Citation Nr: 1322365 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 04-40 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for muscular dystrophy. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1989 to September 1990. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which initially determined that new and material evidence was not received to reopen a previously denied claim for entitlement to service connection for muscular dystrophy. Subsequently the RO reopened the claim and denied the matter on the merits. In November 2006 the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In a January 2007 decision, the Board determined that new and material evidence had been received and reopened the claim for service connection for muscular dystrophy, but remanded the matter, on the merits, for additional development. After the Appeals Management Center completed the requested actions and the case was returned to the Board, the Board obtained an independent expert medical opinion on the matter in June 2011. In October 2011 the Board denied the appellant's appeal. Thereafter, the appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In December 2012 the Court issued a decision that vacated the Board decision and remanded the case to the Board for readjudication and the issuance of a new decision in compliance with the Court's findings. The Virtual VA electronic claims file has been reviewed; a review of the documents in such file reveals that it does not contain any documents pertinent to the issue on appeal. FINDINGS OF FACT 1. The evidence clearly and unmistakably shows that the Veteran's muscular dystrophy pre-existed his service. 2. The medical evidence of record does not show by clear and unmistakable evidence that the Veteran's muscular dystrophy was not aggravated beyond its normal progression by the Veteran's military service. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, the criteria for service connection for muscular dystrophy are met on the basis of aggravation. 38 U.S.C.A. §§ 1111, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim. Given the favorable action taken herein below, the Board finds that no further assistance in developing the facts pertinent to the Veteran's claim is required at this time. Relevant Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection for some chronic diseases, including progressive muscular atrophy, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When determining service connection, a presumption of soundness applies. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Pursuant to such presumption, a Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. Id. In July 2003 the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id.; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). Also, intermittent or temporary flare-ups during service of a preexisting injury or disease do not constitute aggravation; rather, the underlying condition, as contrasted with symptoms, must have worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition" which existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997). Analysis The Veteran contends that his current disability of muscular dystrophy, which pre-existed his military service but was undiagnosed at the time, was caused or aggravated beyond its normal progression by physical exertion in service. He contends, essentially, that Achilles tendon surgery that he underwent as a child was an early sign of Becker's muscular dystrophy, a genetic disorder which began to prominently manifest and become worse during military service and was then diagnosed after separation. A January 1988 enlistment examination report reflects that the Veteran's feet, lower extremities, and neurologic systems were all evaluated as clinically normal. At that time, the Veteran was disqualified from entry into service due to hearing loss. In a contemporaneous self-report of medical history the Veteran responded in the affirmative to having cramps in the legs and foot trouble. The examiner noted that the Veteran had leg cramps after prolonged running, with no problems, and that he had previously fractured his right lower leg. He also reported having had surgery to lengthen his calcaneus (Achilles) tendons at age five. The Veteran's service treatment records reflect that entering the Navy he was frequently seen for complaints related to his lower extremities, starting in April 1989, one month after entry into service, with complaints that he was having difficulty in keeping up with the company while running. The Veteran presented with a history of Achilles tendon surgery bilaterally. The examiner noted that this condition existed prior to service. In May 1989 the Veteran reported being unable to run and the examiner found that he had limited dorsiflexion related to his Achilles tendon surgery. In June 1989, the Veteran complained of posterior leg pain bilaterally with running. In September 1989 he was treated for right knee ligament strain. In November 1989 the Veteran was again examined for fitness for duty due to impairment believed to be caused by his childhood Achilles tendon surgery. The Veteran was twice examined for problems with his Achilles tendon in March 1990. The Veteran was found to be fit for duty but excused from running for 6 weeks. Overall, the records show that throughout his service, the Veteran was frequently placed on light duty due to physical problems, usually noted to be related to his Achilles tendon surgery and leg pain. A May 1990 Medical Board Report shows that the Veteran was status post Achilles tendon surgery, prior to enlistment, and that he had symptoms related to increased activity, and he was referred to a Central Physical Evaluation Board. The Veteran was discharged from service in September 1990. Post-service medical records include an October 1993 VA examination report reflecting that the Veteran complained of not being able to run more than 50 yards. The Veteran stated that his legs get tired, and if he continues to run he starts to stumble and feels like he is going to fall. The diagnosis was mild residual of bilateral Achilles tendon surgery. In an October 1994 note, Dr. L.B.C. stated that medical findings were consistent with a Becker's muscular dystrophy, X-linked disorder, and was the most likely diagnosis. An October 2002 Baylor College of Medicine medical record notes that the Veteran's initial symptoms began in the early 1990s with complaints of frequent falling, left knee pain, bilateral proximal muscle cramping, and some proximal muscle weakness greater than distal muscle weakness. The assessment was that the Veteran had a history of a progressive, proximal lower extremity muscle weakness, and the report noted that the Veteran was diagnosed with Becker's muscular dystrophy in 1992. In a November 2005 letter, Dr. E.P.S. stated that the Veteran carries a diagnosis of possible Becker's muscular dystrophy and that his presentation was consistent with a limb girdle muscular dystrophy. She stated that the Veteran's past medical history is significant for onset of his progressive weakness, exercise intolerance, and an inability to walk long distances while undergoing basic training in the Navy. She opined that the Veteran's symptoms were brought on by intense physical exertion and training related to the Veteran's activities in service. She furthered that the Veteran has a muscular dystrophy which was not caused by his basic training activity, but the physical activity of basic training brought out his disease related problems which have since progressed. In an April 2006 letter, Dr. M.Y.P. noted that the Veteran had undergone extensive evaluation, which led to the possible diagnosis of Becker's muscular dystrophy versus limb girdle muscular dystrophy. The Veteran recalled having cramps at an early age; however, it was not until he entered the military service and was at boot camp that he began exhibiting the symptoms consistent with muscular dystrophy. The Veteran described exhibiting cramps at the time he was running as well as having difficulty keeping up with his peers. Dr. M.Y.P. stated that a person with muscular dystrophy, if undergoing severe physical exertion, can cause acceleration of the underlying disease. She opined that the Veteran had muscular dystrophy at birth, and it was only after he was exposed to severe exertional activity that the disease began to progress. The Veteran was afforded a VA examination of the joints and muscles in May 2006. The examination report reflects that the Veteran was diagnosed with active and chronic myopathy with neurogenic moderate atrophy. The VA examiner opined that the Veteran had preexisting bilateral ankle surgery at age three, suggesting a preexisting condition. He further stated that the Veteran has had no significant aggravation of the condition while in service other than what would have developed otherwise and symptoms reported from increased activity related. In a June 2008 VA medical examination report, the VA examiner noted that private medical records associated with the claims file reflect that the Veteran gave a history of first having symptoms in 1992 when his knee gave out. He was diagnosed with Becker's muscular dystrophy in 1994. The VA examiner stated that Becker's muscular dystrophy is an X-linked inherited disorder, which typically presents with proximal weakness beginning in adolescence or young adulthood. The VA examiner opined that the Veteran's muscular dystrophy was not due to service and that his in-service findings were not an indication of early onset of pathology. The examiner opined that the Veteran's muscular dystrophy was as likely as not aggravated by exercise while on active duty, but the amount of aggravation cannot be quantified without resort to speculation. The VA examiner furthered that the effect would likely be small to minimal, given the natural course of the disease, the lag in time between exercise on active duty and when the Veteran first had symptoms, and the amount of activity the Veteran engaged in after his discharge from active duty. However, this examiner indicated that the Veteran's actual symptoms did not start until 1992, and failed to specifically address the numerous complaints related to the lower extremities within the Veteran's service treatment records. . In June 2011 the Board obtained an independent expert medical opinion from Dr. R.N.S., a specialist in neuromuscular medicine. Dr. R.N.S. opined that the Veteran's primary problem, a type of muscular dystrophy, was more likely than not present when the Veteran entered the Navy. He discussed the Veteran's surgery on his ankles at the age of three, and that in light of his more recent medical records, one could presume that the surgery was performed because of tight heel cords, a condition which often occurs with childhood muscular dystrophies. He noted that after induction into the Navy, the Veteran had difficulty running which was explained on the basis of previous surgery on his Achilles tendons. In retrospect, the difficulty in running was more likely than not related to progression of the Veteran's primary muscle disease rather than to his previous ankle surgery. Dr. R.N.S. further opined that the Veteran's muscular dystrophy was more likely than not present when the Veteran entered the Navy and that it was conceivable that running and other vigorous physical activity aggravated his clinical condition, although it was unlikely that it caused significant progression of the primary neuromuscular disorder and the impact would have likely been only temporary. The Veteran's private treatment records show that he has been receiving treatment for muscular dystrophy since at least 1994. A May 2004 muscle biopsy found evidence of active and chronic myopathy and moderate neurogenic atrophy. The examination reports of the Veteran's regular treating physician show that the muscles in his legs and back have become progressively weaker and that he wears bilateral knee braces to support his legs. The Veteran's mother also submitted a statement in April 2004, stating that her son was very muscular before he entered the Navy, but after his discharge his thigh and calf muscles were visibly much reduced. The Board finds that based on a thorough review of the record, the evidence clearly and unmistakably shows that the Veteran's muscular dystrophy pre-existed his service, but does not clearly and unmistakably show that this disorder was not aggravated by his military service. The Board recognizes that the January 1988 enlistment examination is negative for physical findings specifically of neuromuscular disorder. However, the Veteran reported leg cramps after prolonged running and having had surgery to lengthen his calcaneus (Achilles) tendons at age five, and these symptoms, which were recorded at the time of examination and were considered in light of all other evidence, have clearly been shown to be symptoms of his muscular dystrophy, a genetic disorder. See 38 C.F.R. § 3.304(b). This is supported by the vast majority of evidence of record, including by the opinions of both VA examiners and the independent medical expert. Furthermore, the Veteran himself has conceded that his muscular dystrophy pre-existed his military service. Thus, the Board finds that there is clear and unmistakable evidence that the Veteran's muscular dystrophy existed prior to his entry into service. The Board now turns to the question of whether his pre-existing muscular dystrophy was aggravated by service. The burden of proof falls on the Secretary to demonstrate that the established pre-existing condition of a Veteran did was not aggravated during service. See Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). The Board notes that the mere occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability; rather, the aggravation must cause a lasting worsening of the condition. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Routen, 10 Vet. App. at 189. In this case, the evidence of record is unclear regarding whether the Veteran's manifestation of symptoms in service constituted an increase in the severity of his muscular dystrophy or merely showed symptoms of the natural progression of the pre-service condition. See Davis, 276 F.3d at 1345; Hunt, 1 Vet. App. 292. In the absence of evidence which clearly and unmistakably indicates that the Veteran's muscular dystrophy was not aggravated by his military service, and affording the Veteran the benefit of the doubt, the Board finds that the claim for service connection for muscular dystrophy may be granted on the basis of aggravation. The Veteran's private physicians have submitted statements explaining that intense physical exertion brings out symptoms of muscular dystrophy earlier than if the disease were left to develop naturally. While the Veteran reported having some mild difficulty running as a youth, the medical evidence of record shows no significant muscular problems prior to the service, and only in service did symptoms begin to markedly manifest-symptoms which the Veteran may have been able to avoid experiencing until years later, had he not joined the service. There is ample medical opinion evidence of record which shows that the Veteran's symptoms associated with muscular dystrophy increased due to physical exertion in service. The Veteran's service treatment records confirm that he was frequently treated and evaluated for problems related to his lower extremities, muscles, and inability to run. The Veteran's mobility problems since separation from service have only continued to increase, causing him problems with weakness and mobility. Even if the specific symptoms noted in the Veteran's service treatment records have not been shown to consistently affect the Veteran since service, the majority of the medical evidence of record supports the contention that these symptoms were brought on earlier than they otherwise might have due to the natural progression of the pre-service condition had the Veteran not enlisted in the Navy. See Davis, 276 F.3d at 1345. The evidence of this acceleration, coupled with the continued physical problems that have affected the Veteran's time in service, are sufficient to indicate that an aggravation of the disability in service may have occurred, and certainly has not been shown that it clearly and unmistakably did not occur. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) ("The word 'unmistakable' means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable."). Dr. R.N.S. is the only medical examiner to specifically differentiate between the fact that while the Veteran's pre-existing muscular dystrophy might have been aggravated by physical activity during service, such did not result in a permanent worsening of the underlying condition, instead it would have been a temporary affect. While "aggravation" under 38 C.F.R. § 3.306 must have caused a lasting worsening of the condition, the examiner, however, also noted that it was conceivable that running and other activities did aggravate his clinical condition, though it was unlikely that it caused significant progression of the disorder. See Routen, 10 Vet. App. at 189. A similar finding was given in the opinion of the June 2008 VA examiner, who stated that the Veteran's muscular dystrophy was as likely as not aggravated by exercise while on active duty, but the amount of aggravation cannot be quantified without resort to speculation and would likely be small to minimal. While these medical opinions failed to find evidence that the Veteran's disability progressed at an abnormally high rate or that the symptoms constituted a clear permanent worsening of the severity of the condition, neither did they find that there was clear and unmistakable evidence that the Veteran's condition did not worsen beyond natural progression during service. The opinions, in fact, note that some worsening possibly did occur, but the degree of worsening was likely just very small. Federal regulation prohibits service connection based on in-service aggravation only where the evidence finds that "the disability underwent no increase in severity during service." 38 C.F.R. § 3.306(b). As these VA opinions did find that a small increase could have occurred, the majority of the evidence does not clearly and unmistakably support a finding that no increase occurred during service. After carefully reviewing the evidence of record and resolving all reasonable doubt in his favor, the Board finds that the evidence does not clearly and unmistakably indicate that his muscular dystrophy was not aggravated by his military service. See 38 C.F.R. § 3.102; 38 U.S.C.A. § 5107(b). There is competent medical evidence of record that supports his contention that the presentation of muscular dystrophy symptoms may have been accelerated due to the physical exertion in service. In the absence of clear and unmistakable evidence showing that his muscular dystrophy did not become worse during military service, the claim for entitlement to service connection for muscular dystrophy is granted. ORDER Entitlement to service connection for muscular dystrophy, on the basis of aggravation, is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs