Citation Nr: 1108452 Decision Date: 03/03/11 Archive Date: 03/17/11 DOCKET NO. 08-06 823A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for amyotrophic lateral sclerosis for accrued benefits purposes. 2. Entitlement to an effective date earlier than September 23, 2008, for service-connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Amy K. Hart, Attorney at Law ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The Veteran had active service from February 1981 to February 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2006, the Veteran filed a claim for increased ratings for his service-connected disabilities and for service-connection for amyotrophic lateral sclerosis (ALS). In March 2006, he died from ALS complications. The July 2007 decision denied service-connection for the cause of the Veteran's death. It also denied service-connection for ALS for accrued benefits purposes. Thirdly, for the purpose of accrued benefits, it continued a 10 percent rating for irritable bowel syndrome, a 10 percent rating for spondylosis of the thoracic spine, a 10 percent rating for a generalized anxiety disorder, a 10 percent rating for hypertension, and a noncompensable rating for allergic rhinitis. In a timely notice of disagreement, received in August 2007, the appellant, the widow of the Veteran wrote, "I disagree with your denial of service-connection for amyotrophic lateral sclerosis (ALS) as cause of death ..." VA must broadly construe a claimant's statements. Thus, we construe the August 2007 notice of disagreement as disagreeing with the denial of service-connection for ALS, for accrued benefits purposes, as well as disagreeing with service-connection for the cause of the Veteran's death. In February 2008, in conjunction with her substantive appeal, she wrote, "Please note that I am appealing the denial of benefits regarding the VA's decision that my late husband's disabling disease and untimely death were not service-connected." Here, again, we see that she was appealing the RO decisions on service-connection both for the disease and the death. Thus, we find that there are timely substantive appeals on both issues, as set forth above. In May 2009, the RO granted service-connection for the cause of the Veteran's death, effective September 23, 2008. That is the date that a regulation establishing a presumption of service-connection for ALS became effective. However, that was not the earliest effective date possible. In September 2009, the RO received a claim for accrued benefits with a hand written note indicating that the appellant was still seeking benefits from the date of the Veteran's death. Thus, that part of the original claim for death benefits, prior to September 2008, remains on appeal. The appellant failed to appear for a hearing scheduled in November 2010. She has not asserted any good cause for failing to appear. Under these circumstances, the request for a hearing must be deem to have been withdrawn and the Board proceeds with its review of the appeal on the record. 38 C.F.R. § 20.704(d) (2010). FINDINGS OF FACT 1. ALS was manifested by symptoms including shakiness, forgetfulness, and back pain during the Veteran's active service. 2. In March 2006, the Veteran died from complications of the ALS manifested in service. CONCLUSIONS OF LAW 1. ALS was incurred in active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2010). 2. A service connected disability caused the Veteran's death. 38 U.S.C.A. §§ 1310, 5107(b) (West 2002); 38 C.F.R. § 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In February 2007, prior to the initial adjudication of her claims, the RO provided the appellant with a letter explaining to her the type of evidence necessary to substantiate her claims, as well as an explanation of what evidence was to be provided by her and what evidence the VA would attempt to obtain on her behalf. This complied with the requirements of VCAA. Further, as the Board is granting in full the benefits sought on appeal, any error that might have been committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Criteria In order to establish service connection on a direct or primary basis, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). For certain disabilities, service-connection may be established on a presumptive basis. These presumptions provide additional bases for establishing service-connection. They do not prevent a claimant from establishing service-connection on a direct or primary basis due to incurrence or aggravation in service. See 38 C.F.R. § 3.303(d) (2010). Organic diseases of the nervous system may be presumed to have been incurred during active military service if manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). Presumptive service connection for amyotrophic lateral sclerosis. (a) Except as provided in paragraph (b) of this section, the development of amyotrophic lateral sclerosis manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease. (b) Service connection will not be established under this section: (1) If there is affirmative evidence that amyotrophic lateral sclerosis was not incurred during or aggravated by active military, naval, or air service; (2) If there is affirmative evidence that amyotrophic lateral sclerosis is due to the veteran's own willful misconduct; or (3) If the veteran did not have active, continuous service of 90 days or more. 38 C.F.R. §§ 3.318 (2010). This regulation was effective September 23, 2008. See 73 Fed. Reg. 54691, 54693, Sept. 23, 2008. Service connection for the cause of the veteran's death may be granted if a disability incurred in or aggravated by service caused death. For a service-connected disability to be the cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (West 2002). Discussion The death certificate shows that the Veteran died at home in March 2006, at age 45. The immediate cause of death was respiratory arrest due to amyotrophic lateral sclerosis. There was no autopsy. However, there is no dispute as to the cause of death because medical evaluations prior to the Veteran's death well documented the disease and resulting debility. Service-connection for the cause of the Veteran's death was granted based on the presumptions found in new regulation 38 C.F.R. § 3.318. As a liberalizing regulation, benefits were effective as of the date the regulation became effective, which was the date it was published, September 23, 2008. See 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. §§ 3.114, 3.400(p) (2010). However, the presumptions do not prohibit the establishment of service-connection on a direct or primary basis by showing that the fatal disease was incurred or aggravated during the Veteran's active service. Thus, in considering the appellant's claim, we are looking for manifestations of ALS during service. The Federal Register, at 54693, explained that the presumption was based on statistical evidence showing that ALS occurred more frequently among veterans than among nonveterans. The reason for that difference was not clear, as were the causes of ALS. The Federal Register also provided some relevant information about the disease. ALS (also called Lou Gehrig's disease) is a neuromuscular disease that affects about 20,000 to 30,000 people of all races and ethnic backgrounds in the United States and is often relentlessly progressive and almost always fatal. ALS causes degeneration of nerve cells in the brain and spinal cord that leads to muscle weakness, muscle atrophy, and spontaneous muscle activity. People suffering from ALS eventually lose the ability to move their arms and legs and to speak and swallow. The median survival period for people with ALS is 3 years from the onset of symptoms, and most people with ALS die from respiratory failure within 5 years. 73 Federal Register 54691. It is significant that the Veteran died from respiratory failure 5 years and 16 days after retiring from service. This puts his death within the time frame when the onset would be within the accepted time frame for an onset in service. Thus, we turn to the service treatment records looking for manifestations of muscle weakness, muscle atrophy, or spontaneous muscle activity. The only such findings close to the relevant 5 year time period, in the service treatment records, is a December 2000 complaint of continuous low back pain. There were no abnormal findings and the diagnosis was upper low back pain. Medication was provided. Prior to his separation from service, the Veteran was examined by VA, with a general medical examination in December 2000. His physical problems included irritable bowel syndrome, tubular adenoma, hypertension, allergic rhinitis, and degenerative changes in the left hand. He also complained of mid back pain. A previous chest X-ray had incidentally disclosed degenerative changes in the thoracic spine. He stated that he had soreness in his mid back for the last 4 to 5 months. Examination of the musculoskeletal system disclosed a full unrestricted range of motion. The spine had no tenderness, curvature abnormality, spasm, swelling, or discoloration. The left hand had a full range of motion without any obvious abnormality. Strength was 5/5. Neurologic examination was normal. Pertinent diagnoses included thoracic spine degenerative changes identified on chest X-ray, minimally symptomatic, and history of tendinitis of the left hand, predominantly involving the left thumb. In an addendum, the examiner noted that recent VA X-rays of the thoracic spine, left hand, and both wrists were normal. The Veteran had a VA mental examination in December 2000. He reported that he had problems with anxiety, shakiness, and nervousness off and on for the previous 8 to 10 years. He reported that lately, he had become more forgetful and shaky. He reported that in September 2000, he went to seek help due to his constant shakiness. He was diagnosed with anxiety and depression and started on medication. He was still having episodes of anxiety nervousness and panic attacks. The diagnosis was generalized anxiety disorder, chronic with mild depressive symptoms. In February 2001, the RO granted service-connection for hypertension, a generalized anxiety disorder, spondylosis of the thoracic spine, colon polyp/irritable bowel syndrome, hemorrhoids, a scar of the left cheek, and allergic rhinitis. Service-connection for tendinitis/degenerative joint disease of the left hand was denied because no permanent residual or chronic disability was shown. In a note dated in October 2004, a private physician, R. D., D.O., wrote that the Veteran was a new patient seen for medication refills. He stated that he was experiencing early memory loss, recent and distant. Objective findings were within normal limits. The assessment was anxiety neurosis, irritable bowel syndrome, perennial allergic rhinitis, hypertension, and chronic low back pain. In January 2005, the Veteran complained of muscle twitching and cramping, generalized in his body muscles. He also stated that he had been losing upper body strength for the past 3 weeks. Testing and consultation with a neurologist was recommended. The Veteran returned a week later complaining of his stomach "in knots" and his upper extremities twitching. In February 2005, the Veteran was seen by K. E., M.D., for a neurological evaluation. The Veteran reported progressive weakness of the upper and lower extremities associated with jerking movement and jumping of the muscles. He described the symptoms as appearing acutely around Christmas time and progressing over the past 2 months. He had been excessively weak and unable to carry his grandchildren or heavy objects. Examination of the motor system revealed fasciculations over the upper and lower extremities. He had proximal and distal weakness and some atrophy of the muscles. It was the neurologist's impression that frequent fasciculations associated with increasing weakness of the upper and lower extremities invited a diagnosis of ALS. Other diagnoses were considered. X-rays studies showed a normal lumbar spine, minimal degenerative joint disease in the thoracic spine, and mild degenerative change in the cervical spine. Nerve conduction velocity (NCV) and electromyogram (EMG) studies in March 2005 disclosed denervation potentials throughout the upper and lower extremities. Subsequent private medical records reflect testing including a muscle biopsy. A diagnosis of ALS was confirmed. Conclusion ALS was not diagnosed in service. Nevertheless, service connection can be granted if the evidence shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303 (2010). There is no medical opinion associating the Veteran's ALS with his active service. On the other hand, there is no medical opinion against the claim. The private medical records show that the Veteran sought medical care for memory loss in October 2004 and for muscle symptoms in January 2005. He died 14 months later. Thus, while the course of ALS is highly variable, it is unlikely that the disease began when he sought treatment in October 2004 and January 2005. Additionally, Dr. K. E. found muscle atrophy when he examined the Veteran in February 2005. Muscle atrophy can occur quickly in unused muscles, such as those in a cast, but its presence in muscles that are in normal use indicates a long standing problem. Similarly, Dr. K. E. found fasciculations throughout both upper and lower extremities, which would indicate an advanced level of disease. Consequently, we can be relatively sure the disease began a significant time before the Veteran sought medical treatment in October 2004, which was only about 3 years and 8 months after he left active service. There are two factors in the service treatment records that support the claim. During service, shortly before he retired, the Veteran reported increased back pain. No organic basis was found for these complaints. It was reported that earlier X-ray studies revealed degenerative changes in the thoracic spine but VA X-rays and direct examination were normal. Private X-rays in February 2005 showed mild degenerative changes in the thoracic spine and a normal lumbar spine, which would not account for the back complaints in service. Thus, we must conclude that no organic basis was established for the back complaints in service and they could well reflect the muscle symptoms associated with ALS. More significantly, on the December 2000 VA mental examination during service, the Veteran reported that lately, he had become more forgetful and shaky. The evidence does not provide any reason for us to dissociate the complaint of forgetfulness voiced during service from that made when the Veteran went to see Dr R. D. in October 2004. Similarly, the complaint of shakiness was voiced when he saw Dr. R. D. in January 2005. Dr. K. E. subsequently confirmed upper and lower extremity fasciculations. Here, again, the evidence does not provide any reason for us to dissociate the shakiness complained of during service from the complaints of shakiness that led to a diagnosis of ALS a few years later. Because we find no evidence to dissociate the complaints of back pain, forgetfulness, and shakiness in service from similar complaints that led to a diagnosis of ALS a few years after service, the Board is driven to the conclusion that ALS was manifested during service. Thus, we grant service-connection for ALS on a direct or primary basis, without resort to presumptions, because the evidence shows it was incurred in service. In reaching this conclusion, reasonable doubt has been resolved in the appellant's favor. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). ORDER Service connection for amyotrophic lateral sclerosis for accrued benefits purposes is granted, subject to the law and regulations governing the payment of monetary awards. Service-connection for the cause of the Veteran's death is granted, effective date as of the date of the Veteran's death in March 2006 and subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs