Citation Nr: 21040408 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 13-17 468 DATE: July 3, 2021 ISSUES Entitlement to service connection for Guillain Barre Syndrome (GBS). ORDER Entitlement to service connection for Guillain Barre Syndrome (GBS) is denied. FINDING OF FACT The competent and credible evidence does not reflect a current diagnosis of Guillain Barre Syndrome (GBS) during the pendency of the appeal. CONCLUSION OF LAW The criteria for entitlement to service connection for Guillain Barre Syndrome (GBS) have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from March 1966 to March 1968 with additional service in the Louisiana Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. By way of background, the Veteran's claim for entitlement to service connection for Guillain-Barre Syndrome (GBS) was denied in a rating decision from April 2013. The Veteran filed a timely Notice of Disagreement (NOD) in June 2013. He was issued a statement of the case (SOC) and filed a timely VA Form 9 in November 2016. In August 2017, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the Veteran's electronic claims folder. The Veteran's claim was certified to the Board, however in a Decision from May 2017 the Board remanded the claim for additional development. The claimed returned to the Board, but in May 2019 the Board found that substantial compliance with the May 2017 remand directives had not taken place. As such, the claim was remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The claim returned to the Board in August 2020, and although the Board had found that substantial compliance had now taken place, the Board again found that additional development was necessary. As such, the claim was remanded again in August 2020. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's most recent remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Also in the August 2020 Board Decision, it was noted that, despite July 2020 correspondence from the Veteran's Representative arguing that they were "currently unable to represent the Veteran in this case," there was no motion to withdrawn representation and no good cause was shown for such withdrawal. See 38 C.F.R. § 20.608 (b)(2). The Board cited to a more recent Informal Hearing Presentation from August 2020 and noted that the Representative had still de facto evinced that the Representation had continued. More recent correspondence from the Representative in June 2021 noted that the July 2020 correspondence was "misguided," and agreed that the Board had "correctly" noted that they remained the de facto Representative. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. 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 Veteran 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, 128-130 (2000). Entitlement to service connection for Guillain Barre Syndrome (GBS). The Veteran contends that he is entitled to service connection for Guillain-Barre syndrome. Specifically, he wrote in correspondence from March 2010 that he was hospitalized in July 1998 at the Lady of the Lake Hospital in Baton Rouge, Louisiana, and that Dr. R.G. of the Louisiana Neurologic Consultants ultimately diagnosed with Veteran with GBS. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Board finds that the Veteran does not have a current diagnosis of GBS. 38 C.F.R. § § 3.303 (a). To begin, in the prior Board remand from August 2020, it was noted that the Representative's Appellate Brief from August 2020 argued that additional records from the Louisiana National Guard should be associated with the claims file, as well as medical records where the Veteran indicted his treatment for GBS may be located. The RO has made more than one attempt since the May 2019 Board remand, and each attempt has been unsuccessful. Specifically, the Veteran has provided recent releases directed at the Lady of the Lake Hospital for the time period from June 1998 to the present. A records response from Lady of the Lake Hospital indicates that they only keep records for a period of seven years, and they then provided all available records from 2013 to the present. Those records do not mention GBS. The RO also specifically requested that Dr. R.G., and Dr. R.K. to submit records to help substantiate the Veteran's claim regarding a current diagnosis of GBS. Those records were also deemed unavailable. Following the August 2020 remand directives, the RO requested information from the Louisiana National Guard in August 2020. That request was answered the following month by the National Personnel Records Center (NPRC); however such records do not indicate a diagnosis of GBS. A subsequent development letter was sent to the Veteran in April 2021 again requesting additional information and informing the Veteran that it was ultimately his responsibility to submit relevant evidence for consideration. The Veteran has not responded to that request, and the Representative acknowledged those efforts made by the RO in their most recent July 2021 Appellate Brief. As the Veteran has mentioned, his claims file includes an isolated July 1998 record from the Louisiana Neurologic Consultants (LNC) from Dr. R.G. The report indicates that the Veteran "has suffered an attack of Guillain Barre he's not capable of returning to military duty at this time." A follow up prescription sheet from Dr. R.G. only notes "light duty [un]till 9/15/1998." Again, additional records from this provider have been deemed unavailable. The Veteran's claims file includes over two decades of VAMC records since July 1998, none of which indicate that he has a current diagnosis of GBS. Associated neurological symptoms are also not mentioned in any available VAMC records. The Veteran's claims file includes recent complaints of "hand tremors," and from those complaints a VA examination was ordered. In December 2019, a VA examiner denied that the Veteran had a diagnosis of hand tremors and wrote that they are not etiological related to the "diagnosis of Guillain-Barre during service." During that examination however, it is also unclear if the Veteran had a current diagnosis of GBS, and in the Veteran's Form 9 from November 2016, he only wrote that for "GBS [I] still have symptoms." Those symptoms however were not described. The Veteran has also provided competent testimony during a Board hearing before the undersigned in August 2017 that the GBS is "still in my system. I could never take a flu shot, so it has to be affecting my nerves somewhat." As the Veteran indicated that he still had symptoms, and thus a possible diagnosis, the Board remanded the Veteran's claim in August 2020 for a VA examination to confirm or refute the possible diagnosis of GBS. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). That VA examination occurred in March 2021. The Veteran was seen in person and his claims file was reviewed. The examiner noted that the lay statements of the Veteran were reviewed, as well as his specific medical history of GBS. The examiner then denied that the Veteran had a current diagnosis of a central nervous system condition, to include GBS. No symptoms were indicated, nor any other pertinent physical findings, complications, conditions, or signs. The examiner wrote that "there is no diagnosis because there are no findings, signs and/or symptoms to support a diagnosis." In the opinion portion of the exam, the examiner provided a description of the GBS disorder, including that "most people recover fully." They then noted that "the Veteran was diagnosed with GBS in 1998, no neurologist follow-up within the 2 years to monitor if there is any neurological sequelae. The GBS is not permanent diagnosis, the damage may be permanent if there [are] symptoms observed or monitored." As such, the examiner confirmed that the Veteran had a previous diagnosis of GBS in 1998, but that the diagnosis had since resolved, and denied any present symptoms associated with such a diagnosis. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the existence of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the two VA examinations of record therefore have denied that the Veteran has a current diagnosis of GBS during the period on appeal. The Board also notes that the past two decades of VAMC records do not indicate that the Veteran has a current diagnosis, and additional efforts to obtain records have not proven to be successful, despite multiple attempts. As a result, the Board finds that the Veteran does not have a current diagnosis for GBS. 38 C.F.R. § § 3.303(a). Additionally, the Board has considered the recent holding in Saunders v. Wilkie in which service connection was deemed possible in the absence of a diagnosis when such factors as pain are shown to limit functional ability. Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018) ("pain alone can serve as a functional impairment and therefore qualify as a disability"). That Federal Circuit decision qualified that holding, however: "[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain. To establish the presence of a disability, the veteran will need to show that [her] pain reaches the level of functional impairment of earning capacity." Id. at 1365. In this case, however, during the pendency of the appeal, the Veteran did not claim that the GBS caused him pain, nor that that resulted in functional loss. The Board would emphasize that, while the Veteran testified he "still has symptoms," those symptoms have not been described, and they were specifically refuted within the medical evidence. Thus, the Veteran does not have a present disability manifest by pain that could be identified as part of his claim for service connection for GBS pursuant to Saunders. Therefore, the first criteria for service connection is not met for the claimed disability, as there is no evidence that the Veteran had a current diagnosis of GBS. 38 C.F.R. § § 3.303(a). As far as the second and third criteria for service connection, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability during the period of the appeal. See 38 U.S.C. § 1110. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, in the absence of competent evidence showing a current diagnosis of GBS, it is unnecessary to address the remaining elements of the claims for entitlement to service connection. See Brammer, 3 Vet. App. at 225. (Continued on next page.) Thus, the Board finds that entitlement to service connection for GBS is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and service connection for GBS is denied. 38 U.S.C. § 5107, Gilbert v. Derwinski, Vet. App. 49, 55-57. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.