Citation Nr: 1316581 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 10-47 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for late onset cerebellar degeneration. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active military service from August 1966 to August 1970. The Veteran also had subsequent inactive duty training with the National Guard from May 1985 to June 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In August 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. At the hearing, the Veteran was granted a 30-day abeyance period for submission of additional evidence. In August 2011, the Veteran submitted additional evidence. In an April 2010 statement, the Veteran appears to raise a claim of entitlement to service connection for an acquired psychiatric disability. Such issue 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. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to 1) obtain private treatment records related to the Veteran's late onset cerebellar degeneration, and 2) obtain an appropriate VA examination with opinion. At the August 2011 Board hearing, the Veteran testified that he has been seen by his private providers at the Slocum-Dickson Medical Group every 6 months since 1992. Upon review of the claims file, treatment records dated through 2002 from the Medical Group are associated with the claims file. As noted, the undersigned Veterans Law Judge granted the Veteran an additional 30 days in order for him to obtain outstanding treatment records and a medical opinion. In August 2011, the Veteran submitted an opinion; however, there have been no additional treatment records associated with the claims file. Moreover, the Veteran's Virtual VA electronic file has been reviewed and there have been no treatment records uploaded. On remand, the additional treatment records from Slocum-Dickson Medical Group should be obtained. The Veteran testified that he was informed that his current cerebellar degeneration was hereditary. He stated that he experienced vague problems with his speech and equilibrium before active duty. See pages 10-11 of the hearing transcript. The Veteran testified that during the 4 years of active duty he noticed his problems got worse. The Veteran's active duty service treatment records, to include enlistment and discharge physical examinations, show no complaints of or treatment for speech difficulty or problems with equilibrium (i.e., cerebellar deficits). As noted, the record was held open for 30 days in order for the Veteran to obtain a medical opinion from his private physician. In August 2011, S.S.M., M.D. opined that the Veteran has cerebellar ataxia and peripheral neuropathy, and that the onset of the symptoms started early on in the Veteran's military career. Dr. S.S.M. stated that while he was uncertain, one could surmise that excessive physical activity like marching and other military duties may have a tendency to make symptoms more prominent and more manifest. The Board finds that this opinion is not adequate because it is speculative and does not provide a medical basis for the conclusion. The Board notes that the Veteran has been diagnosed with cerebellar degeneration, which may be a congenital abnormality. In general, service connection may not be granted for congenital or developmental defects, as they are not considered a disease or injury for the purpose of service connection. See 38 C.F.R. § 3.303(c), 4.9 (2011). The Board notes, however, service connection may be granted for a congenital or hereditary disease, as opposed to a defect, where the disease first manifested during service (incurrence), or where it preexisted service but was worsened beyond its normal progression as a result of service (aggravation). See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009 (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 151 (1993). For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration. In contrast, a "disease" is capable of improvement or deterioration. In addition, service connection may be granted for any additional disability that results where a congenital or developmental defect is subject to, or aggravated by, a superimposed disease or injury. See VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). In this regard, the Board notes, whereas here, no preexisting medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of soundness applies if a Veteran's congenital disease is not noted at entry. See Quirin, 22 Vet. App. at 396-97; Monroe, 4 Vet. App. at 515. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Accordingly, "[o]nce the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexisting and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness ... the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease." Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). This burden must be met by affirmative evidence demonstrating that there was no aggravation. See Id. The burden is not met by finding that the record contains insufficient evidence of aggravation. See Id. Upon remand, the Board finds that the Veteran should be afforded a VA examination by an appropriate provider in order to provide an opinion as to the nature and etiology of his cerebellar degeneration. In particular, the examiner should state whether the current cerebellar disorder is a congenital or developmental defect, or a congenital or hereditary disease, and whether any such condition preexisted or was incurred or aggravated by service. If any further testing or diagnostic studies are required prior to offering such opinions, they should be scheduled. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Notify the Veteran of the necessity of obtaining treatment records from Slocum-Dickson Medical Group dated from 2002 to the present and inform him that he may submit these records himself or authorize VA to obtain them on his behalf. After securing any necessary authorization from him, obtain records from Slocum-Dickson Medical Group. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After all available treatment records have been associated with the claims file, schedule the Veteran for a VA examination with an appropriate provider to determine the nature and etiology of the late-onset cerebellar degeneration disorder. All necessary tests and studies should then be conducted. The entire claims file, including a copy of this remand, should be reviewed and the examiner should respond to following questions: (a) Identify any current cerebellar degeneration and associated symptomatology. All lay and medical evidence of record, to include prior x-rays, MRIs, and private examination reports should be considered. (b) Is the cerebellar degeneration condition considered a congenital or developmental defect, or is it a congenital or hereditary disease? For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration. In contrast, a "disease" is capable of improvement or deterioration. (c) If the cerebellar disability is a congenital or developmental defect, was it subject to, or aggravated by, a superimposed disease or injury during service which resulted in additional disability? Please identify the additional disability. Or, was the increase in severity due to the natural progress of the disorder? (d) In contrast, if the cerebellar disability is a congenital or hereditary disease, please state whether the disease clearly and unmistakably both (i) preexisted the Veteran's entry into active service, and (ii) was not aggravated, beyond the normal progress of the disorder, during or as a result of active service (i.e., that it clearly and unmistakably did not increase or that any increase was clearly and unmistakably due to the natural progress of the disease). (e) If the cerebellar disability is not congenital or developmental in nature, please state whether (i) is it clear (e.g., highest degree of medical certainty) that such disability preexisted active duty service, and (ii) is it clear (e.g., highest degree of medical certainty) that such disability was not aggravated beyond the normal progress of the disorder during or as a result of active service. Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. (f) If the current cerebellar disability is not congenital or developmental in nature, and if it did not clearly and unmistakably preexist the Veteran's service, is it at least as likely as not (probability of 50 percent or more) that any such disorder was incurred in or aggravated by any incident, disease, or injury during service? In offering any opinion, the examiner must consider the service and post service medical records, as well as the Veteran's lay statements regarding the incurrence of his claimed disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. If any further testing or diagnostic studies are necessary prior to offering such opinions, they should be completed. 3. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop the claim is both critical and appreciated. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). _________________________________________________ MARJORIE A. AUER 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).