Citation Nr: 1241096 Decision Date: 12/03/12 Archive Date: 12/12/12 DOCKET NO. 10-34 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for primary lateral sclerosis (PLS). REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1959 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. On the Veteran's substantive appeal, received at the RO in August 2010, he requested a Board hearing at his local VA office. In a subsequent letter sent to the RO in December 2011, the Veteran withdrew his request for a Board hearing due to the difficulty of making the trip. Accordingly, the hearing request is considered to have been withdrawn. C.F.R. § 20.702 (2012). FINDING OF FACT 1. The competent evidence of record is at least in equipoise as to whether the Veteran's diagnosis of PLS is a variant of amyotrophic lateral sclerosis (ALS). 2. Resolving all reasonable doubt in the Veteran's. favor PLS, shown by the medical evidence of record to be a variant of ALS, is presumed causally or etiologically related to the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for PLS are met because PLS is shown by the medical evidence to be a variant of ALS, which is presumed incurred during the Veteran's service. 38 U.S.C.A §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.318 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish service connection for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Effective September 23, 2008, VA issued a regulation establishing presumptive service connection for ALS. 38 C.F.R. § 3.318 (2012); 73 Fed. Reg. 54691 (Sept. 23, 2008). That regulation provides that the development of ALS manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease if the Veteran had active, continuous service of 90 days or more. 38 C.F.R. § 3.318 (2012). However, the presumption of service connection for ALS does not apply if there is affirmative evidence that ALS was not incurred during or aggravated by such service, or affirmative evidence that ALS was caused by the Veteran's own willful misconduct. 38 C.F.R. § 3.318 (2012). The regulation applies to all applications for benefits that are received by VA on or after September 23, 2008, or that are pending on September 23, 2008. The Veteran submitted his claim for service connection for PLS, as a variant of ALS, in December 2008. In support of his claim, the Veteran submitted material from medical websites which provides information regarding the connection between PLS and ALS. In a lay statement, the Veteran asserted that he began noticing difficulty speaking, specifically slurred speech, somewhere between 1999 and 2000. He was examined by Dr. V., a neurologist from Shand Healthcare, once a year from 2003 to 2008. Thorough observational notes and diagnoses provided from each examination are of record. In 2003, Dr. V. diagnosed the Veteran with "slow progressive dysarthia with a suggestion of upper motor neuron deficits." Dr. V. included PLS and ALS among the causes for the deficits and noted that ALS was not possible to rule out, but it could be excluded if the lower motor neuron pathology did not show on future tests. In all subsequent medical reports, Dr. V.'s diagnoses consistently concluded that the Veteran suffered from PLS. In addition, in a 2006 examination report, Dr. V. stated that he observed a "slowness to initiation of movement in the lower extremities" and again stated that "ALS cannot be entirely ruled out." In the 2008 examination report, Dr. V. noted that there were no abnormalities to suggest prominent lower motor neuron components from that test. However, the Veteran was again diagnosed with an upper motor neuron disability, which was considered PLS. In July 2007, the Veteran was observed by several doctors at the Mayo Clinic. The medical genetics examiner noted that the Veteran's electromyography (EMG) showed that he had longstanding motor neuropathy, but that the symptoms found were atypical for a diagnosis of ALS. The neurologist concluded the Veteran had PLS based on the EMG and magnetic resonance imaging (MRI) results. The speech pathologist's conclusion was mild-moderate dysarthria. After a review of all the Veteran's lab results and pathology reports, an overall diagnosis was provided by Dr. J. who noted that the Veteran suffered from an "upper motor neuron disease, probably PLS." In a November 2008 Agent Orange examination, a VA physician indicated that the presumptive diagnosis from a VA examination showed that the Veteran had fairly advanced PLS. In a December 2008 VA neurology consultation, the neurologist opined that the Veteran most likely had PLS. The physician noted that the Veteran had chronic lower extremity spasticity and abnormal speech. The neurologist noted that PLS was generally considered a rare variant of ALS and that test results showed that there was lower extremity spasticity. The physician stated that there was always a possibility for two entities to manifest at the same time. Further, in an April 2009 neurology clinical note, the neurologist diagnosed the Veteran with PLS, again noting that PLS is typically considered an ALS variant. In January 2010, the VA neurologist reviewed the results of an EMG and indicated that he did not believe that the test indicated ALS because he saw few fasciculations and spontaneous activity results from the tested areas. The medical evidence of record indicates that the Veteran has PLS. Although ALS was not diagnosed as the Veteran's condition, it was noted by Dr. V. on more than one occasion that ALS could not be ruled out. Also, in the December 2008 and April 2009 VA neurology consultations, the neurologist stated that PLS is generally considered a rare variant of ALS. In addition, evidence was submitted by the Veteran regarding a connection between PLS and ALS. Among the information submitted were articles from the Columbia University Medical Center, Department of Neurology website which discussed PLS as a subset of ALS. An article from John Hopkins Medical website stated that PLS is a rare form of ALS. Therefore, the Board has considered whether PLS is a form or variant of ALS. Resolving reasonable doubt in favor of the Veteran, the Board finds that the medical evidence of record shows that PLS is a form or variant of ALS. Therefore, the Board finds that it is at least as likely as not that PLS is a form of ALS and should be subject to the presumptive service connection for ALS provided for by 38 C.F.R. § 3.318. Therefore, the Board resolves all reasonable doubt in the Veteran's favor and finds that service connection for PLS, shown by the medical evidence of record to be a variant of ALS, is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for PLS is granted. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs