Citation Nr: 1329272 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 06-20 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for cerebellar degeneration, including secondary to service-connected malaria. REPRESENTATION Appellant represented by: John Aloysius Cogan, Esq. WITNESSES AT HEARING ON APPEAL The Veteran and a friend ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2013). The Veteran served on active duty from December 1953 to December 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. A Travel Board hearing was held at the RO before the undersigned Veterans Law Judge (VLJ) in July 2008, the transcript of which is of record. In September 2008, the Board remanded this case. Then in April 2011, the Board issued a decision denying the Veteran's claim. The Veteran appealed the Board's decision to the U. S. Court of Appeals for Veterans Claims (Court). The parties to that action then filed a Joint Motion for Remand, which the Court granted pursuant to a November 2012 Order, remanding the case back to the Board in accordance with the directives specified therein. In April 2013, the Veteran appointed the private attorney indicated above as his designated representative in this matter. In July 2013, the Veteran's attorney provided new evidence consisting of several medical journal abstracts, the Veteran's service personnel file, and copies of military personnel guidelines. The new evidence was accompanied by a waiver of RO initial jurisdiction for acceptance into the appellate record. See 38 C.F.R. §§ 20.800, 20.1304 (2013). FINDING OF FACT The evidence is evenly balanced on the question of whether the Veteran's cerebellar degeneration is the result of his episode of malaria during military service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for cerebellar degeneration. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013). As indicated below the Board is granting the benefits sought on appeal of entitlement to service connection for cerebellar degeneration. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, to particularly include that evidentiary development specified by the Court's Joint Motion, such error was nonetheless harmless in its application to adjudication of this matter, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). Under VA law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Regarding direct service connection, where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). When there is for consideration for service connection an alleged congenital disorder, there is a distinction to be made between whether it constitutes a congenital "defect" or "disease." A congenital disease is capable of improving or deteriorating, whereas a congenital defect is "more or less statutory in nature." See VAOPGCPREC 82-90. It has been recognized that service connection may be granted for congenital disease, provided initially incurred in or aggravated by military service. The presumption of soundness applies to congenital diseases that are not noted at entry. Id. See also Monroe v. Brown, 4 Vet. App. 413, 515 (1993). The Court has further held that "the presumption of soundness does not, however, apply to congenital defects, because such defects 'are not diseases or injuries' within the meaning of 38 U.S.C. §§ 1110 and 1111." See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Meanwhile, in very limited circumstances service connection is still permissible for a congenital defect where there has been aggravation of the pre-existing condition by superimposed disease or injury. See again, VAOPGCPREC 82-90; see also Martin v. Principi, 17 Vet. App. 324, 328-329 (2003). Service connection may also be granted for a disability which is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. See 38 C.F.R. § 3.310(b). See also, Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of 38 C.F.R. § 3.310(b), the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice- connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744-47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service (again, subject to the limitation that a "chronic" disease is involved as defined under 38 C.F.R. § 3.309(a)). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Federal Circuit further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. However, as also observed by the Federal Circuit, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Veteran's averred theory of recovery is that his current condition of cerebellar degeneration, associated with diagnosed Friedreich's ataxia, originated during military service to the extent it was triggered by a documented case of malaria. He maintains that prior to his episode of malaria in 1955 his military occupational duties involved qualification and training exercises as an expert swimmer, but that after the approximate one-month malarial episode he began to have balance difficulties and other problems even swimming underwater, which he in retrospect attributes to the onset of a service-related neurological condition. The service treatment records (STRs) indicate a hospitalization of several weeks for an episode of malaria from May to June 1955, with an uneventful recovery. There is no reference therein to any neurological signs or symptoms. Meanwhile, service personnel records also do not provide any relevant information. There are post-service records of VA and private outpatient neurological treatment in which the Veteran frequently references the onset of his symptoms in the early- to mid- 1970s. A December 1976 private clinical record indicates increasing problems with balance over the previous few months. In November 1987, the Veteran sought VA treatment for trouble with balance and speech dating back 12 to 14 years. These same symptoms were later formally diagnosed as Friedreich's ataxia. The Veteran has submitted numerous lay affiant statements from individuals who know him attesting that he actually had the onset of noticeable neurological difficulties dating back to the early-1960s. Several medical opinions are of record on the subject of etiology. On VA Compensation and Pension examination of March 2005, the opinion was that the Veteran's cerebellar degeneration was less likely as not caused by or a result of malaria. The stated rationale was that the Veteran did not have any definitive diagnosis of malaria species in service or any significant signs of neurologic impairment, and he also got better with chloroquine. However, a private physician, Dr. E.S.H., in June 2008 indicated that "While it is clear that Friedreich's ataxia is not caused by malarial infection, given the temporal association of the onset of his symptoms with his malarial infection, it is more likely than not that the malaria infection did exacerbate his central nervous system condition provoking the appearance of symptoms at that time." In a follow up statement of July 2008, the physician clarified that "More likely than not, the Veteran's current medical conditions are in part due to the direct result of the malaria he contracted in military service exacerbating his inherited neurologic condition of Friedrich's ataxia." Thereafter, following another VA examination of March 2010 (and through an April 2010 examination addendum), the opinion was as follows: Spinocerebellar ataxia [SCA] is a hereditary disorder which [the Veteran] did not acquire in the military, but was diagnosed later. Symptoms related to SCA surfaced after the Veteran contracted malaria in service. But malaria did not and cannot cause spinocerebellar ataxia. It is my opinion that malaria must have contributed in unraveling the symptoms of SCA. It is known that certain neurological disorders which are subclinical get symptomatic after different kinds of stress and diseases. Following this, an August 2010 opinion was obtained from a medical expert within the Veterans Health Administration (VHA), stating: There is no evidence to support a contention that the Veteran's disorder manifested prior to military service, during military service or in the 20 years subsequent to military service. There is no evidence to support a contention that the Friedreich's ataxia had its clinical onset during active service [or was aggravated therein]. The Veteran first reported complaints of gait difficulty in 1976, 20 years after release from active service. Friedreich's ataxia is an inherited disorder and is not a result of the Veteran's malaria infection. Having considered the foregoing, the Board grants service connection for cerebellar degeneration. Essentially, there are two clinical opinions already of record which explain that the Veteran's Friedreich's ataxia (the cause of the post-service cerebellar degeneration), though a hereditary condition, nonetheless may have been brought upon as an active neurological disease process through the transformative agent of the malaria infection. As indicated, VA law expressly permits service connection for congenital disease of hereditary origin where manifesting first in military service, or as a consequence of an incident of service. Whereas there are clearly other opinions that are unfavorable, it remains that the evidence on causation is in a state of equipoise, with that preponderating for the claim roughly balanced against that weighing claim, and under VA law the claimant must prevail. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, the criteria for service connection are deemed met in this case. ORDER Service connection for cerebellar degeneration, including secondary to service-connected malaria, is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs