Citation Nr: 1212706 Decision Date: 04/06/12 Archive Date: 04/11/12 DOCKET NO. 10-23 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a neurologic disability, to include primary lateral sclerosis (PLS) and amyotrophic lateral sclerosis (ALS). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.M. Yasui, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1956 to January 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his June 2010 substantive appeal, the Veteran requested a Board hearing at his local VA office. In a subsequent letter sent to the RO in August 2011, the Veteran effectively withdrew his request for a Board hearing "due to physical problems and unable to travel any distance." Accordingly, the hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.702 (2011). The Board observes that in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the U.S. Court of Appeals for Veterans Claims (Court) held that in cases where a Veteran that has sought service connection specifically for PTSD, his claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Extending Clemons to the instant case, as reflected on the title page of this decision, the Board has rephrased the issue to include service connection consideration for all of the Veteran's neurologic disabilities, however diagnosed. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to total disability rating based upon individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, following separation from service, the Veteran developed ALS. 2. There is no affirmative evidence that the Veteran's ALS was not incurred during, or aggravated by, active service. 3. There is no affirmative evidence that the Veteran's ALS is due to his own willful misconduct. 4. The Veteran had active continuous service for more than 90 days. CONCLUSION OF LAW The criteria for entitlement to service connection for a neurologic disability, to include PLS and ALS have been met. 38 U.S.C.A. §§ 501(a)(1), 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.318 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2011). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As in all claims for service connection, it is the Board's duty to assign probative value to the evidence and then to weigh the evidence favorable to the veteran's claim against the evidence unfavorable to the veteran's claim. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). If the favorable evidence outweighs the unfavorable evidence or if the favorable and unfavorable evidence are in relative equipoise, the Veteran's claim must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102 (2011). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, effective September 23, 2008, VA issued a regulation establishing presumptive service connection for ALS. See 38 C.F.R. § 3.318; see also 73 Fed. Reg. 54691 (Sept. 23, 2008). This regulation provides that the development of ALS manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease if the Veteran had active, continuous service of 90 days or more. 38 C.F.R. § 3.318. However, the presumption of service connection for ALS does not apply if there is 1) affirmative evidence that ALS was not incurred during or aggravated by such service, or 2) affirmative evidence that ALS was caused by the Veteran's own willful misconduct. Id. As is the case here, 38 C.F.R. § 3.318 applies to all applications for benefits that are received by VA on or after September 23, 2008, or that are pending before VA, the Court, or the United States Court of Appeals for the Federal Circuit on September 23, 2008. Dispositive of this case is whether the Veteran has ALS as it is a disease subject to presumptive service connection. Post-service, the Veteran has been variously diagnosed with both PLS and ALS. The Veteran's first diagnosis of a neurologic disability is indicated in VA treatment reports from 1995. At that time, he was diagnosed with PLS. However, in August 1999, the Veteran's listed diagnosis was ALS, with generalized weakness, decreased function, and dependent functional mobility secondary to ALS. During three separate dates in November 2006, the Veteran was diagnosed with ALS. Significantly and most recently, an active problem list, printed in December 2008, indicated that the Veteran had both ALS and PLS. Later that month, in December 2008, the Veteran underwent a VA neurologic examination. In the examination report, under the summary of hospitalizations and surgeries, the VA examiner noted "PLS (Primary Lateral Sclerosis/ALS. Has been followed by Dr. Snyder." Importantly, however, the examiner diagnosed the Veteran with PLS, with no consideration of previous diagnoses of ALS. She provided no explanation for her diagnosis and there was no indication in the examination report that either an electromyography (EMG) or magnetic resonance imaging (MRI) was included in the assessment of the Veteran's neurologic disability. The Board finds that the December 2008 VA examiner's conclusion should have also included a medical opinion as to the etiology of the diagnosed PLS, however, none was provided. Regardless, the Board finds that a remand as to this specific disability is not needed as there is an approximate balance of positive and negative evidence of record necessary to determine this matter. 38 C.F.R. § 3.159(c) (4); ct. Mariano v. Principi, 17 Vet. App. 305, 312 (2003)(noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Here, there is evidence that the Veteran has both ALS and PLS. Simply stated, while the Veteran has diagnoses of PLS, there is no evidence of record to refute his diagnoses of ALS, provided in August 1999, November 2006, and December 2008. Further, there is no indication in 38 C.F.R. § 3.318 precluding presumptive service connection for ALS if a diagnosis of PLS is also of record. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise and he is entitled to presumption service connection for ALS. Indeed, the Veteran has satisfied the requirements under 38 C.F.R. § 3.318 as he served on active duty for more than 90 days and subsequently developed ALS. There is no affirmative evidence of record indicating that this condition was due to factors or circumstances unrelated to his military service, or suggesting that this condition was caused by the Veteran's own willful misconduct. Accordingly, the presumption of service connection for ALS under 38 C.F.R. § 3.318 applies, and the Veteran's claim for service connection is granted. The nature and extent of the Veteran's neurologic disability are not before the Board at this time. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Entitlement to service connection for a neurologic disability, to include PLS and ALS is granted, subject to the applicable laws and regulations concerning the payment of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs