Citation Nr: 1402071	
Decision Date: 01/15/14    Archive Date: 01/31/14

DOCKET NO.  11-00 534	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for a neurological disability, to include upper motor neuron amyotrophic lateral sclerosis (ALS) and primary lateral sclerosis (PLS).


REPRESENTATION

Veteran represented by:	Katrina J. Eagle, Attorney


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. Acosta, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1990 to October 1990 and from January 1991 to May 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA), which was initially deferred by the RO in September 2008.   

In October 2012, the Veteran testified at a DRO hearing at the Houston, Texas RO; the transcript is of record.

The Board has reviewed the Veteran's electronic record prior to rendering a decision in this case.


FINDINGS OF FACTS

1.  The evidence of record indicates that the Veteran's neurological disability is consistent with ALS.

2. The Veteran has 90 days of continuous active duty. 


CONCLUSION OF LAW

The criteria for service connection for a neurological disability, to include upper motor neuron ALS and PLS, have been met.  38 U.S.C.A §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.318 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In light of the favorable decision as it relates to the grant of entitlement to service connection for the Veteran's neurological condition, discussion of the notice and assistance provisions of the Veterans Claims Assistance Act of 2000 (VCAA) is unnecessary.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

VA regulation provides that the development of ALS manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease if the Veteran had active, continuous service of 90 days or more.  However, the presumption of service connection for ALS does not apply if there is affirmative evidence that ALS was not incurred during or aggravated by such service, or affirmative evidence that ALS was caused by the Veteran's own willful misconduct.  38 C.F.R. § 3.318 (2013).  

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet.  App. 49 (1990).

The Veteran was diagnosed with PLS in January 2007.  In December 2010, the Veteran's doctor diagnosed the Veteran with "Upper Motor Neuron Disease a variant of ALS."  In May 2012, the Veteran's doctor cited two studies that state that PLS and ALS likely do not represent separate clinic entities and the similarities between the two multisystem disorders outweigh their differences.  In April 2013, the Veteran's doctor stated the Veteran continues to have the diagnosis of "Upper Motor Neuron-ALS."

The Board finds the evidence of record persuasive that the Veteran's neurological disability is consistent with ALS.  The Veteran's doctor's indicated that the Veteran has a variant of ALS in December 2010, and again in April 2013, and in May 2012 he provided clinical articles detailing that PLS is a variant of ALS to support his position.  Moreover, although the Veteran was not initially diagnosed with ALS in January 2007, his doctor's subsequent medical diagnosis and opinion that the Veteran' neurological disability was a subset of ALS are persuasive.  Thus, the Board finds that the medical evidence of record shows that it is at least as likely as not that the Veteran's neurological disability is a variant of ALS, and should be subject to the presumptive service connection for ALS provided for by 38 C.F.R. § 3.318.

Thus, affording the Veteran all reasonable doubt, the Board finds that service connection for the Veteran's neurological disability, to include PLS and upper motor neuron ALS, is warranted.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for a neurological disability, to include upper motor neuron ALS and PLS, is granted.



____________________________________________
JONATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs