Citation Nr: 0424438 Decision Date: 09/02/04 Archive Date: 09/15/04 DOCKET NO. 99-07 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for Ehlers-Danlos syndrome. 2. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease (DDD) and osteoarthritis of the cervical spine, previously evaluated as myositis of the back muscles. 3. Entitlement to an evaluation in excess of 20 percent for (DDD) and osteoarthritis of the lumbar spine, previously evaluated as myositis of the back muscles. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The veteran had active service from February 1967 to May 1969. Initially, the Board of Veterans' Appeals (Board) notes that the action requested in its remand of September 2002 has been accomplished to the extent possible, and that the issue of entitlement to service connection for Ehlers-Danlos syndrome is ready for final appellate review. The Board further finds, however, that as a result of the Board's decision to grant service connection for Ehlers-Danlos syndrome, it will be necessary to remand the remaining issues on appeal since the rating for the newly service-connected disability may have an impact on the current ratings assigned for DDD and osteoarthritis of the cervical spine and DDD and osteoarthritis of the lumbar spine. Although the Board notes that the regional office (RO) has taken the position that the veteran did not file a timely appeal to the October 2003 supplemental statement of the case's denial of the claim for service connection for Ehlers-Danlos syndrome, the Board finds that correspondence received from the veteran in December 2003 that includes a photocopy of the October 2003 supplemental statement of the case can be construed as an appeal of that determination. Therefore, the Board finds that it has jurisdiction to consider this issue. The issues of entitlement to increased ratings for DDD and osteoarthritis of the cervical spine and DDD and osteoarthritis of the lumbar spine will be more fully addressed in the REMAND portion of the decision below and are REMANDED to the regional office (RO) via the Appeals Management Center (AMC), in Washington, DC. The Board further notes that the veteran has raised claims that prior rating decisions contain clear and unmistakable error (CUE) with respect to their failure to recognize that his symptoms were consistent with Ehlers-Danlos syndrome and for other reasons, but none of these claims has been adjudicated by the RO and are therefore not appropriate subjects for current appellate review. Similarly, claims for a total disability rating based on individual unemployability and the issue of the propriety of the amount of a retroactive payment relating to the recent assignment of increased ratings for DDD and osteoarthritis of the cervical and lumbar spine have also not been developed for current appellate consideration. Finally, the Board observes that although the RO apparently took the position that a claim for service connection for ankle, knee, and shoulder disorders as secondary to Ehlers- Danlos syndrome was withdrawn by the veteran in February 2004, the Board finds that this is not entirely clear from the record. Consequently, as a result of the Board's decision to grant service connection for Ehlers-Danlos syndrome, this issue is referred to the RO for further clarification and/or adjudication. FINDING OF FACT Ehlers-Danlos syndrome was aggravated during active service. CONCLUSION OF LAW Ehlers-Danlos syndrome was aggravated during active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.306(a) (2003). REASONS AND BASES FOR FINDING AND CONCLUSION I. Background At the outset, the Board notes that while Department of Veterans Affairs (VA) may not have been in complete compliance with the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002) (VCAA) with respect to the veteran's claim, as a result of the decision to grant service connection for Ehlers-Danlos syndrome, any failure to notify and/or develop the claim under the VCAA cannot be considered prejudicial to the veteran. Accordingly, the Board finds that remand of this issue for further action under the VCAA is not warranted. The service medical records do not refer to complaints or treatment for Ehlers-Danlos syndrome. They do, however, reflect episodes of treatment for neck and groin pain. In addition, the first post-service evidence of a diagnosis of Ehlers-Danlos syndrome is contained within a VA treatment record dated in November 1997. During the veteran's hearing before the Board in December 2000, the veteran stated that he had the same back symptoms today that he had while in service (transcript (T.) at p. 7). An April 2002 VA medical statement from Dr. W. reflects his opinion that lifting and stress on joints that occurred during the veteran's military service more likely than not contributed to the veteran's DDD, chronic low back pain, and other arthralgias, and that had there been a correct diagnosis of Ehlers-Danlos syndrome when the veteran entered service, it would have been recommended that he avoid activities that produced stress on his joints, including activities connected with basic training and regular military duties. Dr. W. also believed that the previous diagnosis of myositis was incorrect. The RO also recently afforded the veteran with a VA examination in July 2003, after which the examiner offered various opinions regarding the veteran's Ehlers-Danlos syndrome and the etiology of various symptoms related to this disability. The examiner reviewed the veteran's service medical records, and noted that while the veteran had no significant trauma during his course of service, he had multiple complaints of back pain, at one point was put in a neck brace, complained of groin pain, and was evaluated for possible hernia. He further noted that Ehlers-Danlos syndrome was not diagnosed until 1998. The veteran currently complained of chronic joint aches, most especially in the left shoulder, left knee, and low back. He also indicated that he suffered from chronic fatigue and had been previously treated for depression. The veteran denied any neurologic symptoms. This examiner also reviewed the letter of VA physician, Dr. W., dated in April 2002, in which Dr. W. opined that the lifting and stress on joints that occurred during the veteran's military service more likely than not contributed to his DDD, chronic low back pain, and other arthralgias, and that had there been a correct diagnosis of Ehlers-Danlos syndrome at the time of the veteran's entry into service, it would have been recommended that he avoid activities that produced stress on his joints, including activities connected with basic training and regular military duties. The examiner further noted that Dr. W. disagreed with the diagnosis of myositis. The July 2003 VA examination revealed diagnoses of DDD and osteoarthritis of the cervical, thoracic, and lumbar spines, minimal functional impairment of the cervical spine secondary to DDD and osteoarthritis of the cervical, thoracic, and lumbar spines, moderate functional impairment of the lumbar spine secondary to DDD and osteoarthritis of the cervical, thoracic, and lumbar spines, most significant in flexion of the lumbar spine, and Ehlers-Danlos syndrome, undiagnosed until 1998, but existing since the veteran's birth. The July 2003 VA examiner opined that while the veteran's Ehlers- Danlos syndrome was a congenital and likely genetically linked syndrome and condition, it was as likely as not that the term of military service which included physical exercise and physical labor significantly contributed to the current back condition. The examiner discussed the case with Dr. W. who reiterated his opinion noted previously, noted that he was trained as both a rheumatologist and medical geneticist, and again stated that had there been a proper diagnosis in service, the veteran would have been placed on a medical profile that would have prohibited activities that placed stress on the joints. In conclusion, the July 2003 VA examiner indicated that one could safely surmise that the diagnosis of myositis was always incorrect and that the service-connected back condition should currently be DDD/osteoarthritis of the cervical, thoracic and lumbar spines resulting from military aggravation of preexisting congenital Ehlers-Danlos syndrome. II. Analysis The Board has reviewed the evidence of record and notes that the veteran is currently suffering from Ehlers-Danlos syndrome, and that the condition preexisted his entry into the service. The Board further notes that the RO has now correctly recognized that the previous diagnosis of the veteran's service-connected myositis of the back muscles was incorrect and pursuant to recent pertinent medical opinion has now identified the veteran's service-connected back disability to include DDD and osteoarthritis of the cervical and lumbar spine and has assigned ratings for the cervical and lumbar spine. However, the Board does not agree with the RO's determination to service connect DDD and osteoarthritis of the cervical and lumbar spine, but deny service connection for Ehlers-Danlos syndrome. It is the Board's position that once the July 2003 examiner (and Dr. W. in April 2002) determined that aggravation of Ehlers-Danlos syndrome during service resulted in additional disability beyond the usual process of the disease, the disease was subject to service connection, not just the manifestations of that disease. To do otherwise, would be to connect disabilities to service based on a relationship to disability which itself is not related to service. Here, while the evidence demonstrates that Ehlers- Danlos syndrome preexisted service, competent medical evidence has also shown that it was aggravated by service, and Ehlers-Danlos syndrome is therefore entitled to service connection as if incurred during service. The Board also finds that it would be unreasonable to expect a claimant to have to demonstrate nexus evidence for each joint of the body. The Board further notes that there is no opinion of record that contradicts the opinions of the July 2003 VA examiner or Dr. W. There is also no medical opinion that opines that any in-service increase in disability was due to the natural progress of the disease. 38 C.F.R. § 3.306 (2003). Moreover, the Board observes that while service connection may not be granted for congenital or developmental defects under 38 C.F.R. § 3.303(c) and 4.9 (2003), service connection may be granted for congenital or developmental diseases. See Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). As noted in VAOPGCPREC 82-90, a developmental disease would be considered capable of deteriorating, and if the congenital or developmental condition is a disease, the presumption of sound condition, 38 U.S.C.A. § 1111 (West 2002), and the presumption of aggravation, 38 U.S.C.A. § 1153 (West 2002), apply. Here, since the evidence of record indicates that the veteran's condition is capable of deteriorating, the Board finds that it is a congenital disease. The question would then be whether the disease preexisted service, and if so, whether it was aggravated in service. In this regard, as was noted above, the Board has found that although this condition preexisted service, uncontroverted medical opinion has established that the veteran's Ehlers-Danlos syndrome was aggravated during service. Accordingly, based on all of the foregoing, the Board finds that service connection for Ehlers-Danlos syndrome has been established by way of aggravation during service and that service connection for such disability is therefore warranted. ORDER The claim for service connection for Ehlers-Danlos syndrome is granted. REMAND Having determined that service connection for Ehlers-Danlos syndrome is warranted without limitation, the Board notes that the rating or ratings that will be assigned for additional symptoms related to Ehlers-Danlos syndrome may have an impact on the current ratings assigned for DDD and osteoarthritis of the cervical spine and DDD and osteoarthritis of the lumbar spine. Harris v. Derwinski, 1 Vet. App. (1991). Therefore, the Board finds that it is necessary to remand the remaining issues of entitlement to evaluations in excess of 20 percent for DDD and osteoarthritis of the cervical and lumbar spine for further adjudication following the assignment of the rating or ratings that will result from the Board's decision to grant service connection for Ehlers-Danlos syndrome. Accordingly, this case is REMANDED for the following actions: Following the assignment of a rating or ratings arising out of the service connection for Ehlers-Danlos syndrome, the issues of entitlement to an increased rating for DDD and osteoarthritis of the cervical and lumbar spine should be readjudicated. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and given the opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999, hereafter "the Court") for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2