RO attempted to obtain these records but was unable to do so, and a formal finding of unavailability was completed in June 2008. The Board finds that further attempts to obtain these records would be futile because they do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). The Veteran was notified of VA's inability to obtain the records by a letter dated in June 2008. In any event, the failure to obtain these records is non-prejudicial because even if the implantation of Norplant in service is conceded, the facts do not support service connection for the Veteran's Norplant removal with residual tingling and numbness. Service connection The Veteran contends that she has numbness and tingling of her left arm as a result of the removal of a Norplant which was implanted during her service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's service treatment records indicate that the Veteran planned to use Norplant for contraception after the birth of her daughter. The Veteran testified that she received the Norplant in June or July of 1992, prior to her discharge from the service. The Veteran testified that the implant remained in place for approximately 5 years. While she initially contended that the implant was removed during her service, she testified at her hearing that it was removed in 1997, after service. An April 1997 record from Tenner Army Hospital indicates that the Norplant was removed in April 1997. On her VA Form 9 dated in June 2010 the Veteran explained that she is the dependant of a military retiree and was therefore entitled to get care at a military facility. The Veteran testified that her symptoms started shortly after the Norplant was removed in 1997. She was afforded a VA contract examination in March 2010, at which time she reported numbness of the left arm secondary to post-operative Norplant removal. The examiner diagnosed status post (s/p) Norplant removal complicated by neuropathy of the left arm with normal healed scar, left lateral arm. The most likely peripheral nerve involved was the left ulnar. While the evidence suggests that the Veteran's left arm tingling and numbness may have resulted from the removal of the Norplant, this did not occur during the Veteran's service. Rather it occurred in 1997, nearly 5 years after the Veteran's discharge. While the Veteran may have had the Norplant implanted while she was in service, this elective procedure does not constitute a disease or injury which occurred during her military service. There is no indication that the Norplant was implanted improperly or that the Veteran had any ill effects as a result of the in-service implantation of the Norplant. Rather, her symptoms started after the Norplant was removed and they have been attributed to the post-service removal of the Norplant. It is noted that the Norplant was removed at a military facility. Appellant was eligible to use the facility due to her status, not because she was on active duty at the time of the removal. The fact that it was done at a military facility does not establish entitlement to benefits. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Service connection for Norplant removal with residual left arm numbness and tingling is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs