Citation Nr: 1302983 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 06-14 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for Myasthenia Gravis (MG). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service March 1987 to November 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By that rating action, the RO denied service connection for MG. The Veteran appealed this rating action to the Board. In September 2009, the Veteran testified before the undersigned Veterans Law Judge at a hearing conducted at the above-cited RO. A transcript of the hearing is associated with the claims file. In December 2009, the Board requested a specialist medical opinion from the Veterans Health Administration (VHA)O. 38 C.F.R. § 20.901(a) (2012). After this report was associated with the claims file, the Veteran declined to waive RO jurisdiction. Thus, the Board remanded the appeal to have the RO via the Appeals Management Center (AMC), review the VHA opinion. In June 2011, the AMC issued a Supplemental Statement of the Case, wherein it continued to deny the claim for service connection for MG. In an October 2011 decision, the Board denied the claim of entitlement to service connection for MG. The Veteran appealed the Board's October 2011 decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran's representative and VA General Counsel filed a Joint Motion to Vacate and Remand (hereinafter "Joint Motion"). In May 2012, the Court granted the Joint Motion, vacated the Board's October 2011 decision, and remanded the issue for compliance with the terms of the Joint Motion. The Board notes that the Veteran's representative's January 2013 written argument incorrectly listed the issue on appeal as entitlement to an increase dating of residuals of prostate cancer. However, as the Veteran's representative addressed the merits of the current issue on appeal in the body of the argument, the Board finds no prejudice in proceeding with appellate review of the claim. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action is required. REMAND The parties to the Joint Motion agreed that the Board had committed the following errors when it denied the Veteran's claim for service connection for MG in October 2011: (i) it failed to secure the Veteran's outstanding service personnel records (SPRs); and, (ii) relied on an inadequate VHA opinion that failed to take into account favorable evidence, such as a May 1989 service treatment report (STR) reflecting that the Veteran reported having been always tired for the previous five (5) months. See Joint Motion, pages (pgs.) 2-4)). The Board will address each one of these deficiencies in the following paragraphs. (i) Outstanding Service Personnel Records The parties to the JMR believe that further efforts are needed to search for potentially relevant SPRs. In statements and testimony before the undersigned, the Veteran has maintained that he suffered from symptoms, such as muscle weakness and lethargy that were the initial manifestations of his MG. The Veteran and his mother referred to an event during military service where a General dragged the Veteran out of a fox hole because he was so debilitated after he was forced to perform a field training exercise on crutches for a right foot injury. The General allegedly ordered the Veteran to be sent for a medical evaluation after which he was allegedly released from duty. (See May 2006 statement, prepared by S. G. and September 2009 Transcript (T.) pgs. 6, 17)). A review of the claims files reflects that the Veteran's entire SPRs have not been associated with the claims file. The claims file contains (4) pages of the Veteran's SPRs, reflecting the various military occupational specialties and units to which he was assigned during military service. As indicated in the Joint Motion, there is no evidence that VA ever attempted to search for his entire service personnel file. Thus, because the SPRs might show that the Veteran suffered from lethargy and/or demonstrated bizarre behavior as a precursor to his development of MG during military service, the RO must attempt to secure his SPRs on remand. (ii) Supplemental VA Opinion In December 2009, the Board requested a medical specialist opinion from the VHA. An opinion was provided by a physician who serves as the Chief of Neurology Services and as a professor of neurology. The VHA neurologist concluded that there was little evidence to support a finding that the Veteran's symptoms of MG occurred while he was on active duty or within a year of service discharge. The VA neurologist based his conclusion on the following findings: (i) there were no symptoms of MG during military service; (ii) the Veteran developed alopecia areata approximately 10 years before, not after, the onset of MG; (iii) the Veteran did not have a thyoma [tumor of the thymus gland]; and (iv), that the incidence of alopecia areata with MG was very low and not a demonstrated risk factor for the development of MG. (See December 2009 VHA opinion). The Joint Motion found the December 2009 VHA neurologist's opinion insufficient because it failed to discuss a May 1989 STR showing that the Veteran had reported symptoms of always being tired for the previous five (5) months, despite his conclusion that there were no symptoms of MG during military service. (See Joint Motion, page (pg.) 3)). Thus, the Board finds that prior to further appellate review of the claim, a remand is necessary to obtain a supplemental VA opinion that addresses the entire evidence of record, specifically, the Veteran's service treatment records (STRs) to include the May 1989 entry of lethargy, private medical opinions in support of the claim, and the December 2009 VHA neurologist's opinion. Therefore, this matter must be remanded. (iii) Newly Received Evidence In July 2012, the Board received additional evidence in the form of statements, prepared in June and July 2012, by the Veteran's brother, mother and cousin. The Board also received private treatment reports, dated in November 2004, prepared by L. P. L, M. D., K. C., Advanced Registered Nurse Practitioner (ARNP), and D. E., ARNP; an October 2011 report, prepared by M. S., M. D.; and an undated report, prepared by A. B., M. D. VA regulations clearly provide that any pertinent evidence must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the Veteran. See 38 C.F.R. § 20.1304(c) (2012). Much of this evidence is duplicative. However, as this matter is already being Remanded, and to protect his due process rights, the AOJ should insure that a review of all evidence since the June 2011 supplemental statement of the case is conducted. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the National Personnel Records Center (NPRC) and request a search for any and all of the Veteran's service personnel records, available. If the search efforts for these records have negative results, documentation from that facility, to that effect, should be placed in the claims file. 2. After any service personnel records have been obtained and associated with the claims files, send the claims file to a VA neurologist to have him or her provide an opinion as to the etiology of the Veteran's MG. After a review of the claims files and this remand, the VA neurologist must provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or better probability) that the Veteran's currently diagnosed MG had its onset in, or is otherwise etiologically related to, his period of military service. In formulating a response to the above-cited question, the examiner is requested to comment on the following service and post-service medical evidence: (a) STRs, dated in July and October 1987, reflecting that the Veteran experienced dizziness while running and sustained a right foot strain, respectively; (b) May 1989 service treatment record STR, reflecting that the Veteran complained, in part, of always being tired for the previous five (5) months; (c) A July 1989 STR, showing that the Veteran was diagnosed as having a muscle strain, overworked muscle, after he complained of low back pain; (d) October, November, and December 1989, STRs, containing diagnoses of alopecia areata; (e) May 1991 STR showing that the Veteran sustained a concussion after he was found confused and searching for something in the barracks. It was noted that he had been wrestling one hour previously and that he had struck the back of his head on the wall; (f) November 2004 reports, prepared by L. P. L., M. D., D. E., ARNP and K. C. ARNP, wherein each clinician provided a positive medical opinion in support of the Veteran's position that his MG manifested during military service, based on symptoms that he experienced during that time. (g) October 2011 report, prepared by M. S., M. D., containing the opinion that the stress of military life, as well as the "preparation and call to fight" in the Iraq War more likely than not triggered the onset of the Veteran's MG; and (h) December 2009 VHA neurologist's opinion that there was little evidence to support the Veteran's claim that his symptoms of MG occurred during his period of active military service or within a year of discharge The examiner must take a complete history from the Veteran as to the onset, nature and progression of the MG symptoms, to include his contention that the symptoms of dizziness, foot, leg and low back pain, blurred vision, muscle weakness and fatigue that he suffered in service were the initial manifestations or pressures of his MG. If there is a medical basis to support or doubt the history provided by the Veteran regarding his MG symptoms, the examiner must state this, with a fully reasoned explanation. The examiner must also provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 3. Then readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be furnished a Supplemental Statement of the Case that considers all evidence added to the claims file since June 2011, and should be afforded an appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).