Citation Nr: 1315729 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-12 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for cerebrovascular accident. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for herpes encephalitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1984 to April 1988, and from December 2003 and March 2005, with additional service in the Army Reserves. This appeal to the Board of Veterans' Appeals (Board) is from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board notes that the Veteran was scheduled for a videoconference hearing in August 2011 before a Veterans Law Judge. However, the Veteran failed to appear at his scheduled hearing. Accordingly, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that, at this time, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of entitlement to service connection for a low back disorder 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. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. The most probative evidence indicates that the Veteran did not suffer from a cerebrovascular accident in service, nor are there any current residuals of a cerebrovascular accident. 2. Service treatment records reveal the Veteran was treated in service for herpes encephalitis in the left temporoparietal brain parenchyma. 3. The February 2009 VA examination stated that a brain MRI that month revealed sequelae of the prior left temporal lobe encephalomyelitis. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for cerebrovascular accident have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The requirements for establishing service connection for herpes encephalitis have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act 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, and 5126 (West 2002)) redefined VA's duty to assist a claimant 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, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an August 2007 letter advised the Veteran of the evidence and information necessary to substantiate his service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. This letter also advised the Veteran about the information and evidence needed to establish a disability rating and an effective date. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service private treatment records have been obtained and considered. The Veteran was also afforded a VA examination in February 2009. The RO also attempted to obtain the Veteran's service treatment records from his second period of active duty. However, a December 2007 VA memorandum makes a formal finding on the unavailability of these records, explains the efforts that were made to obtain these records, and confirms he was appropriately notified and given the opportunity to provide these additional records if they were in his personal possession. Therefore, all efforts to obtain these records have been exhausted. See 38 C.F.R. § 3.159. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The determination as to whether the requirements for entitlement to service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2012). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102, 4.3 (2012). 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. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Cerebrovascular Accident The Veteran contends that he suffered from a cerebrovascular accident (i.e., stroke) in service. Upon consideration of the evidence of record, the Board concludes that service connection for a cerebrovascular accident is not warranted. The Veteran's service treatment records reveal that the Veteran was hospitalized from September to November 1987, when he became dizzy and fell down. He was also noted to be confused, and complained of a severe left temporal headache during this time. A September 1987 CT scan showed a decrease in the density of the left temporal and posterior parietal regions. The treating physician initially diagnosed cerebral infarction versus encephalitis. Two additional CT scans, dated in September and October 1987, also showed decrease in the density of the left temporal and posterior parietal regions. The treating physician ultimately diagnosed dysphasia, probably secondary to herpes simplex encephalitis. Additionally, the report of the October 1987 CT scan showed a provisional diagnosis of rule out stroke. He was scheduled for a brain scan, which revealed the brain was within normal limits, but there was increased radionuclide activity in the left temporal parietal brain parenchyma, not apparently in a vascular distribution and consistent with herpes encephalitis. The Veteran's service treatment records dated after 1987 show no treatment for or diagnoses of cerebrovascular accident. A July 1991 physical examination lists that the Veteran suffered from a concussion in 1987. Subsequently physical examinations, including a February 2002 Army Reserve Medical Board examination failed to note the Veteran's prior treatment as well as any identifying any residuals. The Board notes that the Veteran's service treatment records from his second period of active duty are missing. When service treatment records are unavailable, through no fault of the Veteran, the Court has held that VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist the Veteran in developing his claim, and to explain the reasons and bases for its decision. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, missing service treatment records do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). In this case, the Veteran is not alleging his cerebrovascular accident occurred during his second period of active duty. In fact, to the contrary, the evidence in the claims file clearly shows he is referring to the treatment he received in 1987, during his first period of active duty. During his February 2009 VA examination, conducted in accordance with the Veteran's initial claim for service connection for this disorder, the Veteran stated that he suffers from short-term memory loss, twitching of the right arm and hand, and slow, guarded speech, as a result of his reported cerebrovascular accident in 1987. Upon physical examination, motor function and reflexes were normal, and there was no sensory or nerve group impairment. A February 2009 MRI of the brain was noted as showing sequelae of the prior left temporal lobe encephalomyelitis and mild paranasal sinus disease, but otherwise was unremarkable. Consequently, the VA examiner determined there was no evidence of cerebrovascular accident. Additionally, the examiner determined that the evidence does not show the Veteran suffered a cerebrovascular accident during service. Also associated with the Veteran's claims file are private treatment records dating from April to May 2002 and July 2006. However, these records pertain only to the Veteran's claim for a low back disorder and are not relevant to the issue of cerebrovascular accident. Upon review of the record, the Board finds that service connection for a cerebrovascular accident is not warranted. The medical evidence of record shows that the Veteran did not actually suffer a cerebrovascular accident during service. While cerebrovascular accident was a differential diagnosis upon his presentation with symptoms including dizziness, severe headache, expressive aphasia and receptive aphasia, objective testing during service, including CT scans, ultimately were interpreted as showing herpes encephalitis, not a cerebrovascular accident. To the extent the Veteran alleges that he suffered from both a stroke and herpes encephalitis, the service treatment records do not support that conclusion. Moreover, since 1987 there has not been any diagnosis of a cerebrovascular accident or indication of residuals of one. The 2009 VA examiner confirmed such after examination of the Veteran, which included an MRI, and review of the claims file. Accordingly, the Board finds this undisputed opinion highly probative. In short, during the course of this claim, the medical evidence reflects that the disability causing his brain symptoms in service was herpes encephalitis, not a cerebrovascular accident. The evidence does not reflect a clinical diagnosis of a cerebrovascular accident or residuals thereof, for which service connection can be established. The VA examination in February 2009 fails to provide a clinical diagnosis of such, and the Veteran does not indicate he has received any treatment for this disorder or any accompanying residuals since 1987. The VA examiner specifically noted there is no evidence of cerebrovascular accident or residuals. The Board acknowledges the Veteran's assertion that he suffered from a cerebrovascular accident during service in 1987, and currently suffers from residuals such as short-term memory loss, twitching of the right arm and hand, and slow, guarded speech. However, the Veteran has not shown that he has specialized training sufficient to render such a diagnosis, as such matter requires medical expertise. Accordingly, his opinion as to the diagnosis or etiology of any problem associated with his brain is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board finds the medical evidence to be of greater probative value than the Veteran's lay contentions, with respect to his claim for a cerebrovascular accident. In summary, the competent and probative evidence of record indicates the Veteran did not suffer a cerebrovascular accident during service, nor has such disability, or residuals thereof, been shown during the course of the claim. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The preponderance is against the Veteran's claim, and therefore, his claim for service connection must be denied. Herpes Encephalitis As noted above, the Veteran's service treatment records reveal that he was diagnosed with herpes encephalitis during service in 1987. A brain scan at that time revealed increased radionuclide activity in the left temporal parietal brain parenchyma, not apparently in a vascular distribution and consistent with herpes encephalitis. The February 2009 VA examiner noted that an MRI of the brain conducted that month showed "sequelae of [prior] left temporal lobe encephalomyelitis." While the remainder of the VA examination is unclear as to whether there are any current disabling symptoms attributable to the herpes encephalitis, the examination does clearly reflect an objective and identifiable residual finding on his brain MRI. As the record shows the Veteran suffered from herpes encephalitis during service and has present MRI findings showing sequelae of such, service connection for herpes encephalitis is warranted. ORDER Service connection for cerebrovascular accident is denied. Service connection for herpes encephalitis is granted. REMAND Although the Board sincerely regrets the additional delay, the Board finds that additional development concerning the Veteran's claim for service connection for a low back condition is warranted. The Veteran asserts he suffered from a back injury during his first period of active duty, and it has worsened over the years. Service treatment records clearly show the Veteran was treated for low back pain in October 1985 and June 1987. Further, he was diagnosed with a muscle strain in June 1987, which was incurred as a result of lifting safes. Thereafter, a February 2002 US Army Reserve Medical Board examination does not show any evidence of a back disorder. Following his first period of active duty, the Veteran's private treatment records show he complained of persistent pain in his low back in April and May 2002. Thereafter, a Work Status Report dated in August 2003 notes the Veteran was diagnosed with a lumbosacral strain in July 2003 after he injured his back lifting milk crates while at work. He was again treated for a back sprain in July 2006 at the Southeast Alabama Medical Center. The Board notes the Veteran was given a VA examination in February 2009. The VA examiner provided a diagnosis of lumbar back strain with muscle spasm and low back pain. X-rays taking during this examination showed no acute fractures or vertebral body subluxations, mild straightening of the spine, and no significant osseous degenerative changes. Following a physical examination, the examiner determined that it is less likely as not the Veteran's back strain, that existed prior to service, was aggravated by his military service "based on the evidence above." Further, the examiner determined the Veteran's back disorder is less likely than not related to his military service "based on the evidence above." The Board notes that the "evidence above" is merely a recitation of the evidence in the claims file and does not provide sufficient rationale for why the Veteran's current back disorder is not related to his 1987 in-service treatment. Thus, an additional opinion is needed. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who treated him for his low back condition since service. After securing any necessary authorizations for release of this information, the RO/AMC should seek to obtain copies of all relevant records identified which are not duplicates of those already of record. 2. After the above has been completed to the extent possible, schedule the Veteran for VA spine examination to obtain an opinion as to whether the Veteran's current low back disability arose during service or is otherwise related to service. The claims folder must be made available to and reviewed by the examiner. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or more) that the Veteran's current low back disorder is etiologically related to his first period of service, to include the treatment in 1987 for muscle strain. In making this determination, the examiner should also comment on the likelihood the Veteran's current back disorder is due to post-service intercurrent causes, such as those noted in his private treatment records beginning in 2002. If the examiner determines the Veteran's low back disorder is not related to his first period of service, then the examiner is asked to also provide an opinion as to whether the Veteran had a low back disability that clearly existed prior to his active service in December 2003. (a) If so, did the Veteran's pre-existing low back disability permanently worsen during his second period of service? (b) If there was a permanent worsening during the second period of service, was this worsening clearly the result of the natural progression of the disorder during service? (c) Is the current low back disability related to the worsening during service? Any opinions expressed by the examiner must be accompanied by a complete rationale. If an opinion cannot be provided without resort to mere speculation, the examiner must state this and must explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After the development requested above has been completed to the extent possible, the RO/AMC should again review the record. If the benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board, if in order. The Veteran 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. 2012). ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs