Citation Nr: 1340155 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 12-12 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for muscular dystrophy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from December 1976 to March 1979. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Preliminarily, a review of the record indicates some pertinent evidence may be absent from the claims file. Specifically, a private treatment record from June 1989 indicates other private medical records may exist that would be helpful in adjudicating this claim. The Board also notes that a VA treatment record from March 2010 suggests the Veteran filed for Social Security disability benefits in connection with his muscular dystrophy. Because the aforementioned records are relevant to his claim, an attempt must be made to obtain them. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board advises the Veteran that he is obligated to cooperate fully with VA's efforts to obtain such relevant records, including providing enough information to identify and locate the records and authorizing the release of such records in a form acceptable to the custodian. Id. The Veteran's service treatment records (STRs) show that his entrance examination report and report of medical history in 1976 both indicated no problems or defects, except for pes planus, with a note that the Veteran denied problems with the condition at that time. In January 1977, the Veteran reported pain in his right Achilles tendon and an impression of mild tendon strain was noted. In November 1978, the Veteran reported pain in both feet on walking and exercise, which was diagnosed as bilateral pes planus. The Veteran's separation examination report was negative for abnormalities of any kind, but noted that the Veteran experienced recurrent bilateral leg cramps approximately every 2 months, which reportedly self-resolved. It was also noted that the Veteran wore arch support bilaterally, and wore a knee brace since 1977. On his report of medical history at separation, the Veteran reported experiencing cramps in his legs and foot trouble. A private treatment record from June 1989 indicated an impression of probable facioscapulohumeral dystrophy. That note also indicated that the Veteran's maternal grandmother, maternal aunt, and two cousins born of the same aunt were all similarly affected with the same condition to a mild degree. A VA History and Physical note from October 2009 indicated a diagnosis of progressive hereditary muscular dystrophy. A Veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). "Clear and unmistakable evidence" means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9 (2013); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). VAOPGCPREC 82-90 (July 18, 1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985)) in essence held that a disease considered by medical authorities to be of familial (or hereditary) origin by its very nature preexists a claimant' s military service, but could be granted service connection if manifestations of the disease in service constituted aggravation of the condition. Indeed, diseases of hereditary origin may be considered to have been incurred in service if their symptomatology did not manifest itself until after entry on duty. The mere genetic or other familial predisposition to develop the symptoms, even if the individual is almost certain to develop the condition at some time in his or her lifetime, does not constitute having the disease. Only when the symptomatology and/or the pathology exist can he or she be said to have developed the disease. At what point the individual starts to manifest the symptoms of, or have pathological changes associated with the disease is a factual, not a legal issue. Even when an hereditary disease has manifested some symptoms prior to entry on duty, it may be found to have been aggravated during service if it progresses during service at a greater rate than normally expected according to accepted medical authority. VA VAOPGCPREC 67-90 (July 18, 1990), published at 55 Fed. Reg. 43,253 (1990); see also VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 U.S.C.A. § 5103A(d) (West 2012); 38 C.F.R. § 3.159(c)(4) (2013). In this case, the in-service complaints and treatment for tendon and foot problems are documented in the Veteran's service treatment records. The Veteran's post-service treatment records establish a current diagnosis of muscular dystrophy. Additionally, the Veteran stated that the symptoms of pain and discomfort he experienced in service, which were diagnosed in service as foot problems, were later diagnosed as muscular dystrophy. Therefore, because the record is lacking sufficient competent medical evidence as to whether the Veteran's muscular dystrophy was due to or aggravated by service, the Veteran should be afforded a VA examination. In sum, all outstanding private treatment records relating to the Veteran's treatment for conditions related to his muscular dystrophy and any existing Social Security disability benefits records should be obtained and made part of the record. Then the Veteran should be scheduled for a VA examination for his muscular dystrophy. Any accompanying opinion should be supported by a rationale. Accordingly, the case is REMANDED for the following actions: 1. Request the Veteran furnish all dates and places of treatment for conditions related to his muscular dystrophy. After obtaining the necessary authorization from the Veteran, request copies of any outstanding treatment records from any treatment provider identified by the Veteran. If VA is unable to obtain such records, the Veteran should be accorded the opportunity to furnish such records directly to VA. All records received should be associated with the claims file. 2. Request complete Social Security disability records (all determination(s) and the medical records on which such determination(s) were based) regarding the Veteran. Any records obtained shall be associated with the claims file or "eFolder." Notice shall be provided to the Veteran if records are not obtained. Documentation regarding this paragraph should be associated with the claims file or "eFolder" as appropriate. 3. When the above actions have been accomplished, to the extent possible, afford the Veteran an examination by an appropriate examiner. The examiner should review the Veteran's claims file in conjunction with the examination. Any indicated studies or diagnostic tests should be performed. Following examination of the Veteran and review of his pertinent medical history and lay statements, the examiner should provide an opinion on the following: a) Whether there is clear and unmistakable evidence that the Veteran's muscular dystrophy is hereditary. With respect to this question the examiner's attention is invited to the private treatment record from June 1989 regarding his family history of muscular dystrophy. b) Whether there is clear and unmistakable evidence that the Veteran's muscular dystrophy preexisted service. c) If so, whether there is clear and unmistakable evidence that the Veteran's preexisting muscular dystrophy was not aggravated by service (beyond the natural progress of the disease and not merely a temporary flare-up). d) If there is not clear and unmistakable evidence that the Veteran muscular dystrophy preexisted service, whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's muscular dystrophy had its onset in service or is otherwise related to service. Any opinion offered should be accompanied by supporting rationale. 4. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).