Citation Nr: 1313440 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-46 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for poliomyelitis, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Michelle A. Marshall, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, in which the RO determined that new and material evidence had not been submitted to reopen the Veteran's claim for service connection for poliomyelitis. The Veteran, who had active service from May 1950 to May 1953, appealed that decision to the Board. Subsequently, the Veteran died in December 2011. Due to the death of the Veteran, the Board dismissed the above-referenced claim in a March 2012 decision. However, the Board's dismissal of the appeal did not affect the right of an eligible person to file a request to be substituted as the Veteran for purposes of processing the claims to completion. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-387, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008). Therefore, in January 2012, the Veteran's spouse (now the appellant) filed such a request, and in a March 2012 administrative decision that was subsequent to the Board's dismissal, the RO found her eligible for substitution for the Veteran with respect to this claim. In June 2012, while sitting at the RO, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's claims folder. The decision set out below grants the application to reopen the claim for service connection for poliomyelitis. This reopened claim is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. By a December 2000 decision, the Board denied the Veteran's application to reopen his claim for service connection for poliomyelitis. 2. In April 2009, the Veteran filed an application to reopen his claim for service connection for poliomyelitis. 3. Additional evidence received since the December 2000 Board decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 2000 decision, in which the Board denied the Veteran's application to reopen his claim for service connection for poliomyelitis, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.160(d), 20.1103 (2012). 2. The evidence received since the December 2000 Board decision is new and material, and the claim of entitlement to service connection for poliomyelitis is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board has considered the Veteran's claim to reopen based on new and material evidence with respect to the VCAA. Given the favorable outcome as noted above, no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). II. Pertinent Laws and Regulations Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, supra, (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). The condition at issue in this case, poliomyelitis, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) does not apply. However, under 38 C.F.R. § 3.379, if the first manifestations of acute anterior poliomyelitis present themselves in a veteran within 35 days of termination of active military service, it is probable that the infection occurred during service. If they first appear after this period, it is probable that the infection was incurred after service. Id. Lay evidence also can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). III. New and Material Claim The Veteran's original claim of entitlement to service connection for poliomyelitis was denied in an August 1954 rating action. The RO noted that the Veteran's service treatment records showed that he was treated for pain in his right knee after marching in August 1950; for boils in January 1952; and for cellulitis of the left pretibial region in March 1952. In April 1954, after his discharge, he was hospitalized for poliomyelitis. He had experienced symptoms of his poliomyelitis 10 days prior to admission. During his hospitalization, his gait improved. At the time of his release from the hospital, he appeared to have reached maximum improvement. Thus, the RO denied service connection for poliomyelitis because it was not manifested in service or within incubation period, and because permanency of disability was not shown. In a February 1988 confirmed rating decision and a December 1998 rating decision, the RO continued to deny the Veteran's claim for service connection for poliomyelitis. Following the December 1998 rating action, the Veteran filed a timely appeal. In a December 2000 decision, the Board concluded that new and material evidence had not been submitted to reopen the claim for service connection for poliomyelitis. This Board decision is final. 38 U.S.C.A. § 7104. Once a decision becomes final, new and material evidence is required to reopen the claim which was denied. 38 U.S.C.A. § 5108. Because the December 2000 Board decision was the last final disallowance, the Board must review all of the evidence submitted since that decision to determine whether the Veteran's claim for service connection for poliomyelitis should be reopened and re-adjudicated on a de novo basis. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273 (1996). For claims filed on or after August 29, 2001, such as this claim, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and Material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the December 2000 rating action consisted of the Veteran's service treatment records; lay statements from the Veteran's mother, sister, wife, and friend, dated in July 1987 and September 1987; a private medical statement from E.A.M., M.D, dated in February 1988; and hearing testimony. The Veteran's service treatment records are negative for a diagnosis of poliomyelitis. The records show that in August 1950, the Veteran was treated for right knee swelling. It was noted that the swelling occurred on long marches. He was given an Ace bandage and liniment. In January 1951, he was treated for right ear pain of a 10-day duration. In January 1952, the Veteran was treated for boils. In March 1952, he was treated for an ulcer of the left tibia/ cellulitis of the left pretibial region. In April 1952, he received treatment for furuncles of the left hip. In February 1953, he was treated for "bad feet." In May 1953, the Veteran underwent a separation examination. At that time, he was clinically evaluated as "normal" for neurologic purposes. A Birmingham VA Hospital Summary shows that the Veteran was hospitalized from April 1954 to June 1954. Upon admission, it was noted that the Veteran had been transferred from the VA Hospital in Tuscaloosa with the diagnosis of acute poliomyelitis. According to the Veteran, 10 days prior to his transfer, he had developed a sore throat, rhinitis, and fever with remission in approximately two days. Five days prior to his transfer, he noted the almost simultaneous onset of back and neck pain, and stiffness and weakness of the left leg. Upon physical examination, there was weakness of the left abdominal muscles, the left gluteal muscles, and the anterior tibiales and calf muscles. The Veteran was placed on bed rest and sand bags were applied to the left foot to prevent foot drop. The motor function in the left leg returned "amazingly fast." Upon his discharge from the hospital, he was diagnosed with anterior poliomyelitis, acute of the left lower lumbar region, which was treated and improved. In a lay statement from the Veteran's mother, dated in July 1987, she stated that soon after the Veteran's discharge, he visited her in Tuscaloosa. One night while visiting, he walked the floor all night with his "leg and back hurting." The Veteran stated that he had been having some pain since his discharge but he thought it would go away. The next day, he sought treatment at the Tuscaloosa VA Hospital where he was admitted for poliomyelitis. According to the Veteran's mother, his polio left him with one leg shorter than the other and he subsequently walked with a limp. In lay statements from the Veteran's sister and friend, Mr. L., dated in July 1987, they stated that after the Veteran's discharge, he complained of back and leg pain. In April 1954, he was hospitalized and diagnosed with polio. In the lay statement from the Veteran's wife, dated in September 1987, she stated that due to the Veteran's polio, he developed a limp. In a private medical statement from Dr. E.A. M., dated in February 1988, Dr. M. stated that he had treated the Veteran since November 1974. The Veteran had a history of poliomyelitis at age 20 with residual weakness in his left leg and paresthesia of the right leg. In October 1999, a hearing was conducted at the RO. At that time, the Veteran stated that while he was in the military, he experienced the initial symptoms of his polio, which was later diagnosed in April 1954. Specifically, he indicated that he experienced soreness and pain in his knees. He also had boils over his body, including his knees. The Veteran reported that he sought treatment for his symptoms on numerous occasions. According to the Veteran, when he was diagnosed with polio, he was completely paralyzed. He noted that due to his polio, one of his legs was shorter than the other. He also had residual weakness and swelling of his legs. Evidence received subsequent to the December 2000 Board decision consists of a private medical statement from K.B.B., M.D., dated in May 2009; a VA examination report, dated in July 2009, with addendums dated in August 2009 and October 2009; and hearing testimony. In the private medical statement from Dr. B., dated in May 2009, he stated that he had reviewed the Veteran's service treatment records. Dr. B. indicated that it was his opinion that it was possible that the Veteran had poliomyelitis while on active duty even though the "full-blown" symptoms of acute poliomyelitis occurred within a year after his discharge from the military. According to Dr. B., the incubation period of poliomyelitis could be many years before acute symptoms showed themselves. In July 2009, the Veteran underwent a VA examination that was conducted by I.G.M., M.D. Dr. M. stated that he had reviewed the Veteran's claims file. The Veteran indicated that during service, he had experienced weakness in his lower extremities. He noted that soon after his discharge, he was hospitalized with polio and could not move his legs. Due to his polio, he still did not have any feeling on his right side, from the waist down. The Veteran stated that his left leg was shorter and would swell. He indicated that his right leg had always been weaker than his left leg, but that he no longer had control over either leg. Following the physical examination, the pertinent diagnoses were the following: (1) status post poliomyelitis affecting the left lower extremity, (2) alcoholic neuropathy, (3) neuropathy of aging, (4) truncal ataxia, secondary to numbers 1 to 3, and (4) osteoarthritis, status post right knee replacement. Dr. M. stated that several years ago, the Veteran started to use a cane in his right hand, probably after his right knee replacement which was eight years ago. That operation may have resulted in a stretch injury to adjacent nerves, since the Veteran walked with a circumvented right lower extremity. On neurological examination, the Veteran had lost light touch sensation in all fingers and both feet. In addition, he had lost discriminatory and pin sensation throughout the right lower extremity and position/vibratory sense below the right ankle. In the left lower extremity, position sense was absent below the ankle and vibratory sense was absent distal to the metacarpal phalangeal (MP) joints. Accordingly, Dr. M. indicated that the Veteran had peripheral nerve sensory abnormalities that were inconsistent with a history of poliomyelitis (which did not affect sensation but instead caused muscle wasting and spasticity). The Veteran did have difficulty arising from a sitting position, which was consistent with his history of poliomyelitis and contributed to gait unsteadiness (truncal ataxia). The Veteran's sensory abnormalities, which presented in all extremities but were most marked in the right lower extremity, were due to a combination of alcoholic neuropathy, neuropathy of aging, and (likely) stretch neuropathies from the right knee replacement surgery. In August 2009, Dr. M. provided an addendum to the July 2009 VA examination report. In the addendum, he opined that it was less likely than not that the Veteran's truncal ataxia was etiologically related to his 1954 attack of acute poliomyelitis. Dr. M. also reported that the Veteran had difficulty standing from a seated position which dated back to an episode of acute poliomyelitis which affected the lower extremities, left worse than right, in 1954. There was no muscle wasting in the lower extremities and deep tendon reflexes were preserved in the left lower extremity, whereas weakness was present in 1954. In October 2009, Dr. M. provided another addendum to the July 2009 VA examination report. In the addendum, Dr. M. responded to the pertinent question of whether the Veteran's poliomyelitis was related to his time in the service, or to signs or symptoms documented in his service treatment records. Dr. M. stated that poliomyelitis was an acute illness; there was no gradual prodrome. The Veteran had an attack of acute poliomyelitis documented 12.5 months after his discharge. Therefore, Dr. M. opined that it was less likely than not that the Veteran's poliomyelitis was related to his time in the military. In June 2012, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. She maintained that during service, the Veteran was treated for boils and that boils were a symptom of polio. The appellant indicated that after the Veteran was treated for polio, he did not receive any further treatment for his polio residuals. She stated that due to the Veteran's polio, one leg was shorter than the other. The Veteran's original claim for service connection for poliomyelitis was denied in an August 1954 rating action. The RO denied the claim because there was no evidence showing that poliomyelitis was manifested in service or within the incubation period, and because permanency of disability was not shown. The Board has reviewed the evidence received since the December 2000 decision and has determined that May 2009 private medical statement from Dr. B. is new and material. In the statement, Dr. B. indicated that it was possible that the Veteran had poliomyelitis during service even though the "full-blown" symptoms occurred within a year from his discharge. In addition, he reported that the incubation period of poliomyelitis could be many years before acute symptoms showed themselves. In essence, he stated that the Veteran first experienced symptoms of poliomyelitis during service and that his subsequently diagnosed poliomyelitis was related to his period of service, specifically his in-service symptoms. Thus, he linked the Veteran's poliomyelitis, which was diagnosed in April 1954, to the Veteran's period of service. The credibility of Dr. B.'s statement must be presumed for the purpose of determining the newness and materiality of such evidence per Justus, 3 Vet. App. at 510. A supportive nexus opinion was not previously of record; such evidence raises a possibility of substantiating the service connection claim for poliomyelitis. Therefore, in light of the above, the Board finds that new and material evidence has been obtained and that the claim for service connection for poliomyelitis is reopened. 38 C.F.R. § 3.156. The Board's decision is strictly limited to the reopening of the claim and does not address the merit of the underlying service connection claim. ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for poliomyelitis; the appeal is granted to this limited extent only. REMAND In view of the Board's decision above, the Veteran's claim for service connection for poliomyelitis must be adjudicated on a de novo basis. Under 38 C.F.R. § 3.379, if the first manifestations of acute anterior poliomyelitis present themselves in a veteran within 35 days of termination of active military service, it is probable that the infection occurred during service. If they first appear after this period, it is probable that the infection was incurred after service. Id. The Veteran was separated from the military in May 1953. He was diagnosed with acute poliomyelitis in April 1954, approximately 11 months after his discharge. The pertinent question in this case is whether the Veteran experienced symptoms of his poliomyelitis either during service or within 35 days of termination of active service. There are discrepancies in the medical opinions of record regarding whether the Veteran experienced symptoms during service that represented the prodromal phase of the onset of his later diagnosed poliomyelitis. In the May 2009 private medical statement from Dr. B., he stated that the Veteran first experienced symptoms of poliomyelitis during service and that his subsequently diagnosed poliomyelitis was related to his period of service, specifically his in-service symptoms. He also reported that the incubation period of poliomyelitis could be many years before acute symptoms showed themselves. However, in the October 2009 addendum to the July 2009 VA examination report, Dr. M. stated that poliomyelitis was an acute illness and that there was no gradual prodrome. Because the Veteran had a documented attack of acute poliomyelitis 12.5 months after his discharge, Dr. M. opined that it was less likely than not that the Veteran's poliomyelitis was related to his military service. In light of the discrepancies, it is the Board's determination that a new VA opinion, as specified in greater detail below, should be obtained. Any available treatment records from the Tuscaloosa VA treatment facility dated in April 1954 should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's treatment records, to include any archived records, from the Tuscaloosa VA treatment facility, dated in April 1954. 2. Thereafter, arrange for the claims folder and a copy of this remand to be reviewed by a VA neurologist, or by another appropriate examiner. Following the review of the claims folder, the examiner should respond to the following: (a) Did the Veteran have any residuals of poliomyelitis between April 2009 and his death in December 2011? (b) Is there a prodromal phase of poliomyelitis and if so, how long is it? (c) Is it at least as likely as not (50 percent or greater degree of probability) that the Veteran's poliomyelitis, which was diagnosed in April 1954, was related to his period of military service, to include his in-service treatment for right knee swelling, right ear pain, boils, ulcer of the left tibia/cellulitis of the left pretibial region, furuncles of the left hip, and bad feet? In answering this question, the examiner must address whether the aforementioned in-service problems were symptoms of the Veteran's later diagnosed poliomyelitis? (d ) The examiner should comment on the May 2009 private medical statement from Dr. B. Specifically, the examiner must state whether he/she is in agreement with Dr. B.'s opinion that that it was possible that the Veteran had poliomyelitis while on active duty even though the "full-blown" symptoms occurred within a year after his discharge, and that the incubation period of poliomyelitis could be many years before acute symptoms showed themselves. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. The examiner is also requested to provide a rationale for any opinion expressed. 3. After completion of the above and any other development deemed necessary, review and re-adjudicate the issue on appeal. If such action does not grant the benefit claimed, provide the appellant and her representative, if any, a supplemental statement of the case (SSOC) and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs