Citation Nr: 0740418	
Decision Date: 12/21/07    Archive Date: 01/02/08

DOCKET NO.  99-21 647	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUE

Entitlement to service connection for muscular dystrophy.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Kelley, Associate Counsel







INTRODUCTION

The veteran served on active duty from June 1976 to June 1980 
and from December 1985 to April 1986.

This appeal initially came before the Board of Veterans' 
Appeals (Board) from a July 1999 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Montgomery, Alabama, that denied the veteran's claim seeking 
entitlement to service connection for muscular dystrophy.  In 
February 2001, the Board remanded the case to the RO for 
additional development.  

In March 2006, the Board again remanded the case to the RO 
for assistance in developing the case by obtaining additional 
private treatment records, VA treatment records, and to 
arrange for a neurological examination.  That development is 
completed, and the case has been returned to the Board for 
further appellate review.  


FINDING OF FACT

The veteran's hereditary muscular dystrophy was not shown to 
be symptomatic until years after service and such disease is 
not shown by medical evidence to be causally related to his 
active service or any incident therein. 


CONCLUSION OF LAW

Muscular dystrophy was not incurred in or aggravated by 
active service, and may not be presumed to have been so 
incurred or aggravated by active service.  38 U.S.C.A. 
§§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 
& Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 
3.307, 3.309 (2007).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

The VA has a 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 
3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his 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 notice from VA must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will seek to provide; 
(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).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the agency 
of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims (Court) held that, upon 
receipt of an application for a service-connection claim, 
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to 
review the information and the evidence presented with the 
claim and to provide the claimant with notice of what 
information and evidence not previously provided, if any, 
will assist in substantiating, or is necessary to 
substantiate, each of the five elements of the claim, 
including notice of what is required to establish service 
connection and that a disability rating and an effective date 
for the award of benefits will be assigned if service 
connection is awarded.  In this case, Dingess notice was 
provided to the veteran in April 2006.

Here, the duty to notify was not satisfied prior to the 
initial unfavorable decision on the claim by the AOJ.  Under 
such circumstances, VA's duty to notify may not be 
"satisfied by various post-decisional communications from 
which a claimant might have been able to infer what evidence 
the VA found lacking in the claimant's presentation."  
Rather, such notice errors may instead be cured by issuance 
of a fully compliant notice, followed by readjudication of 
the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. 
Cir. 2006) (where notice was not provided prior to the AOJ's 
initial adjudication, this timing problem can be cured by the 
Board remanding for the issuance of a VA notice followed by 
readjudication of the claim by the AOJ) see also Prickett v. 
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a 
fully compliant VA notification followed by readjudication of 
the claim, such as an SOC or SSOC, is sufficient to cure a 
timing defect).  

In this case, VA's duty to notify was satisfied subsequent to 
the initial AOJ decision of July 1999 by way of letters sent 
to the appellant in December 2005, April and December 2006, 
that fully addressed all four notice elements.  The letters 
informed the appellant of what evidence was required to 
substantiate the claim and of the appellant's and VA's 
respective duties for obtaining evidence.  The appellant was 
also asked to submit evidence and/or information in his 
possession to the AOJ.  Although the notice letters were not 
sent before the initial AOJ decision in this matter, the 
Board finds that this error was not prejudicial to the 
appellant because the actions taken by VA after providing the 
notice have essentially cured the error in the timing of 
notice.  Not only has the appellant been afforded a 
meaningful opportunity to participate effectively in the 
processing of his claim and given ample time to respond, but 
the AOJ also readjudicated the case by way of a supplemental 
statement of the case issued in March 2007, after the notice 
was provided.  For these reasons, it is not prejudicial to 
the appellant for the Board to proceed to finally decide this 
appeal as the timing error did not affect the essential 
fairness of the adjudication.  

VA has a duty to assist the veteran in the development of the 
claim.  This duty includes assisting the veteran in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the appellant.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The RO has obtained VA outpatient 
treatment records of November 1992 through October 2005 from 
the Tuskegee VA Medical Center (VAMC). The appellant was 
afforded a VA medical examination in May 2007.  
Significantly, neither the appellant nor his representative 
has identified, and the record does not otherwise indicate, 
any additional existing evidence that is necessary for a fair 
adjudication of the claim that has not been obtained.  As the 
veteran's service medical records were lost, the AOJ 
requested from the veteran alternate evidence of muscular 
dystrophy treatment in service, dates of private and VA 
treatment from 1992; however, the veteran did not respond.  
Hence, no further notice or assistance to the appellant is 
required to fulfill VA's duty to assist the appellant in the 
development of the claim.  Smith v. Gober, 14 Vet. App. 227 
(2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. 
Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).

Analysis

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. § 1131; 
C.F.R. 3.303(a).  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).  
Further, 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 for certain diseases, such as progressive 
muscular atrophy, may be also be established on a presumptive 
basis by showing that such a disease manifested itself to a 
degree of 10 percent or more within one year from the date of 
separation from service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 
3.307(a)(3), 3.309(a).  In such cases, the disease is 
presumed under the law to have had its onset in service even 
though there is no evidence of such disease during the period 
of service.  38 C.F.R. § 3.307(a).

A veteran will be presumed to have been in sound condition 
when examined, accepted and enrolled for service except as to 
defects, infirmities, or disorders noted at entrance into 
service, or where clear and unmistakable evidence 
demonstrates that an injury or disease existed prior thereto 
and was not aggravated therein.  Only such conditions as are 
recorded in examination reports are to be considered as 
noted.  38 U.S.C.A. §§ 1112, 1132; 38 C.F.R. § 3.304 (2007).  
In order to rebut the presumption of soundness, the 
government must show by clear and unmistakable evidence that 
(1) the veteran's disability existed prior to service and (2) 
that the pre-existing disability was not aggravated during 
service.  See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 
2004); see also VA O.G.C. Prec. Op. No. 3-2003, published at 
69 Fed. Reg. 25178 (2004).

An hereditary disease does not always rebut the presumption 
of soundness.  Rather, diseases of hereditary origin may be 
considered to have been incurred in service if their 
symptomatology did not manifest itself until after entry on 
duty.  The mere genetic or other familial predisposition to 
develop the symptoms, even if the individual is almost 
certain to develop the condition at some time in his or her 
lifetime, does not constitute having the disease.  Only when 
the symptomatology and/or the pathology exist can he or she 
be said to have developed the disease.  At what point the 
individual starts to manifest the symptoms of, or have 
pathological changes associated with the disease is a 
factual, not a legal issue.  Even when an hereditary disease 
has manifested some symptoms prior to entry on duty, it may 
be found to have been aggravated during service if it 
progresses during service at a greater rate than normally 
expected according to accepted medical authority.  VA 
VAOPGCPREC 67-90 (July 18, 1990), published at 55 Fed. Reg. 
43,253 (1990); see also VAOPGCPREC 82-90 (July 18, 1990), 
published at 56 Fed. Reg. 45,711 (1990).

When there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of 
a matter, the benefit of the doubt shall be given to the 
claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt 
arises regarding service origin, such doubt will be resolved 
in the favor of the claimant. Reasonable doubt is doubt which 
exists because of an approximate balance of positive and 
negative evidence which does not satisfactorily prove or 
disprove the claim.  38 C.F.R. § 3.102.  The question is 
whether the evidence supports the claim or is in relative 
equipoise, with the claimant prevailing in either event, or 
whether a fair preponderance of the evidence is against the 
claim, in which event the claim must be denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 55-57 (1991).

The United States Court of Appeals for the Federal Circuit 
(Federal Circuit) has held that a veteran seeking disability 
benefits must establish the existence of a disability and a 
connection between service and the disability.  Boyer v. 
West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  Medical evidence 
is required to prove the existence of a current disability 
and to fulfill the nexus requirement.  Lay or medical 
evidence, as appropriate, may be used to substantiate service 
incurrence.  The Court has held that "where the determinative 
issue involves medical causation or a medical diagnosis, 
competent medical evidence is required."  Grottveit v. Brown, 
5 Vet. App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 
Vet. App. 492, 494 (1992) (holding that a witness must be 
competent in order for his statements or testimony to be 
probative as to the facts under consideration).  

The veteran contends that while he served in the U.S. Navy 
with no medical problems from 1976 to 1980, he was discharged 
from the Army in April 1986 because he could not do pushups 
due to the weakness in his arms caused by muscular dystrophy.  
The veteran asserts that his muscular dystrophy was caused by 
his service.   

As the veteran's service medical records were unavailable 
because they were lost, in October 2005 the Board notified 
the veteran of this and rebuilt the file.  In December 2005 
the RO wrote to the veteran requesting he submit additional 
information relating to his claim for service connection for 
muscular dystrophy.  In April 2006 the RO wrote to the 
veteran again requesting additional information as to dates 
of medical treatment; statements from person who knew him in 
service and knew of his disability while on active duty; 
records and statements of service medical personnel, 
employment physical evaluations, medical evidence from 
hospitals, clinics and private physicians since military 
service; pharmacy prescription records and insurance 
examination reports.  The veteran did not respond to these 
requests.

VA treatment records of November 1992 indicated a diagnosis 
of muscular dystrophy.  From June 1999 through October 2005, 
the veteran was treated at the VAMC Tuskegee for muscular 
dystrophy.  A VA physician of May 2007, who reviewed the 
claims file, diagnosed the veteran with myotonic muscular 
dystrophy.  The physician did not give an exact date of onset 
since the veteran was diagnosed in VA treatment records in 
November 1992.  There were no treatment records available 
from the period of release from service in 1986 until 1992, 
and no service medical records available.  The examiner 
opined that the veteran's disease was congenital.  As to 
whether the disease underwent a permanent increase in 
severity beyond its normal progression in service from 
December 1985 to April 1986, the examiner was unable to offer 
an opinion, since there were no records to determine whether 
the veteran had signs of the disease in service and six years 
had elapsed between his service separation and the diagnosis 
of muscular dystrophy.

The gap in treatment records is persuasive evidence against 
the claim and strengthens the conclusion that the veteran's 
muscular dystrophy did not first become manifest during 
active duty.  Cf. Forshey v. West, 12 Vet. App. 71, 74 
(1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 
1358 (Fed. Cir. 2002) (noting that the definition of evidence 
encompasses "negative evidence" which tends to disprove the 
existence of an alleged fact); see also 38 C.F.R. § 3.102 
(noting that reasonable doubt exists because of an 
approximate balance of positive and "negative" evidence).  
Thus, the lack of any objective evidence of complaints, 
symptoms, or findings of muscular dystrophy for many years 
after the period of active duty is itself evidence which 
tends to show that the condition did not first manifest 
during active duty.  See also Maxson v. Gober, 230 F.3d 1330, 
1333 (Fed. Cir. 2000); Jordan v. Principi, 17 Vet. App. 261 
(2003) (Steinberg, J., writing separately) (noting that the 
absence of evidence may be considered as one factor in 
rebutting the aggravation part of the section 1111 
presumption of soundness). 

Although the presumption of soundness applies, for the 
reasons discussed above, absent probative evidence that the 
veteran's muscular dystrophy was first manifest during 
service, service connection is not warranted.  Even assuming 
for the sake of argument that the presumption of soundness 
has been rebutted, the Board notes that the record in this 
case contains no indication that the veteran's muscular 
dystrophy was aggravated during service.  Wagner, supra.

In that regard, there is simply no objective indication that 
muscular dystrophy, assuming such condition preexisted 
service, became symptomatic during service, much less 
underwent an increase in severity during service.  38 C.F.R. 
§ 3.306(b).

Finally, the appellant and his representative may believe 
that there was a causal relationship between the veteran's 
service and his muscular dystrophy.  However, the Board notes 
that there is no indication that they possess the requisite 
knowledge, skill, experience, training, or education to 
qualify as medical experts for their statements to be 
considered competent evidence.  Espiritu v. Derwinski, 2 Vet. 
App. 492 (1992).  Lay persons are not considered competent to 
offer medical opinions regarding causation or diagnosis.  
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).

As discussed in more detail above, the record in this case is 
negative for objective evidence of complaints of symptoms 
referable to muscular dystrophy for years after the veteran's 
separation from active service.  On the basis of all the 
evidence of record pertaining to the manifestations of the 
veteran's current muscular dystrophy, the Board concludes 
that the evidence of record clearly and unmistakably shows 
that, assuming the condition preexisted service, it did not 
increase in severity during active service.  38 U.S.C.A. 
1153, (West 2006); 38 C.F.R. 3.306 (2007).

In summary, for the reasons set forth above, the Board finds 
that service connection for muscular dystrophy is not 
warranted, on a direct basis, on a presumptive basis, or on 
an aggravation basis.  The Board sympathizes with the veteran 
regarding the nature and severity of his disability; however, 
as the preponderance of the evidence is against the claim, 
the reasonable doubt doctrine is not for application and the 
claim must be denied.  See 38 U.S.C.A. § 5107(b) (West 2002); 
See Gilbert, 1 Vet. App. at 54. 


ORDER

Service connection for muscular dystrophy is denied.



____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs