Citation Nr: 1333899	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  10-47 090	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to service connection for late onset cerebellar degeneration.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

M. McPhaull, Counsel


INTRODUCTION

The Veteran had active military service from August 1966 to August 1970.  The Veteran also had subsequent inactive duty training (INACDUTRA) with the National Guard from May 1985 to June 1998.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York which denied the issue currently on appeal.

In August 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.  At the hearing, the Veteran was granted a 30-day abeyance period for submission of additional evidence.  In August 2011, the Veteran submitted additional evidence.

In May 2013, this matter was remanded for further development, to include obtaining outstanding private treatment records and to afford the Veteran a VA examination with an appropriate provider.

In the May 2013 Board remand, the Board noted that an April 2010 statement from the Veteran appeared to raise a claim of entitlement to service connection for an acquired psychiatric disability.  The issue was referred at that time for appropriate RO action, as the Board did not have jurisdiction over the issue.  It does not appear that the RO has addressed this issue and it is referred once again for appropriate action.

This appeal was processed using the Virtual VA/VBMS paperless claims processing system.   Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

Late onset cerebellar degeneration was not shown in service, or for many years thereafter, and there is no competent evidence or opinion of record that shows there exists a medical relationship between this current disability and service.


CONCLUSION OF LAW

The criteria for service connection for late onset cerebellar degeneration are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist 

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 

Proper notice from VA must inform the claimant of any information and medical or lay 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.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim.  Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328   (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

Here, the Veteran was sent a letter in January 2010 that fully addressed all notice elements.  The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, all critical notice has been received and no further development is required with respect to the duty to notify.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service personnel records, service treatment records, and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran's electronic Virtual VA/VBSM file, contains his service personnel records, service treatment records, as well as all available post-service reports of VA and private treatment and examination.  Moreover, the Veteran's statements, to include testimony, in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no additional available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  


Notably, during the August 2011 Board hearing, the Veteran testified that he had been seen by his private providers at the Slocum-Dickson Medical Group every 6 months since 1992.  Upon review of the claims file, treatment records dated through 2002 from the Medical Group were associated with the claims file.  The Veteran's case was held open for 30 days in order for him to submit the outstanding records.  No additional records were received.  When the case was remanded in May 2013, the RO requested the Veteran's help in order to obtain the outstanding treatment records.  Again, no additional records have been received.

Additionally, pursuant to the May 2013 Board remand, the Veteran was afforded a VA examination in June 2013.  The Board finds that the VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes the disability in detail sufficient to allow the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).  

The Veteran was also provided with an opportunity to set forth his contentions during a hearing before the undersigned.  The United States Court of Appeals for 
Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2)  apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).  The record reflects that at the hearing the undersigned set forth the issue to be discussed at the hearing, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing.


For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

The Board also finds that there was substantial compliance with the May 2013 remand directives.  A remand by the Board confers upon the claimant, as a matter of law, the right to substantial compliance with a remand order.  See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to the internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). 

Specifically in this case, the Board directed the AMC/RO to obtain the Veteran's outstanding private treatment records and then afford the Veteran a VA examination and opinion to ascertain the etiology of his current cerebellar degeneration.  Upon remand, as noted, no additional private treatment records have been received.  The Veteran underwent a VA examination in June 2013.  Thereafter, the AMC/RO readjudicated the matter in an August 2013 supplemental statement of the case, as directed by the Board. 

For the above reasons, the Board finds that there was substantial compliance with the May 2013 remand directives.  Accordingly, no further remand is necessary.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries, 22 Vet. App. at 104-05.

II.  Analysis 

As an initial matter, the Veteran testified that he was informed that his current cerebellar degeneration was hereditary.  He stated that he experienced vague problems with his speech and equilibrium before active duty.  See pages 10-11 of the hearing transcript.  The Veteran testified that during the 4 years of active duty he noticed his problems got worse.  

The Veteran's active duty service treatment records, to include enlistment and discharge physical examinations, show no complaints of or treatment for speech difficulty or problems with equilibrium (i.e., cerebellar deficits).  In this regard, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service; unless clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service.  See 38 U.S.C.A. § 1111.  Moreover, a veteran's reported history of the pre-existence of a disease or injury does not constitute notation of such disease or injury, but is considered with all other evidence in determining if the disease or injury pre-existed service.  Paulson v. Brown, 7 Vet. App. 466, 470 (1995).  

Given the above, the Veteran is presumed to have been in sound condition at the time of his enlistment.  Moreover, the claims file does not contain clear and unmistakable evidence to rebut that presumption and no other evidence addresses this question.  The Veteran's contentions that he experienced vague problems with his speech and equilibrium before active duty does not rise to the level of clear and unmistakable evidence of an identifiable disability.  While he is competent to describe the symptoms he experienced at that time, he is not competent to make a medical conclusion regarding a diagnosis.  

Accordingly, the appropriate question for consideration is whether late-onset cerebellar degeneration was incurred in, rather than aggravated by, active service.

Additionally, for periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, not disability resulting from diseases.  38 U.S.C.A. § 101(22-4) ; see McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C. §§ 101(24), 1131) (stating that the law "permits service connection for persons on inactive duty (training) only for injuries, not diseases, incurred or aggravated in line of duty").  Moreover, the advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim 
service connection based on a period of active duty for training (ACDUTRA) or INACDUTRA.  Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway, 13 Vet. App. at 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of ACDUTRA, a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim" (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring).  Therefore, the Veteran is not entitled to a presumption of sound condition at entrance onto a period of ACDUTRA or INACDUTRA, or to a presumption of aggravation during such period where evidence shows an increase in severity of a preexisting disease during such a period, or to a presumption of service incurrence or aggravation for certain diseases, including an organic disease of the nervous system, which manifest themselves to a degree of 10 percent or more disabling within a year from the date of separation from service.  In other words, 38 C.F.R. §§ 3.307, 3.309 (presumption of service incurrence), 3.306 (presumption of aggravation), and 38 U.S.C.A. §§ 1111, 1131 (presumption of soundness) are not for application in the context of this appeal.  The Veteran has not claimed and the evidence does not show that his disability resulted from injuries incurred or aggravated during his periods of INACDUTRA.  

Direct service connection requires competent and credible evidence of a current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  In this case, private clinical records from Slocum-Dickson Medical Group dated from 1996 to 2003, show treatment for late onset cerebellar degeneration.  The June 2013 VA examination again verifies a diagnosis of late onset cerebellar degeneration.  Thus, the current disability requirement has been met in this case. 

As a chronic condition, an organic disease of the nervous system would be entitled to presumptive service connection if the disease became manifest to a degree of 10 percent or more within one year of separation.  38 C.F.R. §§ 3.307, 3.309.  The 
Board notes, however, there is no medical evidence of record during the relevant presumptive period.  The July 1970 service separation examination found no significant abnormalities of the nervous system.  The medical evidence of record first dated in 1996, notes the onset of such disability in 1993, more than twenty-three years after the Veteran's separation from active service.  Therefore, a grant of service connection on a presumptive basis is not warranted here. 

Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a) (2013). The law establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents and a presumption of exposure even though there is no record of such disease in service.  See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). These diseases include chloracne; type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy (defined as transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset); porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).  The Veteran has inferred that he served in Vietnam in a statement dated in April 2010.   Without making a formal finding regarding whether the Veteran served on the ground in Vietnam, it is noted that his current disability is not one for which service connection will presumed for Vietnam veterans.  Service connection is not available to the Veteran via this route.  

The second requirement for direct service connection is competent and credible evidence of an in-service occurrence or aggravation of a disease or injury. Davidson, 581 F.3d 1313.  As noted, the Veteran's active duty service treatment records, to include enlistment and discharge physical examinations, show no complaints of or treatment for speech difficulty or problems with equilibrium (i.e., 
cerebellar deficits).  The Board notes, however, the Veteran is competent to provide statements with regard to any injury he experienced while in service, treatment received, and symptoms experienced.  See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Here, the Veteran has indicated that he experienced problems with speech and equilibrium before and during service.  See pages 6 and 7 of hearing transcript.  The Board finds reason to question the Veteran's credibility on this point.  His recollections are in complete contrast with contemporaneous medical evidence which demonstrates the onset of symptoms in the early 1990's.  For instance, in May 1999, the Veteran was examined by Dr. David Bartoszek, who stated that the Veteran "had a six year history consistent with late onset cerebellar degeneration."  When seen by the same doctor in December 1998, it was noted that the Veteran "had a 5 1/2 year history consistent with late onset cerebellar degeneration."  In January 1996, Dr. Bartoszek stated that he "had initially seen the [Veteran] on the 5th of January 1996 for less than a one year history of insidious onset of cerebellar degeneration."  Finally, in a medical note dated January 5th, 1996, Dr. Bartoszek provided a history of the Veteran's illness, which indicated the Veteran's "good health until 6-8 months ago when he began to notice an insidious onset of speech disturbance that has gradually worsened."  Other symptoms were reported by the Veteran as having been of been of several years durations.  None of these symptoms were described as long term or as having been incurred 30-years plus prior to service.  The contemporaneous nature of the Veteran's report of symptoms to Dr. Bartoszek over the years and in the context of a patient seeking medical treatment outweigh the Veteran's claim that he experienced symptoms he associates with his current diagnosis.  The Veteran's memory is deemed faulty and unreliable on this point and the second element of service contention, that of an in-service occurrence requirement, has not been met.  

The third and final requirement for direct service connection is medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Davidson, 581 F.3d 1313.  In this regard, the Board notes that the only medical opinion that adequately addresses this issue is against a finding that the Veteran's current cerebellar degeneration is related to service.  The June 2013 examiner noted that the Veteran's VBMS file had been reviewed, and based on her review, indicated 
that it was less likely than not that the Veteran's current cerebellar degeneration was caused by his military service, as such was a hereditary disease that first manifested around 1993.  The examiner provided a statement regarding the progression of this hereditary condition and noted that the Veteran's course was consistent with the natural course of this neurodegenerative disorder or disease.  The examiner also noted the histories provided by the Veteran's private doctor, noted that the progression of the Veteran's disease is relatively slow.  Additionally, she opined that there was no evidence that the natural progression of the Veteran's disease was aggravated by the military service, as the disease has followed the natural course of history as expected.  See June 2013 VA examination report.

The Board notes the favorable August 2011 opinion from Dr. S. S. Mani that notes the onset of the Veteran's symptoms during his military career, and that the excessive physical activity like marching and other physical activities may have a tendency to make the symptoms more prominent and more manifest.  The Board finds that this opinion is inadequate because it is speculative and fails to provide a medical basis for the conclusion.  Specifically, it does not appear that Dr. Mani reviewed the Veteran's VA and private medical records because there is no comment on the facts reported by Dr. Bartoszeh, or the conclusion of the VA examiner.  Dr. Mani provided very little in the way of a factual background concerning the development of the disease.  For these reasons, this opinion is afforded very little probative value. 

The Veteran himself believes that his cerebellar degeneration is related to service.  The Board notes, however, as a lay person he is generally not credible to address the cause of his disability.  To the extent that the holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) can be interpreted to enable a lay person to speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg, the question of causation here involves a more complex relationship that the Veteran is not competent to address.

Alternately, the final requirement of service connection can be satisfied through a showing of continuity of symptomatology.  38 C.F.R. § 3.303(b).  The Court has held that a lay person is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  A claimant may establish the second and third elements to satisfy the standard three-element test for service connection by demonstrating continuity of symptomatology, but only for the limited number of chronic diseases identified in the regulation, as explained in Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b) (2013).

The medical evidence of record shows treatment for late onset cerebellar degeneration dating back to 1995 (this date is inferred from Dr. Bartoszeh's medical statements), over twenty-four years after separation.  In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  The Board observes, however, the absence of contemporaneous medical evidence does not in itself preclude a grant of service connection.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Indeed, the Veteran's own statements that his lay-observable symptomatology has been continuous can overcome an absence of medical evidence showing such continuity. 

In this case, the Veteran is competent to report his history of speech problems and equilibrium, however, to the extent that he seeks to establish by his statements that he has had continuity of symptoms since service, the Board finds this allegation not credible.  Indeed, the separation examination showed normal findings and indicated no subjective complaints.  Moreover, he did not file a claim for such disability until 2009, over thirty years after separation.  

Had he been experiencing symptoms of cerebellar degeneration dating back to service, it is reasonable to expect that he would have raised a claim much sooner.  Due to this significant gap in time before the claim was raised, any statements to the effect that his cerebellar deficits have been continuous dating back to service are not persuasive and he is not deemed credible on this point.  The credibility analysis was discussed above and applies here.  Thus, continuity of symptomatology has not been shown by either the clinical or lay evidence of record and therefore it cannot serve as a basis for a grant for service connection.

Considering all of the evidence of record, the Board finds that the preponderance of the evidence does not support service connection for late onset cerebellar degeneration.  See 38 U.S.C.A. § 5107(b) (2013).  The Veteran's claim is denied.


ORDER

Service connection for late onset cerebellar degeneration is denied.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs