Citation Nr: 1310797	
Decision Date: 04/02/13    Archive Date: 04/11/13

DOCKET NO.  10-27 815	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas



THE ISSUE

Entitlement to service connection for myasthenia gravis.



REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.



ATTORNEY FOR THE BOARD

L. J. Wells-Green, Counsel




INTRODUCTION

The Veteran served on active duty from October 1989 to October 1993.  He served in Southwest Asia from August 13, 1990, to April 2, 1991, during the Persian Gulf War.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.


FINDING OF FACT

Myasthenia gravis did not have its onset in service or within one year thereafter and has not been etiologically linked to the Veteran's service, any incident therein, or to in-service exposure to chemicals.


CONCLUSION OF LAW

The criteria for service connection for myasthenia gravis have not been met.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties To Notify And Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.

A June 2008 letter 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).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.  See Shinseki v. Sanders, 556 U.S. 369 (2009)(reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).  

The Veteran's service treatment records, VA medical treatment records and private treatment records have been obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  A VA examination was conducted in July 2008 with an October 2008 addendum; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes.  38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  The examination, in aggregate with the addendum and medical treatment records, is adequate as it is predicated on examination of the Veteran and offers an opinion regarding the etiology of any currently diagnosed myasthenia gravis.  

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 at 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 369 (2009).


Analysis

The Veteran asserts that he is entitled to service connection for myasthenia gravis, an autoimmune disorder.  He argues that his currently diagnosed myasthenia gravis is a result of his exposure to chemicals while serving in Southwest Asia during the Persian Gulf War.  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F. 3d at 1316; Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007) (Holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

Myasthenia gravis may be presumed to have been incurred during active military service if it becomes manifest to a degree of 10 percent within the first year following active service.  38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than September 30, 2011, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a) (1).

Service treatment records are negative for complaints, findings, treatment or diagnoses for any neurological or autoimmune disability.  The earliest post-discharge evidence of myasthenia gravis are a March 2008 letter from the Veteran's private treating physician indicating that he had been diagnosed with myasthenia gravis in 2005 and a March 2008 VA neurology consult general note which indicates the Veteran was diagnosed with myasthenia gravis after developing double vision in 2005.  A July 2008 VA neurological examination report further indicates that the Veteran also developed ptosis of the left eyelid, muscle weakness, muscle cramps and shortness of breath in 2005 in addition to diplopia, and was diagnosed with myasthenia gravis.

None of the medical evidence of record etiologically links the Veteran's current myasthenia gravis to his service, or to his in-service exposure to chemicals.  Nor is the Veteran competent to provide the necessary etiological link to either his service or any exposure to chemicals in service.  While acknowledging the Veteran's current diagnosis of myasthenia and his having been in the vicinity of SCUD and Patriot missiles and the destruction of vehicles with high explosives, the July 2008 VA examiner notes that there are no actual records indicating that the Veteran was directly exposed to nerve agents and there is documentation that he and his detachment received medication to prevent development of fatigue syndrome while deployed in Saudi Arabia.  

In an October 2008 addendum, the VA examiner opined that the Veteran's diagnosed myasthenia gravis is unrelated to any nerve agents the Veteran may have been exposed to during his Persian Gulf deployment because it is caused by abnormalities in the thymus gland rather than any accumulative effects that would be caused by exposure to nerve agents.  

There is no evidence of record indicating any diagnosis or symptoms of myasthenia gravis prior to 2005, more than 10 years after the Veteran's discharge from service, or linking any such disability to his service or to any exposure to chemicals in service.  

As myasthenia gravis is a clinically diagnosed disease, it is not subject to the undiagnosed illness provisions.  38 C.F.R. § 3.317(a)(1)(ii).  Likewise, as myasthenia gravis is not shown within one year of discharge from service, service connection cannot be presumed under 38 C.F.R. §§ 3.307, 3.309.  

The preponderance of the evidence is against the claim for service connection for myasthenia gravis; there is no doubt to be resolved; and service connection for myasthenia gravis is not warranted.  


ORDER

Entitlement to service connection for myasthenia gravis is denied.  





____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs