Citation Nr: 1103271 Decision Date: 01/25/11 Archive Date: 02/01/11 DOCKET NO. 07-14 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for chronic peripheral neuropathy of the upper and lower extremities with loss of equilibrium and Dupuytren's contractures. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J Fussell INTRODUCTION The Veteran had active service from December 1954 to December 1958. This matter comes before the Board of Veterans' Appeals (Board) from a December 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The case was remanded in August 2010, at which time the issue was characterized as entitlement to service connection for chronic peripheral neuropathy of the upper and lower extremities with loss of sense of taste and smell and equilibrium, and Dupuytren's contractures. Following VA examinations, a November 2010 rating decision granted service connection for anosmia (loss of sense of smell) and for aguesia (loss of taste), and each was assigned an initial 10 percent disability rating. These grants of service connection are a complete grant of the benefits sought on appeal and, thus, those matters are no longer before the Board. As there are no jurisdictional conferring Notice of Disagreements (NODs) as to the downstream elements of effective dates or compensation levels, no such issues are now in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. During military service the Veteran worked with radar equipment and radiation from radar is considered non-ionizing electromagnetic radiation but the evidence does not demonstrate that he was exposed to ionizing radiation during active service. 2. Chronic peripheral neuropathy of the upper and lower extremities with loss of equilibrium and Dupuytren's contractures is not affirmatively shown to have had its onset during service, and chronic neurological pathology which first manifested many years after service is unrelated to an injury, disease or event of service origin, to include exposure to radar. CONCLUSIONS OF LAW 1. The Veteran was not exposed to ionizing radiation during active service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. § 3.309, 3.311 (2010). 2. Chronic neurological pathology, to include chronic peripheral neuropathy of the upper and lower extremities with loss of equilibrium and Dupuytren's contractures, was not incurred in or aggravated by service, did not manifest within one year after service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify When a complete or substantially complete application for benefits is received, VA will notify the claimant of: (1) any information and medical or lay evidence needed to substantiate the claim, and (2) what portion thereof VA will obtain, and (3) what portion the claimant is to provide (Type One, Type Two, and Type Three, respectively). 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b); see Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice was intended to be provided before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was provided with pre-adjudication VCAA notice by letter, dated in December 2004. He was notified of the evidence needed to substantiate a claim of service connection, namely, evidence of an injury, disease, or event causing an injury or disease during service; evidence of current disability; and evidence of a relationship between the current disability and the injury, disease, or event causing an injury or disease during service. He was also notified that VA would obtain service records, VA records, and records from other Federal agencies, and that he could submit private medical records or authorize VA to obtaining private medical records on his behalf. The Veteran was notified of how VA determined disability ratings and effective dates, by RO letter of August 2010, after the initial December 2005 RO adjudication of the claim. However, an error in failing to afford a preadjudication notice (timing-of- notice error) can be cured by notification followed by readjudication. See Mayfield v. Nicholson, 499 F.3d at 1323-24; Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006); Pelegrini v. Principi, 18 Vet. App. 112, 122-24 (2004). In this case the notification was prior to readjudication of the claim in the supplemental statement of the case (SSOC) November 2010. An SSOC constitutes a readjudication of a claim, even if it states that it is not a decision on the appeal. Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006); affm'd Mayfield v. Nicholson, 499 F.3d 1317 (Fed.Cir. 2007) (a SSOC serves as a readjudication decision); see also Prickett, 20 Vet. App. at 377- 78. As for content of the VCAA notice, the documents substantially comply with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and, of Pelegrini, supra (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the five elements of a service connection claim), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Duty to Assist As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claim. Here, the RO has made two formal findings that the Veteran's service treatment records (STRs) are not available. These were in June and September 2005 and explained the efforts undertaken by the RO. It was noted that all procedures to obtain those record had been correctly followed but all efforts had been exhausted and further attempts were futile. In each of those months, the RO wrote the Veteran and explained that he should submit any copies of STRs that he might have in his possession and also informed him that he could submit other evidence, such as statements from service comrades or others as to events that occurred during service. The Veteran was afforded the opportunity to testify at a personal hearing but he declined that opportunity. The RO has obtained the Veteran's VA treatment records. Also, private clinical records have been obtained. The case was remanded in August 2010 to obtain information from the Veteran relative to a purported postservice cerebrovascular accident (CVA) and to advise him to contact his treating VA physician to obtain a medical opinion concerning the etiology, time of onset, and cause of his claimed disability, to include whether it was as likely as not related to inservice exposure to radar. This was done by RO letter of August 2010. However, the Veteran did not provide any further information concerning a postservice CVA and no opinion has been received from a VA treating physician. The case was also remanded in August 2010 to obtain VA medical opinions for the claimed disability. These examinations were obtained in September and October 2010 and resulted in the November 2010 RO grants of service connection for anosmia (loss of sense of smell) and for aguesia (loss of taste), based on the opinion obtained at the time of an October 2010 VA examination that these were most likely due to inservice exposure to radar. 38 U.S.C.A. § 5103A(d) (West 2000); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 - 85 (2006); and Locklear v. Nicholson, 20 Vet. App. 410, 418 - 19 (2006) (emphasizing that the third prong has a "low threshold"). Substantial, rather than absolute or strict, remand compliance is the appropriate standard for determining remand compliance under Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999); D'Aries v. Peake, 22 Vet. App. 97 (2008). In this case, an examination found that the Veteran's anosmia and ageusia were probably from loss of first cranial nerve function which was most likely associated with the Veteran's pan- neurological defect, which likely as not was associated with distant radar exposure, but his dysequilibium which was most likely secondary to peripheral neuropathy. Another examination found that there was an immune-mediated basis for the neuropathy but that the neurological disorder was not related to inservice exposure to radar because such exposure was not a known cause of chronic inflammatory demyelinating polyneuropathy (CIDP). That examination report further stated that whether the disorder was related to military service could not be answered without a resort to speculation because the SRTs were not available. The Veteran's service representative contends that the VA examinations obtain pursuant to the Board's August 2010 remand did not comply with the remand request. See Stegall, Id. However, here, there has been substantial compliance with the August 2010 Board remand because the essential question of whether the claimed disability is due to inservice radar exposure has been answered. As there is no indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Factual Background The Veteran's STRs are unavailable. A 1998 clinical record from Shands Hospital noted that a muscle biopsy yielded findings consistent with a neuropathic process. There was axonal loss with extensive hyalinization of the blood vessels and secondary demyelination. The vascular changes were suggestive of diabetic neuropathy. Findings in October 1998 were indicative of an old right cerebellar infarct. A December 1998 private clinical record reflects that after an examination the relevant impressions were severe polyneuropathy, which could be sensory and motor in nature, involving denervation of musculature of distant muscles; impaired gait secondary to polyneuropathy; Dupuytren's contractures of both hands; and a distant history of a cerebrovascular event causing right hemiparesis with resolution, yet with persisting residual coordination problems. Electrodiagnostic testing in March 1999 found profoundly severe axonal polyneuropathy primarily of the lower extremities without denervation and this finding was not inconsistent with, but not limited to, diabetes mellitus types 1 and 2; thyroid disorders; toxin exposures; and/or chronic alcohol intake. The clinical impression after examination of the hands and feet were palmar contractures and high arches suggesting "Charcot Marie Tooth (Hereditary Motor Sensory Neuropathy Type II)." A July 2002 report from Dr. T. A. C. of the Duke University Medical Center, after recording the Veteran's history and conducting an examination, reflects impression of idiopathic peripheral neuropathy, based on history of extensive testing including nerve biopsy, with no specific diagnosis but with current neuropathic pain; and low back pain of uncertain cause but of suspected musculoskeletal origin. A June 2003 VA outpatient treatment (VAOPT) record indicates that the Veteran had had a stroke 20 years earlier. In February 2004 it was reported that he had been diagnosed with polyneuropathy 7 years ago. A March 2004 VAOPT record indicates that he had had a stroke 40 years earlier. In May 2004 there was a diagnosis of CIDP. In January 2005 the Veteran reported that during service he had repaired radar units and was in constant contact with radiation for three years which he now felt was the cause of his CIDP and his current treating physician had stated that this exposure could "very well have contributed" to his current medical condition. In a July 2005 statement he reported that his VA physician had confirmed that it was as likely as not that his condition was caused by radiation exposure. Records in September 2005 from the Air Force state that there was no record of the Veteran's being exposed to ionizing radiation. A February 2006 statement of a private physician, Dr. R. S. B., reflects that the Veteran was being treated for idiopathic peripheral neuropathy. The Veteran had reported a history of inservice radiation exposure. It was possible that his radiation exposure contributed to his development of peripheral neuropathy. On VA ear, nose, and throat examination in September 2010 it was noted that during service the Veteran was exposed to radar emission. The Veteran's claim file was reviewed. His present problems, including loss of taste and smell, had begun approximately in the early 1990s. At the same time he developed peripheral neuropathy, described as a demyelinating neuropathy. There was also a history of an old right cerebellar infarct. After an examination it was felt that his anosmia and aguesia were probably due to loss of first cranial nerve function which was most likely associated with his pan-neurological defect, which was likely as not associate with his distant radar exposure. Upon further examination it was reported that the Veteran's difficulties with disequilibrium and peripheral neuropathies had begun in the early 1990s. After extensive evaluations he had been found to have a demyelinating neuropathy. His symptoms dealt primarily with his balance. It was noted that he had a history of an old right cerebellar infarct. After an examination the diagnosis was dysequilibrium, most likely secondary to his demyelinating peripheral neuropathy. Nothing was found on examination to indicate that this was a peripheral vestibular or inner ear problem. Rather, it was felt that the balance problem was disequilibrium which was most likely secondary to his peripheral neuropathy. On VA peripheral neurology examination in October 2010 the Veteran's claim file was reviewed. His inservice exposure to radar was noted. His symptoms of peripheral neuropathy had started in 1998. He reported that is condition was initially diagnosed as CIDP for which he was given immunotherapy but he did not respond to the therapy as was normal in cases of CIDP. He had been seen by VA and was considering further private evaluation. He had had Dupuytren's contractures of the hands but it had resolved for many years before returning in the last 2 years. He denied any such problems in his family. It was noted that no STRs were in the claim file. About 35 years ago, but after military service, he had passed out while at work and had been hospitalized, during which time he now recalled having had a swollen tongue, dizziness, and involuntary movements of his right arm, for which there had been no diagnosis at that time. He was stable until about 1998 when he developed tingling and numbness of the legs, feet, and arms; weakness of the legs, and loss of taste and smell, as well as disequilibrium. After work-ups at Shand's Hospital in 1998, and later in 2003 at a VA facility, he was diagnosed with CIDP for which he was given therapy but did not improve. The examination report reflects a summary of findings of past clinical tests and examinations. After a physical examination the diagnosis was chronic peripheral neuropathy of the upper and lower extremities with loss of sense of taste and smell and disequilibrium, and Dupuytren's contractures. It was reported that this was "an immune mediated disorder." This neurological disorder was not related to his inservice exposure to radar because such exposure was not a known cause of CIDP. General Principles of Service Connection Service connection is to be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Where, as here, the veteran had ninety (90) days or more of war or peacetime service after December 31, 1946, and an organic disease of the nervous system manifests to a compensable degree within a year after service, it is rebuttably presumed to be of service origin, absent affirmative evidence to the contrary, even if there is no evidence thereof during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). A showing of inservice chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When a disease identity is established as chronic during service there is no requirement of an evidentiary showing of continuity of symptomatology after service. Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection requires that there be (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 inservice disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). The Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102 (2007). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Analysis The Veteran contends that inservice exposure to radiation from radar has caused his claimed chronic peripheral neuropathy of the upper and lower extremities with loss of equilibrium and Dupuytren's contractures. Radiation Service connection for disability due to inservice ionizing radiation exposure can be shown by three different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, certain types of cancer are presumptively service connected where a person is a "radiation- exposed veteran" which is defined at 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is otherwise shown that disability, even if first diagnosed after service, is the result of inservice ionizing radiation exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As to inservice ionizing radiation exposure, the Veteran's only allegation is that he was exposed to radar, which he apparently feels is a form of ionizing radiation. Radar equipment emits microwave-type non-ionizing radiation, which is not subject to review under the statutory and regulatory scheme for claims based on exposure to ionizing radiation. The Court of Appeals for Veterans Claims (Court has taken judicial notice that naval radar equipment emits microwave-type non- ionizing radiation which is not subject to review under the ionizing radiation statute and regulations. Rucker v. Brown, 10 Vet. App. 67 (1997) citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984. Such a claim is not contemplated by the provisions of 38 U.S.C.A. § 1112(c) (West 2002); 38 C.F.R. § 3.309(d) (2010), because the Veteran had not participated in a "radiation risk activity" as defined at 38 U.S.C.A. § 1112(c)(3)(A) (West 2002), or by the provisions of 38 C.F.R. § 3.311 (2010), because the claim is not based on exposure to ionizing radiation. In other words, because radar emissions are not a form of ionizing radiation, the provisions of 38 C.F.R. § 3.311 do not apply. Despite any expertise in the operation of such radar equipment, the Veteran, as a lay person, is not competent to offer a medical opinion. Consequently, his statements relating the claimed disability to exposure to radar during service do not constitute competent evidence. Rucker v. Brown, 10 Vet. App. 67 (1997) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Similarly, to the extent that he alleges that inservice exposure to radar is exposure to a form of ionizing radiation, where, as here, the determinative issue involves a question of a scientific fact, competent medical evidence is required to substantiate the claim. Here, there is no competent evidence to refute the fact that radar is not a form of ionizing radiation. Merits If a veteran's STRs are unavailable, VA's duties to assist, the duty to provide reasons and bases for its findings and conclusions and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Where the "service medical records are missing... the Board [may not] wrongly equate the absence of medical corroboration with 'negative evidence.' Nowhere do VA regulations provide that a veteran must establish service connection through medical records alone." Cartwright v. Derwinski, 2 Vet. App. 24, 25-26 (1991). Moreover, the absence of STRs does not lower the threshold for an allowance of a claim, for example where the evidence almost but not quite reaches the positive-negative balance. Rather, there is only a heightened duty of the Board to consider the applicability of the benefit of the doubt doctrine. In other words, the legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46, 51 (1996). Also, having lost or fire-related STRs does not create an adverse presumption against VA. Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). It is neither shown nor alleged that the Veteran had chronic peripheral neuropathy of the upper and lower extremities with loss of equilibrium and Dupuytren's contractures during service, to include as due to non-ionizing radiation, nor is it shown until many years after his military service. The Veteran's credible statements are that he was exposed to radiation from radar equipment. In order to prevail, the appellant must establish service connection on the basis of direct service connection by showing that the alleged disabilities were incurred or aggravated in service. He has failed to accomplish the first step in this task because he has not submitted competent evidence. The Veteran has reported that his treating VA physician has indicated that the Veteran's chronic neurological disorder is as likely as not caused by inservice radar exposure. However, although requested, he has not provided information or evidence to corroborate this. A February 2006 statement of a private physician reflects the Veteran's inservice "radiation" exposure possibly contributed to his development of peripheral neuropathy. However, this opinion lacks probative value for two reasons. First, it is not clear that the physician meant that the Veteran's history was one which involved inservice exposure solely to non-ionizing radiation from radar, as opposed to exposure to actual ionizing radiation, and here there is no evidence that the Veteran was, in fact, exposed to ionizing radiation. Second, even assuming that the physician meant that the Veteran's exposure was to non- ionizing radiation from radar, the mere possibility that it may have contributed to the development of the claimed disability is insufficient to establish a basis for granting service connection because it is little more than mere speculation. On the other hand, the VA medical opinions obtained, following remand of the case in 2010 and after review of the claim file, are to the combined effect that the Veteran's balance problem is dysequilibrium which is most likely secondary to his peripheral neuropathy due to "an immune mediated disorder" which is a neurological disorder that is not related to his inservice exposure to radar because such exposure is not a known cause of CIDP. Accordingly, in the absence of competent medical evidence linking the appellant's claimed disabilities to the in-service non- ionizing radiation exposure, or any other event during service, service connection is not warranted. This being the case, the claim must be denied because the preponderance of the evidence is unfavorable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for chronic peripheral neuropathy of the upper and lower extremities with loss of equilibrium and Dupuytren's contractures is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs