Citation Nr: 0906100 Decision Date: 02/19/09 Archive Date: 02/27/09 DOCKET NO. 06-14 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for limb girdle muscular dystrophy. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: John Steven Berry, Attorney ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from December 1969 to March 1972. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from rating decisions dated in October 2005 and March 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. FINDINGS OF FACT 1. The Veteran's limb girdle muscular dystrophy is a congenital disease, it did not first manifest during service, and it did not progress at an abnormally high rate during service. 2. The percentage ratings for the Veteran's service- connected disabilities do not meet the minimum percentage requirements for an award of a TDIU; the Veteran is not unable to secure and follow a substantially gainful occupation by reason of service-connected disability. CONCLUSIONS OF LAW 1. Limb girdle muscular dystrophy preexisted service and was not aggravated by service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 4.9 (2008). 2. The criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16, 4.19 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). I. Veterans Claims Assistance Act of 2000 VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2008). Letters dated in June 2005, November 2005, and March 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must request that the claimant provide any evidence in his possession that pertains to the claim based upon 38 C.F.R. § 3.159(b). The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. However, although this notice is no longer required, the Board notes that the Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The 2005 letters told him to provide any relevant evidence in his possession. See Pelegrini, 18 Vet. App. at 120. The 2006 letter advised the Veteran of how VA determines disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the 2006 letter was not sent prior to initial adjudication of the Veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, and the claim was readjudicated and supplemental statements of the case (SSOC) were provided to the Veteran in March 2006 and June 2006. The Veteran's service treatment records, VA medical treatment records, Social Security Administration (SSA) records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. A medical expert opinion was also obtained in November 2008. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The Veteran seeks service connection for limb girdle muscular dystrophy. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Congenital or developmental conditions are not personal injuries or diseases and, therefore, generally may not be service connected as a matter of express VA regulation. 38 C.F.R. §§ 3.303(c), 4.9. However, service connection may be granted for hereditary diseases that either first manifested themselves during service or which preexisted service and progressed at an abnormally high rate during service. VAOPGCPREC 67-90 (July 18, 1990). Initially, the Board observes that muscular dystrophy is congenital in nature. Thus, the Board must determine whether the disorder first manifested during service or preexisted service and progressed at an abnormally high rate during service. In a November 2005 written statement, the Veteran noted that in 1970 he had tingling and numbness in his legs and arms while climbing on ladders in submarine and that during his interior communications school, his hands would ache with numbness going up his arms when writing. The Veteran also noted that he had aches and fatigue in his arms, shoulders and legs during his time in the navy but just passed it off as being tired due to the extreme rigors of submarine service. The Veteran's service treatment records indicate that on the clinical examination for entrance into service in December 1969, the Veteran's upper extremities were evaluated as abnormal. The abnormality was noted to be that the Veteran couldn't hold his arms above his head without holding his hands together. The examiner noted that there was no apparent loss of muscle strength or atrophy. The service treatment records are absent complaints or findings of any muscle weakness during the Veteran's time in service. On the clinical examination in January 1970 and on the clinical examination for separation from service in March 1972, the Veteran's upper and lower extremities were evaluated as normal. The Veteran's post-service medical records indicate that the Veteran was diagnosed in 1978 with limb girdle muscular dystrophy. The record indicates that the Veteran was hospitalized for a few days in May 1978 with complaints of increasing weakness of his upper arms bilaterally over the previous three years and progressively worse over the previous year in particular. A March 1979 letter authored by Dr. R.A.C. indicates that there appeared to be a slight increase in proximal upper extremity weakness. Dr. R.A.C. noted that the Veteran continued to work quite hard in a job which required him to do a tremendous amount of repetitive lifting using the upper extremities and opined that that type of work was contraindicated in view of the fact that it may have precipitated some of his deterioration. A July 1981 letter authored by Dr. R.A.C. indicates that the Veteran's muscular dystrophy had recently rapidly progressed, especially with respect to a sudden increase in weakness in the lower extremities. In March 1982, the Veteran underwent evaluation at the Mayo Clinic. A March 1982 letter from Dr. D.W.M. of the Mayo Clinic stated that it was quite clear that the Veteran was suffering from a muscular dystrophy which might best be classified as a limb girdle type and he assumed that it was being inherited as a recessive. Dr. D.W.M. stated that it would be his advice that the Veteran should continue working, that it was obvious that he did have some limitations, but that in his experience this particular form of dystrophy was very slow and most patients were able to compensate adequately for it for many, many years. In April 1983, the Veteran was having increased numbness in his hands. In March 1984, the Veteran had had a small increase in his bilateral foot drop and complained of aches and pains after a full day's work. In January 1988, the Veteran underwent a neurological re- examination. It was noted that the Veteran continued to work at the packing house doing stock work and running machinery. The Veteran was having increasing lower back pain because of the amount of lifting that he had to do. Upon examination, there was severe wasting of the biceps, triceps, and supra and infraspinatus. He had moderate wasting of the anterior tibialis bilaterally and it was worse on the right with a moderate foot drop on the right and mild foot drop on the left. On a disability report completed by the Veteran in January 1988, he noted that his condition first bothered him in April 1978. SSA records indicate that the Veteran was considered disabled for SSA purposes on January 25, 1988 with a primary diagnosis of muscular dystrophy and a secondary diagnosis of lumbosacral strain. In a June 1988 letter, Dr. R.A.C. stated that the Veteran's disorder had been progressive and that because of this, it was his feeling that the Veteran could no longer work. Dr. R.A.C. noted that the Veteran's weakness had progressed to the point that he required the use of all accessory muscles to do any type of bending, walking, and lifting and this was continuing to cause him increasing problems with discomfort. Dr. R.A.C. noted that the condition was progressive and not reversible, that it would be affecting the Veteran for the rest of his life, and that there was no known treatment for the disorder. In a December 2005 letter, Dr. R.A.C. stated that the Veteran had had a continued progressive course of difficulties to the point that he was able to ambulate to some degree with the use of a cane but spent a significant amount of time in a wheelchair and that he had been unable to work for a number of years because of his disorder. Dr. R.A.C. noted that he had reviewed a Report of Medical Examination dated December 18, 1969 and that the examination at that time revealed "shoulders-cannot hold arms above head without holding hands together-no apparent loss of muscle strength or atrophy". Dr. R.A.C. also stated that the Veteran told him that at the time of the evaluation, he had lab work done that was abnormal but he did not have any of those results nor did he know what laboratory testing was abnormal. Dr. R.A.C. stated that it was his opinion that the Veteran had clinical evidence of his limb girdle muscular dystrophy back in 1969 when he underwent his physical examination on enlistment into the Navy. Dr. R.A.C. noted that patients with this disorder early on can function but any type of strenuous activity including lifting, pushing, climbing, etc., could cause significant fatigue because of the accessory muscles needed to do these functions. Dr. R.A.C. opined that the Veteran's work on a submarine, assuming that it required a fair amount of physical activity, would have undoubtedly caused him fatigue which, if unable to gain adequate rest in between these physical activities, would have caused significant problems with his overall functioning. In an August 2006 letter, Dr. R.A.C. opined that there was no doubt that the Veteran was suffering from the early stages of muscular dystrophy at the time of his induction physical and that it was much more likely than not any type of physical activity that the Veteran was engaged in during his time in service would have aggravated his condition. In a February 2007 letter, Dr. G.P., of the MDA Clinic, stated that after reviewing the Veteran's Navy records from December 1969, in which there was a mention of a difficulty with proximal arm weakness at that time, these clinical features would certainly be consistent with the Veteran's underlying muscular dystrophy disease. Dr. G.P. also stated that it was his medical opinion that the Veteran's muscular dystrophy existed at that time. In a March 2007 Independent Medical Evaluation Report, Dr. C.N.B., opined that the Veteran's dystrophy worsened during service according to his February 2007 lay statement. Dr. C.N.B. also stated that it was his opinion that the Veteran's worsening upper limb function during service and following service represented an aggravation of his limb girdle dystrophy and that had he not been in service that his disease would have been less severe for the following reasons: (1) he entered service with inability to raise his arms, (2) he had progressive worsening of his arm function in service, (3) the extensive use of his arms in service likely lead to irreversible damage to his joint ligaments and joint surfaces because one these areas are damaged incomplete healing occurs, thus the Veteran would have likely avoided his rapid decline in function had he not had his service time physical experiences, (4) the opinion of Dr. R.A.C. supports this opinion, (5) the Veteran's lay statements are consistent with this opinion, (6) this opinion is supported by Dr. G.P.'s opinion that the Veteran's muscular dystrophy existed in 1969. Dr. C.N.B. summarized that the Veteran had his dystrophy during service time and that he had significant physical exertion of his arms during service, that the medical opinions contained in the file all support the concept that the Veteran's dystrophy was likely made worse during service time due to the over use syndrome, that none of the opinions stated that his disease was made better by the physical activity during service or that his service experiences were protective of further damage, and that his lay statements all state that his arm function worsened during service time. Dr. C.N.B. concluded that it was his opinion that the Veteran's dystrophy was likely aggravated during service due to his excessive physical activity as documented by his worsening limb function during service and the attached medical opinions. In October 2008, the Board requested a medical expert opinion as to whether the Veteran's muscular dystrophy was aggravated by the Veteran's military service and if so, if the worsening was beyond the natural progress of the disease. Dr. M.J.L. rendered the opinion that the documentation in the Veteran's claims file documented no unexpected progress during his service years. Dr. M.J.L. noted that at the Veteran's discharge physical, no problems were noted which suggested that a dramatic worsening occurred during the Veteran's military career. She also noted that this was not surprising given that the natural history of limb-girdle muscular dystrophy was usually of slow progression. Dr. M.J.L. noted that the claims file documents fairly typical progression over more than 30 years after service. The Veteran initially was only affected in his upper shoulder girdle area; later, it progressed to his hip area; and he ultimately developed foot drop and required ankle foot orthoses and most recently a wheelchair. Dr. M.J.L. stated that it was her opinion that the evidence does not show that the Veteran's muscular dystrophy was aggravated by his military service beyond what would be expected for the natural progress of limb-girdle muscular dystrophy. Given the above, the Board finds that the Veteran's limb girdle muscular dystrophy preexisted service and did not first manifest during service. The medical evidence of record indicates that the Veteran suffered from limb girdle muscular dystrophy at the time of his entrance physical. The Board next turns to whether there was any in-service aggravation of the disability during service. The Board notes that there is a difference of opinion among the medical professionals. The Board notes that the opinion of Dr. G.P. only addresses the issue of whether the Veteran's muscular dystrophy was present at the time of his entrance physical. It does not address the issue of whether the pre- existing muscular dystrophy was aggravated by the Veteran's military service. Thus, this opinion is not probative of the issue at hand. In deciding whether the Veteran's muscular dystrophy was aggravated beyond the natural progression of the disease in service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id. There are legitimate reasons for accepting the unfavorable medical opinion of Dr. M.J.L. over the opinions of Dr. R.A.C. and Dr. C.N.B. With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Indeed, the courts have provided guidance for weighing medical evidence. They have held, for example, that a post-service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). Also, a medical opinion is inadequate when unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). In addition, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Thus, the weight to be accorded the various items of medical evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. As noted above, Dr. R.A.C. opined that the Veteran's work on a submarine would have undoubtedly caused him fatigue which, if unable to gain adequate rest in between these physical activities, would have caused significant problems with his overall functioning and that it was much more likely than not any type of physical activity that the Veteran was engaged in during his time in service would have aggravated his condition. As noted above, Dr. C.N.B. opined that the Veteran's dystrophy worsened during service according to his February 2007 lay statement. However, the Board finds that the Veteran's February 2007 statement is not credible. In that statement, the Veteran noted that in the course of his daily duties, he would climb up and down ladders, work on equipment above his head (which was difficult to raise his arms), and go down in the battery wells to clean the main storage batteries on his hands and knees. The Veteran stated that when his arms would ache and go numb there was no one to complain to because they did not have a corpsman or a medical department. He was in the seaman gang and electrical gang and stood look out and helm watches as well as working on electrical equipment. He also stated that he was the battle station bow planesman so that if they were at battle station for eight or ten hours, he kept the boat on the depth called out by the diving officer. The Veteran stated that never had more than four to six hours of sleep a day from one to three weeks he would be out to sea. He stated that he ate a minimum amount of food to keep from throwing up. The Veteran noted that it was always cold in the winter and hot in the summer. His arms would especially go numb in the winter. He also noted that when in shore, he carried on supplies by hand and repaired equipment. He was responsible for filling the 16 battery water tanks with distilled water by pulling a hose through the boat to the tanks. The constant wave action made him exhausted. He slept above a torpedo which was difficult for him to climb above. The Veteran also stated that in the second or third week of boot camp, the problem of lifting his arms became increasingly difficult and his company commander decided to put him in the color guard to complete boot camp without physical training. As above, the relevant service treatment records on file are absent any complaints or findings of muscle weakness during the Veteran's time in the Navy. The Board notes that the Veteran stated that he did not complain because there was no corpsman or a medical department. However, the Veteran's service treatment records indicate that while aboard the U.S.S. Sierra, the Veteran presented on June 23, 1971, with possible little finger fracture when he was hit by a falling light and on June 29, 1971, with a three inch laceration sustained while coming down ladder. In addition, the Report of Medical History completed by the Veteran in January 1970 denied inability to perform certain motions, and the medical examinations conducted in January 1970 and March 1972 evaluated the Veteran's upper and lower extremity strength as normal. Finally, although the Veteran reported in February 2007 that he suffered from symptoms of his muscular dystrophy while in the service, the disability report completed and signed by the Veteran on January 28, 1988 stated that his condition first bothered him in April 1978. This document was signed under a statement which reads, "Knowing that anyone making a false statement or representation of a material fact for use in determining a right to payment under the Social Security Act commits a crime punishable under Federal Law, I certify that the above statements are true. Both Dr. R.A.C. and Dr. C.N.B.'s opinions unfortunately fail to take into account the relevant service treatment records on file which document the normal evaluation for the Veteran's upper and lower extremity strength at separation as well as a gap of more than five years for complaint of any muscle weakness. In addition, as the Board has found that the Veteran's February 2007 statement is not credible, the Board also finds that an independent medical opinion based in no small part on the Veteran's February 2007 lay statement, is not probative. Reonal, 5 Vet. App. at 461. In comparison, all of these factors were considered by the VA medical expert. She reviewed the entire claims file, provided an opinion based on the medical evidence of record, and supplied a detailed rationale outlining the medical evidence that the Veteran's muscular dystrophy did not progress at an abnormally high rate during service. The Board, therefore, finds that the combination of an absence of complaints in service of muscle weakness, the number years that elapsed before the Veteran sought treatment for muscle weakness, and the absence of competent medical evidence that the Veteran's muscular dystrophy progressed at an abnormally high rate during service preponderates against the claim. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. III. TDIU The Veteran contends that his muscular dystrophy renders him unemployable. Thus, he claims that he is entitled to a TDIU rating. A total disability evaluation may be assigned where the schedular evaluation is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). A TDIU rating is based solely on the level of disability due to service-connected disabilities. As discussed above, the Board has determined that service connection for limb girdle muscular dystrophy is not warranted. Consequently, the Veteran is only service-connected for hearing loss and tinnitus with a combined disability rating of 10 percent. As such, he is not eligible for consideration of a TDIU rating under 38 C.F.R. § 4.16(a). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards are required to submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service- connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. Where a claimant does not meet the schedular requirements of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the C&P Director for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). An assessment for extra-schedular referral requires consideration of the Veteran's service-connected disability, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Veteran's age and effects of non-service connected disability, however, are not factors for consideration. 38 C.F.R. §§ 3.341(a), 4.19. The issue at hand involves a determination as to whether there are circumstances in this case, apart from the non-service- connected conditions and advancing age, that would justify a total disability rating based on unemployability. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In addressing the extraschedular issue, the Board must determine if there is some service connected factor outside the norm which places the Veteran in a different position than other veterans with a 70% combined disability rating. Id. The fact that the Veteran is unemployed or has difficulty obtaining employment is not enough as a schedular rating provides recognition of such. Id. Rather, the Veteran need only be capable of performing the physical and mental acts required by employment. Id. The schedular criteria contemplate compensating a veteran for considerable loss of working time from exacerbations proportionate to the severity of the disability. See 38 C.F.R. § 4.1. The Board has considered the potential application of various provisions of Title 38 of the Code of Federal Regulations, but the record does not indicate that the Veteran is unemployable due to service connected disability. 38 C.F.R. § 4.16(b). In this regard, the Board finds that there has been no showing by the Veteran that his service-connected disabilities have resulted in his unemployability. The Board notes that the Veteran has not submitted competent medical evidence indicating he is unable to work due to his service- connected disabilities. In the absence of such factors, while the Veteran is currently unemployed, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 4.16(b) are not met. ORDER Entitlement to service connection for limb girdle muscular dystrophy is denied. Entitlement to a TDIU is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs