Citation Nr: 0207112 Decision Date: 07/01/02 Archive Date: 07/10/02 DOCKET NO. 98-08 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been presented or secured to reopen a claim of entitlement to service connection for atrophy of the left upper arm due to neuralgic amyotrophy (claimed as a residual of poliomyelitis), and, if so, whether entitlement to service connection is warranted. REPRESENTATION Appellant represented by: Colin E. Kemmerly, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.L. Pine, Counsel INTRODUCTION The appellant had active service from March 1951 to March 1953. This appeal is from a February 1998 rating decision of the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). In November 1999, the appellant had a videoconference hearing before the undersigned, the Board of Veterans' Appeals (Board) member designated by the Chairman of the Board to conduct the hearing and decide the appeal pursuant to 38 U.S.C.A. § 7107(c) and (e). A VA letter of July 12, 1999, informed the veteran that a videoconference hearing before a member of the Board would be in lieu of a hearing in person and would be his only hearing before the Board in this appeal. The veteran signed and returned the hearing election form, acknowledging the terms of the videoconference hearing. See 38 C.F.R. § 20.701(e) (2001). For that reason, the August 14, 2001, request of the veteran's current attorney for a hearing before a Board member to be held at Montgomery RO is denied. The Board issued a decision on the instant appeal in February 2000. In March 2001 the United States Court of Appeals for Veterans Claims (Court) granted the joint motion of the Secretary and the veteran to vacate and remand the Board's decision and to stay Court action due to the recent enactment of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West Supp. 2001). This decision responds to the Court's order. The Board has amended the nomenclature of the claim on appeal to reflect its evolution and current evidence. The claim is for the same disability as that adjudicated in August 1955, the change in nomenclature notwithstanding. See Ashford v. Brown, 10 Vet. App. 120 (1997). FINDINGS OF FACT 1. In August 1955, VA denied the appellant's claim for service connection for a left arm disability, finding his disability was not the residual of an injury in service, and that it was a residual of anterior poliomyelitis that was not incurred in service. 2. The RO notified the appellant by letter of August 29, 1955, of the disallowance of service connection for his left arm and of his appellate rights; he did not initiate an appeal by August 29, 1956. 3. Evidence presented or secured since August 1955 is so significant, by itself or together with the evidence previously of record, that fairness requires that the claim for service connection for left upper arm residuals of an infection in service must be reopened. 4. The veteran contracted an infection of the left palmar space in service, which resulted in neuralgic amyotrophy of the left upper extremity. CONCLUSIONS OF LAW 1. The rating decision of August 1955 denying service connection for atrophy of the left arm residuals of poliomyelitis is final. 38 U.S.C.A. § 7105(b), (c) (West 1991); 38 C.F.R. §§ 3.160(d), 20.302(a) (2001). 2. New and material evidence in support of a claim for service connection for atrophy of the left upper arm has been presented or secured and the claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (2001). 3. The veteran has neuralgic amyotrophy of the left upper extremity as a result of disease incurred in wartime service. 38 U.S.C.A. § 1110 (West Supp. 2001); 38 C.F.R. § 3.303(d) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and to Assist The November 9, 2000, enactment of the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West Supp. 2001), prescribed VA's duties to notify claimants for VA benefits of forms and information necessary to submit to complete and support the claim, to provide necessary forms, and to assist the claimant in the development of evidence. VA has promulgated regulations implementing the VCAA. See 66 Fed. Reg. 45,620- 45,632 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). Correspondence of record dated from May 1997 to August 1998 between the veteran the RO and between the RO and medical service providers reveal that the RO notified the veteran of evidence necessary to reopen and substantiate his claim, sought and obtained private and VA medical evidence, and informed the veteran of the unavailability of certain evidence. The RO informed the veteran of evidence necessary to reopen his previously disallowed claim both in the February 1998 rating decision and in the May 1998 statement of the case (SOC). The result in this decision renders moot any failure to notify the veteran of the change in standard for new and material evidence resulting from the decision in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). VA obtained an expert medical opinion as necessitated by the state of the record. VA has discharged its duties to notify the veteran of the requirement of his claim and to assist him to obtain supportive evidence. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159). II. Service Connection The veteran seeks to establish that a left arm disability is due to a disease or injury in service. In other words, he seeks to establish entitlement to service connection. An August 1955 rating decision considered and denied the appellant's claim for compensation for a disability of the left arm both as due to an injury and as due to a disease incurred in service. In the instant case, the appellant twice affirmed that his application to reopen his claim was for residuals of poliomyelitis. The disability for which he seeks to reopen his claim is the same as that for which he sought service connection in August 1955. The Board concludes that the August 1955 rating decision denied the same claim he now seeks to reopen. See Ashford v. Brown, 10 Vet. App. 120 (1997) (changes in nomenclature used in multiple claims for disability compensation and adjudication of those claims does not alter the identity of the underlying disability). When the RO denied the appellant's claim for service connection for his left arm disability in August 1955, and the appellant did not appeal within one year of the date of the letter notifying him of the denial, that decision became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 3.160(d) (2001). To reopen the claim, new and material evidence must be presented or secured. 38 U.S.C.A. § 5108 (West 1991). New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001). A VA expert in infectious diseases reviewed the veteran's claims file and opined in January 2002 that the veteran's atrophy or paralysis of the left upper arm is the result of an infection sustained in service. H. McDaniel, M.D., opined in April 2000 and again in April 2002 that the disability is a residual of polio contracted in service. The gravamen of the veteran's claim is the disability, not the etiologic agent. These medical opinions satisfy the definition of new and material evidence. Id. The claim is reopened for review. 38 U.S.C.A. § 5108. In seeking VA disability compensation, the veteran seeks to establish that current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2001). Such a disability is called "service connected." 38 U.S.C.A. § 101(16) (West 1991). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (2001). The veteran claims entitlement to service connection for atrophy of the left upper arm as a residual of poliomyelitis allegedly contracted in the Army. He had active service from March 1951 to March 9, 1953. He contends that left arm weakness began while he was in service. His service medical records are silent about any complaint, treatment or diagnosis related to the left arm, except for a laceration of the left arm that was sutured, apparently in February 1953, as determined by correlation with the veteran's age as reported in the service medical records. An April 1953 application for VA hospital treatment included a physical examination report that found induration, inflammation and swelling of the left hand, with a history of three months' duration, diagnosed as palmar space infection, probably fungal. VA hospital records from September 1953 to January 1954 and a report of a VA medical rehabilitation board show the diagnosis of anterior poliomyelitis residuals, atrophy of the muscles of the left upper extremity. Historically, the veteran reported a motor vehicle accident in service that involved his left shoulder, which was without immediate sequela. He reported the onset of aching in the arm in December 1952 and its treatment by injection without complete relief. He also described the onset of an illness on or about the third Sunday in June 1953, when he awakened feverish and aching from the waist up. He reported that that condition lasted for a week, during which he treated himself, and about two weeks after the beginning of the acute episode, he noticed decreasing strength in his left arm. Orthopedic and neurologic evaluations both produced impressions of acute anterior poliomyelitis in June 1953 with residual atrophy of the left upper extremity. July 1998 statements from F. Lester, M.D., and M. Granberry, M.D., reported that the veteran had or appeared to have had polio in the past with residual atrophy of the left upper arm. Neither addressed when the veteran had polio. In an April 2000 statement, H. McDaniel, M.D., noted that in September 1953 VA had diagnosed acute poliomyelitis infection in June 1953. He opined that the veteran's poliomyelitis should be service-connected, because of the short time between his March 1953 separation from service and the acute poliomyelitis infection in June 1953. He further opined that the crowded conditions in service were the most likely source of infection and that there is a clear, strong relationship between being in service and developing neurological disability from poliomyelitis a few months later. In January 2002 the Board obtained the opinion of an expert in infectious diseased in response to several questions bearing on whether the veteran had polio in service or whether symptoms that presented in April 1953 and subsequent left upper arm atrophy resulted from infection contracted in service. The expert opined that the veteran did not contract polio in service, which the expert determined from the documentation of a "glove-type" sensory disturbance in the left arm in June 1953 that the expert opined was unknown in acute anterior poliomyelitis. The expert concluded that the service records showed an infection in August 1951 that demonstrated the veteran's propensity to bacterial infections, and that other findings indicated that the veteran contracted the palmar space infection that presented in April 1953 from a laceration of the arm shortly prior to separation. The expert opined that in 1970 the veteran developed an infectious left brachial plexopathy with resultant neuralgic amyotrophy leading to loss of useful function in the left upper limb as a direct result of infection contracted in service. An April 2002 statement, Dr. McDaniel reported that his impression from review of the veteran's was that they are most consistent with the diagnosis of poliomyelitis, which began either before or shortly after service. He reiterated his prior opinion that the physical proximity of troops rendered it more likely that the veteran contracted polio in than after service. He opined that VA ought to award service connection for the veteran's neurologic disability regardless of whether it was caused by polio or something else, because it began at least within the time after service in which a medical illness is judged, because of its appearance shortly after service, to be service connected. The law provides for compensation for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West Supp. 2001). Disability resulting from a disease not shown as chronic in service, or during an applicable presumptive period, 38 C.F.R. § 3.303(b) (2001), may not be deemed the result of a disease incurred in service unless there is evidence the condition was noted in service and there was then continuity of symptomatology between the current disability and the condition noted in service. Id. Alternatively, notwithstanding initial diagnosis after service, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2001). Polio is not a presumptive chronic disease. 38 U.S.C.A. § 1112(a) (West 1991); 38 C.F.R. § 3.309(a) (2001). However, if the first manifestations of acute anterior poliomyelitis present themselves in a veteran within 35 days of termination of active military service, it is probable that the infection occurred during service. 38 C.F.R. § 3.379 (2001). If they first appear after this period, it is probable that the infection was incurred after service. Id. The veteran was discharged from service on March 9, 1953. The veteran was hospitalized by VA in September 1953, and he gave a history of onset of fever and aching on the third Sunday in June 1953. Acute anterior poliomyelitis with onset in June 1953 was diagnosed. This is more than 35 days after the veteran's discharge from service, and it is therefore probable that, if the disease the veteran had in June 1953 was polio, it was incurred after service. Id. Because polio is not a presumptive chronic disease, it, or in this case, a residual condition, cannot be service connected without a condition noted in service and continuity of symptomatology thereafter, or without other evidence pertinent to service to show onset in service. 38 C.F.R. § 3.303(b), (d). The service record shows no condition noted in service with which there could be continuity of symptomatology or other evidence pertinent to service that supports the conclusion that acute anterior poliomyelitis had its onset in service. Id. The statements from Drs. Lester and Granberry have no probative value, even if the diagnosis of polio were certain, because they do not ascribe a time to the onset of the disease. The January 2002 VA expert medical opinion affords an alternative theory of the cause and time of onset of the veteran's left upper arm atrophy. The VA expert concluded that the veteran contracted the infection in service that was diagnosed as left palmar space infection in April 1953. He concluded that the veteran's left upper arm atrophy is neuralgic amyotrophy directly resulting from the infection contracted in service that presented in April 1953. These conclusions provide the elements of proof required to grant service connection atrophy of the left upper arm due to neuralgic amyotrophy diagnosed after service as determined by all of the evidence of record, including that pertinent to service. 38 C.F.R. § 3.303(d). ORDER Service connection for atrophy of the left upper arm due to neuralgic amyotrophy (claimed as a residual of poliomyelitis) is granted. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.