Citation Nr: 1342229 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 11-11 941A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for dysarthria (claimed as stroke). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to February 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified before the undersigned at an August 2012 Travel Board hearing. The hearing transcript is of record. The Board notes that in an April 2011 rating decision, the RO granted service connection for residual of laceration of the right thumb. This was a full grant of the benefit sought with regard to that issue. Grantham v. Brown, 114 F .3d 1156 (Fed. Cir. 1997). FINDING OF FACT The Veteran does not have a current neurologic disability, or any current residual disability from the neurologic symptoms experienced in service. CONCLUSION OF LAW The criteria for service connection for dysarthria (claimed as stroke) are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 2012) defined 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) (2013). 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; and (3) that the claimant is expected to provide. 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 November 2009 letter, the RO notified the Veteran of the evidence needed to substantiate her claim for service connection. The letter 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 she 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. The Veteran has substantiated her status as a Veteran. She was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claim in the November 2009 letter. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim, as was done here. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Duty to Assist 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). The VCAA also provides 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. VA has obtained records of treatment reported by the Veteran, including service treatment records and private treatment records. The Veteran has not reported any VA treatment. In addition, the Veteran was provided a proper VA examination for her claimed neurologic disability in March 2011. 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. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. 1154(a) 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 United States Court of Appeals for the Federal Circuit (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 at 1337 ("[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." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (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 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). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 the 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 (2010); 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. Analysis Service treatment records show that in January 1989, the Veteran was seen for complaints of difficulty talking, writing, and walking for 1 month. She was noted to have slurred speech and problems with penmanship, and noted to weave when she walked. A February 1989 admission report from the hospital in Fort Huachuca, Arizona, notes that the Veteran was seen for complaints of difficulty with speaking, writing and walking for one month. The notes indicate that the Veteran has been seen a month prior with the same symptoms and given a diagnosis of acute labrynthitis and treated with Antivert, which did not provide her with any significant relief. The Veteran reported that her symptoms had continued, essentially unabated. The notes also indicate that the Veteran's dizziness was only intermittent at that time; that although her voice had suffered a significant change, she was able to articulate words properly; and that her writing had not returned to normal. The Veteran underwent neurological and psychological testing. A CT scan of the head was essentially normal, and psychological testing was inconclusive. An MRI scan was scheduled, but due to administrative difficulties with budgeting, it could not be performed. She was diagnosed at that time with dysarthria with difficulty writing and intermittent vertigo, suggestive of brain stem pathology, rule out multiple sclerosis. It was noted that she was going to be transferred to the Beaumont Army Medical Center. It was also noted that the psychological testing revealed that the Veteran's symptoms did not appear to be psychosomatic and further neurological and neuropsychiatric testing was recommended. The Veteran was afforded a VA examination in March 2011 in response to her claim. At that time, she reported as noted above, that she was hospitalized and treated in service for problems with speech, writing and walking, which developed while she was stationed in Germany, and that had been occurring for approximately one month prior to her hospitalization. The Veteran reported that after her hospitalizations, her problems with slurred speech and stuttering lasted for approximately 30 days; that it took approximately 3 months for her writing and walking to be corrected; and that it took approximately 6 months before she had normal speech again. The examiner noted that the only symptoms the Veteran complained of during her VA examination were occasional, mild, frontal or temporal headaches, primarily on the right side. The examiner also noted that there was no history of migraines, ticks of paramyoclonus, chorea, or choreiform disorders. The examiner also noted that private treatment records show that the Veteran had a CT scan in January 2010, which revealed an area of abnormal attenuation, but the findings were nonspecific. An MRI conducted in January 2010 revealed an abnormal area of chronic ischemia in the subcortical right parietal white matter, as well as scattered areas of mild chronic white matter ischemia. The examiner concluded that the findings were most consistent with a chronic area of ischemia. He did not diagnose a current neurologic disability. In summary, the examiner noted that there was no documentation in the last 20 years of any neurological problems, other than an occasional mild headache (subjectively reported, but not documented), or any continuation or disabling problems related to a stroke or showing that it was a stroke that the Veteran experienced. He also noted that he could not tell if the changes shown on MRI are related to the incident that occurred in 1989 or not, and if they are, there is no evidence of any residual, with the exception of the Veteran's subjective complaints of mild headaches. He concluded that there was not enough evidence/information to give an absolute diagnosis for the incident in 1989. As such, he opined that the Veteran experienced a neurologic event of undetermined etiology. In an August 2012 statement, private physician, P.P., MD stated that he had been treating the Veteran for a history of transient ischemic attack. He also noted that the Veteran was treated in service for the condition. He opined that based on his review of the Veteran's 2010 CAT scan and MRI, it is more likely than not that the Veteran's current condition is directly related to the condition sustained and treated in service. However, the examiner did not indicate that he had reviewed the Veteran's claims file prior to rendering his opinion. Furthermore, the opinion is not supported by any specific clinical findings or the evidence found in the Veteran's service treatment records. In this regard, the Board notes that there is no evidence in the service treatment records showing that the Veteran was ever treated for a transient ischemic attack. Furthermore, there are no clinical treatment records from Dr. P.P. showing his reported treatment of the Veteran for a transient ischemic attack. And finally, the examiner did not provide a rationale for his opinion. Accordingly, the Board finds that the opinion lacks probative value. Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the Veteran has reported a history of neurologic symptoms in service, and her reports are confirmed by evidence in the service treatment records. Specifically, the records show that she was treated for symptoms such as slurred speech, difficulty walking and difficulty writing, and that she was diagnosed with dysarthria. However, the evidence does not show that the Veteran has ever been diagnosed with dysarthria or any other neurologic disability, or that she has reported any of the other symptoms he experienced in service (difficulty walking, difficulty writing, dizziness), during the entire pendency of this appeal. Furthermore, there is no confirmation in the evidence that the Veteran ever had a stroke in service, or that she has any current residuals of a stroke. As noted, the only current symptoms the Veteran has reported are occasional mild headaches, which were not reported in service, have not been related in any way to service, and have not been related to any neurologic disability. In the absence of proof of a current disability, there is no valid claim of service-connection. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for dysarthria (claimed as stroke) is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs