Citation Nr: 1220317 Decision Date: 06/11/12 Archive Date: 06/22/12 DOCKET NO. 08-08 904 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE Entitlement to service connection for myasthenia gravis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from July 1964 to July 1967 and from September 1974 to September 1978. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2006 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran has not been diagnosed with a disability that is presumptively linked to herbicide exposure. 2. The weight of evidence is against a finding that the Veteran's myasthenia gravis was caused by or otherwise secondary to treatment of his service connected disabilities knee disability. 3. The weight of evidence is against a finding that the Veteran's myasthenia gravis either began during or was otherwise caused by his military service, to include any herbicide exposure therein. CONCLUSION OF LAW Criteria for service connection for myasthenia gravis have not been met. 38 U.S.C.A. §§ 1110, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Additionally, if a service connected disability aggravates (meaning makes permanently worse beyond the natural progression of the disease) a non-service connected disability, service connection may also be awarded. In this case, the Veteran underwent a total knee replacement of his service connected left knee on February 10, 2006. Subsequent to the surgery, he was diagnosed with myasthenia gravis. The Veteran's primary contention is that his myasthenia gravis is secondary to the treatment of his service connected left knee disability. His theory is that the treatment, and residuals of treatment, of his service connected left knee disability, including infection, antibiotic treatment, and knee surgeries, combined to weaken his immune system, thereby allowing myasthenia gravis to take hold. The Veteran has also asserted that his myasthenia gravis might be secondary to his in-service herbicide exposure while in the Republic of Vietnam. The factual history of the Veteran's case in not in dispute: The Veteran is service connected for a left knee disability, stemming from an in-service injury he incurred in Vietnam. Over time, the knee disability became problematic, and the Veteran began to receive steroid and synvisc injections. Surgery was recommended and the Veteran underwent his first total left knee replacement in December 2003. He has reported that his knee unfortunately never functioned well after the first surgery, as he continued to experience considerable limitation of motion. As it turned out, the limitation of motion he was experiencing was being caused by a knee infection which had gone undetected; however, because the infection had gone undetected the Veteran was scheduled for a second knee surgery to address his knee problems. During the second surgery in December 2005, the surgeon found evidence of a bone infection, explanted the first knee joint and inserted a temporary knee joint. The Veteran was then placed on a six week course (from December 2005 to until January 2006) of intravenous antibiotics. Following the antibiotic course, the Veteran underwent a third knee surgery in February 2006, which found no remaining infection. Unfortunately, following the surgery, the Veteran developed anemia and was transferred to VA. During his rehabilitation at VA, he reported receiving two blood transfusions. In April 2006, the Veteran was hospitalized after experiencing some significant neurologic symptoms and was eventually diagnosed with myasthenia gravis. Noting that the first symptoms of myasthenia gravis had appeared close in time with his surgeries, infections, and transfusions, the Veteran has sought service connection for myasthenia gravis, contending that it is his belief that the two are related. His theory is that the antibiotic therapy compromised his immune system, allowing the myasthenia gravis to take hold. However, while the Veteran, as a lay person, is competent to report what comes to him through his senses, he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of myasthenia gravis. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In Jandreau, the Federal Circuit specifically determined that a lay person is not considered competent to testify when the issue was medically complex, as with cancer. As such, the Veteran's opinion alone is not considered competent (meaning medical qualified) to determine the etiology of his myasthenia gravis. It is noted that the Veteran has not provided any medical opinion of record suggesting an etiological link between his myasthenia gravis and the treatment of his service connected left knee. Nevertheless, given the Veteran's arguments, the Board determined that a medical opinion was necessary to render a fully informed decision. Accordingly, the Board requested that a neurologist review the Veteran's claims file and then address: 1) whether it was at least as likely as not that the Veteran's myasthenia gravis was caused by the treatment of his service connected left knee disability; and 2) whether it was at least as likely as not that the Veteran's myasthenia gravis was aggravated (meaning made permanently worse beyond the natural progression of the disease) by the treatment of his service connected left knee disability. In accordance with the Board's directive, a neurologist reviewed the Veteran's claims file in March 2012. The neurologist accurately noted the facts of the Veteran's case, including the in-service knee injury, the treatment leading to the initial knee surgery, the post-surgery problems, the subsequent ex-plantation of the knee followed by antibiotic treatment with Vancomycin, the third knee surgery followed by rehabilitation and the onset of anemia, and finally the onset and treatment of myasthenia gravis. The neurologist explained that myasthenia gravis is a chronic and rare disease that affects the way muscles respond to signals from nerves. He noted that men were more likely to get the disease after age 50, and it occurred at a rate of approximately 1 per 20,000. The neurologist then discussed symptoms and treatment of myasthenia gravis. Having reviewed the evidence of record, the neurologist opined that "it is not likely or less than 50 percent likely that the that the Veteran's Myasthenia Gravis was not caused by the treatment of his service connected left knee disability." In this regard, the Board must note that while the phrasing of this statement appears to be a double negative (it is simply not a well worded, but actually very well reasoned medical opinion), reading the sentence within the context of the body of the medical opinion as a whole makes it clear that the neurologist felt it was less likely than not that the Veteran's myasthenia gravis was caused by the treatment of his service connected left knee disability, as the supporting rationale described why the various medical treatments were not likely to have caused myasthenia gravis. This is the a factual determination from the Board based a detailed review of the four corners of this report. There is no ambiguity that the specialist believed it was less likely than not (less than a 50% chance) that this disability was secondary to treatment of the knee. The neurologist also indicated that it was not likely that the Veteran's myasthenia gravis was aggravated by the treatment of his service connected left knee disability. Supporting his opinions, the neurologist noted that Vancomycin is an aminoglycoside and is not known to cause or exacerbate myasthenia gravis; that packed cell transfusion (used to treat anemia) does not cause or exacerbate myasthenia gravis; and that the left knee replacement in February 2006 did not cause or exacerbate the myasthenia gravis. This medical opinion is uncontroverted, it is well-supported by medical evidence, and it is specifically tailored to the facts of the Veteran's case. As such, this opinion is considered to be highly probative as to the question at issue in this case, and it is afforded great weight. As described, the competent evidence of record is squarely against a finding that the Veteran's myasthenia gravis is secondary to his service connected left knee disability, and secondary service connection is therefore denied. The Board will now consider the Veteran's claim on a presumptive basis. The Agent Orange Act of 1991 requires that when the Secretary of VA determines that a presumption of service connection based on herbicide exposure is not warranted for health outcomes, he must publish a notice of that determination, including an explanation of the scientific basis for the decision. The Secretary's determination must be based on consideration of reports of the National Academy of Sciences (NAS) and all other sound medical and scientific information and analysis available to the Secretary. 38 U.S.C.A. § 1116 (b), (c). To date, the NAS has not linked myasthenia gravis to herbicide exposure. In May 2010, the Veteran testified that he felt that his myasthenia gravis could possibly be related to his presumed herbicide exposure while in Vietnam. In support of his contention, he noted that amyotrophic lateral sclerosis (ALS) has been accepted as presumptively related to herbicide exposure and he thought that myasthenia gravis was in some ways a less fatal version of ALS. The Veteran is correct that service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree anytime after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. The record confirms that the Veteran did in fact serve in the Republic of Vietnam during the requisite time period and he is therefore presumed to have been exposed to herbicides, such as Agent Orange. However, the Board notes that the mere exposure to Agent Orange alone does not create a permanent disability for which compensation may be granted. Instead, a veteran must develop one of an exclusive list of diseases to merit the presumption. While ALS is included on the exclusive list of diseases which are covered by this presumption, myasthenia gravis is not. As such, presumptive service connection is not warranted for myasthenia gravis. Nevertheless, even when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, his claim must still be reviewed to determine whether service connection can be established on a another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection. Unfortunately, this too fails to show that service connection is warranted for myasthenia gravis. To this end, no medical evidence has been presented even suggesting that the Veteran's myasthenia gravis was the result of herbicide exposure during service; and the Veteran is not considered competent (meaning medically qualified) to provide such an opinion. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). With regard to direct service connection, the Veteran has not actually alleged that his myasthenia gravis was directly related to his military service; and it is undisputed that the myasthenia gravis began decades after the Veteran's last period of active military service. Moreover, there is no evidence, competent or otherwise, to even suggest that the Veteran's myasthenia gravis either began during or was otherwise directly caused by his military service. As such, the evidence of record fails to associate the Veteran's myasthenia gravis with any in-service herbicide exposure; or with the Veteran's military service itself. As described, the evidence fails to establish that the Veteran's myasthenia gravis was caused or aggravated by treatment of his service connected left knee disability; and the evidence similarly does not show that the myasthenia gravis was otherwise caused by the Veteran's military service, to include any herbicide exposure therein. Therefore, the criteria for service connection have not been met, and the Veteran's claim is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in August 2006, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. Additionally, in light of the denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the Veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Private and VA treatment records have been obtained. Additionally, the Veteran gave testimony at a RO hearing and he was offered the opportunity to testify at a hearing before the Board, but he declined. A medical opinion was also obtained which is thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The medical professional personally reviewed the Veteran's claims file and provided the information necessary to render a fully informed determination on his claim. This opinion also directly responded to the Board's inquiry, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). With regard to the issue of whether the Veteran's myasthenia gravis was caused by herbicide exposure, no medical opinion was obtained, but no competent evidence has suggested that there even may be an association between the Veteran's myasthenia gravis and his presumed herbicide exposure so as to trigger VA's duty to obtain a medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for myasthenia gravis is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs