Citation Nr: 1311149 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 10-13 882A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for peripheral neuropathy. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from January 1953 to December 1956. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. A variety of additional issues were addressed by the RO in April 2010 and November 2012 statements of the case. The record does not reflect that the Veteran has filed a substantive appeal with respect to any of those issues or that any of those issues have been certified for consideration by the Board. Therefore, they are not properly before the Board at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. Peripheral neuropathy was not present until years following the Veteran's discharge from service and is not etiologically related to service. 2. Sleep apnea has not been present at any time during the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in an August 2008 letter, prior to the initial adjudication of the claims. The duty to assist the Veteran has also been satisfied. The RO has obtained the Veteran's available service treatment records and all identified VA and private treatment records. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. The Board acknowledges that the Veteran has not been afforded a VA examination in response to either claim but has determined that VA is not required to provide an examination in this case. As for his claim seeking service connection for peripheral neuropathy, there is no competent and credible evidence suggesting a link between any current peripheral neuropathy and the Veteran's naval service. His service treatment records are completely silent as to any complaints of or treatment for peripheral neuropathy. Following his separation from service, the first treatment shown for peripheral neuropathy, diagnosed as right carpal tunnel syndrome, was in 1992, over thirty-five years after the Veteran's discharge from service. Moreover, the post-service treatment records from 1992 reference a history of symptoms of just "two to four years in duration." Although the Veteran's statements are competent evidence as to what he observed or experienced, continuity of symptomatology has not been established as the Veteran's statements, as discussed below, have not been found credible. Accordingly, a VA examination is not required in response to this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As for his claim seeking service connection for sleep apnea, the Veteran's post service treatment records do not show any complaints of or treatment for this disability. Moreover, his service treatment records are completely silent as to any complaints of or treatment for this disability. Accordingly, a VA examination is not required to adjudicate this issue. Id. Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also 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. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background The Veteran served on active duty in the Navy from January 1953 to December 1956. His service treatment records are completely silent as to any complaints of or treatment for peripheral neuropathy or sleep apnea. The report of his December 1956 separation examination reflects normal neurological findings, as well as normal findings concerning his nose, sinuses and throat. In July 2008, the Veteran filed his present claim seeking entitlement to service connection for peripheral neuropathy and sleep apnea. An April 1992 private treatment report notes that the Veteran injured his right hand, which resulted in a laceration to the extensor digitorum communis. The report notes that a foreign body was removed, and that he was prescribed a wrist block. A September 1992 treatment report notes that the wound was healing, and that he was using a wrist immobilization splint. An October 1992 private treatment summary letter was received from J.L., M.D. The letter notes the Veteran's complaints, "of numbness in his right hand and also swelling in both of his hands for about two to four years in duration. The numbness in the right hand has been worse since spring when he was doing an excessive amount of manual work." Physical examination revealed some median nerve compression on the right wrist, and it was recommended that he undergo a release of the carpal tunnel. A January 1993 operative report indicates that the Veteran underwent decompression of right carpal tunnel. Analysis A. Peripheral Neuropathy Based upon a longitudinal review of the record, the Board concludes that service connection is not warranted for peripheral neuropathy. Other than his having filed the claim for service connection, the Veteran has not identified any incident, activity, injury, or disease during service which he believes caused his peripheral neuropathy. Moreover, there is no corroborating evidence of a nexus between his peripheral neuropathy and his naval service. To the extent that the Veteran contends that service connection for peripheral neuropathy is warranted based on a continuity of symptomatology since service, the Board finds that his contentions are not supported by the evidence and not credible. Service treatment records are completely silent as to any treatment for or diagnosis of peripheral neuropathy. His December 1956 separation examination disclosed normal neurological findings. Following his discharge from the service, the first treatment of any type relating to peripheral neuropathy is not shown until 1992, over 35 years after the Veteran's discharge from naval service. Moreover, the treatment records in 1992 reference a history of symptomatology beginning just two to four years earlier, which would still be over 30 years after the Veteran's discharge from military service. Under these circumstances, the Board must conclude that service connection is not warranted for peripheral neuropathy. In reaching this decision, the Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. B. Sleep Apnea The Veteran's service treatment records are completely silent as to any complaints of or treatment for sleep apnea. The post-service treatment records identified by the Veteran are also completely silent as to any diagnosis of sleep apnea. "In the absence of proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case there is no competent evidence of the claimed disability at any time during the pendency of the claim. Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for sleep apnea; there is no doubt to be resolved; and service connection for sleep apnea is not warranted. ORDER Service connection for peripheral neuropathy is denied. Service connection for sleep apnea is denied. _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs