Citation Nr: 0006123 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 96-43 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for left peroneal palsy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Helinski, Counsel INTRODUCTION The veteran had active military service from May 1986 to August 1995. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the benefit sought on appeal. FINDING OF FACT There is no probative medical evidence of record establishing that the veteran's current left peroneal palsy had its onset during active military service, or is otherwise etiologically related to an incident of service. CONCLUSION OF LAW Left peroneal palsy was not incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that this issue was previously before the Board and remanded in December 1997 for additional development. The Board is satisfied that the requested development has been completed, and the issue is now ready for appellate disposition. The veteran is claiming service connection for left peroneal palsy, which he maintains began during his active military service. He contends that he experiences numbness, pain, and weakness in his leg, and that he reported these symptoms during his active duty separation physical. The Board has thoroughly reviewed the evidence of record, but for the reasons and bases set forth below the Board finds that the preponderance of the evidence is against a claim for service connection for left peroneal palsy, and the appeal is denied. A review of the veteran's service medical records reveal that on his service separation "Report of Medical History," the veteran indicated a positive history of cramps in his legs. The examiner stated that the episodes of cramps were due to overexertion. The separation examination was negative for any abnormal findings regarding the veteran's lower extremities and neurologic system. Within a month of service separation, in September 1995, the RO received the veteran's Application for Compensation of Pension. At that time, the veteran did not specifically list left peroneal palsy or numbness as a sickness, disease, or injury for which he was claiming service connection. In October 1995, the veteran underwent VA examinations and was diagnosed with "Foot and leg pain characterized by great apprehension during the sensory examination and the rapid onset of weakness during motor exam." The examiner indicated that the foregoing may be psychogenic, but there was a possibility that the veteran had an unusual superficial sensory peripheral neuropathy in the lower extremities characterized by hyperpathia. The Board points out that in the body of the examination report, it was noted that the veteran reported bilateral knee numbness since 1988. However, it was also noted that the veteran was an inconsistent historian. In November 1995, the veteran underwent nerve conduction tests. He was diagnosed with mild left peroneal nerve palsy at the fibular head, with focal slowing across the fibular head. In May 1996, the veteran underwent another VA examination and was diagnosed with left peroneal palsy, as well as mixed cephalalgia. The examiner was silent as the date of onset of that condition. According to VA laws and regulations, service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The mere fact of an in-service injury is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Certain chronic disabilities, specified by statute, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1132; 38 C.F.R. §§ 3.307, 3.309. 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). However, in reviewing any claim for service connection, the initial question is whether the claim is well-grounded. In the present case, the Board finds that the veteran's claim for service connection for left peroneal knee palsy is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Savage v. Gober, 10 Vet. App. 488, 495-7 (1997); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim that is not implausible when his contentions and the evidence of record are viewed in the light most favorable to his claim. The Board also is satisfied that all the facts relevant to this claim have been properly and sufficiently developed, and that no other action is needed to comply with the duty to assist. 38 U.S.C.A. § 5107(a). In that regard, the Board notes that, as indicated earlier in this decision, this case was previously certified to the Board in March 1997. Upon review of the facts of this case, it appeared that the veteran's claim was plausible due to the close proximity between his clinical symptoms of left peroneal palsy and his complaints of leg numbness at service separation. However, the Board found that further development was needed, and the case was remanded in December 1997. The BVA Remand requested the RO to develop additional evidence, including contacting the veteran for information regarding any other medical treatment he may have received for his left peroneal palsy, and scheduling the veteran for a VA neurologic examination. The Board also requested that the RO notify the veteran of his obligation to cooperate by reporting for the scheduled examination, and that failure to cooperate may result in adverse action pursuant to 38 C.F.R. § 3.655(b). The record reveals that in response to the December 1997 BVA Remand, by VA letter dated in March 1999, the veteran was requested to furnish information regarding any other medical treatment he may have received for his left peroneal palsy. The veteran was notified that if he failed to respond within 60 days, his claim would be considered based on the evidence of record. That letter was sent to the veteran's address of record and was not returned as undeliverable, but the veteran did not respond to that letter. The record also reveals that a May 1999 letter was sent to the veteran from QTC Medical Services informing him that the VA requested that they schedule him for an examination. The letter notified the veteran that an examination was set for June 1999. The letter further notified the veteran that it was important that he report for the examination as scheduled, and that failure to report will result in the VA considering his claim without the benefit of evidence from that examination, which might be material to the outcome of his claim. That letter was also sent to the veteran's address of record and was not returned as undeliverable, but he did not appear at the scheduled examination. A supplemental statement of the case was provided to the veteran in August 1999 notifying him of his failure to provide the requested information or report for the scheduled VA examination. The provisions of 38 C.F.R. § 3.655 were set forth including that when the claimant fails to report for an examination scheduled in conjunction with an original claim, the claim will be rated based on the evidence of record. By VA letter dated in February 2000, the veteran was notified that his appeal was being returned to the Board for disposition. Based on the evidence of record, the Board concludes that the preponderance of the evidence is against the veteran's claim for service connection, and his appeal must be denied. In that regard, the Board notes that while the veteran reported leg numbness at service separation, there was no diagnosis of left peroneal palsy at that time. Additionally, although the veteran was diagnosed with left peroneal palsy in November 1995, which is shortly following his separation from service, there is no probative medical evidence that indicates that left peroneal palsy was incurred during the veteran's active military service. Moreover, left peroneal palsy is not a type of disorder subject to presumptive service connection. 38 U.S.C.A. §§ 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. The Board attempted to assist the veteran with this claim by obtaining additional medical evidence, but as noted above, the veteran did not comply with the RO's request for more information, and he failed to report for a VA examination. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street). In short, the Board has considered the claim based on the evidence of record; however, in the absence of probative medical evidence establishing that the veteran's left peroneal palsy was incurred in active service, or is related to an incident of active military service, the veteran's claim is denied. As there is not an approximate balance of positive and negative evidence regarding the merits of the veteran's claim that would give rise to a reasonable doubt in favor of the veteran, the provisions of 38 U.S.C.A. § 5107(b) are not applicable, and the appeal as to this issue is denied. ORDER Service connection for left peroneal palsy is denied. STEVEN L. COHN Member, Board of Veterans' Appeals