judge_norm: HARVEY P ROBERTS

text:
Citation Nr: 0634000
Decision Date: 11/02/06    Archive Date: 11/16/06

DOCKET NO.  03-36 606	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico

THE ISSUE

Entitlement to service connection for a cervical spine
disability.

INTRODUCTION

The veteran served on active duty from June 1986 to March
1990.

This appeal arises before the Board of Veterans' Appeals
(Board) from a July 2003 rating decision of the San Juan,
Puerto Rico, Regional Office (RO) of the Department of
Veterans Affairs (VA), that denied service connection for a
cervical spine disability.  This claim was previously before
the Board and was remanded in December 2005 for further
development of the evidence.  That development has been
completed and the claim is again before the Board.

FINDINGS OF FACT

A cervical spine disability was not incurred in or aggravated
by service, nor is it proximately due, the result of, or
aggravated by any disease or injury incurred in or aggravated
by service, to include the veteran's service-connected lumbar
spine disability.

CONCLUSION OF LAW

The criteria for entitlement to service connection for a
cervical spine disability are not met.  38 U.S.C.A. �� 1110,
1153, 5103A (West 2005); 38 C.F.R. �� 3.102, 3.303, 3.304,
3.306, 3.310 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim.  This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf.  See 38 U.S.C.A. �� 5103,
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. � 3.159
(2005).  The notice must:  (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)."  Pelegrini v. Principi, 18
Vet. App. 112 (2004).

Here, the RO sent correspondence in January 2002 and June
2003; rating decisions in July 2003 and December 2005; a
statements of the case in October 2003 and June 2004; and a
supplemental statements of the case in November 2004.  These
documents discussed specific evidence, the particular legal
requirements applicable to the claims, the evidence
considered, the pertinent laws and regulations, and the
reasons for the decisions.  VA made all efforts to notify and
to assist the appellant with regard to the evidence obtained,
the evidence needed, the responsibilities of the parties in
obtaining the evidence, and the general notice of the need
for any evidence in the appellant's possession.  The Board
finds that any defect with regard to the timing or content of
the notice to the appellant is harmless because of the
thorough and informative notices provided throughout the
adjudication and because the appellant had a meaningful
opportunity to participate effectively in the processing of
the claims with an adjudication of the claims by the RO
subsequent to receipt of the required notice.  There has been
no prejudice to the appellant, and any defect in the timing
or content of the notices has not affected the fairness of
the adjudication.  See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006) (specifically declining to address harmless error
doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473
(2006).  Thus, VA has satisfied its duty to notify the
appellant and had satisfied that duty prior to the
adjudication in a May 2006 supplemental statement of the
case.

In addition, all relevant, identified, and available evidence
has been obtained, and VA has notified the appellant of any
evidence that could not be obtained.  The appellant has not
referred to any additional, unobtained, relevant, available
evidence.  VA has also obtained multiple medical examinations
in relation to this claim.  Thus, the Board finds that VA has
satisfied both the notice and duty to assist provisions of
the law.

Service connection may be established for a disease or injury
incurred in or aggravated by service.  38 U.S.C.A. � 1110;
38 C.F.R. � 3.303, 3.304.  Disability which is proximately
due to or the result of a disease or injury incurred in or
aggravated by service will also be service-connected.
38 C.F.R. � 3.310.  When aggravation of a veteran's
nonservice-connected condition is proximately due to or the
result of a service-connected disability, the veteran shall
be compensated for the degree of disability (but only that
degree) over and above the degree of disability existing
prior to that aggravation.  Allen v. Brown, 7 Vet. App. 439,
448 (1995).

The veteran's service medical records do not show any
findings or diagnoses of any cervical spine disorder.
However, in a March 1989 service medical report, the veteran
complained of back and shoulder pain after heavy lifting.
The veteran stated that when he moved his neck, pain shot
into his back.  The veteran's January 1990 service separation
examination found his spine examination to be normal.  The
veteran complained of recurrent back pain with heavy lifting,
but had not other complaints.

A December 2002 private X-ray consultation report shows an
impression of mild cervical spondylosis with mild narrowing
of the C5-C6 disc space.  The study was otherwise negative.

A May 2003 private medical statement shows that the veteran
had chronic persistent cervical pain and radiculopathy with
herniated nucleus pulposus at C4-C5 and C5-C6, but does not
show any relationship between that disability and service or
any service-connected disability.

A July 2003 private medical statement states that the veteran
had a back trauma in 1988 during active duty and showed
persistent cervical pain with upper extremity numbness.
According to the patient, the clinical picture showed a
secondary injury to the cervical area, probably due to the
old back trauma.  The examiner felt this was highly suspected
and appreciated VA correlation of that finding.

A July 2003 VA examination report shows that the examiner
reviewed the veteran's claims folder and service medical
records.  The examiner stated that there was no mention of
cervical pain until 2002.  Based on the lack of service
medical record mention of cervical problems, the examiner
felt that it was not as likely as not that the veteran's
cervical condition was related to his service-connected
lumbar condition.

At an April 2006 VA examination, the examiner provided an
opinion that the veteran's cervical spine conditions were
less likely than not related to military service from 1986 to
1990.  The examiner also stated that the cervical spine
conditions were less likely than not related to the
lumbosacral spine disability in terms of etiology or
pathophysiology.  The veteran's claims folder and service
medical records did not show complaint, diagnosis, or
treatment of the cervical spine, although it was once
mentioned that he had pain in the cervical area.  There was
no evidence of continuity of pain, treatments, or any other
cervical spine conditions during those years so as to
consider an injury in that area to correlate to the episode
of heavy lifting in 1989.  It was not until 2002 that the
veteran complained of pain in a continuous fashion in the
cervical area.  The veteran performed heavy lifting of an
object on the floor, for which biomechanics affecting the
spine most likely affected the lumbosacral spine.  The
veteran's symptoms in the cervical spine were not documented
in a constant or continued fashion, so as to correlate with
the incident in 1989 of heavy lifting.  The etiology of the
cervical spine disorders, although of uncertain nature, was
less likely than not related to the lumbosacral spine
conditions or lumbosacral spine injury in 1989.  The
pathophysiology of cervical and lumbar conditions in the
veteran was totally unrelated.  The examiner referred to the
July 2003 VA examination report where an opinion had already
been given by a different examiner as to any relationship
between those two conditions.

Other medical records, private and VA, show treatment for
cervical and lumbar spine disabilities, but do not provide
any opinions as to any relationship between the cervical
spine disability and the veteran's service or his lumbar
spine disability.

The Board finds that the evidence does not show that a
chronic cervical spine disability was incurred during the
veteran's service.  Although he complained of neck pain on
one occasion, there was no diagnosis or finding of a chronic
disability during his service or at separation from service.
The evidence does not show further treatment for any cervical
spine complaints until 2002, approximately 12 years after the
veteran's separation from service.  The United States Court
of Appeals for the Federal Circuit has determined that such a
lapse of time is a factor for consideration in deciding a
service connection claim.  Maxson v. Gober, 230 F.3d 1330,
1333 (Fed. Cir. 2000).

The Board finds that the July 2003 and April 2006 VA
examinations are the most persuasive evidence in this case.
Both examiners found that the veteran's current cervical
spine disability was not incurred in service and is not
related to his service-connected lumbar spine disability.
While a July 2003 private medical report suggests a
relationship between the veteran's cervical spine disorder
and his lumbar spine disorder, the VA examiners did not
support that finding.  They both felt that there was no
etiological relationship between the veteran's cervical spine
and his service.  Furthermore, the April 2006 examiner stated
that there was no relationship between the veteran's current
cervical spine disorders and the 1989 complaint of neck pain
in service; and that there was no etiological relationship
between the veteran's cervical spine and lumbar spine
disorders.

The veteran has stated that he feels that his cervical spine
disability was incurred in service, is the result of his
service-connected lumbar spine disability, or is aggravated
by his lumbar spine disability.  However, lay persons are not
competent to offer medical opinions.  Espiritu v. Derwinski,
2 Vet. App. 492 (1992).  Competent medical evidence is
required to relate the veteran's current cervical spine
disabilities, first shown years after service, to service.
Where the determinative issue involves either medical
etiology or medical diagnosis, competent medical evidence is
required.  In medical matters, competent medical evidence
must come from a witness who is competent to testify as to
the facts under consideration.  See Rucker v. Brown, 10 Vet.
App. 67, 74 (1997).

The Board finds that the preponderance of the evidence is
against the veteran's claim for service connection for a
cervical spine disability.  The evidence does not show any
cervical spine disability was incurred in or aggravated by
service; is proximately due to or the result of any disease
or injury incurred in or aggravated by service (to include
complaints of neck pain in service and the service-connected
lumbar spine disability); or is aggravated by the veteran's
service-connected lumbar spine disability.  As the
preponderance of the evidence is against the veteran's claim,
the claim must be denied.

ORDER

Entitlement to service connection for a cervical spine
disability is denied.

____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: J E DAY

disposition: granted

condition: back

disposition: denied

condition: heart

text:
Citation Nr: 0701000
Decision Date: 01/12/07    Archive Date: 01/24/07

DOCKET NO.  04-11 911A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida

THE ISSUES

1.  Entitlement to service connection for Ehlers-Danlos
syndrome, manifested by degenerative arthritis of the
bilateral shoulders, bilateral knees, and spine.

2.  Entitlement to service connection for valvular heart
disease.

3.  Entitlement to service connection for residuals of
rheumatic fever, to include joint swelling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K. Seales, Associate Counsel

INTRODUCTION

The veteran served on active duty from July 1967 to July
1970.

This matter is on appeal to the Board of Veterans' Appeals
(Board) from a February 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO).  In
that decision, the RO determined that the veteran was not
entitled to service connection for rheumatic fever with joint
swelling, left knee surgery, right knee strain, left shoulder
dislocation, right shoulder condition, valvular heart
disease, arthritis/spondylosis of cervical/thoracic/lumbar
spines, or left rotator cuff tear, in addition to conditions
which the veteran did not appeal.

FINDINGS OF FACT

1.  Ehlers-Danlos syndrome is a congenital disease that was
aggravated by service.

2.  The veteran's valvular heart disease is not related to
service, was not aggravated by service, and first manifested
more than one year after separating from service.

3.  The veteran does not have a current disability
characterized by residuals of rheumatic fever.

CONCLUSIONS OF LAW

1.  Ehlers-Danlos syndrome was aggravated by active service.
38 U.S.C.A. �� 1110, 5107 (West 2002); 38 C.F.R. � 3.303
(2006).

2.  Valvular heart disease was not caused or aggravated by
active service, and service incurrence may not be presumed.
38 U.S.C.A. �� 1110, 1112, 5107 (West 2002); 38 C.F.R.
� 3.303, 3.307, 3.309 (2006).

3.  A chronic disability, characterized by residuals of
rheumatic fever, was not caused or aggravated by active
service.  38 U.S.C.A. �� 1110, 5107 (West 2002); 38 C.F.R.
� 3.303 (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be granted for a disability which is
proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. � 3.310(a) (2006).  In order to
establish service connection on a secondary basis, there must
be (1) evidence of a current disability; (2) evidence of a
service-connected disability; and (3) medical evidence
establishing a nexus between the service-connected disability
and the current disability.  See Wallin v. West, 11 Vet. App.
509, 512 (1998).

If a nonservice-connected disorder is aggravated by a
service-connected disorder, the veteran is entitled to
compensation for the degree of increased disability (but only
that degree) over and above the degree of disability existing
in the absence of the aggravation.  See Allen v. Brown,
7 Vet. App. 439, 448-49 (1995).

Factual Background

Prior to induction into the service in March 1966, the
veteran complained of a history of rheumatic fever during
childhood, previous left knee surgery, left shoulder
dislocation, right knee injury, swollen or painful joints, a
history of broken bones, arthritis or rheumatism, painful or
"trick" shoulder or elbow, and "trick" or locked knee. On
examination, his knees were found to be "ok" and no Bakers'
cyst was apparent.  No abnormalities were noted beyond scars
on the veteran's knees.

Of record is a September 1966 opinion statement from the
veteran's physician; which documents a fracture of the left
distal tibial epiphysis, avulsion fracture of the thumb, a
left knee medial menisectomy, dislocation of his shoulder,
recurrent effusion in his knee, and a Bakers' cyst in the
posterior knee.  The veteran also submitted an October 1966
opinion statement from another private physician, which
documented an episode of acute rheumatic fever and arthritis
in May 1952.  His physician noted that the veteran did not
develop a heart lesion or joint pains as a result of
childhood rheumatic fever.

During his July 1967 service induction examination, the
veteran mentioned his history of rheumatic fever and joint
complaints on his personal report of medical history.  On
examination, his knees were considered stable and no
abnormalities were noted.  The veteran was found to meet
fitness standards for induction into service.

The veteran injured his right knee in February 1968.  He
complained of pain posterolaterally and medial to the
patella.  On examination, mild effusion of the right knee was
noted, along with a lack of full extension.  X-rays of the
right knee were negative.  He was treated with an ace wrap,
light activity, and medication.  Fluid in the knee was noted
at his follow-up appointment and the veteran was referred to
the orthopedic clinic.  In April 1968, the orthopedic clinic
observed decreased effusion, full range of motion, and normal
gait.  Progressive activity was recommended.  In May 1968 the
veteran sought treatment for a possible dislocation of the
right knee after jumping off of a truck.  His treating
physician noted fluid and pain on lateral motion.  In May
1968 the veteran sought treatment for a twisting injury of
the right knee.  His treating physician noted mild pain in
the medial anterior joint line and some limitation of active
extension, although no effusion was noted.  The veteran
continued to complain of right knee pain in June 1968,
although the swelling had improved.  The veteran continued to
lack 15 degrees of full extension and experienced a clicking
sensation in the proximal patella at his follow-up
appointment.
In December 1969, the veteran injured his right arm and
shoulder.  He complained of some pain in the deltoid region
when rotating the arm.  The physician diagnosed a pulled
muscle.  In May 1970, the veteran complained of vague
numbness in the median antebrachial cutaneous distribution of
the right forearm.  No motor or reflex loss in the extremity
was observed.  A whirlpool treatment of the right arm was
performed the following day.

At separation in April 1970, the veteran reported a history
of rheumatic fever, swollen or painful joints, a history of
broken bones, arthritis or rheumatism, painful or "trick"
shoulder or elbow, and "trick" or locked knee.  His
examiner concluded that the aforementioned symptoms were all
asymptomatic and without sequelae at separation from service.
No conditions were noted on his April 1970 separation
examination.

a.	a.  Ehlers-Danlos syndrome manifested by residuals of
left knee surgery, right knee strain, left shoulder
dislocation, right shoulder condition, left rotator cuff
condition, and arthritis/spondylosis of the cervical,
thoracic, and lumbar spines

The veteran contends that he is entitled to service
connection for joint disabilities affecting his bilateral
shoulders, bilateral knees, and spine.  He contends that a
congenital condition which preexisted service, Ehlers-Danlos
syndrome, was aggravated by strenuous activity during
service.

While service connection may not be granted for congenital or
developmental defects pursuant to 38 C.F.R. � 3.303(c) and
38 C.F.R. � 4.9, service connection may be granted for
congenital or developmental diseases.  See Monroe v. Brown, 4
Vet. App. 513, 514-15 (1993).  As noted in VAOPGCPREC 82-90,
a developmental disease would be considered capable of
deteriorating, and if the congenital or developmental
condition is a disease, the presumption of sound condition
and the presumption of aggravation apply.  See 38 U.S.C.A.
� 1111(West 2002); see also 38 U.S.C.A. � 1153 (West 2002).

The veteran submits a May 2005 medical opinion statement from
the University of South Florida's genetic clinic.  A review
of the veteran's medical records reflected degenerative
changes and degenerative disc disease involving the cervical
spine, mild thoracic spondylosis, mild scoliosis convex to
the left, spondylosis of the lumbar spine and grade I
anterolisthesis.  Abnormalities of the left shoulder were
documented on an MRI performed in January 2000.  The
physician concluded that it seemed likely that the veteran's
joint problems, to include joint pains and sublaxations of
the shoulders and knees, were exacerbated by heavy work and
exercise required through military service.

The veteran submits a June 2005 medical opinion statement
from his private physician.  This physician noted that the
veteran has been diagnosed with Ehlers-Danlos syndrome type
III, manifested by markedly hyperextensible joints and skin.
Ehlers-Danlos syndrome causes joint hypermobility, which
often results in "wear and tear" arthritis and joint
effusions.  In addition, physically demanding and repetitive
tasks, such as long periods of standing, lifting objects, and
filling sandbags, would result in frequent dislocations of
hyperextensible joints and lead to the development of "wear
and tear" arthritic changes.  The veteran's physician
concluded that the veteran's current disability is directly
related to the effect of his military service on his pre-
existing genetic condition.

The veteran underwent a VA joints examination in January
2006.  On examination, range of motion in both knees was
limited.  The veteran was able to perform flexion to 140
degrees bilaterally.  No limitation of motion due to pain,
fatigue, in-coordination, or active or repetitive motion was
noted, although the veteran demonstrated pain with motion.
X-rays revealed severe degenerative arthritis of the
bilateral knees.  With regard to his bilateral shoulders, the
veteran demonstrated full range of motion; with forward
elevation to 180 degrees, external rotation to 90 degrees,
and internal rotation to 60 degrees.  No pain was noted
during range of motion testing of the shoulders.  X-rays
revealed moderate degenerative arthritis of the bilateral
shoulders.

The veteran also underwent a VA spine examination in January
2006.  He complained of low back pain his entire life,
associated with pain radiating into both legs.  The veteran
also reported cervical pain radiating into both arms.  The
veteran described periods of flare-ups, especially with
activity or prolonged sitting.  The examiner observed mild
diffuse lumbar, cervical, shoulder, and hip tenderness.   On
range of motion testing, he performed cervical flexion to 30
degrees, lateral flexion to 15 degrees bilaterally, and
lateral rotation to 45 degrees bilaterally.  The veteran was
limited an additional 10 degrees on forward flexion due to
pain and fatigue on repetitive motion.  On range of motion
testing of the thoracolumbar spine, the veteran demonstrated
forward flexion to 45 degrees, backward extension to 30
degrees, lateral flexion to 20 degrees bilaterally, and
lateral rotation to 15 degrees bilaterally.  The veteran was
limited an additional 10 degrees on forward flexion and an
additional 5 degrees on lateral flexion due to pain and
fatigue.  X-rays revealed good cervical lordosis with
narrowing of the intervertebral space at C5-6.

The examiner diagnosed Ehlers-Danlos syndrome with
degenerative arthritis of the bilateral knees, bilateral
shoulders, and the lumbar and cervical spine.  The examiner
determined that it was more likely than not that the
generalized ligamentous laxity of the Ehlers-Danlos syndrome
predisposed the veteran to multiple dislocations and post-
traumatic arthritis.  The examiner concluded that military
service accelerated the veteran's condition faster than would
normally be expected.

The veteran currently suffers from Ehlers-Danlos syndrome,
manifested by arthritis of the bilateral shoulders, bilateral
knees, and osteoarthritis of the thoracolumbar and cervical
spine.  The evidence indicates that the veteran's condition
is capable of deteriorating, therefore, his Ehlers-Danlos
syndrome is a congenital disease for which service connection
may be granted.  Service medical records document repeated
complaints of knee and shoulder injuries during service,
although the veteran did not seek treatment for back pain or
injuries.  Also of record are nexus opinions from three
physicians who have examined the veteran and concluded that
his Ehlers-Danlos syndrome, which preexisted service, was
aggravated beyond its natural progression by the strenuous
and repetitive physical activities performed during service.
In light of the evidence of record, the Board concludes that
the criteria for a grant of service connection for Ehlers-
Danlos syndrome have been met and the appeal is granted.
b.	Valvular heart disease

The veteran contends that he is entitled to service
connection for valvular heart disease.  He notes that he
suffers from a congenital aortic valve abnormality, an
aneurysm of the ascending aorta, and Ehlers-Danlos syndrome.
The veteran contends that strenuous physical activity and the
stress of active duty service aggravated his congenital heart
condition.

Of record is a February 1991 treatment record from the
veteran's private physician, which reflects a diagnosis of
aortic regurgitation with evidence of early left ventricular
dysfunction.  He underwent an aortic valve replacement in
April 1991.  The veteran also has an aneurysm of the
ascending aorta.

The veteran underwent a VA heart examination in January 2006.
He reported a past medical history of rheumatic fever and an
abnormal aortic valve with a congenitally malformed leaflet.
On examination, the veteran demonstrated a regular heart rate
and rhythm.  An echocardiogram revealed an ejection fraction
of 55-60%.  The veteran's mechanical prosthetic valve was
functioning normally with some aortic insufficiency.  No
evidence of mitral valve insufficiency was noted.  A chest CT
(computed tomography) revealed a stable aneurismal dilation
of the ascending thoracic aorta.

The examiner diagnosed aortic insufficiency, status post
aortic valve replacement and a history of rheumatic fever
with no evidence of mitral valve stenosis.  The examiner
concluded that the veteran's aortic valve insufficiency is
secondary to both his congenital defect and Ehlers-Danlos
syndrome.  However, the examiner opined that it was less
likely than not that the veteran's service actually affected
the natural history of his cardiac condition.  The examiner
noted that given his congenital condition, it is more likely
that the veteran would have suffered the aforementioned
complications with or without military service.

Also of record is a May 2000 opinion statement from the
University of South Florida's genetics clinic.  The veteran's
physician notes that his congenital valve abnormality is not
a typical feature of his Ehlers-Danlos syndrome.  Although
mild aortic dilation has been identified in individuals with
Ehlers-Danlos syndrome, no opinion was reached regarding
whether the veteran's current aneurysm is the result of
Ehlers-Danlos syndrome aggravated by service.

In light of the evidence of record, it is clear the veteran
currently suffers from aortic valve insufficiency, status
post valve replacement, as well as an ascending aortic
aneurysm.  However, the VA examiner concluded that the
veteran's congenital aortic valve defect and Ehlers-Danlos
syndrome were not likely aggravated by service.  The examiner
concluded that it was more likely than not that the veteran
would have suffered his current complications with or without
military service.  This opinion is consistent with that of
the veteran's private physician, who noted that his valve
abnormality is not typical of Ehlers-Danlos syndrome.  There
is no medical opinion to the contrary.  Further, the
veteran's valvular heart disease did not manifest to a degree
of 10 percent or more within one year from the date of
separation from service, thus, service connection may not be
presumed.  38 U.S.C.A. �� 1101, 1112; 38 C.F.R. �� 3.307,
3.309.  As the criteria for a grant of service connection
have not been met, the preponderance of the evidence is
against the claim and the "benefit of the doubt rule" does
not apply.  Service connection is denied.

c.	Residuals of rheumatic fever

The veteran contends that he is entitled to service
connection for residuals of rheumatic fever, to include joint
swelling.  Of record is an October 1966 opinion statement
from the physician that treated the veteran for acute
rheumatic fever and arthritis in May 1952.  His treating
physician noted that the veteran did not develop a heart
lesion or joint pains as a result of rheumatic fever.  The
veteran did not complain of and was not treated for rheumatic
fever during active service.  Thus, the veteran is not
entitled to service connection for residuals of rheumatic
fever incurred during service, as the condition preexisted
service.  However, the veteran may be entitled to service
connection for residuals of rheumatic fever if his condition
was aggravated beyond its natural progression by active
service.

The veteran underwent a VA joints examination in January
2006.  The veteran complained of "arthritis type" symptoms
in his knees and shoulders since he was seven years old.  The
VA examiner diagnosed severe degenerative arthritis of the
bilateral knees, moderate degenerative arthritis of the
bilateral shoulders, and degenerative arthritis of the entire
spine.  However, he attributed these symptoms to the
veteran's Ehlers-Danlos syndrome, for which service
connection has already been established.  There is no
evidence of record that the veteran currently suffers from
arthritis or joint swelling as a residual disability of
rheumatic fever.  In the absence of evidence that the veteran
suffers from a current disability, the preponderance of
evidence is against the claim, the "benefit of the doubt
rule" does not apply, and his claim for service connection
for residuals of rheumatic fever must be denied.

Duty to Notify and Assist

Regarding VA's duty to inform the veteran of the evidence
needed to substantiate his claim, the RO notified him of the
information and evidence needed to establish service
connection in correspondence dated January 2003 by informing
him of the evidence he was required to submit, including any
evidence in his possession, and the evidence that the RO
would obtain on his behalf.  The veteran has not received
notice regarding the criteria for assignment of effective
dates of disability benefits.  However, the RO can rectify
the lack of notice prior to assigning a disability benefits
and effective date for the benefits awarded by this decision.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Regarding the duty to assist the veteran in obtaining
evidence in support of his claim, the RO obtained his service
medical records, private and VA treatment records, and
provided the veteran VA examinations in January 2006.  He has
not indicated the existence of any other evidence that is
relevant to this appeal.  The Board concludes that all
relevant data has been obtained for determining the merits of
this claim and that no reasonable possibility exists that any
further assistance would aid the veteran in substantiating
this claim.

ORDER

1.  Entitlement to service connection for Ehlers-Danlos
syndrome, manifested by degenerative arthritis of the
bilateral shoulders, bilateral knees, and spine is granted.

2.  Entitlement to service connection for valvular heart
disease is denied.

3.  Entitlement to service connection for residuals of
rheumatic fever, to include joint swelling is denied.

____________________________________________
J. E. DAY
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: RONALD W SCHOLZ

condition: headache

text:
Citation Nr: 0702000
Decision Date: 01/24/07    Archive Date: 01/31/07

DOCKET NO.  04-17 424	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey

THE ISSUES

1.  Entitlement to service connection for lumbosacral strain
and degenerative changes of the lumbar spine.

2.  Entitlement to service connection for cervical strain and
degenerative changes of the cervical spine.

3.  Entitlement to service connection for paresthesias of the
left lower extremity.

4.  Entitlement to service connection for paresthesias of the
right lower extremity.

5.  Entitlement to service connection for residuals of
cerebral concussion.

REPRESENTATION

Appellant represented by:	National Association of County
Veterans Service Officers

WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)

ATTORNEY FOR THE BOARD

J. Parker, Counsel

INTRODUCTION

The veteran served on active duty from April 1966 to January
1969.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from August 2002 and March 2004 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in Newark, New Jersey.  The August 2002 rating
decision denied service connection for cerebral concussion;
the veteran entered a Notice of Disagreement with this
decision in November 2002; the RO issued a Statement of the
Case on this issue in April 2004; and the veteran entered a
timely substantive appeal that was received in May 2004.  The
March 2004 rating decision denied claims for service
connection for back pain, paresthesias of both legs, and
residuals of cerebral concussion.  The veteran entered a
Notice of Disagreement with these issues in May 2004; the RO
issued a Statement of the Case on these issues in December
2004; and the veteran entered what was construed as a timely
substantive appeal in February 2005.

The veteran appeared and testified at a September 2006
personal hearing (travel Board hearing) before the
undersigned Acting Veterans Law Judge.

In November 2002, the veteran entered a claim for service
connection for "residuals of right knee injury," and also
referred to right knee surgery.  By this statement, the
veteran effectively raised a claim for service connection for
degenerative arthritis of the right knee.  Service connection
has previously been granted only for a scar of the right
knee, which may have led to some confusion as to whether in
November 2002 the veteran was claiming service connection or
an increased rating for the right knee; however, the
veteran's new claim for service connection for the underlying
right knee disability (diagnosed as degenerative joint
disease, and for which the veteran underwent debridement
surgery for meniscal tear) is a new claim for service
connection for underlying (non-scar) residuals of right knee
disability.  This claim for service connection for residuals
of a right knee injury has not yet been adequately
adjudicated by the RO.  Although the RO partially discussed
the underlying right knee disability in the "reasons and
bases" section of the March 2004 rating decision, the
"issue" addressed in that rating decision was an increased
rating for the right knee scar, and not service connection.
The issue of service connection for a right knee disability
was not developed, including the required notice and
assistance on this service connection issue.

The Board refers to the RO for notice, development, and
adjudication the issue of service connection for (non-scar)
residuals of right knee disability (diagnosed as degenerative
joint disease, with meniscal tear, and debridement surgery).
In adjudicating this issue, the RO must specifically consider
a July 2003 VA spine examination report, in which the VA
examiner effectively rendered a favorable medical opinion
that the veteran's diagnosed degenerative joint disease of
the right knee was related to service, and the RO must
consider the absence of any competent medical evidence of
record weighing against the veteran's claim.  See Allday v.
Brown, 7 Vet. App. 517 (1995) (VA must support its medical
conclusions on basis of independent medical evidence in
record or through adequate quotation from recognized
treatises; it may not rely on its own unsubstantiated medical
judgment to reject expert medical evidence in record, but may
reject veteran's medical evidence only on the basis of other
such independent medical evidence); Colvin v. Derwinski, 1
Vet. App. 171, 174 (1991) (VA must support its findings about
medical questions with independent medical evidence and may
not refute expert medical conclusions based on its own
unsubstantiated opinion).

In light of the Board's decision granting service connection
for multiple disabilities that include degenerative changes
of the spine, the evidence of record is sufficient to raise
an informal claim for a total rating based on individual
unemployability due to service-connected disabilities (TDIU
or IU).  For example, a November 2001 VA outpatient treatment
entry reflects the veteran's report of inability to work due
to symptoms he relates to the injuries from the in-service
tractor trailer accident.  Records from the US Social
Security Administration show that the veteran has been
considered disabled since September 2003 due to a primary
diagnosis of disorders of the back, and secondary diagnosis
of arthritis.  The veteran submitted various lay statements
in May 2004 to the effect that his low back, knees, and legs
resulted in frequent and prolonged absences from work.  The
issue of entitlement to TDIU is referred to the RO for
notice, development (including sending a formal claim for
TIDU), and adjudication.

FINDINGS OF FACT

1.  The veteran has lumbosacral strain and degenerative
disease of the lumbar spine related to a tractor trailer
accident in service.

2.  The veteran has cervical strain and degenerative disease
of the cervical spine related to a tractor trailer accident
in service.

3.  The veteran has paresthesias of the left lower extremity
that are caused by his service-connected lumbosacral strain
and degenerative disease of the lumbar spine.

4.  The veteran has paresthesias of the right lower extremity
that are caused by his service-connected lumbosacral strain
and degenerative disease of the lumbar spine.

5.  The veteran has residuals of cerebral concussion of
occipital neuralgia and tension headaches that are related to
a tractor trailer accident in service.

CONCLUSIONS OF LAW

1.  Lumbosacral strain and degenerative changes of the lumbar
spine were incurred in active service.  38 U.S.C.A. �� 1110,
5103, 5103A, 5107 (West  2002 & Supp. 2006); 38 C.F.R. ��
3.159, 3.303, 3.304, 3.307, 3.309 (2006).

2.  Cervical strain and degenerative changes of the cervical
spine were incurred in active service.  38 U.S.C.A. �� 1110,
5103, 5103A, 5107 (West  2002 & Supp. 2006); 38 C.F.R. ��
3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2006).

3.  Paresthesias of the left lower extremity are secondary to
service-connected lumbosacral strain and degenerative changes
of the lumbar spine.  38 U.S.C.A.
�� 1110, 5103, 5103A, 5107 (West  2002 & Supp. 2006); 38
C.F.R. �� 3.102, 3.159, 3.310 (2006).

4.  Paresthesias of the right lower extremity are secondary
to service-connected lumbosacral strain and degenerative
changes of the lumbar spine.  38 U.S.C.A.
�� 1110, 5103, 5103A, 5107 (West  2002 & Supp. 2006); 38
C.F.R. �� 3.102, 3.159, 3.310 (2006).

5.  Residuals of cerebral concussion of occipital neuralgia
and tension headaches were incurred in active service.  38
U.S.C.A. �� 1110, 5103, 5103A, 5107 (West  2002 & Supp.
2006); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.304 (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits.  38 U.S.C.A. �� 5103,
5103A (West 2002 & Supp. 2006); 38 C.F.R. � 3.159 (2006).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify 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; (3) that the claimant is expected to
provide; and (4) must ask the claimant to provide any
evidence in her or his possession that pertains to the claim
in accordance with 38 C.F.R. � 3.159(b)(1).  Such notice
should be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Collectively, VA notice and duty to assist letters dated in
August 2001, July 2003, September 2005, and September 2006
satisfied VA's duty to notify under 38 U.S.C. � 5103(a) and
38 C.F.R. � 3.159, as the letters informed the veteran of
what evidence was needed to establish the benefits sought
(service connection), of what VA would do or had done, and
what evidence he should provide, and informed the veteran
that it was his responsibility to make sure that VA received
all requested records that are not in the possession of a
Federal department or agency necessary to support her claim.
The veteran was also advised what evidence would aid in
substantiating his claims at the September 2006 personal
hearing before the undersigned Acting Veterans Law Judge.

Because the full benefits sought on appeal are being granted
by this Board decision, no further notice or assistance to
the appellant is required.  To the extent that there may be
any deficiency of notice or assistance, there is no prejudice
to the appellant in proceeding with these issues because of
the favorable nature of the Board's decision.  For these
reasons, it is not prejudicial to the appellant for the Board
to proceed to finally decide the appeal.  See Conway v.
Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v.
Principi, 16 Vet. App. 183, 186-87 (2002); Sutton v. Brown, 9
Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384
(1993).

Service Connection Law and Regulations

Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military, naval, or air service.  See 38 U.S.C.A. � 1110;
38 C.F.R. �� 3.303(a).  For the showing of chronic disease in
service, there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time.  If a
condition noted during service is not shown to be chronic,
then generally, a showing of continuity of symptoms after
service is required for service connection.  See 38 C.F.R.
� 3.303(b).  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).

Service connection for certain chronic diseases, including
arthritis, will be rebuttably  presumed if they are manifest
to a compensable degree within  one year following active
service.  38 U.S.C.A. �� 1101, 1112, 1113; 38 C.F.R. ��
3.307, 3.309.

Disability which is proximately due to or the result of a
service-connected disease or injury shall be service
connected.  When service connection is thus established for a
secondary condition, the secondary condition shall be
considered a part of the original condition.  38 C.F.R.
� 3.310.  This regulation was changed, effective from October
10, 2006; however, because the regulatory changes are less
favorable to the veteran, the Board will apply the version of
38 C.F.R. � 3.310 that was in effect at the time the veteran
filed his claim for service connection, and that was in
effect prior to the October 10, 2006 changes.

The veteran contends that his currently diagnosed
disabilities of the low back and neck and residuals of a
concussion to the head were caused by a tractor trailer
accident during active service; that he has paresthesias of
both lower extremities secondary to the low back disability;
and that he has headaches and dizziness residual to a
cerebral concussion in service caused by the tractor trailer
accident.

The evidence of record, including the veteran's service
medical records and credible personal hearing testimony,
establish that during service the veteran was involved in a
motor vehicle accident when his tractor trailer turned over.
The evidence reflects that the veteran was thrown through the
windshield; was rendered unconscious; was medevaced to a
hospital; and sustained a low back injury.  Lay statements of
record support the veteran's reports of symptoms of chronic
low back pain and neck pain, and continuous post-service
symptoms of chronic headaches.

Service connection has already been established for multiple
laceration wounds to the chest, scalp, and right knee that
resulted from this in-service tractor trailer accident.

Lumbosacral Strain and Degenerative Changes of the Lumbar
Spine

Post-service VA treatment records in 2001 and 2002 and a
March 2002 VA joints examination report show the veteran's
reports of progressively worsening lumbar spine symptoms that
include pain; clinical findings of multilevel lower lumbar
facet arthropathy, anterior spondylolisthesis and borderline
central spinal stenosis at L4-L5, characterized as
degenerative changes of the lumbar spine; and a relevant
diagnosis of degenerative changes of the lumbar spine.

A July 2003 VA spine examination report reflects a history of
in-service back injury while driving a tractor trailer;
complaints that included intermittent radiating low back
pain; a diagnosis of low back strain; and the VA examiner's
opinion that the diagnosed low back strain was related to in-
service injury.

Service connection may be granted when all the evidence
establishes a medical nexus between military service and
current complaints.  In this veteran's case, in light of the
July 2003 competent medical evidence (VA spine examination
report) relating the diagnosed degenerative changes of the
spine to service, and in the absence of any competent medical
evidence weighing against the veteran's claim, the Board
finds that the weight of the evidence demonstrates that the
veteran's current lumbosacral strain and degenerative changes
of the lumbar spine were incurred in active service.

Cervical Strain and Degenerative Changes of the Cervical
Spine

Post-service VA treatment records in 2001 and 2002 and a
March 2002 VA joints examination report show the veteran's
reports of progressively worsening cervical spine symptoms
that include pain; clinical findings of degenerative changes
throughout the cervical spine from C2 to C6 with narrowing of
multiple intervertebral discs; and a relevant diagnosis of
degenerative changes of the cervical spine.

A July 2003 VA neurological examination report reflects a
history of in-service back and head injury while driving a
tractor trailer; clinical findings that included pain,
tenderness, and limitation of motion of the cervical spine;
and a diagnosis of chronic cervical strain.

The evidence shows that the in-service injury at the time of
the tractor trailer accident included injury to proximate
areas of the body that included the head and back; credible
report of history and testimony by the veteran that included
neck injury in service; the veteran's credible reports upon
VA examination of a history of progressively worsening
cervical spine symptoms; and competent medical evidence of
current disability of cervical strain and degenerative
changes of the spine.

While the July 2003 VA examination report does not reflect a
clear opinion of etiology of the currently diagnosed cervical
spine disability, the July 2003 diagnosis of chronic cervical
strain was based on the history of in-service neck injury.
In the absence of competent medical evidence to weigh against
the veteran's claim, the weight of the evidence is at least
in relative equipoise on the question of whether the
veteran's currently diagnosed cervical strain and
degenerative changes of the spine are etiologically related
to the in-service neck injury.  Resolving reasonable doubt in
the veteran's favor, the veteran's current cervical strain
and degenerative changes of the cervical spine were incurred
in active service.  38 U.S.C.A. � 5107; 38 C.F.R. � 3.102.

Paresthesias of the Lower Extremities

Post-service VA treatment records and March 2002 VA joints
examination report show the veteran's reports of symptoms
that include radiating low back pain, and a relevant
diagnosis of lumbar radiculopathy due to degenerative changes
of the lumbar spine.

A July 2003 VA spine examination report reflects a history of
in-service back injury while driving a tractor trailer, and
complaints that included intermittent radiating low back pain
and paresthesias in both lower extremities.  A July 2003 VA
neurological examination report reflects a history of in-
service back injury while driving a tractor trailer;
complaints that included paresthesias in both lower
extremities; clinical findings that included decreased ankle
jerk (1+), decreased pinprick, decreased light touch
sensation, decreased vibration sense, and positive Romberg's
test in both lower extremities; and a diagnosis of peripheral
neuropathy of both lower extremities (of unclear etiology).

The evidence shows a credible report of history and
complaints by the veteran of radiating low back pain and
paresthesias in both lower extremities that is consistent
with clinical findings; a diagnosis of a current disability
of peripheral neuropathy of both lower extremities; and
discogenic involvement as well as degenerative arthritis of
the veteran's service-connected lumbar spine disability.

While the July 2003 VA examination report does not reflect a
clear opinion of etiology of the currently diagnosed
paresthesias in both lower extremities, the July 2003
diagnosis of paresthesias in both lower extremities was based
on the history of in-service back injury, and was rendered in
the context of discussion of significant clinical findings
regarding the lumbar spine.  In the absence of competent
medical evidence to weigh against the veteran's claim, the
weight of the evidence is at least in relative equipoise on
the question of whether the veteran's currently diagnosed
paresthesias in both lower extremities are etiologically
related to the service-connected lumbar spine disability.
Resolving reasonable doubt in the veteran's favor, the Board
finds that the veteran's currently diagnosed paresthesias in
both lower extremities are secondary to the service-connected
lumbar spine disability.  38 U.S.C.A. � 5107; 38 C.F.R.
� 3.102.

Residuals of Cerebral Concussion

Post-service VA treatment records and a March 2002 VA joints
examination report show the veteran's reports of dizziness
and intermittent neck pain that radiated to the head.

A July 2003 VA neurological examination report reflects a
history of in-service head injury with concussion, and
headaches and dizziness since service separation; clinical
findings that included tenderness to the occipital region on
palpation; and diagnoses of occipital neuralgia and tension
headaches.

The evidence of record reflects that the in-service injury at
the time of the tractor trailer accident included a
concussion injury to the head.  There are credible reports of
history of headaches; testimony by the veteran that included
headaches; and competent medical evidence of current
disability of occipital neuralgia and tension headaches.

While the July 2003 VA examination report does not reflect a
clear opinion of etiology of the currently diagnosed
occipital neuralgia and tension headaches, the July 2003
diagnosis of occipital neuralgia and tension headaches was
based on the history of in-service head injury, as well as a
history of headaches associated with service-connected
cervical spine disability.  In the absence of competent
medical evidence to weigh against the veteran's claim, the
weight of the evidence is at least in relative equipoise on
the question of whether the veteran's currently diagnosed
occipital neuralgia and tension headaches are a residual of
an in-service concussive head injury.  Resolving reasonable
doubt in the veteran's favor, the Board finds that the
veteran's current residuals of cerebral concussion, occipital
neuralgia and tension headaches, were incurred in active
service.  38 U.S.C.A. � 5107; 38 C.F.R. � 3.102.

ORDER

Service connection for lumbosacral strain and degenerative
changes of the lumbar spine is granted.

Service connection for cervical strain and degenerative
changes of the cervical spine is granted.

Service connection for paresthesias of the left lower
extremity is granted.

Service connection for paresthesias of the right lower
extremity is granted.

Service connection for residuals of cerebral concussion of
occipital neuralgia and tension headaches is granted.

____________________________________________
RONALD W. SCHOLZ
Acting Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: GEORGE R SENYK

condition: liver

disposition: remanded

text:
Citation Nr: 0703000
Decision Date: 02/01/07    Archive Date: 02/14/07

DOCKET NO.  04-21 964	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California

THE ISSUES

1.  Entitlement to service connection for hepatitis C.

2.  Entitlement to service connection for cardiopulmonary
disability.

3.  Entitlement to service connection for a variously
diagnosed psychiatric disorder, to include schizophrenia and
PTSD.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

D. Bredehorst

INTRODUCTION

The appellant is a veteran who served on active duty from May
1974 to April 1977.  These matters are before the Board of
Veterans' Appeals (Board) on appeal from a March 2003 rating
decision by the Los Angeles RO.  In June 2004, the veteran
requested a Travel Board hearing; he withdrew the request
that same month.

The matter of entitlement to service connection for a
variously diagnosed psychiatric disability is being REMANDED
to the RO via the Appeals Management Center (AMC) in
Washington, DC.  VA will notify the veteran if any action is
required on his part.

FINDINGS OF FACT

1.  Hepatitis C was not manifested in service, and it is not
shown to be related to service.

2.  It is not shown that the veteran has a cardiopulmonary
disability entity, or that any such disability might be
related to his service.

CONCLUSIONS OF LAW

1.  Service connection for hepatitis C is not warranted.  38
U.S.C.A. �� 1110, 1131, 5107 (West 2002 & Supp. 2005); 38
C.F.R. �� 3.102, 3.303 (2006).

2.  Service connection for a cardiopulmonary disability is
not warranted.  38 U.S.C.A. �� 1110, 1131, 5107 (West 2002 &
Supp. 2005); 38 C.F.R. �� 3.102, 3.303 (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist
claimants in substantiating a claim for VA benefits.
38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38
C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies
to the matters being addressed.

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim.  38 U.S.C.A. � 5103(a);
38 C.F.R. � 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002).  Proper VCAA notice 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; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in his or
her possession that pertains to the claim.  38 C.F.R. �
3.159(b)(1).  VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction decision on a claim.  Pelegrini v. Principi, 18
Vet. App. 112 (2004).

May 2002 and January 2003 letters (prior to the RO's initial
adjudication of these claims) informed the veteran of the
evidence and information necessary to substantiate his
claims, the information required of him to enable VA to
obtain evidence in support of his claims, the assistance that
VA would provide to obtain evidence and information in
support of his claims, and the evidence that he should submit
if he did not desire VA to obtain such evidence on his
behalf.  A May 2004 statement of the case (SOC) outlined the
regulation implementing the VCAA, including advising the
veteran to submit relevant evidence in his possession; and
notified the veteran of what the evidence showed, of the
governing legal criteria, and of the bases for the denial of
the claims.  While he was not provided notice regarding
disability ratings or the effective dates of awards (see
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)), the
decision below denies (and does not grant) service
connection; neither the rating of a disability nor the
effective date of an award of service connection is a matter
for consideration herein.  The veteran has received all
critical notice, and has had ample opportunity to respond
and/or supplement the record after notice was given; he is
not prejudiced by any technical notice timing or content
defect that may have occurred earlier along the way, nor is
it otherwise alleged.

Regarding the duty to assist, the RO obtained all available
medical records identified by the veteran.  As there is no
evidence of injury, disease or event related to hepatitis C
or a cardiopulmonary disorder during service, and no evidence
of current cardiopulmonary disability, an examination for an
opinion as to a possible relationship between such
disabilities and the veteran's military service is not
necessary.  38 C.F.R. � 3.159(c)(4); Duenas v. Principi, 18
Vet. App. 512 (2004).   VA's duty to assist is met.
Accordingly, the Board will address the merits of these
claims.

II. Factual Background

The veteran's service medical records do not reflect any
complaints, findings, or diagnoses related to hepatitis C or
to a cardiopulmonary disability.  His separation examination
report is silent as to any complaints or findings pertaining
to hepatitis C or a cardiopulmonary disability.

October 2000 VA treatment records show that the veteran was
seen with a history of chest pain that had been ongoing
throughout the day.  An electrocardiogram revealed a normal
sinus rhythm wit nonspecific T wave abnormalities and a
possible old inferior myocardial infarction.  The impression
was chest pain of undetermined origin.  The physician noted
that the veteran's nonspecific chest pain did not suggest any
cardiac etiology.  The following month the veteran was again
admitted for complaints of chest pain.  He reported having
these pains off and on once or twice every other week for the
past two years.  He had not been sexually active for a long
time, but indicated that when he was active he had not used
protection.  He had a history of drug and alcohol abuse but
he denied having multiple sex partners or IV drug use.  It
was noted that his last chest x-rays three weeks prior were
negative.  He also had had multiple EKGs in the past, and the
last one, three weeks prior, was within normal limits.

A December 2000 statement from a VA physician notes that the
veteran began being seen in November 2000.  He had
intermittent chest pain/rule out coronary artery disease.

A December 2000 statement from a psychologist reflects that
the veteran reported frequent chest pain due to angina.

A September 2002 VA treatment records indicates the veteran
had a history of hepatitis C that was confirmed by lab
studies in 2000.  The following month, he complained of
atypical chest pain.  An EKG revealed subtle changes.  The
veteran reported a history of syphilis.  His presentation,
labs, and EKG were consistent with atypical non-ischemic
chest pain.  A treadmill exercise test did not induce angina
or ST depression changes.  It was noted that he had
nonservice-related risk factors for coronary artery
disease/heart disease, including cocaine abuse and hepatitis
C.  The physician opined that the veteran's chest pain was
not related to cardiac ischemia.  A November 2002 record
indicates the veteran was hepatitis C positive, hepatitis A
positive, and hepatitis B negative.

III. Legal Criteria and Analysis

Service connection may be granted for disability due to
disease or injury incurred in or aggravated by active
military service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R.
�� 3.303, 3.304.  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.

To prevail on the issue of service connection, there must be
medical evidence of a current disability; medical or, in
certain circumstances, lay evidence of in-service incurrence
or aggravation of a disease or injury; and medical evidence
of a nexus between the claimed in-service disease or injury
and the present disease or injury.  See Hickson v. West, 12
Vet. App. 247 (1999).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.  38
U.S.C.A. � 5107(b).

Hepatitis

Hepatitis C was not manifested or diagnosed in service.
There is also no evidence that he had any of the risk factors
for hepatitis C (e.g., organ transplant, blood transfusions,
hemodialysis, IV drug use or intranasal cocaine use, high
risk sexual activity, tattoos, body piercing, etc.) in
service.  Although he reported a history of unprotected sex,
syphilis, and drug use, there is nothing that shows these
activities were during service (service medical records do
not show any treatment for sexually transmitted diseases or
treatment for drug use).  The earliest medical evidence of
hepatitis indicates the initial diagnosis of the disease was
in 2000, more than twenty years postservice.  It is
significant that such a lengthy time interval between service
and the earliest medical documentation of hepatitis C is, of
itself, a factor weighing against a finding the disability
might be service related.  There is also no competent
(medical) evidence that suggests there may be a link between
the veteran's hepatitis C and his service.  Because he is a
layperson untrained in determining medical diagnosis and
etiology, his own belief that his hepatitis C is related to
service is not competent evidence.  See Espiritu v.
Derwinski, 2 Vet. App. 492, 495 (1992).  The preponderance of
the evidence is against this claim; accordingly, it must be
denied.

Cardiopulmonary Disability

Cardiopulmonary disability was not manifested in service, and
cardiovascular disease was not manifested in the first
postservice year (so as to trigger application of the chronic
disease presumptions of 38 U.S.C.A. � 1112).  Consequently,
service connection for a cardiopulmonary disability on the
basis that such disability became manifest in service and
persisted, or on a presumptive basis is not warranted.

Furthermore, a threshold matter that must be addressed here
(as in any claim seeking service connection) is whether the
claimant now has the disability for which service connection
is sought.  There is no competent evidence that the veteran
now has a cardiopulmonary disability.  Notably, while he has
presented with complaints of chest pain, and cardiac etiology
was suspected (examiners noted the veteran had risk factors
for early coronary artery/heart disease including cocaine
abuse and hepatitis), exhaustive studies resulted in
cardiologists opinions that the veteran's complaints of chest
pain were not cardiac related and chest x-rays have been
normal.

The veteran has not presented any competent (medical)
evidence that he has a cardiopulmonary disability, nor has he
identified any treatment provider whose records would show
such disability.  His belief that he has a cardiopulmonary
disability related to service is not competent evidence.  See
Espiritu, supra.  Without any competent evidence of a
cardiopulmonary disability, there is no valid claim of
service connection.  See Brammer v. Derwinski, 3 Vet. App.
223 (1992).  While the analysis need not proceed any further,
it is also noteworthy that there is no competent evidence
that suggests any current cardiopulmonary disability might be
related to service.

The preponderance of the evidence is against this claim.
Hence, it must be denied.

ORDER

Service connection for hepatitis C is denied.

Service connection for a cardiopulmonary disability is
denied.

REMAND

At the outset, it is noted that the veteran's claims seeking
service connection for the various separate diagnoses of
psychiatric disability are inextricably intertwined, and
require simultaneous, rather than "piecemeal"
consideration.  The veteran has recently proferred a new
theory of entitlement to service connection for psychiatric
disability; i.e., he alleges he has PTSD arising from a
personal assault in service.  In April 2006, the Board
received a VA psychiatric treatment record from the veteran
dated that same month noting he reported being sexually
assaulted in service (and was referred for PTSD evaluation).
This suggests that there are pertinent treatment or
evaluation records outstanding.  Furthermore, although the
veteran has indicated that he received treatment only at the
West Los Angeles VA Medical Center (VAMC), the record
reflects private treatment or psychiatric admissions at Oasis
House, USC Harbor General, and Martin Luther King.  Reports
of any such treatment/evaluation likewise may contain
relevant information.  In addition, service connection claims
based on personal assaults must be developed in accordance
with 38 C.F.R. � 3.304 (f)(3).  As the veteran had not
previously alleged such claim, such development was not
undertaken.  Consequently, this matter must be remanded for
appropriate development and review.

Finally, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006), the Court held that the notice requirements of the
VCAA applied to all 5 elements of a service connection claim
(i.e., to include regarding degree of disability and
effective date of disability).  Here, the veteran has not
been provided such notice.  Since the case is being remanded
anyway, there is an opportunity to correct such deficiency.

Accordingly, the case is REMANDED for the following:

1.  With respect to the claim seeking
service connection for psychiatric
disability, the RO should provide the
veteran notice regarding ratings of
disabilities and effective dates of
awards in accordance with the Court's
guidance in Dingess/Hartman, supra.  The
veteran should have ample opportunity to
respond.  The RO should also ask the
veteran to submit a detailed account of
his alleged personal assault stressor
event in service and  PTSD questionnaire
and advise him advise him of the various
ways in which a stressor event in a
personal/sexual assault PTSD case may be
corroborated (i.e., 3.304(f)(3)).  He
should be given the opportunity to
respond.

2.  The veteran should be asked to
identify all sources of psychiatric
treatment or evaluation he has received
(records of which are not already in his
claims file).  With his cooperation
(i.e., furnishing authorization) the RO
should obtain copies of complete records
of any treatment, evaluation, and
hospitalization the veteran received from
the identified sources, specifically
including any further VA treatment
records, and records from Oasis House,
USC Harbor General, and Martin Luther
King.  The veteran should be advised that
they are necessary for the adjudication
of these claims, and that ultimately it
is his responsibility that that are
secured and associated with the claims
file.

3.  The RO should make a specific
determination as to what stressor
event(s) in service are confirmed.

4.  The RO should then arrange for the
veteran to be examined by a psychiatrist
to determine the nature and likely
etiology of his psychiatric
disability(ies).  The RO should advise
the examiner what, if any, stressor
event(s) in service is(are) confirmed.
The examiner must review the veteran's
complete claims file in conjunction with
the examination (the RO must ensure that
it is available to the examiner for
review).  Upon review of the claims file
and examination of the veteran, the
examiner should offer opinions as to the
proper diagnosis(es) of the veteran's
psychiatric disability, and whether such
disability is, at least as likely as not
related to the veteran's service (to
include whether he has PTSD stemming from
personal assault in service).   The
examiner must explain the rationale for
all opinions given.

5.  The RO should then readjudicate this
claim.  If it remains denied, the veteran
and his representative should be
furnished an appropriate supplemental SOC
and afforded the opportunity to respond.
The case should then be returned to the
Board.

The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded.  Kutscherousky
v. West, 12 Vet. App. 369 (1999).  This claim must be
afforded expeditious treatment by the RO.  The law requires
that all claims that are remanded by the Board for additional
development or other appropriate action must be handled in an
expeditious manner.

______________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: ROBERT E SULLIVAN

condition: radiculopathy

text:
Citation Nr: 0704000
Decision Date: 02/07/07    Archive Date: 02/14/07

DOCKET NO.  02-12 639	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts

THE ISSUE

Entitlement to service connection for peripheral neuropathy,
to include as secondary to exposure to Agent Orange.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

Van Stewart, Associate Counsel

INTRODUCTION

The veteran served on active duty from November 1966 to
November 1968.  Service in the Republic of Vietnam is
indicated by the evidence of record.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an October 2001 rating decision of the
Regional Office (RO) that denied the veteran's claim for
service connection for peripheral neuropathy, to include as
due to exposure to Agent Orange.  This issue was remanded by
the Board for additional development in September 2004.

FINDING OF FACT

The veteran does not have peripheral neuropathy that is
related to his military service.

CONCLUSION OF LAW

The veteran does not have peripheral neuropathy that is the
result of disease or injury incurred in or aggravated during
active military service, including as secondary to exposure
to herbicide agents while serving in the Republic of Vietnam.
38 U.S.C.A. �� 1110, 1116, 5107 (West 2002 and Supp. 2005);
38 C.F.R. �� 3.102, 3.303, 3.304, 3.307, 3.309 (2006).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's 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 & Supp. 2005); 38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326(a) (2006).

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA
notice 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; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in his possession that
pertains to the claim in accordance with 38 C.F.R.
� 3.159(b)(1).  VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim.  Pelegrini v.
Principi, 18 Vet. App. 112 (2004).  But see Mayfield v.
Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other
grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. Apr
05, 2006) (when VCAA notice follows the initial unfavorable
AOJ decision, remand and subsequent RO actions may
"essentially cure[] the error in the timing of notice").

The Board notes that the veteran was apprised of VA's duties
to both notify and assist in correspondence dated in August
2001, October 2003, and October 2004.  (Although the complete
notice required by the VCAA was not provided until after the
RO adjudicated the appellant's claim, "the appellant [was]
provided the content-complying notice to which he [was]
entitled."  Pelegrini, 18 Vet. App. at 122.  Consequently,
the Board does not find that the late notice under the VCAA
requires remand to the RO.  Nothing about the evidence or any
response to the RO's notification suggests that the case must
be re-adjudicated ab initio to satisfy the requirements of
the VCAA.)

Specifically regarding VA's duty to notify, the notifications
to the veteran apprised him of what the evidence must show to
establish entitlement to service connection for peripheral
neuropathy, including as secondary to exposure to Agent
Orange, what evidence and/or information was already in the
RO's possession, what additional evidence and/or information
was needed from the veteran, what evidence VA was responsible
for getting, and what information VA would assist in
obtaining on the veteran's behalf.  The RO specifically
requested that the veteran submit any evidence he had
pertaining to his claim.  The RO also provided a statement of
the case (SOC) and three supplemental statements of the case
(SSOCs) reporting the results of its reviews, and the text of
the relevant portions of the VA regulations.  While the
notifications did not include the criteria for assigning
disability ratings or for award of an effective date, see
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), since
the veteran's claim will be denied, these questions are not
now before the Board.  Consequently, a remand of the service
connection question is not necessary.  See Sabonis v. Brown,
6 Vet. App. 426, 430 (1994).

Regarding VA's duty to assist, the RO obtained the veteran's
service medical records (SMRs) and VA and private medical
records, and secured examinations in furtherance of his
claim.  In correspondence received in September 2006, the
veteran certified that he had no other information or
evidence to substantiate his claim.  VA has no duty to inform
or assist that was unmet.

The veteran served in the Army in Vietnam, and was released
from active duty on November 12, 1968, immediately after
returning from Vietnam.  His SMRs, including the report of
his separation examination, show no complaints or treatment
related to peripheral neuropathy.  In a written statement
received in October 2001, the veteran described what he
termed a sudden onset of illness in 1978, which he seems to
imply may have been the onset of his later diagnosed
peripheral neuropathy.  Private medical records from the
Lahey Clinic in Burlington, Massachusetts, noted that that
the veteran became ill in January 1978, complaining of flu-
like symptoms, tightness in the chest, and fatigue.  He was
diagnosed by Lahey with chronic bronchitis; his chest pains
were thought to be a result of chest muscle spasms due to
coughing and tension.

In May 1979, he was admitted to the private Newton-Wellesley
Hospital complaining of intermittent fatigue and chest
tightness.  Following examination and numerous tests, and
relying on the negative workup at the Lahey Clinic, the
veteran's physician wrote that the veteran's complaints of
chest pain and extreme fatigue following exercise or activity
were most reminiscent of emotional disorder.  On discharge,
the veteran was given a diagnosis of musculoskeletal pain,
and fatigue of uncertain etiology.  There was no mention of
peripheral neuropathy.

An October 1986 "To Whom It May Concern" letter from J.J.,
M.D., a VA physician, noted that the veteran had been
referred to the doctor for evaluation of a peripheral
neuropathy.  Symptoms were described as numbness and tingling
in the lower extremities, mostly in his feet.  Dr. J. noted
that the veteran had a neuropathy of unexplained etiology.
The doctor also noted that the veteran was exposed to a toxin
in service, and that the toxin has been known to be
associated with peripheral neuropathy, which raised the
possibility that this is the cause of the veteran's symptoms.
The report of an October 1987 electromyograph (EMG) study,
signed by Dr. J., shows a diagnosis of mild generalized
sensory and motor peripheral neuropathy.

The report of an August 2001 VA examination diagnosed a
history of fatigue, weakness with possible underlying
peripheral neuropathy by history.  A November 2001 neurology
treatment note noted that the veteran remained convinced that
his longstanding and complex symptoms, starting in 1978, are
secondary to dioxin poisoning in Vietnam in 1968.  The
treating physician assessed an idiopathic peripheral
neuropathy affecting the left side, corroborated by EMG,
"with possibility of dioxin exposure as cause, although no
clear way to prove this etiology."

A January 2002 VA treatment note recorded that the veteran
believed that he first had peripheral neuropathy in 1986.
The results of a January 2002 EMG-Nerve Conduction study
revealed findings consistent with a mild generalized
peripheral neuropathy.  Noting that the veteran had
significant atrophy of the left lower extremity, the examiner
noted there was evidence to suspect a superimposed old left
L5-S1 radiculopathy that was at least mild in degree.  An
April 2002 treatment note noted the veteran's symptoms and
also noted ongoing B12 injections to treat B12 deficiency.
This physician noted the possibility of a relationship
between the veteran's B12 deficiency and his peripheral
neuropathy.

At a May 2004 hearing before the undersigned Veterans Law
Judge, the veteran testified that he first began to notice
the symptoms of his peripheral neuropathy in about 1985.

Finally, the veteran was afforded another VA examination
given in July 2006.  The examination included nerve
conduction studies that showed findings consistent with a
mild generalized peripheral neuropathy.  The examiner
concluded that the veteran has very mild peripheral
neuropathy noted 20 years after dioxin exposure, that still
remains very mild 20 years after first noted.  The examiner
also noted that no etiology has been found as to the cause of
the veteran's peripheral neuropathy, and, without any
analysis or rationale, opined that it is more likely than not
that the neuropathy is related to Agent Orange exposure.  The
examiner concluded that the peripheral neuropathy is so mild
that it should not interfere with vocational or other
activities of daily living.

The veteran contends that his peripheral neuropathy was
caused by his exposure to Agent Orange while serving in the
Republic of Vietnam.  Service connection may be granted for
disability resulting from disease or injury incurred or
aggravated during active military service.  38 U.S.C.A.
�� 1110, 1131 (West 2002); 38 C.F.R. � 3.303.  Service
connection may also be granted for any injury or disease
diagnosed after service, when all the evidence, including
that pertinent to service, establishes that the disease or
injury was incurred in service.  38 C.F.R. � 3.303(d).
Generally, service connection requires (1) medical evidence
of a current disability, (2) medical evidence, or in certain
circumstances lay testimony, of in-service incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus between the current disability and the in-service
disease or injury.  See Caluza v. Brown, 7 Vet. App.
498 (1995).

Certain diseases associated with exposure to herbicide agents
may be presumed to have been incurred in service even if
there is no evidence of the disease in service, provided the
requirements of 38 C.F.R. � 3.307(a)(6) are met.  38 C.F.R.
� 3.309(e).  The term "herbicide agent" means a chemical in
an herbicide, including Agent Orange, used in support of the
United States and allied military operations in the Republic
of Vietnam during the Vietnam era.  The diseases for which
service connection may be presumed to be due to an
association with herbicide agents include chloracne or other
acneform disease consistent with chloracne, Type 2 diabetes,
Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma,
acute and subacute peripheral neuropathy, porphyria cutanea
tarda, prostate cancer, respiratory cancers, and soft-tissue
sarcoma other than osteosarcoma, chondrosarcoma, Kaposi's
sarcoma, or mesothelioma.

In general, for service connection to be granted for one of
these diseases, it must be manifested to a degree of 10
percent or more at any time after service.  Chloracne,
porphyria cutanea tarda, and acute and subacute peripheral
neuropathy must be manifest to a degree of 10 percent within
one year after the last date on which the veteran performed
active military, naval, or air service in the Republic of
Vietnam during the period beginning on January 9, 1962, and
ending on May 7, 1975.  See 38 U.S.C.A. � 1116; 38 C.F.R. �
3.307(a)(6)(ii); Veterans Education and Benefits Expansion
Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).

A veteran who served in the Republic of Vietnam during the
period beginning on January 9, 1962, and ending on May 7,
1975, will be presumed to have been exposed to an herbicide
agent during such service unless there is affirmative
evidence to the contrary.  Id.  Further, Note 2 under 38
C.F.R. � 3.309(e) states that, for the purposes of that
section, "the term acute and subacute peripheral neuropathy
means 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."  (Emphasis
in the original.)

Regarding presumptive service connection, there is clear
evidence that the veteran served in Vietnam during the period
specified for presumptive exposure to herbicide agents, and
it is therefore presumed that he was exposed to them.
However, the veteran's peripheral neuropathy, which was not
diagnosed until nearly 20 years after exposure to herbicides
in Vietnam, does not meet the regulatory definition of a
transient peripheral neuropathy that appears within weeks or
months of exposure to an herbicide agent, and that resolves
within two years of the date of onset.

Moreover, the veteran's peripheral neuropathy does not meet
the regulatory requirement that it must be manifest to a
degree of 10 percent within one year after the last date on
which he performed active military service in Vietnam.  As
noted, the veteran's peripheral neuropathy was not diagnosed
until the mid 1980s, nearly 20 years after he left Vietnam.
Thus the veteran's diagnosed peripheral neuropathy does not
meet either of the regulatory thresholds established to
qualify for entitlement to service connection for peripheral
neuropathy as secondary to herbicide exposure.

The Board recognizes that the United States Court of Appeals
for the Federal Circuit (Federal Circuit) has held that, when
it is determined that a veteran's disease does not qualify
him for presumptive service connection, he is entitled to
offer proof that he is entitled to service connection on a
direct basis.  Combee v. Brown, 34 F.3d 1039 (1994).  Here,
however, there is no such credible proof in evidence.

The veteran's SMRs contain no mention of complaints or
treatment related to peripheral neuropathy, and there is no
evidence of any peripheral neuropathy-related complaint or
diagnosis in any presumptive period following service.
Service connection on a direct basis is therefore not
warranted.  38 C.F.R. �� 3.303, 3.304, 3.307, 3.309.

The Board acknowledges the suggestions provided by some VA
physicians that the veteran's peripheral neuropathy may be
related to his exposure to herbicides, but finds them
unavailing for the following reasons.  First, the October
1986 letter from Dr. J. stated that the fact that the veteran
was exposed to a toxin which has been known to be associated
with peripheral neuropathy in the past raises the possibility
that this is the cause of his symptoms.  However, while it is
true that the toxins found in the herbicides used in Vietnam
have been associated with peripheral neuropathy, as noted in
the foregoing discussion, that association has been
determined to apply only to 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, and that must have been manifest to a degree of 10
percent within one year after the last date on which the
veteran was last exposed to the herbicides in Vietnam.

Moreover, Dr. J.'s supposition that there is a possibility
that exposure to toxins does not rise to the level of a
medical nexus opinion that the veteran's peripheral
neuropathy is, in fact, directly related to his exposure to
herbicides.  See, e.g., Bloom v. West, 12 Vet. App. 185, 187
(1999) (by using the term "could," without supporting
clinical data or other rationale, doctor's opinion simply was
too speculative to provide the degree of certainty required
for medical opinion).  Thus, Dr. J.'s speculative opinion,
which relies on the fact that--under some circumstances--
peripheral neuropathy is presumptively related to exposure to
herbicides, is not credible medical evidence of a direct
relationship between the veteran's peripheral neuropathy and
his exposure to herbicides in Vietnam.

The same analysis applies to the opinions given by the
November 2001 and July 2006 VA examiners that the veteran's
very mild peripheral neuropathy, noted years after dioxin
exposure, is possibly, or more likely than not, related to
that exposure.  Again, these were opinions were not
substantiated by clinical data or other rationale.  See
Bloom, supra.

To understand why these opinions do not constitute evidence
of a medical nexus, it is important to understand the
statutory scheme that established service connection for
certain diseases based on exposure to these herbicides.
Federal law requires that, in order to establish a positive
association between the exposure of humans to an herbicide
agent and the occurrence of a disease in humans, VA must rely
on the reports received from the National Academy of Sciences
(NAS) under section three of the Agent Orange Act of 1991,
and all other sound medical and scientific information and
analyses available to VA.  38 U.S.C.A. � 1116.  Here, the
reliable medical evidence on which VA relies is that it is
only 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, and that was
manifested within one year after the last date on which the
veteran was last exposed to the herbicides in Vietnam that
may be presumptively service-connected.  As noted above, the
statute allows for consideration of all other sound medical
and scientific information and analyses available to VA.
However, the opinions of the VA doctors discussed above do
not meet the standard of sound medical and scientific
information and analysis because they are mere speculation,
unsupported by any clinical data, rationale, or other
analysis.  Id.

The Board recognizes that the veteran firmly believes that
his peripheral neuropathy was caused by his exposure to Agent
Orange.  However, while, as a layman, the veteran is
qualified to report the symptoms he experiences, there is no
evidence of record showing that he has the specialized
medical education, training, and experience necessary to
render competent medical opinion as to the etiology of his
disability, or to constitute reliable medical evidence on
which the Board may rely.  Espiritu v. Derwinski, 2 Vet. App.
492 (1992); 38 U.S.C.A. � 1116; 38 C.F.R. � 3.159(a)(1).
Consequently, the veteran's own assertions as to the etiology
of his peripheral neuropathy have no probative value.

The Board has considered the benefit-of-the-doubt doctrine,
but finds that the record does not provide even an
approximate balance of negative and positive evidence on the
merits.  38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102; Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).  Therefore, on the basis of
the above analysis, and after consideration of all the
evidence, the Board finds that the preponderance of the
evidence is against this service connection claim.  The
veteran's current peripheral neuropathy is not traceable to
disease or injury incurred in or aggravated during active
military service.

ORDER

Entitlement to service connection for peripheral neuropathy,
to include as secondary to exposure to Agent Orange, is
denied.

____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs