Citation Nr: 0816181 Decision Date: 05/16/08 Archive Date: 05/23/08 DOCKET NO. 06-08 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for myasthenia gravis. ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from August 1982 to January 1983, and from November 1990 to July 1991. She also performed extensive service with the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 decision of the Winston- Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT The veteran is not shown to have myasthenia gravis that is due to any event or incident of her service, and myasthenia gravis was not manifested to a compensable degree in the first year following the veteran's separation from active duty. CONCLUSION OF LAW Myasthenia gravis was not incurred or aggravated by active service, and myasthenia gravis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in April 2005 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. In April 2005 the claimant was notified of the need to submit all pertinent evidence in her possession. In March 2006, she was provided with notice of the type of evidence necessary to establish disability ratings and effective dates. The claim was readjudicated in a February 2008 supplemental statement of the case. There is not a scintilla of evidence that any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, the evidence of record rebuts any suggestion that the appellant has been prejudiced in any manner. Hence, the case is ready for adjudication. The veteran alleges that myasthenia gravis began in June 1999, and is related to her military service. See VA Form 21-526, received in February 2004. She acknowledges that while she was not diagnosed with this disorder during active duty, the disorder was diagnosed while she was in the North Carolina National Guard. See March 2005 VA Form 21-4138. The veteran further claims that the disorder was brought about by her exposure to an "environmental hazard" while serving in the Gulf War. See VA Form 21-526, received in September 2007. The service medical records are devoid of any findings reflective of either a diagnosis or complaints relating to myasthenia gravis symptomatology. A June 1999 private medical record shows a diagnosis of "signs and symptoms of a myasthenic syndrome, probably myasthenia gravis." While private electromyographic testing in June 1999 revealed normal findings, a June 1999 nerve conduction study revealed a neuromuscular junction defect involving the post synaptic membrane, that was consistent with myasthenia gravis. A letter from a private physician, Dr. Shapiro, noted as part of a June 1999 facsimile, shows that the veteran had presented to him last April [1998] with a several month history of double vision, unusual tongue and swallowing difficulties, and right thumb numbness. The veteran had reported that she had been medically evaluated in California while in the military "last year" [1997] but that this information was not obtainable. Dr. Shapiro stated that routine laboratory investigation had not revealed anything remarkable, nor did he find anything specific in the course of his examination. Of record is a June 1995 letter from an Air Force medical group noting that the veteran had no current medical problems that would prevent her from performing any activities. Further, an August 1996 Report of Medical Examination (Periodic) makes no mention of any complaints or symptoms relating to myasthenia gravis. The appellant was evaluated as being neurologically normal from a clinical perspective. Received by VA from the veteran in March 2006 is a printed version of a website page from www.Merck.com. Entitled "Neuromuscular Junction Disorders," the information stated, in pertinent part, that "nerve gases used in chemical warfare can cause the neuromuscular junction [which include myasthenia gravis] to malfunction." A June 2006 VA neurology attending note shows that the veteran was seen for follow up for myasthenia gravis. Symptoms reportedly began in 1999. The veteran requested that the examining neurologist opine as to whether her military service in the early 1990's "caused or aggravated" her myasthenia gravis which, noted the physician, appeared to have began in the late 1990's. The VA neurologist opined that "I know of no data to support the idea that her military service in the early 1990s could have caused or aggravated her myasthenia gravis which started in the late 1990's." Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted 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). Myasthenia gravis if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred during such active duty service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disorder, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). In deciding whether the veteran has a current disability due to military service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 30 (1999). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. The veteran's statements describing her symptoms are considered to be competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be viewed in conjunction with the objective medical evidence. As to the veteran's claim of entitlement to service connection for myasthenia gravis, after a review of the evidence, the Board concludes that the preponderance of the evidence is against finding that her disability is related to service. The available service medical records are entirely negative for findings, complaints, or diagnoses of either myasthenia gravis or of symptoms representative of such a disorder. No medical professional, either private or VA, has linked any current myasthenia gravis to service. Indeed, after taking the veteran's medical history, and following his examination of the appellant, a VA neurologist essentially opined in June 2006 that the veteran's diagnosed myasthenia gravis was neither "caused or aggravated" by her military service. A competent opinion to the contrary is not of record. Lastly, with respect to the assertion that myasthenia gravis is related to an in-service exposure to an environmental hazard, there is no competent evidence supporting such a theory. Therefore, the preponderance of the competent evidence is against finding an etiological relationship between the veteran's current myasthenia gravis and any in-service incident, her lay contentions to the contrary notwithstanding. The Board also observes that while myasthenia gravis has been diagnosed this diagnosis was first made in 1999, several years following the veteran's 1991 separation from active duty. Thus, presumptive service connection may not be granted pursuant to 38 C.F.R. §§ 3.307, 3.309. As such, to summarize, there is no competent medical evidence relating myasthenia gravis to the veteran's service. The veteran's contentions do not constitute competent evidence with respect to medical causation, diagnosis, and treatment. As a lay person, she lacks the medical expertise to offer competent opinions as to the existence of the disability, as well as to medical causation of any current disability. Espiritu. Therefore, there is no competent medical evidence of record showing a link between the veteran's current myasthenia gravis and service. As such, the preponderance of the evidence is against the claim for service connection for the claimed disorder. The Board also observes that the RO, apparently in reaction to the veteran's September 2007 assertion that her myasthenia gravis may have been caused by "an environmental hazard in the Gulf War," set out in the February 2008 supplemental statement of the case regulations pertaining to entitlement to compensation for certain disabilities due to undiagnosed illnesses, 38 C.F.R. § 3.317. While this regulation is often utilized by veterans in search of compensation for signs and symptoms of illnesses which have not been diagnosed, here, the veteran has been diagnosed with myasthenia gravis. As such, she does not have an undiagnosed disability, and 38 C.F.R. § 3.317 is not for application. Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for myasthenia gravis is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs