Citation Nr: 1324521 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 06-03 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for mitochondrial myopathy. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active marine service from June 1967 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction over the case was subsequently returned to the Medical and Regional Office (RO) Center in Wichita, Kansas. This case was most recently before the Board in November 2010. At that time, the Board denied entitlement to service connection for mitochondrial myopathy. Thereafter, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In January 2013, the Court issued a Memorandum Decision by which the Board's November 2010 decision was vacated and the matter was remanded to the Board for further development and readjudication consistent with the Court's decision. In July 2013, the Veteran's representative submitted additional evidence. The Veteran's representative waived review of the newly submitted evidence by the RO. See 38 C.F.R. § 20.1304(c) (2012). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. Chronic mitochondrial myopathy was present in service. 2. Mitochondrial myopathy was not found on the examination for entrance onto active duty. 3. The evidence does not clearly and unmistakably establish that mitochondrial myopathy did not permanently increase in severity as a result of service. CONCLUSION OF LAW Mitochondrial myopathy was incurred in active service. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes the Veteran has been provided all required notice in response to the claim for service connection for mitochondrial myopathy. In addition, the evidence currently of record is sufficient to substantiate this claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2012) in regard to this issue. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 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. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Initially, the Board notes that the evidence establishes that chronic mitochondrial myopathy was present in service. The Veteran's entrance examination took place in February 1967. Mitochondrial myopathy was not noted on the entrance examination; therefore, the presumption of soundness attaches. Due to the complexity of the medical evidence, the Board obtained an independent medical opinion in July 2010. Dr. J.M. reviewed the evidence and noted that the Veteran is diagnosed with a congenital disease with symptoms that began when he was eight years old. According to Dr. J.M., these symptoms, including muscle weakness, fatigue, and "sleepy eyes," were clearly and unmistakably present before military service. Dr. J.M. explained that the relative remission in adolescence and a normal examination on entrance into the military are not inconsistent with a diagnosis of mitochondrial myopathy and that mitochondrial myopathy was undoubtedly still present at the time of the Veteran's enlistment, albeit just mild enough that it did not produce any obvious physical findings. Based on the evidence of record and Dr. J.M.'s July 2010 opinion, the Board found in the November 2010 decision that the Veteran's mitochondrial myopathy clearly and unmistakably preexisted service. In the January 2013 decision, the Court did not find error with the Board's analysis as to this aspect of the claim. Two private medical opinions were submitted in July 2013. In a May 2013 opinion, Dr. J.K. implied that the Veteran had mitochondrial myopathy that preexisted service. In a separate May 2013 opinion, Dr. M.F. felt that the Veteran had preexisting mitochondrial myopathy. Thus, the new evidence buttresses the Board's finding that the Veteran's mitochondrial myopathy clearly and unmistakably preexisted service. Therefore, the first prong of the presumption of soundness is rebutted. As to the second prong of the presumption of soundness, the Court found in the January 2013 decision that the Board improperly relied on Dr. J.M.'s July 2010 opinion in the November 2010 decision. The Court concluded that the opinion is inadequate for determining whether the Veteran's preexisting mitochondrial myopathy clearly and unmistakably was not aggravated by service. Notably, the evidentiary standard of clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012) (citations omitted). The two May 2013 private opinions are relevant to this aspect of the claim. Dr. J.K. gave the opinion that he believes the Veteran's disability was aggravated by military service more than the natural progress of the disease. Dr. M.F. stated that the stressors of boot camp and physical challenges put forth by the military on a more probable than not basis exacerbated, accentuated and made permanent the mitochondrial disease process. This evidence supports the Veteran's contention that his preexisting mitochondrial myopathy was aggravated during service. Although Dr. J.M. indicated in the July 2010 opinion that there is no medical reason that five months of military service would lead to any long-term adverse effect from mitochondrial myopathy, the evidence must be undebatable that a preexisting condition was not aggravated by service for the second prong of the presumption of soundness to be rebutted. As there are two competent medical opinions reflecting that the Veteran's mitochondrial myopathy was affirmatively aggravated, the Board does not find that that the Veteran's preexisting mitochondrial myopathy was clearly and unmistakably not aggravated during service. The question is debatable; therefore, the high standard for rebutting the second prong of the presumption of soundness is not met. Accordingly, service connection is warranted for mitochondrial myopathy. ORDER Entitlement to service connection for mitochondrial myopathy is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs