Citation Nr: 0820145 Decision Date: 06/19/08 Archive Date: 06/25/08 DOCKET NO. 05-19 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for pseudoxanthoma elasticum. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Lawrence W. Klute, Associate Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (the Board) on appeal from an April 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the veteran's claim of entitlement to service connection for pseudoxanthoma elasticum (PXE). Procedural history The veteran served on active duty from July 1974 to November 1978. In January 1979, he filed a claim of entitlement to service connection for PXE. That claim was denied in a September 1979 decision of the RO. The veteran did not appeal. In February 2007, the Board reopened the claim of entitlement to service connection for PXE and remanded the case for further development. As will be discussed below, the requested development has been accomplished, and the appeal has been returned to the Board for further consideration. FINDING OF FACT The veteran's pseudoxanthoma elasticum was first manifested in service. CONCLUSION OF LAW Pseudoxanthoma elasticum was incurred in active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007); VAOPGCPREC 1-90 (March 6, 1990; VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 82-90 (July 18, 1990). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks entitlement to service connection for PXE. In substance, he contends that this disorder first manifested during his military service and that service connection should be granted on that basis. The RO denied the claim on the basis that pseudoxanthoma elasticum is a lifelong congenital or developmental abnormality that may not be service connected. In the interest of clarity, the Board will initially discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall considerations As was alluded to in the Introduction, in February 2007 the Board remanded the issue of entitlement to service connection for pseudoxanthoma elasticum in order to provide the veteran with notice that complied with the requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006); and to obtain a medical opinion whether it is as likely as not that pseudoxanthoma elasticum was aggravated beyond the natural progression of the disease by the veteran's active duty military service. The veteran's claim was then to be readjudicated by the agency of original jurisdiction. Review of the file reveals that the requested VCAA notice was sent in March 2007, and the file review and opinion was done during September 2007. A supplemental statement of the case was issued by the agency of original jurisdiction in November 2007. Thus, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 After having carefully reviewed the record, the Board has concluded that the notice and duty to assist requirements of the VCAA have been satisfied with respect to the issue on appeal. The Board observes that the veteran was informed of the relevant law and regulations pertaining to his claim in a letter from the RO dated April 29, 2004, which specifically detailed the evidentiary requirements for new and material evidence to reopen a previously-denied service connection claim, along with the evidentiary requirements for service connection. In the March 2007 VCAA letter, the veteran was further notified that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In short, the Board concludes that the provisions of the VCAA have been complied with to the extent required under the circumstances presented in this case. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2006). The veteran and his representative have been accorded the opportunity to present evidence and argument in support of his claim. The veteran has not requested a personal hearing. Accordingly, the Board will proceed to a decision as to whether new and material evidence has been submitted which is sufficient to reopen the veteran's previously-denied claim of entitlement to service connection for pseudoxanthoma elasticum. Relevant law and regulations Service connection - in general A disability may be service-connected if it results from an injury or disease incurred in, or aggravated by, military service. See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection - congenital abnormalities In general, congenital or developmental abnormalities are not diseases or injuries within the meaning of applicable legislation concerning service connection. See 38 C.F.R. §§ 3.303(c), 4.9 (2007); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996), and cases cited therein. However, VA General Counsel has held that service connection may be granted for hereditary diseases which either first manifest during service or which preexisted service and progressed at an abnormally high rate during service. See VAOPGCPREC 1-90 (March 16, 1990); VAOPGCPREC 67-90 (July 18, 1990); VAOGCPREC 82-90 (July 18, 1990). The Veterans Benefits Administration (VBA) Adjudication Procedure Manual M-21-1 was subsequently amended as a result of these opinions. The amendments further refined the concept of service connection, under certain limited circumstances, for congenital diseases. According to VA Manual M21-1, congenital or developmental defects are normally static conditions which are incapable of improvement or deterioration. A disease, even one which is hereditary in origin, e.g., retinitis pigmentosa, polycystic kidney disease, sickle cell diseases and Huntington's disease (chorea), is usually capable of improvement or deterioration. Service connection may be granted, if warranted, for diseases of congenital, developmental or familial (hereditary) origin which either first manifest themselves during service or which preexist service and progress at an abnormally high rate during service. Diseases of hereditary origin can be considered to be incurred in service if their pathological signs or symptoms were manifested after entry on duty. Even if the individual is almost certain to eventually develop a condition, a genetic or other familial predisposition does not constitute having the disease. Only when actual symptomatology or signs of pathology are manifest can he/she be said to have developed the disease. At what point the individual starts to manifest signs or symptoms is a factual issue determined by the medical evidence of record in each case. See M21-1, Part VI, Chapter 7, § 7.01(g) (Mar. 20, 2002). Factual background The relevant facts in this case are not in substantial dispute. The veteran's enlistment examination in June 1974 was pertinently negative. Symptoms consistent with PXE were initially observed in October 1977. A physical examination dated November 9, 1978, showed a diagnosis of pseudoxanthoma elasticum and angioid streaks. As was described in the Introduction, the veteran filed a claim of entitlement to service connection for PXE shortly after leaving service. His claim was denied by he RO in September 1979 because PXE was deemed to be "constitutional in nature, and there is no evidence to indicate aggravation by service as the symptoms demonstrated are accepted as most commonly developed during the second decade of life." A December 1994 VA examination diagnosed pseudoxanthoma elasticum with secondary loss of vision due to angioid streaks in both eyes. In April 2003 a VA examiner diagnosed the veteran as being legally blind in both eyes. Analysis In a May 2008 informal hearing presentation, the veteran's representative contended that service connection for PXE was warranted because PXE is a hereditary disease which first manifested itself in service, citing VAOPGCPREC 1-90. Initial matter In August 2005, the veteran added to the record copies of Board decisions wherein service connection for PXE had been granted, including a 1997 decision by the undersigned Veterans Law Judge that was based on a finding that PXE was first manifested in service and that service connection was thereby warranted based on the VA General Counsel opinions discussed above. By law, Board decision are of a nonprecedential nature. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. See 38 C.F.R. § 20.1303 (2007). Discussion The evidence of record indisputably shows that the veteran's PXE was manifested for the first time in service and did not preexist service [except to the extent that it was a hereditary disease which had not yet become symptomatic]. The evidence further shows that the veteran unfortunately continues to experience the effects of PXE. After having carefully considered the matter, the Board concludes that the VA General Counsel opinion cited above is dispositive of this appeal. It is clear that the veteran suffers from a hereditary disease, not a congenital defect. It is also clear that the hereditary disease, PXE, was initially manifested in service, i.e., "pathological signs or symptoms were manifested after entry on duty". Indeed, PXE was initially manifested after over three years of service. There is no medical or other evidence to the contrary. In summary, based on VAOPGCPREC 1-90, the Board concludes that service connection may be granted for PXE. The benefit sought on appeal is accordingly allowed. ORDER Service connection for pseudoxanthoma elasticum is granted. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs