Citation Nr: 1116481 Decision Date: 04/27/11 Archive Date: 05/05/11 DOCKET NO. 05-25 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for residuals of heat exhaustion. 2. Entitlement to service connection for numbness of the back and legs and additional circulatory disorders. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. C. Dale, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1977 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded the claims in October 2009 for additional development. The issue of service connection for back and leg numbness is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have any residual disability related to in-service heat exhaustion. CONCLUSION OF LAW The criteria for service connection for heat exhaustion are not met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist 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) (2010). 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 October 2004, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim 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 not informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit until March 2006. 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 March 2006 letter. Although this notification occurred following the initial adjudication, this issue was readjudicated by the RO in April 2006 and December 2006 Supplemental Statements of the Case. This course of corrective action fulfills VA's notice requirements. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). 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, and private medical records. Additionally, the Veteran was provided a proper VA examination in April 2010 for his service connection claim. Barr v. Nicholson, 21 Vet. App. 303 (2007). 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. Laws and regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Degmetich v. Brown, 104 F. 3d 1328 (1997); Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for certain chronic diseases and disorders, including sensorineural hearing loss (as a disease of the central nervous system), will be presumed if manifested to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2010). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2010). 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 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, 6 Vet. App. at 469 (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). Evidence Service treatment records reflect that the Veteran was treated for heat exhaustion in March 1982. The condition arose during a running drill. The Veteran stopped running and began staggering. At the time of treatment he reported no dizziness, nor loss of consciousness. Clinical examination showed a temperature of 102 degrees, excessive sweating, and disorientation. The examiner diagnosed heat exhaustion. He gave the Veteran intravenous fluids. The Veteran was instructed to maintain fluids for the remainder of the day and not participate in any physical exertion. There was no reported follow up treatment and no further findings were recorded. Private and employment records dated between 2000 and 2002 show no complaints relative to heat sensitivity or circulatory problems. In June 2002, he was given an examination by a private treatment provider, after complaining of a swollen left foot. No findings or history referable to heat exhaustion or stroke was recorded. The employment records show that the Veteran was employed by the Postal Service delivering mail and that his activities were periodically restricted due to anxiety reaction and foot problems. In his October 2004 claim, the Veteran stated that he had suffered heat exhaustion during a 10 mile run in intense heat. He had experienced heat sensitivity and circulatory problems since the incident. The Veteran initially visited the VA primary care clinic in March 2005. He reported having a heat stroke in 1982. The VA primary care physician conducted a physical examination and detailed the Veteran's current problems. He noted the reported history of heat stroke and observed that the Veteran appeared to attribute all his current problems to this incident. The Veteran was found to be a poor historian. The Veteran received a referral from the primary care clinic to the neurology clinic to further evaluate his symptoms. He underwent a VA neurology consultation in May 2005. He reported first experiencing mild numbness sometime in 1982 or 1983 and continuing symptoms since that time. Clinical examination showed a slight restriction in the range of motion of the lumbar spine. Straight leg raise test revealed muscle tightness at 70 to 80 degrees sitting and possible mild sciatica in both lower extremities. Sensory perception to touch was decreased diffusely over the upper and lower extremities. However, pinprick in position was intact for both upper and lower extremities. Upper and lower extremities showed mildly decreased muscle strength. Cerebellar function was grossly normal. The examiner diagnosed history of numbness and pain in the back and extremities associated with degenerative disc disease of the spine. He commented that the numbness was an altered sensation to touch with preserved pinprick. He noted the Veteran's history of cold sores and indicated the symptoms may be related to chronic herpetic neuritis/ ganglionitis. In June 2005, the Veteran submitted a statement regarding the heat stroke incident. He recalled that on that day the weather conditions were so severe that only certain units were allowed to train. About four or five miles into his run, he became very hot, but did not sweat. He started becoming dizzy and subsequently fell upon losing consciousness. The Veteran asserted he currently had residual medical conditions related to this incident. He submitted several medical articles on heat strokes. In a statement dated in June 2005, the Veteran's brother wrote that the Veteran had experienced no problems with heat prior to service but had experienced mental symptoms since returning from service. Dr. D.O., a private chiropractor, submitted a December 2005 letter. He stated that he had examined the Veteran on several occasions and reviewed the Veteran's medical records during and following service. He opined that the Veteran had had a heat stroke and experienced unspecified long term residuals of the event. In a January 2006 statement, the Veteran asserted that he had experienced a continuity of heat stroke symptoms. The Veteran underwent an April 2010 VA examination. The examiner reviewed the claims file and noted the relevant medical history. Clinical examination showed slight impairment in muscle strength for upper and lower extremities. It also revealed an abnormal gait. The examiner determined that the in-service event did not meet the criteria for heat stroke. He cited the absence of inpatient treatment, residuals treatment following the incident, and organ damage to support his conclusion. The examiner explained that heat exhaustion was a self limiting event without residuals. He opined that the present symptoms were; therefore, not related to the heat exhaustion event. Analysis It is not in dispute that the Veteran experienced an incident of heat exhaustion during service in March 1982. The Veteran's claim turns on the question of whether there are any current residuals of this event. The Veteran is competent to report a continuity of symptomatology, which he has done during the course of this appeal. His reports must be weighed against the negative findings in the service medical records after March 1982, and the absence of any pertinent reports in the private treatment and employment records prior to 2005. As noted above, the employment records note a number of disabilities, but make no mention of heat exhaustion, heat stroke, or any residuals of those conditions. The absence of such reports is all the more remarkable, given that the Veteran was engaged in employment requiring him to deliver mail in the warm climate of North Carolina. Given that the contemporaneous record contradicts the Veteran's report of a continuity of symptoms, his report of such continuity is not credible. The Veteran's brother is competent to report the symptoms he has observed, but he reported different symptoms than those reported by the Veteran. The brother has reported psychiatric symptoms and difficulties in personal relationships, but did not report any of the physical symptoms related by the Veteran. In addition, the Veteran's brother could only provide competent evidence as to the symptoms he observed after service, and he did not report with any specificity when he began to observe the Veteran's abnormal behavior. The brother's statement, therefore, does not serve to establish a link between the heat exhaustion in service and any current disability. The Veteran submitted several medical articles regarding heat exhaustion and heat stroke. These articles are competent medical evidence, but the Board assigns them little probative value as they do not address the facts underlying the claim on appeal. See also Wallin v. West, 11 Vet. App. 509, 513 (1998). They discuss the complications of heat stroke and the potential for heat exhaustion to become heat stroke, but they do not serve to show that the Veteran had heat stroke rather than heat exhaustion. There are two medical opinions that differ on the presence of a nexus. It is the Board's fundamental responsibility to evaluate the probative value of all evidence. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (Holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence."). The private chiropractor did not provide any rationale for the conclusion that the Veteran had had a heat stroke rather than heat exhaustion in service, nor did he identify the specific residuals of the alleged heat stroke. In addition the chiropractor's field of expertise is in the areas of the nerves and musculoskeletal systems. See Dorland's Illustrated Medical Dictionary, 26th Ed (1984) p. 255 (defining chiropractic as a system of therapeutics based on a belief that disease is caused by abnormal function of the nerve system with restoration of normal function by manipulation and treatment of the structures of the body, especially those of the spinal column). The April 2010 VA examiner's opinion is more persuasive and weighs against the claim. See id. He explicitly considered the incident as documented in the service treatment records and considered the Veteran's contention that he had actually had a heat stroke in service. He did not explicitly consider the Veteran's reports of a continuity of symptomatology, but implicitly discounted such reports by noting that heat exhaustion was by nature a self limiting event, and the Board has also found the reports of continuity to lack credibility. The examiner opined that the Veteran experienced heat exhaustion without any residual symptoms. He explained that heat stroke involved more intensive treatment, such as hospitalization and organ damage. Service treatment records did not show any additional treatment, nor was there evidence of organ damage at any time. He thereby provided a rationale for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds this opinion persuasive as it is plausible, premised upon a thorough review of the evidence, and accompanied by an explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). For the reasons just discussed it is more probative than that of the private chiropractor. Additionally, there is no other competent and credible evidence of current disability related to the heat incident in service. In sum, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not applicable. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57 (1990). Service connection for heat exhaustion is denied. ORDER Service connection for heat exhaustion is denied. REMAND The United States Court of Appeals for Veterans Claims (Court) has held that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In Barr, the Court observed that a VA examination is adequate when it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one.'" citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The Court has also ruled that a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Additionally, the Court has provided guidance on interpreting an equivocal medical opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). The Court has held that the fact that a medical opinion is inconclusive does not by itself render it inadequate for rating purposes. Id. Instead, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id at 390. The Court further stated that the inability to opine on questions of diagnosis and etiology cannot be the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have a bearing on the requested opinion. Id. at 389. At the April 2010 VA examination the examiner did not consider the Veteran's reports of a continuity of symptomatology regarding his symptoms and premised the negative opinion on the absence of confirmatory evidence. This is contrary to Dalton. He summarily concluded that a spine injury did not occur during service based upon an absence of contemporaneous medical records. VA regulations provide that where "diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2010). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination.'" Goss v. Brown, 9 Vet. App 109, 114 (1996). Accordingly, the case is REMANDED for the following action: 1. Ask the April 2010 medical examiner to review the claims folder and provide an opinion regarding the relationship between a current back and leg disability and service. The examiner should consider the Veteran's reports of a continuity of symptoms, the June 2002 private report of a normal back, and the employment, private, and VA records. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered in formulating any opinions. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current numbness of lower extremities and circulatory disorders are related any injury, event, or disease, incurred during active service. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so; and whether there is additional evidence that would permit the necessary opinion to be made. 2. The agency of original jurisdiction should review the examination report to ensure that it contains the information requested in this remand and is complete. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. If any benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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. 2010). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs