Citation Nr: 1322827 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 05-10 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for poliomyelitis. 2. Entitlement to service connection for post-polio syndrome as secondary to poliomyelitis. 3. Entitlement to service connection for a low back disability, to include as secondary to poliomyelitis or post-polio syndrome. REPRESENTATION Appellant represented by: Kenneth LaVan, Esq. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from February 1951 to February 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In connection with this appeal, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge at the RO in January 2008. A transcript of the hearing is associated with the claims file. In October 2011, the Veteran requested that he be afforded a videoconference hearing before a member Board. In a June 2012 statement, the Veteran's representative requested that the Veteran's request for a videoconference hearing be canceled and not rescheduled. Therefore, the Veteran's request for a second Board hearing is deemed to have been withdrawn. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case has been previously before the Board. In a February 2008 decision, the Board denied the issues currently on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2009, the Court granted a Joint Motion of the Parties and remanded the case to the Board for action consistent with the joint motion. In March 2010, November 2011, and August 2012, the case was remanded for additional development. The case has now been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The issue of entitlement to service connection for a low back disability is addressed in the REMAND following the ORDER section of this decision. This issue is REMANDED to the RO . VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The Veteran had poliomyelitis during active service. 2. The Veteran has post-polio syndrome that is etiologically related to his diagnosis of poliomyelitis during active service. CONCLUSIONS OF LAW 1. Poliomyelitis was incurred in active service. 38 U.S.C.A. § 1110 (West 2011); 38 C.F.R. § 3.303 (2012). 2. Post-polio syndrome is proximately due to the Veteran's service-connected poliomyelitis. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claims of entitlement to service connection for poliomyelitis and post-polio syndrome. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of this claim 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of this regulation. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Service Connection for Poliomyelitis The Veteran has asserted that he had poliomyelitis while in active service. Specifically, the Veteran reported that during active service he was sick several times with symptoms including high fever, hallucinations, diarrhea, and vomiting. He has reported that during the summer of 1951 he became so ill during training exercises that he was transported by ambulance to the hospital at Ft. Bragg, where he was admitted and remained for approximately one week. He reported that the examining physicians at that time told him that he had spinal meningitis. The Veteran reported that he was kept in a contagious disease ward during his hospitalization which happened to coincide with a known poliomyelitis epidemic and that he had even been assigned to push the wheelchair of a young soldier who had been diagnosed with poliomyelitis. The Veteran has reported that since that time, his current doctors have informed him that he was misdiagnosed in service and what he actually had during service was poliomyelitis. A review of the record shows that the Veteran's service treatment records (STRs) have been deemed unavailable as they were reportedly destroyed by fire at the National Personnel Records Center (NPRC). If service records are presumed to have been destroyed while in government custody, VA's duty to assist is heightened and includes an obligation to search for other forms of records that support the claimant's case. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Moore v. Derwinski, 1 Vet. App. 401 (1991). There is also a heightened obligation to explain findings and to carefully consider the benefit-of-the-doubt rule in cases where presumed destroyed while in custody of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). Additionally, where service treatment records were destroyed, the Veteran is competent to report about factual matters about which he had firsthand knowledge, including experiencing pain during service, reporting to sick call, and undergoing treatment. Washington v. Nicholson, 19 Vet. App. 362 (2005). In an effort to corroborate the Veteran's statements regarding his periods of illness during active service, VA obtained sick/morning reports from the Veteran's unit during his period of active service. A review of those records shows that the Veteran was in fact ill several times from June to September 1951 and an August 1951 morning report indicated that the Veteran was absent from duty for six days. However, there is no indication from the sick/morning reports of record exactly what illness the Veteran had during these periods. Also of record is a September 2007 statement from Mr. C.G., who served with the Veteran. In his statement, Mr. C.G. reported that while participating in training maneuvers in the Camp McCall area of North Carolina, the Veteran was stricken ill with a very high fever, headache, chills, and vomiting. Mr. C.G. reported that the Veteran was transported to the Battalion aide station, at which time the Veteran was transported to Ft. Bragg for testing and treatment of possible meningitis. The Veteran has also submitted evidence from the Mayo Clinic showing that it was known that poliomyelitis struck every summer and fall with a virulent outbreak during the early 1950's, to include the summer of 1951. Additionally, the evidence submitted from the Mayo Clinic indicated that a percentage of people who contract poliomyelitis develop nonparalytic polio (a type of poliomyelitis that does not lead to paralysis). This type of poliomyelitis is noted to cause the same mild, flu-like symptoms typical of other viral illnesses and typically has a recovery period of less than a week. The symptoms of nonparalytic poliomyelitis are noted to include sore throat, fever, nausea, vomiting, and constipation or diarrhea. It was noted in the Mayo Clinic information that a small percentage of infected people will also develop nonparalytic aseptic meningitis, signs and symptoms of which generally last 2-10 days and include fever, headache, vomiting, diarrhea, fatigue, back pain or stiffness, neck pain or stiffness, pain or stiffness in the arms or legs, and muscle spasms or tenderness. A review of the post-service medical evidence shows that the Veteran has received somewhat regular private medical treatment for various disabilities since at least 1999. In July 2003, the Veteran was seen for a neurosurgical evaluation with Dr. S.G. following prolonged complaints of low back pain, inability to walk, and dropped foot. Based on a history provided by the Veteran and a thorough examination, Dr. S.G. diagnosed probable lumbar stenosis and ordered several diagnostic studies to rule out other potential causes for the Veteran's symptoms. In September 2003, Dr. S.G. noted that the Veteran had a gait disturbance of unknown etiology and ordered additional diagnostic tests. In October 2003, following the completion of the ordered tests, Dr. S.G. diagnosed spondylosis, low back pain, and old poliomyelitis. Since that time, the Veteran has continued to receive regular treatment from Dr. S.G. and other private providers for his symptoms. In a September 2007 letter, Dr. S.G. reported that the Veteran had been demonstrating symptoms of post-polio syndrome. In an October 2007 letter, Dr. M.H., another of the Veteran's private physicians, confirmed that the Veteran had post-polio syndrome. In a March 2008 statement, Dr. S.G. reported that while the Veteran was in active service, he developed meningitis and was hospitalized at Fort Bragg in 1951. Dr. S.G. further noted that this was probably the onset of the Veteran's poliomyelitis and that the Veteran was now in a post-polio paresis that affected his legs and lower trunk. In June 2010, the Veteran was afforded a VA examination. At that time, the Veteran reported his symptoms of high fever, hallucinations, diarrhea, and vomiting during service as discussed above. Based on the history provided by the Veteran, a review of the record, and an examination of the Veteran, the VA examiner diagnosed bilateral lower extremity neuropathy or lower motor neuron disease. The examiner further noted that while post-polio syndrome could not be confirmed, it could not be ruled out. The examiner then went on to opine that it was less likely as not that the Veteran had poliomyelitis while on active duty. In this regard, the examiner noted that the Veteran's STRs were lost in a fire and not knowing how accurately the sick/morning reports were maintained, could not comment on their relevance. The examiner noted that treatment for high fever, nausea, and vomiting during active service could explain a plethora of illnesses and it could not be determined whether these symptoms represented an onset of poliomyelitis. The examiner further noted that the diagnosis of post-polio syndrome had not been confirmed and the Veteran's current symptoms of lower extremity weakness and atrophy with only limited sensory symptoms may represent a primarily motor polyneuropathy or other motor neuron disease. The examiner also noted that the Veteran reported he was not aware of any issue with weakness until approximately 16 years ago and as weakness is one of the major presenting symptoms of the disease, it was less likely as not that the Veteran experienced symptoms of poliomyelitis during active service. In an August 2010 statement, another of the Veteran's private physicians, Dr. G.B., opined that it was as likely as not that the Veteran's post-polio syndrome was a direct result of his active service and that it was as likely as not that the Veteran's post-polio syndrome was secondary to illness, injury, or disease that was directly related to the Veteran's active service. Dr. G.B. did not provide a rationale for her opinions. In October 2012, the Veteran's claims file was returned to the June 2010 VA examiner for an addendum opinion. At that time, the VA examiner noted that the Veteran's claim appeared to be based on the fact that he had an infection while in active service during the poliomyelitis epidemic and that he was kept on a polio ward. However, the examiner noted that the Veteran denied the presence of weakness at that time and so, having an infection without the presence of poliomyelitis symptoms during the poliomyelitis epidemic is not sufficient to link an onset of poliomyelitis to the Veteran's active service. Therefore, the examiner found that it was less likely as not that the Veteran's current diagnosis of post-polio syndrome was related to his period of active service as the Veteran's current diagnosis of post-polio syndrome did not establish the presence of poliomyelitis during the Veteran's active service. In January 2013, the Veteran's claims file was returned to the VA examiner for another addendum opinion. At that time, the examiner noted that Dr. S.G.'s March 2008 statement that the Veteran probably had poliomyelitis that had its onset during his active service appeared to be purely speculative. However, the examiner also agreed with Dr. G.B., that the Veteran may have a diagnosis of post-polio syndrome. Greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians and whether (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board finds that the VA examiner's opinions are inadequate to serve as the basis of a denial of entitlement to service connection for poliomyelitis. In this regard, the Board notes that the VA examiner opined that it was less likely as not that the Veteran had poliomyelitis during active service and based this opinion on the fact that the evidence of poliomyelitis in service could not be confirmed and the Veteran's reported symptoms of illness during active service could explain a plethora of other illnesses. Essentially, the examiner could not rule out the presence of poliomyelitis during active service with any certainty. Additionally, the examiner noted that the Veteran did not recall experiencing any weakness during active service, and so, as weakness is one of the major presenting symptoms of the disease, it was less likely as not that the Veteran experienced symptoms of poliomyelitis during active service. The examiner does not appear to have considered the fact that weakness is just one of many presenting symptoms of poliomyelitis. Additionally, the Veteran reported, and a fellow service member has corroborated, that the Veteran was very ill while in active service in 1951. Further, the Veteran could not possibly be expected to remember whether he had weakness at that time as he was in fact very ill, to say nothing of the fact that it occurred nearly 60 years ago. Therefore, the VA examiner's opinions are not absolute conclusions, but merely opinions to be weighed with all the other probative evidence of record. In sum, the Veteran has reported that he was very ill during active service and that he was hospitalized in an infectious disease ward during that time for symptoms consistent with nonparalytic poliomyelitis. As the Veteran's STRs were destroyed, he is competent to report this information and the Board finds him credible in this regard. Further, a fellow service member corroborated the Veteran's reports. The Veteran's private physician has stated that the Veteran's reported illness during active service was likely the onset of poliomyelitis. The VA examiner could not rule out the presence of poliomyelitis during active service with any certainty. Therefore, the Board finds that the evidence for and against the claim is at least in equipoise and so, the benefit of the doubt must be resolved in favor of the Veteran. Accordingly, entitlement to service connection for poliomyelitis is warranted. Service Connection for Post-Polio Syndrome As noted above, the Veteran has been diagnosed with post-polio syndrome by his private treating physicians, which has affected his legs and lower trunk. Additionally, the June 2010 VA examiner agreed that the Veteran may have post-polio syndrome. As the Veteran is service connected for poliomyelitis herein and has been diagnosed with post-polio syndrome, the Board finds that the preponderance of the evidence supports the claim. Accordingly, entitlement to service connection for post-polio syndrome is warranted. ORDER Entitlement to service connection for poliomyelitis is granted. Entitlement to service connection for post-polio syndrome is granted. REMAND The Board finds that additional development is required before the Veteran's claim of entitlement to service connection for a low back disability is decided. The Veteran has reported that his post-polio syndrome caused or chronically worsened his low back disability. As noted above, service connection may be granted for disability which is proximately due to or the result of service-connected disability and additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable. In the August 2010 remand, the Board directed that the Veteran's claims file be sent to the June 2010 VA examiner for an addendum opinion regarding whether the Veteran's poliomyelitis or post-polio syndrome caused or chronically worsened his low back disability. A review of the record shows that the Veteran's claims file was sent to the VA examiner for the directed addendum opinion in October 2012 and January 2013. However, a review of those opinion reports shows that the examiner declined to provide the directed opinion as the Veteran was not service connected for poliomyelitis or post-polio syndrome and such an opinion would be irrelevant. As noted above, the Board has granted entitlement to service connection for poliomyelitis and post-polio syndrome herein. Therefore, the Veteran's claim that these disabilities caused or chronically worsened his low back disability must be addressed. Therefore, the Veteran should be afforded a new VA examination to determine whether his low back disability was caused or chronically worsened by any of his service-connected disabilities. Additionally, current treatment notes should be obtained before a decision is rendered with regard to this issue. Accordingly, the case is REMANDED to the RO for the following actions: As noted above, this case has been advanced on the Board's docket. It must also be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). 1. Undertake appropriate development to obtain any outstanding, pertinent medical records. Any additional treatment records identified by the Veteran should be obtained and associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of any unsuccessful efforts, in order to allow them the opportunity to obtain and submit those records for VA review. 2. Then, the Veteran should be afforded a VA examination by an individual with sufficient expertise to determine the nature and etiology of the Veteran's low back disability. The Veteran's claims file and any pertinent evidence in Virtual VA that is not contained in the claims file should be made available to and reviewed by the examiner. All indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion with respect to the Veteran's low back disability as to whether it is at least as likely as not (50 percent or greater probability) that the disability is of service onset or otherwise related thereto or whether it was caused or chronically worsened by his service-connected poliomyelitis or post-polio syndrome. The supporting rationale for all opinions expressed must be provided. 3. The RO should undertake any other development it determines to be warranted. 4. Then, the RO should readjudicate the Veteran's remaining claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs