Citation Nr: 1118644	
Decision Date: 05/16/11    Archive Date: 05/26/11

DOCKET NO.  07-39 054	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for spinobulbar muscular atrophy (SMA or Kennedy's Disease).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel



INTRODUCTION

The Veteran served on active duty from December 1961 to December 1967. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefit sought on appeal.


FINDING OF FACT

The evidence of record does not support a finding that the Veteran's SMA is etiologically related to active service.


CONCLUSION OF LAW

The criteria for service connection for SMA have not been met.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A.  §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R.    §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (West 2002 & Supp. 2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  See 38 C.F.R. § 3.159(b) (2010).  This notice must be provided prior to an initial unfavorable decision on the claim by the Agency of Original Jurisdiction.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, that will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

The Veteran has received essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004).  An RO letter dated in March 2007 informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b) as stated above.  In light of the denial of the Veteran's claim for service connection, no disability rating or effective date can be assigned, so there can be no possibility of prejudice to the Veteran under the holding in Dingess, supra.

As to the duty to assist, the RO has obtained the Veteran's service treatment records, his Social Security Administration (SSA) records, and VA and private treatment records.  The Veteran has not indicated that there are other outstanding treatment records he wished VA to obtain.  

The Board acknowledges that, to date, VA has neither afforded the Veteran an examination, nor solicited a medical opinion regarding the Veteran's SMA.  However, no VA examination is necessary to satisfy the duty to assist in this case.  Under 38 U.S.C.A. § 5103A(d)(2) (West 2002), VA must obtain a medical examination or opinion when such is necessary to make a decision on a claim.  Specifically, a VA examination is required where the record contains competent evidence of a current disability, and indicates that the disability or symptoms may be associated with military service, but does not contain sufficient evidence for the Secretary to make a decision.  Id.  As discussed below, there is no credible evidence of record suggesting that the Veteran's SMA is associated with his military service.  The Veteran's statements suggesting that he experienced symptoms of SMA during service are not credible and the only medical opinion in support of his claim is based upon an inaccurate factual premise.  In such circumstances, there is no duty to obtain a medical examination or opinion.  See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006).  

The duty to assist has, therefore, been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also 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.

II.  Service Connection

The Veteran contends that his SMA is etiologically related to his active service.  Specifically, he contends that symptoms of his currently diagnosed disability began during his active service.  See VA Form 21-526, received February 13, 2007.

To establish service connection for the claimed disability, the evidence must demonstrate that a disease or injury resulting in current disability was incurred during active service or, if pre-existing, was aggravated therein.  See 38 U.S.C.A. § 1110 (West 2002), 38 C.F.R. § 3.303 (2010).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  See 38 C.F.R. § 3.303(b) (2010).  Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  See 38 C.F.R. § 3.303(d) (2010).

In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

In adjudicating claims, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, the United States Court of Appeals for Veterans Claims (Court) has declared that, in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

The evidence of records establishes that the Veteran has a current disability.  A September 2007 statement from Allan S. Weiss, M.D. states that the Veteran is currently under his neurologic care for SMA that was definitively diagnosed in 1992.

With respect to an in-service incurrence, the Veteran's service treatment records (STRs) are devoid of any complaint of, reference to, or treatment for SMA.  His in-service medical examinations, including his separation examination dated November 1967, indicated normal findings, and his sick bay records, dated from June 1962 to November 1967, do not provide any indication that he suffered from or complained of any symptoms related to SMA.  Neurologic examination was normal at the time of separation form service in November 1967.

The SSA records in the claims file contains multiple statements and findings indicating that the onset of the Veteran's SMA did not take place until many years following his active service.  Specifically, a July 1997 statement from a treating physician, Daniel S. Newman, M.D., reveals that in November 1993, the Veteran had presented with a two-and-a-half-year history of acquired weakness in the upper and lower extremities-indicating an onset of symptoms in about 1990.  Additionally, an October 1999 medical evaluation report from Steve Kotsonis, D.O., indicated that the Veteran reported that his symptoms began at age 45, in approximately 1989.  This evidence supports a factual finding that the Veteran's SMA symptoms began in approximately 1989.  While the SSA records additionally contain a Reconsideration Disability Report dated in June 2009, in which the Veteran described that he had been totally disabled since 1977, this date appears to have been recorded in error and was perhaps mistakenly used in place of the alleged disability onset date (for SSA purposes) in 1997, as recorded in a December 1999 medical consultant statement from Mila C. Bacalla, M.D, and a June 1999 Field Office Disability Report.  Even if it could be established that the Veteran's SMA rendered him disabled in 1977, such on onset date is still ten years following his separation from active duty.

In his claim submitted in February 2007, the Veteran indicated that his disability began on active duty.  However, he has made no specific contentions describing any symptoms that he suffered while in service or continuing since that time.  To the extent that the Veteran is claiming that his SMA symptoms started during service and continued since that time, the Board finds that he is not credible.  Again, the service treatment records, including the November 1967 separation examination, are negative for any complaints or findings of a neurological disorder.  Even more persuasive are the statements that the Veteran made to his doctors in 1993 and 1999 placing the onset of his symptoms in 1989.  In particular, the statement made to Dr. Newman during his initial course of treatment in November 1993 is found to carry great weight.  

Self interest may play a role in the Veteran's more recent statements.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [interest may affect the credibility of testimony]; cf. Pond v. West, 12 Vet. App. 341, 346 (1999).  The Board finds his more recent statements suggesting the onset of his symptoms during service are outweighed by his prior inconsistent statements indicating that his symptomatology began many years after service in 1989, as well as by the service treatment records which show normal neurological findings upon separation in November 1967.  

The Board notes that a September 2007 statement from Dr. Weiss provided the opinion that while a definitive diagnosis of Kennedy's syndrome was made in 1992, the Veteran's symptoms were present for many years prior to this and likely included his time in service from 1961 to 1967.  As noted above, however, the Veteran's service treatment records reveal no complaints or findings of SMA and the Veteran's statements suggesting that he experienced symptoms during and since service are not credible.  The medical records show that his symptoms began in 1989.  Thus, the opinion by Dr. Weiss is based on an erroneous factual premise and is not probative.  See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premise are not probative).

In February 2008, the Veteran's representative cited to internet research stating that neurologic symptoms of SMA typically begin between the age of 20 and 50 and include difficulty with walking.  To the extent that he is attempting to extrapolate from this literature that the Veteran's SMA started during service, such extrapolation would constitute nothing more than an unsubstantiated medical opinion by a lay person rather than a conclusion based on the medical evidence of record.  See Colvin v. Derwinski, 1 Vet. App. 171 (1991).  Moreover, this internet research is not specific to the facts of this Veteran's case and is therefore not probative.  Nor does placing the onset of SMA symptoms during a 30-year period tend to prove the case.  The Veteran himself has stated that his symptoms started when he was 45 years old.

In sum, the evidence does not support a finding that the Veteran's SMA had its onset during service or is related to any in-service disease, event, or injury.  For the reasons and bases provided above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for SMA.  See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997).  The evidence in this case is not so evenly balanced so as to allow for application of the benefit of the doubt 

rule as required by law and VA regulations.  See 38 U.S.C.A. §5107 (West 2002).  Accordingly, the Veteran's claim for service connection for SMA is denied.


ORDER

Entitlement to service connection for spinobulbar muscular atrophy (Kennedy's Disease) is denied.



_________________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs