Citation Nr: 1338756 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 08-13 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for inclusion body myositis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD U. Ifon, Associate Counsel INTRODUCTION The Veteran had active service from January 1981 to January 1984. This appeal to the Board of Veterans' Appeals (Board) is from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2010, the Veteran was scheduled for a Travel Board hearing but did not appear for the proceeding, did not provide a reason for his absence, and did not request a new hearing. Therefore, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2013). In September 2011, this matter came before the Board and was remanded for additional evidentiary development. A review of the Veteran's Virtual VA file reveals a November 2013 post-remand appellate brief. FINDING OF FACT Inclusion body myositis was not shown during service, was not shown until years after service, and the preponderance of the evidence does not relate the disorder to any event or occurrence in service. An examination was scheduled in an attempt to determine the etiology of the disorder and the Veteran failed to report. CONCLUSION OF LAW The criteria for service connection for inclusion body myositis have not been met. 38 U.S.C.A. §1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.655 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in May 2006 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the Veteran, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The issue was most recently readjudicated in a June 2012 supplemental statement of the case (SSOC). VA has fulfilled its duty to assist. The RO has made reasonable and appropriate efforts to assist the Veteran in obtaining the evidence necessary to substantiate this claim, including requesting information from the Veteran regarding pertinent medical treatment he may have received and obtaining such records. As noted above, the Board remanded this issue in September 2011 to afford the Veteran a VA examination. He was scheduled on two different occasions, however, the Veteran failed to appear at both the scheduled and rescheduled examinations. The June 2012 SSOC informed the Veteran of his failure to attend both examinations. In a November 2013 post-remand brief, the Veteran's representative acknowledged his failure to attend, and stated his street address was misspelled. It is noted that an "M" was put in place of an "N" but the rest of the address is the same. Moreover, the Board notes that no mail to the Veteran was returned as undeliverable, and the Veteran did not deny receiving adequate notice of the scheduled VA examination. Further, he was told that he had failed to report in a supplemental statement of the case, and has not indicated a willingness to report or offered a reason that he did not report. When a Veteran fails to report for an examination scheduled in conjunction with an original compensation claim, such as in this case, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Hence, VA has fulfilled its duty to notify and assist the Veteran, and adjudication at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. Pertinent Laws and Regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry: (1) determining the competency of the source; (2) determining credibility, or worthiness of belief, and (3) weighing its probative value. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). A layperson is competent to report on the onset and continuity of his current symptomatology based on personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When a chronic disease is shown in-service, sufficient to permit a finding of service connection, any subsequent manifestation of the same chronic disease at any later date is service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In this case, the Veteran's inclusion body myositis is not a chronic condition listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding a material issue, the Veteran is given the benefit of the doubt. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran contends his inclusion body myositis is related to his military service. The medical evidence shows a current diagnosis of inclusion body myositis. However, the Veteran's service treatment records, to include the November 1983 separation examination report, show no complaints of, or treatment for muscle weakness, and no diagnosis or other findings of inclusion body myositis. Complaints of pain and weakness in his legs are not shown in the record until March 1995, which is approximately 11 years after his discharge from service. The absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). There is also no competent evidence of a nexus between the current disability and service. While the Veteran is competent and credible to testify about his observable symptoms of muscle weakness, as a layperson, he is not competent to provide an opinion as to a complex medical matter, such as the etiology of his inclusion body myositis. See Layno, 6 Vet. App. at 470. Accordingly, the Board assigns a low probative value to the Veteran's assertions of the etiology of his disease. The Board considered the August 2006 statement by the Veteran's nurse practitioner as to the etiology of his inclusion body myositis. The nurse practitioner stated that while the Veteran is not claiming that his military service caused his current disease, it is most likely he had a predisposition to develop inclusion body myositis since birth. She further stated it was possible that the physical demands of military service were related to the onset and aggravation of his inclusion body myositis. The Board finds that this opinion is inadequate because it does little more than suggest a possibility that the Veteran's disease might have been caused by his military service. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Furthermore, the opinion provides no rationale and does not account for the normal findings at the Veteran's separation from service and no pertinent findings during service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such the August 2006 statement is of no probative value and is insufficient to establish service connection. As noted, the Veteran was afforded a VA examination to evaluate the etiology of his current disease, but he failed to report even after the examination was rescheduled. By failing to report for VA examinations in November 2011 and January 2012 without good cause or adequate reason, the Veteran denied VA the opportunity to obtain information that could have substantiated his claim. 38 C.F.R. § 3.655. Thus, after considering all the evidence of record, the Board finds the weight of the evidence is against the finding of entitlement to service connection for inclusion body myositis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for inclusion body myositis is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs