Citation Nr: 0920216 Decision Date: 05/29/09 Archive Date: 06/08/09 DOCKET NO. 08-01 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for myotonic dystrophy, type 2. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The Veteran had active military service from May 1983 to June 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran testified before the undersigned Veterans Law Judge at a December 2008 hearing conducted via videoconference. A transcript of the hearing is of record. This case was brought before the Board in February 2009, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to readjudicate the issue on appeal. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDING OF FACT The competent evidence of record indicates the Veteran currently suffers from myotonic dystrophy, type 2, that is etiologically related to active service. CONCLUSION OF LAW Myotonic dystrophy, type 2, was incurred in active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the Veterans Claims Assistance Act (VCAA) of 2000 (codified at 38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2008). The Veteran contends he is entitled to service connection for myotonic dystrophy, type 2. Specifically, he contends that even though he was not diagnosed with myotonic dystrophy until September 2006, he began to manifest symptoms of the disorder during active service. The Veteran was afforded a VA examination in April 2007 in conjunction with his claim. After reviewing the evidence of record, including service treatment records, and physically examining the Veteran, the VA examiner opined that the Veteran's myotonic dystrophy is not at least as likely as not etiologically related to active service. The examiner based this opinion on the fact that the service treatment records indicate one instance in which the Veteran complained of muscle pain without injury. However, the Veteran has provided an opinion from Dr. Day, a neurologist at the University of Minnesota Medical Center. After reviewing the record, Dr. Day opined that it is "almost certain" that the Veteran's myotonic dystrophy became symptomatic during active service. In this regard, Dr. Day notes that on several occasions during service the Veteran sought treatment for muscle pain or stiffness that was attributed at the time to a proximal cause. Dr. Day further opines that, had the Veteran undergone routine testing at the time, a correct diagnosis of myotonic dystrophy could have been made. In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court found that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Further, the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in "relative equipoise, the law dictates that the veteran prevails." In the instant case, the Board observes that Dr. Day's December 2008 opinion does not address why the muscle pain and/or stiffness experienced by the Veteran during service was not due to the proximal causes indicated in service treatment records. However, in reviewing the record in its entirety, including Dr. Day's December 2008 opinion, the Board finds the evidence to be in genuine equipoise as to whether the Veteran's myotonic dystrophy, type 2, is etiologically related to active service. As such, in resolving all doubt in the Veteran's favor, the Board finds that service connection for myotonic dystrophy, type 2, is warranted. ORDER Service connection for myotonic dystrophy, type 2, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs