Citation Nr: 0733072 Decision Date: 10/19/07 Archive Date: 10/26/07 DOCKET NO. 05-05 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for muscular dystrophy. 2. Entitlement to service connection for scoliosis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Daniel Markey, Associate Counsel INTRODUCTION The veteran served on active duty from January 1951 to January 1953 and from October 1959 to September 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Togus, Maine. In December 2006 the Board granted a motion filed by the veteran's representative to advance the veteran's appeal on the Board's docket. When the case was previously before the Board in January 2007, the Board granted reopening of the veteran's claims for service connection for muscular dystrophy and scoliosis and remanded the reopened claims for additional development. That development has been completed to the extent possible and the case has been returned to the Board for further consideration. FINDINGS OF FACT 1. The veteran was not found to have muscular dystrophy or scoliosis on examination for entrance onto active duty. 2. The veteran's muscular dystrophy and resulting scoliosis were present during active duty. 3. The evidence does not clearly and unmistakably establish that the muscular dystrophy or scoliosis existed prior to service and underwent no permanent increase in severity as a result of service. CONCLUSIONS OF LAW 1. Muscular dystrophy was incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. Scoliosis was incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 claims. In addition, the evidence currently of record is sufficient to substantiate his claims. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002) 38 C.F.R. § 3.159 (2007). Factual Background Service medical records for the veteran's first period of active duty do not show that he was found to have muscular dystrophy or scoliosis. Upon return to active duty in September 1959, the veteran was found to be normal in his enlistment examination. In January 1960, the veteran complained of a loss of weight and weakness. After laboratory analysis was completed, the veteran was diagnosed with tuberculosis and recommended for isolation. Service outpatient notes from February 1960 document a 1 year history of a morning cough with increasing fatigue and transient chest pains. At this time, the veteran reported that he took a job as a ditch digger in the summer of 1959, so that he could get in shape for the Navy. Working in that capacity, he noted exertional dyspnea and marked fatigue after short intervals of activity. In a record of medical care documenting the onset of the veteran's tuberculosis, the evaluating physician noted that the veteran's history was significant for a lifelong difficulty performing actual physical labor. The veteran was noted to be tall and undernourished. X-ray images showed extensive fibrotic and calcific densities in the veteran's lungs, as well as his "mid-dorsal scoliosis with the convexity to the right." While undergoing treatment for tuberculosis, the veteran was noted to have paralysis of all extrinsic muscles of the eyes and atrophy of his testes, which was attributed to a prior bout with mumps in 1954. A February 1960 eye evaluation resulted in a diagnosis of congenital extra-ocular motility palsy involving probable nuclear aplasia. Based on these conditions, prolonged hospitalization was indicated and the veteran's case was referred to a Medical Evaluation Board (MEB) in March 1960. The MEB report indicates, in pertinent part, that the veteran had exertional dyspnea, weakness, and weight loss while serving in the Navy. Physical examination showed an asthenic, undernourished male with mild mid-dorsal scoliosis to the right. A clinically substantiated tuberculosis diagnosis was noted, along with other conditions, including paralysis of intrinsic eye muscles due to nuclear aplasia. The case was then referred to a Physical Evaluation Board. In September 1960, a Physical Evaluation Board placed the veteran in retired due to disability status. An April 1961 VA clinical discharge note indicates that a final diagnosis of tuberculosis was carried forward, but the veteran was recommended for full-time employment. Subsequent notes from September 1962 indicate that the veteran was feeling well and able to work. An October 1962 VA examination report indicates the veteran had no complaints and was feeling well. An X-ray study at that time disclosed minimal right mid-dorsal scoliosis. Records of private medical treatment, dated in October 1982, indicate that electrophysiological studies disclosed denervation and a muscle biopsy disclosed hypertrophy, atrophy, fiber-splitting, increased internal nuclei and a small amount of necrotic fibers. In addition, chromosome analysis indicated the veteran had mosaic pattern Klinefelter's syndrome, with 47 chromosomes showing in some cells. This diagnosis was provided as an explanation for the veteran's intention tremor and the veteran was referred for genetic counseling. Private medical records from November 1982 note the veteran's longstanding history of neuromuscular dysfunction. After discussing clinical evidence such as the clinical evidence noted above, the evaluating physician diagnosed the veteran with chronic spinal muscular atrophy with less common variants such as opthalmoplegia. He found that this was not a congenital fiber type disproportion. A note from a geneticist, also dated in November 1982, indicates that the veteran's condition is an accidental event, not associated with other affected family members. He opined that the veteran's muscle weakness is more pronounced than usual for Klinefelter's syndrome patients, but that the veteran could expect a slow progression of weakness without severe disability. Private Medical records dated in September 1983 indicate that the veteran had motor function problems and difficulty rising from a deep chair. He was unsteady on his feet and took several falls on ice in the winter. Physical examination indicated marked external opthalmoplegia, moderate facial weakness, moderate weakness in the proximal upper and lower extremities, and mild weakness in the distal upper and lower extremities. He was diagnosed with stable neuromuscular disease. Subsequent records from this same private physician, through September 1985, indicate that the veteran was permanently disabled due to his neuromuscular disease and added a diagnosis for musculoskeletal symptoms of uncertain etiology. In a report dated in October 1987, a diagnosis of primary myopathy involving ocular and limb girdle muscles was added. Private medical records from Dr. Rioux, dated in July 1985, indicate that the veteran was referred for treatment of his limb-girdle muscular dystrophy. Eye and limb motor deficits were indicated. In a July 1995 letter, Dr. Rioux stated that the veteran has had muscular dystrophy since early adult life and that his muscular dystrophy is related to the clinical presentation of opthalmoplegia during service. The record of an August 2001 VA neurology consultation states that the veteran had a history of muscular dystrophy and Klinefelter's syndrome. He was complaining of increasing muscle weakness and gait difficulty. The veteran was described as a good historian and some medical records were reviewed. The veteran reported childhood difficulty with physical activities and continued difficulty in the service. The veteran reported treatment for muscle difficulties during service but stated that he was not diagnosed. The first post-service treatment was said to have taken place in 1982. Physical examination addressed the fact that the veteran was in a motorized wheelchair and could not attempt gait testing. Neurological and muscular deficits were also observed. It was noted that there had been a mild progression of weakness compared to the early 1980 examinations. August 2003 medical records from Dr. Rioux note that the veteran had had ongoing back pain since his adolescent years and that scoliosis was first identified during the veteran's military service. In addition, the veteran's scoliosis was described as not being directly related to the veteran's limb-girdle atrophy. A March 2004 letter from Dr. Rioux states, "It is evident from [the veteran's] history that his symptoms became apparent to him and to others when he was serving in the military." Dr. Rioux further opined that it is possible that strenuous physical activities in service were instrumental in precipitating the veteran's in-service presentation of scoliosis and muscular dystrophy. A July 2004 letter from a VA physician denotes a review of the veteran's claims file and states that the physical requirements of military service were instrumental in precipitating the veteran's muscular dystrophy and scoliosis presentation during service. The VA physician further opined that, while the veteran's condition was aggravated during service, it returned to baseline once the physical requirements were removed, so there was no ongoing aggravation. In September 2004, the veteran underwent a VA examination to address the etiology of his scoliosis and muscular dystrophy. The claims folder was reviewed. The examiner noted the onset of muscular dystrophy symptoms in 1982. The examiner noted the veteran's lifelong history of ocular motor palsy and history of difficulty running and climbing steps and frequent falls. After discussing the clinical evidence, the examiner found that the veteran had mild to moderate, but progressive, neuromuscular disease. He opined that the veteran's 1982 biopsy results are suggestive of a variant of formal spinal muscular atrophy. He found this to be linked to genetic mutation in the veteran's chromosomes. With respect to a primary muscle disease, he found that an exact diagnosis was elusive. He also noted that it would be difficult to comment on whether the veteran's extra ocular muscle palsy was an early presentation of muscular dystrophy. He noted a lack of ptosis in the veteran's medical records, and stated that the presence of ptosis is a hallmark of oculopharyngeal dystrophy. In summary, the examiner noted that his opinions were generalizations without literature to back them up. Notwithstanding this, he found that scoliosis could well be connected as an early manifestation of muscular dystrophy, as most muscular dystrophy patients develop this. Therefore, he opined that the veteran's scoliosis and muscular dystrophy were, as likely as not, related. However, he found that the veteran's extra ocular muscle palsy is extremely unlikely to be an early manifestation of the muscular dystrophy. He added that the eye and upper extremity conditions have no relationship with the veteran's tuberculosis, and he discounted the possibility of tuberculosis meningitis. In May 2007, the claims folder was reviewed by another VA physician. He noted that the veteran's diagnoses of limb- girdle atrophy and scoliosis were well established. He also noted that the veteran's scoliosis was first established by X-ray evidence during service, and described as mild. He assessed the history of the veteran's muscular dystrophy as dating to the veteran's childhood. The examiner then stated that muscular dystrophies are genetic defects, and not acquired diseases. He also stated that spinal scoliosis is often associated with muscular dystrophies. So the veteran's scoliosis, he opined, was at least as likely as not secondary to early muscular dystrophy. In summary, he then opined that the veteran's muscular dystrophy as likely as not preceded the veteran's entry into service, but that even though the veteran exhibited some signs of this during service, there is no evidence of permanent aggravation or worsening caused by military activities. An August 2007 letter from Dr. Rioux states that he had been treating the veteran for 20 years. He indicated that the veteran has adult-onset spinal muscular atrophy with extra ocular muscle palsy and that the veteran's symptoms began in the military and were apparent to others working with him at that time. He stated that the veteran's symptoms were exacerbated by strenuous activities and caused symptomatic manifestations of muscular dystrophy at that time. He indicated that it is his opinion, along with several other medical specialists, that the veteran's adult-onset spinal muscular atrophy began during military service and that his symptoms were exacerbated by rigors and physical activity incident thereto. Lay statements of record include a November 1960 letter from the veteran's spouse indicating that, to her knowledge, the veteran was in good health from 1955 forward, until diagnosed with tuberculosis in January 1960. She stated that there was some post-separation improvement, but that the veteran had a long way to go with respect to full recovery. A letter from L.A., received in October 1960, states that the veteran had been in good health since childhood and throughout his "entire life" prior to his Naval service. Legal Criteria Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Additionally, service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Veterans are presumed to be in sound medical condition at the time of entry into service except for defects actually noted when examined for entry into service. This presumption of soundness can be rebutted by clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304; see also VAOPGCPREC 3-2003 (July 16, 2003). Congenital or developmental defects are not diseases or injuries for VA compensation purposes. 38 C.F.R. § 3.303 (c). VA's General Counsel has held that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin, as long as the evidence as a whole establishes that the conditions in question were incurred or aggravated during service within the meaning of VA laws and regulations. It has also expressly stated that the terms "disease" and "defects" must be interpreted as being mutually exclusive. The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defects" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature. See VAOPGCPREC 82-90 (July 18, 1990). Analysis The physicians who have provided opinions concerning the etiology of the veteran's muscular dystrophy and scoliosis generally agree that the veteran manifested muscular dystrophy during service and that his scoliosis is due to the muscular dystropy. In addition, they generally agree that the muscular dystrophy is congenital in origin. Although the VA physician who reviewed the claims folder in May 2007 has opined that the veteran's muscular dystrophy is a congenital defect, rather than a disease, the Board believes that the preponderance of the medical evidence establishes that it is a disease, as that term has been defined by VA's General Counsel. In this regard, the Board notes that Dr. Rioux has stated that the veteran's muscular dystrophy had its onset in adulthood. Moreover, the progressive nature of the veteran's muscular dystrophy is clearly shown by the medical evidence. No evidence of muscular dystrophy was found on either of the veteran's examinations for entrance onto active duty. Therefore, the presumption of soundness applies. There is conflicting medical evidence concerning whether the veteran's muscular dystrophy was manifested prior to service. In particular, the Board notes that Dr. Rioux, who has been treating the veteran for muscular dystrophy for many years, is of the opinion that the muscular dystrophy was initially manifested while the veteran was on active duty. In light of Dr. Rioux's opinion and the lay evidence to the effect that the veteran had no noticeable problems prior to service, the Board concludes that the evidence does not clearly and unmistakably establish that the muscular dystrophy existed prior to service and was not aggravated by service. Accordingly, the presumption of soundness has not been rebutted and the veteran is entitled to service connection for muscular dystrophy with scoliosis. ORDER Entitlement to service connection for muscular dystrophy is granted. Entitlement to service connection for scoliosis is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs