Citation Nr: 1107292 Decision Date: 02/23/11 Archive Date: 03/04/11 DOCKET NO. 97-34 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for primary lateral sclerosis (previously diagnosed as polyneuropathy). REPRESENTATION Appellant represented by: Joseph R. Moore, Esquire WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to November 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 1996 rating decision of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 1998, the Veteran was afforded a hearing before a hearing officer at the RO. In April 1999, the Veteran and his spouse provided testimony at a videoconference hearing before the undersigned Veterans Law Judge. Transcripts of these hearings are of record. In March 2005, the Board denied the Veteran's claim for service connection for polyneuropathy. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In November 2006, the Court granted a joint motion of the parties, vacated the Board's decision, and remanded the case to the Board for action consistent with the joint motion. In March 2007, the Board remanded the claim to the originating agency for additional action consistent with the joint motion. The claim has been returned to the Board for appellate action. FINDING OF FACT Primary lateral sclerosis (PLS) is etiologically related to the Veteran's active service. CONCLUSION OF LAW PLS was incurred in active duty. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010) or 38 C.F.R. § 3.159 (2010). Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). 38 U.S.C.A. § 1116(a) provides presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent within a specified period in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. It also provides presumptive service connection on the basis of herbicide exposure for each additional disease that the Secretary determines in regulations prescribed under this section warrants a presumption of service- connection by reason of having a positive association with exposure to an herbicide agent, and that becomes manifest within the period (if any) prescribed in such regulations in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section. 38 U.S.C.A. § 1116(b)(1). In making determinations for the purpose of this subsection, the Secretary shall take into account (A) reports received by the Secretary from the National Academy of Sciences under section 3 of the Agent Orange Act of 1991 [note to this section], and (B) all other sound medical and scientific information and analyses available to the Secretary. In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review. 38 U.S.C.A. § 1116(b)(2). The Board notes that the list of diseases presumed to be associated with exposure to herbicides used in Vietnam during the Vietnam Era was expanded in 2009 to include amyotrophic lateral sclerosis (ALS). See 74 Fed. Reg. 57,072-57,074 (Nov. 4, 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran claims that service connection is warranted for his polyneuropathy of the lower and upper extremities, now diagnosed as primary lateral sclerosis, under several theories: (1) it is the result of exposure to Agent Orange during his service in Vietnam, including because it is a form of ALS, (2) it is secondary to his service-connected right nephrectomy due to adenocarcinoma, or (3) it is causally related to service. The record reflects that service connection is in effect for adenocarcinoma of the right kidney, status post nephrectomy, rated 30 percent disabling since 1977. A report from a private physician dated in June 1993 documents intermittent paresthesias which were somewhat enigmatic. VA examination in March 1994 showed paresthesias of the hands and feet of unknown origin. A VA examination performed in December 1996 reflects the examiner's opinion that the Veteran's sensorimotor polyneuropathy found on examination could be secondary to perineal plastic syndrome due to adenocarcinoma of the right kidney or due to ALS. He was noted as severely incapacitated due to the polyneuropathy. He was in a wheelchair, could not walk and had difficulty with voiding and bowel function. VA progress notes are replete with reference to polyneuropathy and paresthesias of the hands and feet during this time period. Thyroid problems were also documented. A neurological work up in May 1996 involving EMG and nerve conduction studies, nerve and muscle biopsy, and quantitative sensory and motor testing yielded a list of diagnoses including probable ALS and sensorimotor polyneuropathy. The report of a VA examination in October 1999 reflects that the Veteran was again in a wheelchair due to weakness and numbness in the lower extremities and upper extremities. The examiner opined this could be chronic inflammatory neuropathy. He opined it was not likely due to Agent Orange exposure over 20 years earlier or due to the adenocarcinoma of the right kidney as the effects of such were unlikely to happen 17 years after diagnosis of the tumor. Of record are several other medical opinions which essentially indicate that no definitive and final conclusion could be reached as to the cause of the condition which caused the Veteran's sensory and then motor issues. The examiners variously found that the Veteran might have inflammatory polyneuropathy or a variant of ALS. The report of a VA examination in October 2001 noted this very finding. In May 2008, a VA nurse practitioner and the physician chief of staff coauthored a report of neurological examination. The diagnosis was primary lateral sclerosis (PLS). The physician indicated that he was unable to determine the etiology of the Veteran's condition without resort to speculation. He noted that the disease was close in presentation to ALS but that ALS had been ruled out at this point. A VA medical opinion was obtained in December 2008. This examiner requested copies of certain tests and samples referred to in the record. The most recent treatment records reflect that the Veteran is currently undergoing treatment for unresectable pancreatic cancer. The Veteran's attorney has submitted a December 2010 report from P.C., M.D. Dr. C. indicated that he reviewed the Veteran's treatment records. He opined that the Veteran's current diagnosis was PLS. He explained that the presentation of the Veteran's symptoms over the years was characteristic of PLS. He argued that PLS is a form of ALS and submitted argument and citations to medical literature that support his position. He also addressed all of the contrary medical evidence of record and explained why these were not dispositive of the etiology of the Veteran's PLS. Most significantly, the examiner conducted a thorough review and then opined that the Veteran's current PLS is directly associated with the Veteran's service. Again, he supported his opinion with citations to the record and detailed the continuity of the symptoms for years. On review of the evidence above, the Board has determined that the evidence supportive of the claims is at least in equipoise with that against the claim as to the issue of whether the current PLS was a direct result of service. The November 2010 report from Dr. C. has provided a clear opinion supporting the claim on this basis. With the exception of the May 2008 VA examination report, the earlier examination reports that do not favor the claim do not directly address the clear diagnosis of PLS. The examiner in May 2008 indicated that he could not form a determination without resorting to speculation. He also pointed out that the presentation of the Veteran's neuropathic syndrome is close to ALS. In short, he provides a current diagnosis but no definitive opinion for or against the claim. The Board has not found any negative opinion that is more persuasive or well-supported in fact than the November 2010 opinion. Although the Board appreciates Dr. C.'s argument that the PLS is actually a form of ALS, the Board notes that there is conflicting authority as to whether this is actually settled for purposes of VA benefits. Regardless, the Board need not address that assertion, as it finds sufficient support for granting the claim on a direct basis with Dr. C.'s report. Accordingly, with the resolution of reasonable doubt in the Veteran's favor, service connection is in order for PLS. ORDER Service connection for primary lateral sclerosis (previously diagnosed as polyneuropathy) is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs