Citation Nr: 1323239 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 09-22 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for syringomyelia of the right upper extremity manifested by loss of sensation to pain and temperature with secondary hyperhidrosis of the right hand and circulatory disturbances and, if so, whether service connection is warranted. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from February 1961 to June 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In an August 2012 supplemental statement of the case, the RO in Roanoke, Virginia reopened the claim but denied service connection on the merits. Even if the RO reopens claim and adjudicates on merits, Board must first determine if claim was properly reopened, and only thereafter review the merits. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Therefore, the issue has been characterized as shown on the first page of the decision. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal with the exception of the Veteran's representative's June 2013 Appellate Brief Presentation. FINDINGS OF FACT 1. In a final decision issued in January 1971, the RO denied the Veteran's application to reopen his previously denied claim of entitlement to service connection for syringomyelia of the right upper extremity manifested by loss of sensation to pain and temperature with secondary hyperhidrosis of the right hand and circulatory disturbances. 2. Evidence received since the January 1971 rating decision is new, not cumulative and redundant of the evidence at the time of the prior final denial, and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for syringomyelia of the right upper extremity manifested by loss of sensation to pain and temperature with secondary hyperhidrosis of the right hand and circulatory disturbances. 3. Syringomyelia is a developmental disease that clearly and unmistakably pre-existed the Veteran's entrance to active duty and clearly and unmistakably did not permanently increase in severity beyond the nature progression of the disease in service. 4. Syringomyelia was not aggravated by the Veteran's military service. CONCLUSIONS OF LAW 1. The January 1971 decision that denied the Veteran's application to reopen his previously denied claim of entitlement to service connection for syringomyelia of the right upper extremity manifested by loss of sensation to pain and temperature with secondary hyperhidrosis of the right hand and circulatory disturbances is final. 38 U.S.C. § 4005(c) (1970) [38 U.S.C.A. § 7105(c) (West 2002)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1971) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005) [(2012)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for syringomyelia. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for service connection for syringomyelia of the right upper extremity with loss of sensation to pain and temperature, secondary hyperhidrosis of the right hand, and circulatory disturbances are not met. 38 U.S.C.A. §§ 1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. Relevant to the Veteran's application to reopen his claim of entitlement to service connection for syringomyelia, as the Board's decision to reopen such claim is completely favorable, no further action is required to comply with the VCAA. Pertinent to the merits of the Veteran's claim, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a November 2007 letter, sent prior to the initial unfavorable decision issued in March 2008, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. In this regard, the Board notes that the private treatment records from Dr. Smith in Kingsport contained in the claims file reveal that the Veteran had undergone a subcoccipital craniectomy, C-1 decompression, and fenestration of a syrinx at T-2 in 1997. Additionally, at his May 2012 VA examination, the Veteran reported undergoing surgery at Kingsport to repair the syrinx of his neck. The Board observes that records from the Veteran's 1997 surgery are not of record. However, a remand is not necessary to attempt to obtain them as there is no indication that such are relevant. In this regard, there is ample evidence of record detailing the Veteran's current diagnosis of syringomyelia and the severity of such disease. Rather, the issue in this case turns on whether such disease was incurred in or aggravated by the Veteran's service. Records detailing the surgery attempting to alleviate or correct such disease would not address such inquiry. Moreover, to the extent that such surgical records would be contained in Dr. Smith's records, he was specifically requested to provide all treatment records referable to the Veteran in VA's November 2007 request for records; however, only records dated from 2001 to 2006 were provided. Furthermore, if the records are held by a separate entity, the Veteran was advised in the November 2007 VCAA letter that it was his responsibility to identify each private treatment provide and submit an authorization form so as to allow VA to obtain such records. He only completed authorization forms for Dr. Smith and Dr. McGarry (whose records were subsequently obtained). The duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a Veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). Therefore, the Board finds that VA has satisfied VA's duty to assist in this regard. The Veteran was also afforded a VA examination in May 2012 with respect to the issue decided herein. The Board finds that such VA examination and accompanying opinion is adequate to decide the issue as it is predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination with diagnostic testing. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran served as a U.S. Army vehicle mechanic. He contends that he was fit for duty upon entry on active duty and that his spinal disorder was aggravated by the stress and activity of military service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. The requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, to including organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, syringomyelia is an organic nervous system disorder and is recognized as chronic disease. Even so, as will be discussed below, the Board finds that syringomyelia is a developmental disease that clearly and unmistakably pre-existed the Veteran's entrance to active duty and clearly and unmistakably did not permanently increase in severity beyond the nature progression of the disease in service. Therefore, consideration of service connection on a presumptive basis is not applicable. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). If a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In that case, 38 U.S.C.A. § 1153 applies and the burden falls on him, not VA to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9. Service connection is generally precluded by regulation for such "defects", because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). VA's Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is "more or less stationary in nature", while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at para. 2. In this regard, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C.A. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c); see also Quirin, 22 Vet. App. at 397; Terry, 340 F.3d at 1385-86 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). However, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. However, if it is determined during service that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Since the presumption of soundness at entrance attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43,253 (1990). In short, service connection is available for congenital diseases, but not defects, that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-397. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so whether there was aggravation during service. Id. at 395. Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters, supra. The Board must weigh any competent lay evidence and to make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both, sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno, supra. The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed.Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Reopening a Final Decision In an August 1962 rating decision, the RO granted service connection for residuals of burns to the right hand and right shoulder, but denied service connection for syringomyelia of the right upper extremity manifested by loss of sensation to pain and temperature with secondary hyperhidrosis of the right hand and circulatory disturbances. In this regard, after a review of the Veteran's service treatment records, the results of an Army medical and physical evaluation board, and the report of a July 1962 VA examination, the RO concluded that the syringomyelia existed prior to entry on active duty, was not aggravated by military service, and any increase in symptoms was caused by a natural progression of the disease. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). However, prior to January 1, 1963, the regulation required that an application for review on appeal, not a notice of disagreement, be filed within one year of the decision. 38 U.S.C. § 4005(b) (1958); 38 C.F.R. §§ 3.104 (1956, Supp. 1962) In August 1962, the Veteran was provided notice of his award of service connection at the 10 percent level (for burns to the right hand and right shoulder). It is unclear whether such letter included a copy of the rating decision that denied service connection for syringomyelia or provided the Veteran with his appellate rights. Regardless, in January 1971, he submitted another claim for service connection for such disorder and provided a December 1970 statement from a private physician. In January 1971, the RO denied the Veteran's petition to reopen the claim. The RO reviewed the December 1970 correspondence that addressed the Veteran's then-current symptoms and his capacity for continued employment but did not address the origin of the disease or any aspect of military service. The RO concluded that the evidence was not material to the reason for the previous denial and declined to reopen the claim. In January 1971, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection for syringomyelia, characterized as a back condition, was received until August 2007, when VA received his application to reopen such claim. Therefore, the January 1971rating decision is final. 38 U.S.C. § 4005(c) (1970) [38 U.S.C.A. § 7105(c) (West 2002)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1971) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005) [(2012)]. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for syringomyelia was received prior to the expiration of the appeal period stemming from the January 1971 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The RO received the Veteran's claim for a back condition in August 2007. The Veteran referred to the onset of symptoms of a disorder that resulted in his discharge from the Army because of a physical disability. The RO construed such claim as an application to reopen his claim for service connection for syringomyelia. In this regard, the Board notes that a change in diagnosis or specificity of the claim must be carefully considered in determining the etiology of a potentially service- connected condition and whether the new diagnosis is a progression of the prior diagnosis, correction of an error in diagnosis, or development of a new and separate condition. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In this case, the Veteran referred to the symptoms and their onset in service that is the same as the disease addressed by the Army in service and by the RO in the 1962 and 1971 decisions, specifically syringomyelia and symptoms including loss of sensation to pain and temperature in the right upper extremities and secondary hyperhidrosis of the right hand. Since the current diagnoses and claim are based on the same factual basis as the time the case was last decided on the merits, new and material evidence is necessary to reopen the claim. Id. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the January 1971 decision, the RO received the following evidence: records of private medical care by a private orthopedic physician and private neurologist from 2000 to 2006, correspondence from the private orthopedic physician in October 2007, and the report of a May 2012 VA examination. The Board concludes that the evidence is new and not cumulative as it had not been previously considered. The records of private medical care from 2000 to 2006 are not material to the reason for the previous denials because they address only the progress of the disease and not the origin or impact of military service. However, the October 2007 correspondence and the VA examination are both new and material as they specifically address the onset of the disease and the impact of military service. Moreover, the October 2007 opinion from the Veteran's physician indicates that the Veteran was diagnosed with a syrinx and he opined that although such was probably something of longstanding, there was no question that his participation in the armed forces significantly worsened his symptoms. He further stated that the significant activity and stresses imposed on the Veteran during his time in the service significantly exacerbated his symptoms. As the Veteran's claim was previously denied as there was no evidence that his pre-existing condition was aggravated by military service, such opinion is material to the claim. Therefore, as new and material evidence has been received, and to this extent only, the Board reopens the claim and will address service connection on the merits. Merits of the Claim Reopening the Veteran's claim for service connection for syringomyelia does not end the Board's inquiry; rather, consideration of the claim on the merits is now required. As the RO has already considered the issue of entitlement to service connection on a de novo basis in the August 2012 supplemental statement of the case, and as the Veteran has had an opportunity to address the merits of his claim in written statements, the Board may proceed with a final adjudication of the merits of the claim because there is no prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). As an initial matter, the Board notes that syringomyelia is a slowly progressive syndrome of cavitation in the central segments of the spinal cord. It may be developmental or secondary to tumor, trauma, infarction, or hemorrhage, or of unknown cause. It results in neurologic weakness and atrophy, loss of pain and temperature sensation with the preservation of the sense of touch. Dorland's Illustrated Medical Dictionary, 1841 (30th Ed., 2003). A syrinx is an abnormal cavity in the spinal cord in syringomyelia. Id. Chiari's malformation is a congenital anomaly in which the cerebellum and medull oblongata protrudes into the spinal canal. Type I is the least severe and involves prolapsed of the cerebellar tonsils into the spinal canal without elongation of the brain stem. Id. at 1090. The Veteran underwent a military enlistment physical examination in February 1961. In the associated medical history questionnaire, the Veteran denied any history of neuritis, paralysis, nervous trouble of any sort, and any treatment by a medical provider in the past five years. The examining physician noted no neurologic or other abnormalities of the upper or lower extremities or the spine. The examiner found the Veteran qualified for military service and the Veteran entered active duty. As no defects, infirmities, or disorders were noted at entrance into service, the Veteran is presumed to have been in sound condition. In a hearing before an Army physical evaluation board, the Veteran testified that he was treated for neuritis by a private physician prior to his enlistment. He reported that he had experienced cracks and pain in his hands when exposed to gasoline. He informed the examiner at the induction center who told him to note it on his examination sheet. He stated that the first time he noticed anything wrong in service was in December 1961 when he burned his right hand without feeling pain. He stated that later he also burned his right shoulder without feeling pain. The Veteran was admitted to an Army hospital near his duty station in Europe in February 1962 for evaluation of the loss of temperature and pain sensation and a non-healing burn of his right shoulder. An attending physician noted the Veteran's report of pre-service treatment for intermittent right forearm pain diagnosed as neuritis. Soon after entering service, the Veteran noticed that he burned himself on the right hand and arm without pain. This was initially diagnosed as cellulitis caused by a reaction to petroleum solvents. On examination there was an atrophic enlargement of the right shoulder and arm with several burn areas that were slow to heal. Temperature sensitivity and reflexes were deficient on the right upper extremity associated with spinal levels C-4 to T-2 and hypesthesia from C-3 to T-3. The attending physician concluded that there was most likely a syrinx at those levels and suspected a diagnosis of syrnomyelia. The attending physician considered the disease as incurred in the line of duty. The Veteran was transferred to a larger medical center. In March 1962, another attending physician summarized the same history and noted the same current symptoms. A consulting physician noted, "Patient's hx and findings are strongly suggestive of syringomyelia. However his sx clearly existed prior to his enlistment in the Army..." The attending physician revised the diagnosis to syringomyelia, manifested by anesthesia and absence of temperature sensation and noted that the disease existed prior to service and was not in the line of duty. The Veteran was evacuated to the United States for further evaluation. In April 1962, a third attending physician at the Walter Reed Army Medical Center noted substantially the same history including the similar pre-service and in-service reactions to petroleum products and the in-service burns without pain. He noted no further progression of symptoms during the series of hospitalization evaluations. A myelogram was normal except for a trace of denervation of the thenar eminence. The physician noted the following: At this time the patient exhibits the findings consistent with syringomyelia. These findings at this time represent the medically accepted progression of a disease that is considered to be related to developmental abnormalities of the spinal cord. Although the specific complaint of the loss of sensation for pain and temperature of the right extremity was not present at the time of this man's entering active duty, it is noted that there apparently was present some specific skin change that was manifested by unilateral right-sided response to petroleum products....According to current medical concepts, this disease represents a developmental abnormality and the patient's progression of symptomatology is the result of the normal progression of the disease. The physician joined with two other military physicians as members of a medical evaluation board and recommended that the Veteran be discharged as unfit for service because of spinal disease that existed prior to service. In June 1962, an Army physical evaluation board took testimony from the Veteran at a hearing and found the Veteran unfit for further service by reason of a physical disability which existed prior to his term of service and which has not been permanently aggravated by the service. The Veteran submitted a claim for service connection for syringomyelia with symptoms of the right hand, arm, and shoulder in July 1962. The same month, a VA physician noted the Veteran's report of the painless burns of his hand and shoulder and the diagnosis of syringomyelia in service. The Veteran reported that he maintained a sense of touch but that he continued to experience painless injuries to his right upper extremity and right side of his chest. He denied any history of trauma to the spine or any other part of the body and denied a family history of the disease. On examination, the physician noted swelling and numerous burn or laceration injuries in the affected right-side areas as well as dry and thickened skin on the right hand. The physician diagnosed syringomyelia of the entire right upper extremity and right side of the chest and hyphidrosis of the right hand and circulatory disturbances of the right upper extremity, both secondary to syringomyelia. The physician did not comment on the etiology or timing of the onset of the disease or on any aggravation by military service. In August 1962, the RO denied service connection for syringomyelia because the disease existed prior to service and was not aggravated by service, citing the observations and conclusions of the military service examiners. In December 1970, a private physician noted that the Veteran had incurred additional chemical and hot surface burns of the right hand. The physician noted the Veteran's reports of the burns to the right hand and shoulder and the diagnosis of syringomyelia in service. After obtaining a new X-rays and a myelogram that were normal, the physician concluded that there was no evidence of a syrinx or tumor and that syringomyelia was the most appropriate diagnosis. The physician did not comment on the etiology or timing of the onset of the disease or on any aggravation by military service. In January 1971, the RO declined to reopen the claim because the new evidence from this physician was not material to the reason for the previous denial of service connection. Treatment records from a private orthopedic physician and private neurologist from 2000 to 2006 showed that the Veteran's symptoms progressed to lower levels of the spine and to the lower extremities. In August 2001, the neurologist diagnosed Chiari I malformation with cervical and thoracic syrinx formation. The Veteran had undergone a subcoccipital craniectomy, C-1 decompression, and fenestration of a syrinx at T-2 in 1997. The records showed that a decompressed syrinx recurred in 2005 but remained stable. These records do not contain comments or opinions regarding the etiology of the disease or the effect on progression by military service. In correspondence in October 2007, the private orthopedic physician briefly noted the following: Although [the Veteran's] syrinx was probably something of longstanding, there is no question that his participation in the armed forces significantly worsened his symptoms. The significant activity and stresses imposed on [the Veteran] during his time in service significantly exacerbated his symptoms. In May 2012, a VA physician noted a review of the claims file and the Veteran's reports of his burn injuries in service. The physician provided a detailed summary of the Veteran's statements as well as his review of the service treatment records, post-service private treatment records, and the October 2007 opinion from the private orthopedic physician. The physician performed a comprehensive thoracolumbar and cervical spine examination, noting reduced ranges of motion, strength, reflexes, and sensation in the right upper and both lower extremities. The Veteran was unable to perform some testing as he was confined to a wheelchair and required assistance to stand. The physician concurred in the diagnosis of Chiari I malformation with residual myeopathy associated with pre-existing syringomyelia before active service. The physician concurred in the findings of the military medical evaluation board that the disease was not aggravated beyond the normal progression in service. He noted the most up to date medical literature indicated that the symptoms experienced by the Veteran in service were a normal progression of syringomyelia, a developmental abnormality. He explained that a fluid buildup in a cervical spinal cavity, specifically the Chiari I malformation, expands slowly, putting pressure on the spinal cord slowly causing damage. The Board concludes that service connection for syringomyelia (later diagnosed as a Chiari I malformation), manifesting with loss of sensation to pain and temperature, secondary hyperhidrosis of the right hand, and circulatory disturbances is not warranted because there is clear and unmistakable evidence that the developmental disease existed prior to service and clearly and unmistakably did not permanently increase in severity beyond the nature progression of the disease during such service. The Veteran is competent to provide descriptions of his symptoms and events in service as they are observable by a lay person. His statements to VA and to his clinicians are credible as they were accepted by the examiners without challenge and are consistent with the military records and nature of his duties. The Veteran did not offer an opinion on the onset and origin of his disease nor did he object to the determination that the disease is developmental and first manifested prior to service. The Veteran submitted medical evidence that his disease was aggravated by service but did not offer any lay statements on the causes for the progression of his symptoms. As a preliminary matter, the Board concludes that the Veteran's current disability is a progression of a developmental disease rather than a developmental defect. Although the definition provides for multiple possible causes, the great weight of lay and medical evidence in the Veteran's case is that the disease is developmental, but capable of a progressive course. The Veteran denied any spinal trauma, and there is no evidence of a tumor at any time. Finally, the Veteran's private neurologist in 2001 and the VA physician in 2012 both concurred in the diagnosis of Chiari I malformation, a congenital anomaly. A February 1961 enlistment physical examination is silent for any pre-existing disorder. Therefore, the presumption of sound condition attaches. However, the Board concludes that there is clear and unmistakable evidence to rebut the presumption of soundness. The Veteran testified at his physical evaluation board hearing that he identified the pre-service symptoms and diagnosis of neuritis to the enlistment physical examiner. There is competent and credible medical evidence provided by the military attending physicians that the Veteran's symptoms of single-sided right hand reactions to petroleum products and right forearm pain diagnosed as neuritis were early symptoms of the disease. This conclusion was noted by the attending physicians in service and not contradicted by later medical care providers and examiners. The first attending physician in February 1962 noted that the disease was in the line of duty but without knowledge of the pre-service symptoms and diagnoses. The second and third attending physicians, a neurology consultant, and the members of the medical evaluation board all concurred that the disease was developmental and pre-existed service. The Board further concludes that there is clear and unmistakable evidence that the symptoms of syringomyelia, later diagnosed as a Chiari I malformation, were clearly and unmistakably a natural progression of the disease and not aggravated by any aspect of service. The Board places less probative weight on the briefly stated conclusion by the private orthopedic physician in 2007 that the symptoms were aggravated by the activities and stress of service. The physician did not elaborate on what activities caused the aggravation or the relevant physiology. The Veteran acknowledged that he had not experienced any spinal trauma. His duties as a vehicle mechanic were not particularly physically demanding as would be experienced by paratroopers or infantrymen. The Veteran has been granted service connection for the residuals of the burns to his hand and shoulder, but these burns were consequences of the disease and not aggravating factors. The Board places great probative weight on the opinions provided by the military attending physicians and members of the medical evaluation board (four different physicians) who found that the symptoms in service represented the normal progression of the disease. These physicians were in a position to examine the Veteran with the best understanding of the history and the Veteran's military activities. The VA examiner in 2012 also reviewed the entire history and concurred that the disease was exhibiting a normal progression. Therefore, the Board concludes that the presumption of aggravation of the pre-existing developmental disease has been rebutted by clear and unmistakable evidence that the increase in severity, manifesting as painless burns in service, was due to the natural progression of the disease. Consequently, the presumption of soundness has been rebutted and syringomyelia pre-existed the Veteran's entry to military service. Moreover, as the probative evidence of record, as offered by the military attending physicians and members of the medical evaluation board (four different physicians) and the 2012 VA examiner, reveals that syringomyelia was not aggravated beyond the normal progression of the disease during service, the Board finds that syringomyelia was not aggravated by service. Therefore, service connection must be denied. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for syringomyelia of the right upper extremity manifested by loss of sensation to pain and temperature with secondary hyperhidrosis of the right hand and circulatory disturbances. As such, there is no reasonable doubt to resolve in his favor, and his claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER New and material evidence having been received, the claim of entitlement to service connection for syringomyelia of the right upper extremity manifested by loss of sensation to pain and temperature with secondary hyperhidrosis of the right hand and circulatory disturbances is reopened. Service connection for syringomyelia of the right upper extremity manifested by loss of sensation to pain and temperature with secondary hyperhidrosis of the right hand and circulatory disturbances is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs