Citation Nr: 1319393 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 11-05 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for muscle spasms of the bilateral posterior upper legs and bilateral leg cramping. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1976 to January 1979. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Veteran testified at a hearing before a decision review officer in September 2010. The Veteran testified at a Travel Board hearing which was chaired by a Veterans Law Judge (VLJ) in May 2011. Transcripts for both hearings are associated with the claims file. As noted above, the Veteran testified before a VLJ in May 2011; however, that VLJ is no longer at the Board. The law requires that the VLJ who conducted a hearing shall participate in making the final determination of the claim. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). By a September 2012 letter, the Veteran was given the opportunity to request another Board hearing. In the September 2011 letter, the Veteran was also advised that if he did not respond within 30 days, the Board would assume that he did not want an additional hearing. To date, a response has not been received. Thus, the Board assumes that the Veteran does not desire an additional hearing. The issue of a total disability rating based upon individual unemployability (TDIU) has been raised by the record during a December 2011 VA examination, 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. FINDING OF FACT The evidence of record supports a finding that a relationship exists between the Veteran's currently diagnosed muscle spasms of the bilateral posterior upper legs and bilateral leg cramping, and his active duty military service. CONCLUSION OF LAW Muscle spasms of the bilateral posterior upper legs and bilateral idiopathic leg cramp syndrome were incurred in active duty military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. A VCAA notice letter was sent to the Veteran regarding his claim in March 2009. The Board need not discuss in detail the sufficiency of this VCAA notice letter in light of the fact that the Board is granting the Veteran's claim below. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's full grant of the benefit sought on appeal addressed in this decision. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). Accordingly, the Board will proceed to a decision. Legal criteria In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In essence, the Veteran asserts that he has current muscle spasms of the bilateral posterior upper legs and bilateral leg cramping that had their onset in, or is otherwise related to an injury sustained during his period of active duty service. In particular, the Veteran contends that in 1976, he fell down a telephone pole while working as a telephone lineman and that he has had muscle spasms and leg cramping since that fall. See the May 2011 hearing transcript, pages 3-10. The record shows that the Veteran has a current diagnosis for muscle spasms of bilateral posterior upper legs and bilateral leg cramping and idiopathic cramp syndrome. See December 2011 VA examination report. As such, element (1) of the three-part test for service connection is indeed satisfied. With respect to element (2), in service disease or injury, although the Veteran's service treatment records do not specifically document medical care for a fall in 1976, the Veteran was treated for bilateral muscle spasm of the back of his legs in November 1978. At that time, the Veteran reported chronic muscles spasm in the back of legs and noted that he had been treated previously during service. The service treatment record note that the etiology of the leg cramps was unknown. The service treatment record included a recommendation for a progressive running pattern (one week, half a mile run, second week, 1 mile run, third week, 1 1/2 mile run) and if no improvement support hose could be used. Regardless of whether the Veteran's service treatment record document an injury during service, the Veteran has consistently reported a fall during service at which time he injured his chin and began to have muscle cramping in his legs. The Veteran described the accident prior to filing a claim for his leg disorder. See November 2006 Authorization and Consent to Release Information to the Department of Veterans Affairs. The Veteran also described the fall during the September 2010 DRO hearing and the May 2011 Board hearing. The Veteran again described the fall in an August 2011 statement. The Veteran has also consistently reported that his leg cramping began during his military service. See January 2011 Form 9; see also September 2011 statement. The Veteran is certainly competent to attest to observable symptoms, experiences, and witnessed events. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, the Board finds no reason in the record to doubt the credibility of his recollections. Indeed, it appears the Veteran did seek treatment for leg cramping in service in 1978, and the circumstances of his claimed in-service injury and this subsequent in-service treatment as described by the Veteran are indeed plausible. See Veteran's DD 214 (noting that his primary specialty during service was Tac Wire Operation Specialist). Based on this lay and medical evidence, the Board resolves all doubt in the Veteran's favor and finds that at the very least, the in-service incurrence of muscle spasm and leg cramping is in fact demonstrated. Shedden element (2) is therefore satisfied as well. With respect to crucial element (3), nexus or relationship, the available opinions will be summarized below. In February 2009, the Veteran's private physician, Dr. C., explained that he had treated the Veteran since July 1998. The physician noted that the Veteran reported having muscle cramps of both calves since he feel from a pole sometime in 1976 while working a lineman for the Army. The physician opined that the Veteran had been fully and permanently medically disabled since July 1998. The physician did not provide an opinion as whether the Veteran's leg cramps were related to service but instead described the Veteran's reports of having leg cramps since service. Although the physician provided an opinion that the Veteran was permanently medically disabled since July 1998, the physician did not specify as to whether the Veteran was permanently disabled exclusively due to his service-connected disabilities or due to his leg cramps. For these reasons, the Board finds this letter to have little probative weight. The Veteran was afforded a VA examination in April 2009. At that time, the VA examiner diagnosed the Veteran with muscle spasm of bilateral posterior upper legs. The examiner failed to provide an opinion as to whether his disorder was related to service. In an addendum opinion drafted in September 2009, a different physician, who did not examine the Veteran, noted that the Veteran's examination was essentially normal with evidence of dorsiflexion and plantarflexion weakness. The physician concluded that no diagnosis could be made without resorting to speculation. The Board did not find this addendum or examination to be adequate and remanded the issue back for further development including examination. A January 2010 opinion by the Veteran's private physician, Dr. A., notes that the Veteran had a history of trauma when he fell off a pole during training. The Veteran had residual cramping, tingling and pain as well as nerve conduction slow sensory waveforms. The Board finds this opinion probative as to the relationship between his current symptoms and his accident in service. In February 2011, the Veteran's VA physician provided a letter noting the Veteran's history of an accident in 1976 when he fell from a twenty-two foot pole. The physician noted that since his injury, the Veteran has reported that he has experienced bilateral leg cramps. The physician found that these symptoms continue today. The Board finds this opinion probative as to the relationship between his current symptoms and his accident in service. A May 2011 electromyogram study was mildly abnormal and consistent with mild left S1 denervation. The nerve conduction study completed at that time concluded that the Veteran had mildly abnormal nerve conduction study of the lower extremities consistent with mild polyneuropathy and that clinical correlation was required. Following a December 2011 VA examination and a thorough review of the claims file, a VA examiner diagnosed the Veteran with idiopathic cramp syndrome, muscles spasms of right and left posterior upper leg and leg cramping. He found that it was at least as likely as not that the Veteran's claimed disability, manifested by muscle spasm of bilateral posterior upper legs and bilateral leg cramping began during his military service. The physician noted that the Veteran's condition, according to the Veteran, started in service. The Board acknowledges that the examiner noted that there was no history of trauma causing cramps when, in fact, the Veteran has reported that he fell from a pole in 1976. Despite this, the VA examiner included the Veteran's reports of injury during service in the examination report. The examiner also noted that there was only one treatment record showing reports of leg cramping during service. The examiner does not appear to relate the Veteran's current diagnosis to the fall injury during service but noted the Veteran's reports that these symptoms began during service. As explained above, the examiner concluded that it was at least as likely as not that the Veteran's current disorder manifested by muscle spasms of the bilateral posterior upper legs and bilateral leg cramping at least as likely as not began during the Veteran's period of active military service. The evidence of record demonstrates that the Veteran has consistently reported to his post-service treating physicians that his leg cramps began during his active duty service and has continued to this day. See, e.g., the February 2011 letter by Dr. J. [indicating that the Veteran reported leg cramps beginning at the time of the accident during service and that the symptoms have continued to today]. In light of (1) the Veteran's competent and credible testimony [to both his treating physicians and VA] that his bilateral leg cramps started when he first fell during service in 1976 and has continued to this day; (2) that such leg cramping is noted on a service treatment record dated in November 1978; (3) that the Veteran has been diagnosed as bilateral muscles spasms of the posterior upper legs and idiopathic leg cramp syndrome, and (4) that the December 2011 VA examiner has provided an opinion that it is at least as likely as not that the Veteran's disability began during service, the Board finds Shedden element (3) is satisfied, and the benefit sought on appeal is allowed. ORDER Service connection for muscle spasms of the bilateral posterior upper legs and bilateral idiopathic leg cramp syndrome is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs