Citation Nr: 1326920 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-08 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for general osteoporosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1988 to January 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision as part of the Benefits Delivery at Discharge (BDD) program at the Salt Lake City, Utah, Regional Office (RO) of the Department of Veterans Affairs (VA). The Houston, Texas, VARO has jurisdiction over the appeal. The Board, among other things, remanded the issue on appeal for additional development in August 2011. An August 2012 rating decision established service connection for glossopharyngeal neuralgia which is considered to have resolved the Veteran's appeal as to the issue of entitlement to service connection for Eagle syndrome. Although a statement of the case concerning her disagreement with the assigned disability rating was issued in June 2013, the appeal has not to date been perfected. The Board notes the Veteran testified at a video conference hearing in June 2011 before a Veterans Law Judge who is unavailable to participate in a decision in her appeal. In correspondence dated in May 2013 the Veteran acknowledged having received notice of this matter and reported that she did not want another Board hearing. A copy of the transcript of the June 2011 hearing is a part of the available record. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Veteran raised the issues of entitlement to service connection for carpal tunnel syndrome in September 2011, sleep apnea in August 2012, breathing issues in January 2013, and rheumatoid arthritis in May 2013 and requested that her fibromyalgia claim be reopened in January 2013. There is no evidence, however, that these matters have been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's osteoporosis, a genetic defect, is shown to have been subject to a superimposed disease during active service. CONCLUSION OF LAW Osteoporosis was subject to a superimposed disease during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012). Service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). However, service connection may be granted for defects of congenital, developmental or familial origin if the defect was subject to a superimposed disease or injury. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45711 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). In this case, service treatment records show the Veteran was treated for pseudohypoparathyroidism type 1A (Albright's Hereditary Osteodystrophy). A May 2006 endocrinology service report noted she had a 15 year history of hypothyroidism. Records show she was provided alendronate sodium for osteoporosis. A November 2006 physical examination report noted a history of osteopenia. An August 2008 report noted osteoporosis and osteopenia in the list of medical problems and noted a prescription for alendronate sodium for osteoporosis. An October 2008 general medical examination included a diagnosis of hypothyroidism onset in the early 1990's. VA records show service connection was established for hypothyroidism in a May 2009 rating decision. The disorder was found to have been directly related to military service and it was noted a diagnosis was provided in August 1994. VA examination in December 2009 included a diagnosis of osteopenia without opinion as to etiology. It was noted that bone density studies did not met the current criteria of osteoporosis. A May 2012 VA examiner found the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion the examiner stated that, although osteoporosis was listed as a medical condition, it was a radiographic finding that was possibly genetic and essentially a normal part of the aging process, with the literature showing that approximately 50% of women will ultimately be diagnosed with osteoporosis. It was further noted that given the absence of any clear cause of the claimant's osteoporosis, and the high likelihood of osteoporosis being a part of the normal aging process in women, genetic in nature, and possibly even related to childhood nutritional status and many other unknown or unclear multiple associated conditions with no clear cause and effect relationship, her osteoporosis was less likely due to, as a result of, or permanently aggravated by any in service illness, injuries, treatment or events. Upon a comprehensive review of the record, the Board finds the Veteran's osteoporosis, while identified as a genetic defect, is shown to have been subject to a superimposed disease (hypothyroidism or pseudohypoparathyroidism) during active service. Although the May 2012 VA examiner noted the Veteran's osteoporosis was likely a genetic defect unrelated to any event in service, service treatment records show the Veteran began receiving medication for osteoporosis at the same time she received the diagnoses of pseudohypoparathyroidism for which service connection has been established. It is also significant to note that VA regulations include osteoporosis as a disability under 38 C.F.R. § 4.71a, Diagnostic Code 5013, and that VA records show the Veteran continues to take medication for her osteoporosis. Treatment records indicate osteoporosis is associated with pseudohypoparathyroidism type 1A (Albright's Hereditary Osteodystrophy). Therefore, entitlement to service connection must be granted. ORDER Entitlement to service connection for osteoporosis is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs