Citation Nr: 1417402	
Decision Date: 04/17/14    Archive Date: 05/02/14

DOCKET NO.  12-03 745	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for poliomyelitis with residual weakness of the leg and joints. 


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel
INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran had active military service from November 1959 to February 1962.

This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Veteran testified before the Board at an August 2013 hearing conducted via videoconference.   A transcript of the hearing is of record and has been reviewed.

In October 2013, the Board remanded the claim to obtain any additional evidence and to afford the Veteran an additional VA examination and medical opinion.  Such development has been accomplished to the extent possible, and the case has since returned to the Board for further appellate consideration.

FINDING OF FACT

Poliomyelitis with residual weakness of the leg and joints pre-existed the Veteran's military service and was not permanently aggravated beyond its natural progression by active service.

CONCLUSION OF LAW

The criteria for service connection for poliomyelitis with residual weakness of the leg and joints are not met.  38 U.S.C.A. §§ 1111, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2013). 





REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A.");regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit  (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. § 7104(d) (West 2002); see also 38 C.F.R. § 19.7(2013) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement  of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These notice requirements apply to all five elements of a service-connection claim: 1) Veteran status, 2) existence of a disability, 3) relationship between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom.  Hartman v. Nicholson, 483 F.3d 1311 (2007).

This notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  However, if notice was not provided prior to initially adjudicating the claim or, if provided, was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is preserved, so not frustrated, in that the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  Moreover, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In this case, the Veteran was provided notice letters in January 2011, prior to the initial unfavorable rating decision on appeal.  This letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA.  Additional VCAA notice letters were provided to the Veteran in October 2013, November 2013, and January 2014.  He has also been advised as to how disability ratings and effective dates are assigned.  See Dingess, supra.  And after all notice was provided to him, the claim was readjudicated by way of an SSOC issued in March 2014.  He has therefore received all required notice concerning his claim, and it has been reconsidered since providing all required notice.

VA also has a duty to assist the Veteran in the development of this claim.  This duty includes assisting him in the procurement of his service treatment records (STRs) and pertinent post-service treatment records (VA) and providing an examination when needed to assist in deciding the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

All necessary development has been accomplished to the extent possible and, therefore, appellate review of this claim may proceed without unduly prejudicing the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's STRs; medical evidence from VA Medical Centers in Iowa City, San Antonio/Victoria, and Houston; a hearing transcript; and the Veteran's contentions.   

The Veteran was afforded relevant VA compensation examinations, most recently in December 2013, and that examination, as will be discussed below, is adequate to decide the claim.  The examiner examined the Veteran, reviewed the claims file and medical history, and provided an explanation for the stated opinion that enables the Board to make an informed decision.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion").  

During the August 2013 hearing, the Veteran testified that "Dr. V" from Baylor College stated that his condition may have been aggravated by service.  Pursuant to the October 2013 Board remand, the Appeals Management Center (AMC) provided the Veteran with the appropriate medical release to obtain any records from "Dr. V" in the October and November 2013 VCAA notice letters.  However, as noted in the January 2014 notice letter, the medical release form received from the Veteran either did not contain an address or it contained an incorrect address.  The AMC asked the Veteran to either provide "Dr. V's" correct address or submit any evidence from the private physician that he has in his possession.   Unfortunately, no additional information or evidence regarding "Dr. V" was received from the Veteran.  The Board notes that VA's duty to assist a Veteran in developing the facts and evidence pertinent to a claim is not a one-way street.   See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  It is the responsibility of Veterans to cooperate with VA.  See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992).  The Board finds that the AMC complied with the October 2013 remand directive by means of the October 2013, November 2013, and January 2014 VCAA assistance letters, and that the Veteran has been provided every opportunity to submit evidence and argument supporting his claim.  Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with a remand directive, and the Board itself commits error as a matter of law in failing to ensure compliance).

The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable.   In response to the March 2014 SSOC, the Veteran through his representative indicated that he had no additional evidence and asked that the case be sent to the Board immediately.  The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  VA's duties to notify and assist him with this claim have been satisfied.
In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 

Here, the August 2013 Board hearing via videoconference was in compliance with the provisions of Bryant.   Neither the Veteran nor his representative has asserted that the hearing officer failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the hearing.  In addition, the Veteran's statements and submissions during the course of the appeal, as well as those of his representative, demonstrate actual knowledge of the elements and evidence necessary to substantiate the claim because the submissions and statements speak to whether the Veteran's preexisting disability was aggravated by service.  In addition, the testimony elicited from the Veteran prompted the Board to remand the claim in October 2013 for further evidentiary development.  As such, the Board finds that the undersigned Acting VLJ complied with the duties set forth in Bryant and the claim may be adjudicated based on the current record.  Cf. Procopio v. Shinseki, 26 Vet. App. 76 (2013).

Pertinent Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.   38 C.F.R. § 3.303(d). 
As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology but only applies to those chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In this case, the Veteran is diagnosed with poliomyelitis with residual fatigue and weakness, and such condition is not classified as a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  
Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013).  Where there is "clear and unmistakable" evidence that the injury or disease claimed pre- existed service and was not aggravated during service, the presumption of soundness does not attach.  Id.  A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.  Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). 

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).
In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308 -09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder).  

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally, Caluza v. Brown, 7 Vet. App. 498 (1995). 

The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence.  38 U.S.C.A. § 7104(a).  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 

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 claimant.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. 

Service Connection claim for Poliomyelitis 

The Veteran essentially asserts that he has poliomyelitis which was aggravated by his military service beyond its natural progression.

The record reflects that approximately one-and-a-half years prior to his service entry, he contracted poliomyelitis.  His first pre-induction examination conducted in May 1958 did not show any evidence of poliomyelitis, and clinical examination of the lower extremities was clinically normal.

However, when he underwent a second pre-induction examination in November 1959, he reported, as relevant, having had cramps in legs, lameness, and foot trouble.  See Report of Medical History.  In addition, the November 1959 examination report notes the Veteran's post-infection atrophy of the entire left leg with slight weakness and limp, "Probably post polio." The section titled defects and diagnoses includes myelopathy, n.e.c.   The Veteran was nevertheless determined to be qualified for induction.

According to a January 1960 STR, the Veteran had pain in his left leg.  A diagnosis of left leg gastrocnemius atrophy secondary to polio was rendered.   He was referred to the orthopedic clinic but did not keep his appointment.  

According to a November 1961 STR, the Veteran reported pain in his left leg.

During a December 1961 orthopedic consultation, the Veteran had marked atrophy in the left leg, but no marked gross deformity.  It was noted that the Veteran was not fit for a tactical unit.  Based on the findings of the orthopedic consultation, the Veteran given an L-3 profile which excused him from marching, lower extremity physical therapy, and guard duty.

On the Report of Medical History completed in January 1962 upon service separation, the Veteran reported having had swollen or painful joints, cramps in legs, lameness, foot trouble, and paralysis, as relevant.  His lower extremities were clinically normal during the January 1962 separation examination.

In connection with his service connection claim, the Veteran was afforded a VA joints examination in March 2011.  The examiner indicated that there is no evidence of aggravation during service and no evidence of any progression of the Veteran's disease beyond its natural progression.  
In April 2011, the Veteran underwent a VA neurology examination and was diagnosed with post-polio fatigue and weakness.  The examiner determined that the Veteran's condition is at least as likely as not aggravated by service.  

In December 2013, the Veteran was afforded a brain and spinal cord examination by a VA neurologist.  Such physician determined that the Veteran's poliomyelitis, which clearly and unmistakably pre-existed service, was not aggravated beyond its natural progression by an in-service event, injury, or illness.  He also concluded that it is less likely than not that the Veteran's poliomyelitis underwent a permanent increase in disability during service.  The neurologist explained that the Veteran's infectious condition had run its course leaving him with atrophy of the left leg which was documented in the second pre-induction examination and continues to be present.   The neurologist recognized that the Veteran was placed on profile due to his diagnosis but also found no evidence that his condition progressed or worsened during service.

Based on the foregoing, the Veteran is currently diagnosed with poliomyelitis with residual fatigue and weakness in the leg and joints.

The Board observes that poliomyelitis and residual weakness and atrophy of the left leg were "noted" on the Veteran's November 1959 second pre-induction examination report.  The presumption of soundness at service entrance has therefore been rebutted.   38 U.S.C.A. § 1111.

However, the evidence clearly and unmistakably shows that the Veteran's poliomyelitis was not aggravated, that is, not permanently worsened in severity, by his active service.  

The Board recognizes that the April 2011 VA examiner indicated that the Veteran's poliomyelitis was at least as likely aggravated by service; however, the Board finds this opinion deficient to decide the claim.  The dispositive issue in this case is not whether the Veteran's poliomyelitis was simply aggravated by his military service, but rather whether it was aggravated beyond its natural progression during service.   Because the April 2011 VA opinion does not address the dispositive issue, the Board finds it of little probative value.
	
Similarly, the Board finds the March 2011 VA opinion of little probative value Although that examiner found no evidence of any aggravation beyond the natural progression of the Veteran's poliomyelitis, and noted that the Veteran's increased weakness in his left leg is a known complication of polio with post-polio syndrome, the examiner did not provide any supportive rationale and did not cite to any supportive evidence in the claims file.  

On the other hand, the Board finds highly probative the December 2013 opinion provided by a VA neurologist that that the Veteran's pre-existing poliomyelitis was clearly and unmistakably not aggravated beyond its natural progression by service;  it was determined that the condition less likely than not underwent a permanent increase in disability during service.  In arriving at such opinion, the neurologist examined the Veteran; had the benefit of reviewing the entire claims file, to include the Veteran's service records, to include the L-3 profile; and provided a clear conclusion with reasoned rationale.   Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

The Board considered the Veteran's contentions that his poliomyelitis was permanently aggravated by his military service.  In his July 2011 notice of disagreement, he indicated that his condition was aggravated by vigorous training in service, in pertinent part.  He, as a layperson, is competent to report as to the observable symptoms he experiences, such as an onset of his symptoms and their history.   Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  However, while the Veteran is competent to make statements concerning his symptoms, there is no evidence that he has the requisite medical expertise to provide a competent medical opinion as to whether his poliomyelitis permanently worsened during service.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). 
The weight of the evidence demonstrates no permanent aggravation of the pre-existing poliomyelitis by service, therefore the presumption of aggravation does not arise in this case.  See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.  As a preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

ORDER

Service connection for poliomyelitis with residual weakness of leg and joints is denied.


____________________________________________
SARAH B. RICHMOND
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs