Citation Nr: 1417108	
Decision Date: 04/16/14    Archive Date: 04/24/14

DOCKET NO.  10-47 164	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for primary lateral sclerosis (PLS).


REPRESENTATION

Veteran represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

Nicole L. Northcutt, Counsel








INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.

The Veteran served on active duty from March 1963 to March 1965.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2009 of a Department of Veterans Affairs (VA) Regional Office (RO).

In March 2014, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration.  As the claim of service connection for PLS is resolved in the Veteran's favor, no prejudice has occurred to the Veteran even though the VHA opinion has not been provided to the Veteran or his representative.


FINDING OF FACT

The Veteran had 90 consecutive days of active duty and is diagnosed with primary lateral sclerosis, a variant of amyotrophic lateral sclerosis.


CONCLUSION OF LAW

The criteria for service connection for  primary lateral sclerosis have been met. 38 U.S.C.A §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.318 (2013).






The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  As the Board is granting the claim of service connection for PLS, VCAA compliance need not be addressed further.


REASONS AND BASES FOR FINDING AND CONCLUSION

Principles and Theories of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. § 1110 (wartime service).

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, also referred to as the "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).





Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d).

Additionally, 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).

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curium, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance).

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If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b).

Evidence

The service treatment records do not contain a diagnosis of primary lateral sclerosis or amyotrophic lateral sclerosis.  And the Veteran does not assert that he developed his current neurological disorder during service or soon after service.  Rather, he asserts that his currently diagnosed neurological disorder, developed many years after service, is a variant of amyotrophic lateral sclerosis, entitling him to presumptive service connection pursuant to 38 C.F.R. § 3.318.

In 2004, the Veteran was diagnosed with primary lateral sclerosis and records through 2010 continue to refer to the diagnosis.

In January 2009, a private neurologist stated that the Veteran was being treating for a motor neuron disease, which he characterized as "ALS (PLS)," indicating that PLS is a variant of ALS.  The neurologist stated that the disease had a slow clinical progression.

On VA examination in October 2010, a VA examiner in internal medicine stated that the Veteran does not have ALS, but rather PLS, indicating that the two diseases are separate clinical entities.  The VA examiner noted that a diagnosis of PLS, not ALS, had been rendered by both VA and private neurologists.  




In order to clarify whether the Veteran's neurological disorder is a variant of ALS or a separate neurological disorder, the Board requested an opinion from a VHA medical expert, who rendered the requested opinion in March 2014.  The VHA expert, a neurologist, stated that the two diseases differ in that PLS affects only upper neurons and has a slower clinical course, whereas ALS affects both upper and lower neurons and progresses more quickly.  The VHA expert stated that neurologists would be evenly split on whether PLS is a variant of ALS or a separate neurological disorder, as the answer to this question would depend on whether the neurologist used broad or narrow categories to classify diseases.  Accordingly, the VHA expert stated that whether the diseases are different clinical entities was a question of semantics, and thus concluded that it was at least as likely as not that PLS is a variant of ALS.

Analysis

The competent and credible evidence of record on the question of causation in support of the claim consists of the opinion of a VHA expert, a neurologist.  The VHA expert expressed the opinion that it was more likely than not that PLS is a variant of ALS, and not a separate neurological disease, although acknowledging that many neurologist would categorize the two diseases as separate clinical entities.  

The competent and credible evidence of record against the claim consists of the opinion of a VA physician.  The VA physician, an internist, stated that the Veteran does not have ALS, but rather a separate neurological disorder, PLS.  In support of this opinion, the examiner noted that the diagnosis of PLS, and not ALS, had been rendered by both private and VA neurologists alike.  

With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  The guiding factors in evaluating the probative value of a medical opinion include whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. 


When, after careful consideration of the entire record, a reasonable doubt arises regarding a material issue of fact, such doubt will be resolved in favor of the Veteran.  By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  

Whereas here the same set of facts have resulted in contradictory conclusions, the Board finds that there is an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim.

As the positive and negative nexus opinions are of equal probative value, the Board finds that the evidence of record is in equipoise as to the matter of whether primary lateral sclerosis is a variant of ALS, and reasonable doubt is resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b).  

As the Veteran has had 90 days of consecutive service, and as the Veteran is diagnosed with a variant of ALS, service connection pursuant to the provisions of 38 C.F.R. § 3.318 is warranted.


ORDER

Service connection for primary lateral sclerosis, a variant of amyotrophic lateral sclerosis, is granted.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs