Citation Nr: 1553737 Decision Date: 12/23/15 Archive Date: 12/30/15 DOCKET NO. 08-12 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of poliomyelitis, other than weakness and atrophy of the right lower extremity. REPRESENTATION Appellant represented by: Ashley Thomas, Attorney ATTORNEY FOR THE BOARD Marcus J. Colicelli, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to June 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran now resides in Florida, so the matter is now being addressed by the RO in St. Petersburg, Florida. The Veteran submitted a notice of disagreement (NOD) in August 2006, a statement of the case (SOC) was issued in February 2008, and the Veteran perfected his appeal with the timely filing of a VA Form 9 (substantive appeal) in April 2008. In an October 2011 rating decision, the RO granted service connection for residuals of poliomyelitis with atrophy of the muscles and weakness of the right leg. However, further claimed residuals of poliomyelitis were not service-connected and remain on appeal. The issue was previously before the Board in October 2010, March 2012, and August 2014. In August 2014, the Board remanded this claim for additional development. The case has now been returned to the Board for further appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the Veteran's case. FINDING OF FACT The Veteran's current right upper, left upper, and left lower extremity disorders, including shoulder, right hand, and right wrist degenerative joint disease, cervical spondylosis, and mild oropharyngeal dysphagia, are not causally or etiologically due to service, did not manifest to a degree of 10 percent or more within one year of discharge, and are not due to or aggravated by his service-connected poliomyelitis disability. CONCLUSION OF LAW Service connection for residuals of poliomyelitis, other than weakness and atrophy of the right lower extremity, is not established. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty-to-assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Correspondence from the RO dated November 2005 and April 2006 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letters also provided the Veteran with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The issue was last readjudicated in a September 2015 supplemental statement of the case (SSOC). Accordingly, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that evidence necessary for equitable resolution of the issue has been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). His STRs, post-service VA and private treatment records, and Social Security Administration (SSA) records have been added to the record since the Board's last remand decision. The Veteran's VBMS and Virtual VA records have been reviewed. In addition, pursuant to the instructions of the August 2014 Board Remand decision, the Veteran was provided with a VA medical opinion in August 2015 to supplement the recognized inadequacies present in previous VA examinations and the submitted independent medical examination (IME) reports. The August 2015 VA examination report is adequate because it is based upon consideration of the relevant facts particular to this Veteran's medical history, describe the disabilities in sufficient detail so that the Board's evaluation is a fully informed one, and contains reasoned explanations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). Therefore, the available medical evidence and records have been obtained in order to make an adequate determination. The Veteran has not identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of the claim. Lastly, as noted above, in August 2014 the Board remanded this claim for additional development. The Board is satisfied that there has been substantial compliance with the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the Veteran the right to substantial, but not strict, compliance with that order). In this respect, in response to the August 2014 remand, an addendum opinion to the last VA examination was acquired. See August 2015 VA addendum opinion. Also, the AMC underwent appropriate efforts to associate records identified by the Veteran with the file. Thereafter, a supplemental statement of the case (SSOC) was issued in September 2015. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Service Connection Applicable Laws Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service-connection on a secondary basis requires evidence sufficient to show that: (1) a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993). Certain chronic diseases, such as arthritis and organic diseases of the nervous system, which are manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred in service, even though there is no evidence of such a disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Facts Service treatment records were reviewed. Upon entry into service, the Veteran described his present health as "good" and the August 1969 enlistment examination similarly did not list any abnormalities. See August 1969 Report of Medical History; see also August 1969 Report of Medical Examination. After five months of active duty, the Veteran sought treatment because of weakness and atrophy in his right leg. See May 1970 Medical Board Report (MBR). The MBR states that there was wasting in the entire right leg, with the right leg being 2 inches shorter than the left. Id. He also had decreased strength in his muscles of the right leg and foot. Id. After an exam, the doctor diagnosed the Veteran with an early onset of polio involving the lumbar and sacral regions on the right side of the spinal cord. Id. The doctor determined that the condition existed prior to service and was not aggravated during active duty. Id. The Medical Board examiner did not provide reasoning for his findings. See May 1970 MBR. The Board also notes that the Veteran has submitted notated copies of this report disputing this finding. See January 2006 Veteran correspondence ("This was taken out of context. This never occurred!") Post service VAMC medical records beginning in March 2005 reflect that the Veteran received treatment for pain predominately in his right lower quadrant, and intermittently in his back and abdomen. See March 2005 VAMC PM&R Consult. The Veteran was noted as having "post-polio syndrome affecting right LE," and was seen for "low back pain since November 2004." The Veteran's chronic back/limb pain was assessed as "likely myofascial due to poor gait mechanics" resulting from his post-polio syndrome. Id. A May 2005 Lumbar MRI finding noted "degenerative disc disease at L-1/L-2 with mild end plate osteophyte formation." See May 2005 VAMC Lumbar MRI. The examiner also noted that the Veteran "pulled a muscle in his groin a year ago," and that the pain from that injury was often "confuse[d] with his back pain." A July 2005 record indicates that the Veteran's pain was located in the "right lower quadrant of abdominal area, mid-lower back," but he denied any "falls/injuries/exercise." July 2005 VAMC Pain Assessment. November 2005 VAMC records reflect that the Veteran was diagnosed with bilateral inguinal hernias, causing "right side pain in back and abdomen." See November 2005 VAMC General Surgery Consult. A private neurologist report from January 2006 notes that the Veteran was experiencing "low back pain and right leg pain since 1993." See January 2006 Northwest Neurology report. This examination was limited to the Veteran's right leg and lower back, with the examiner speculating that the results on the Veteran's right side "could be seen in repetitive trauma such as in lumbar radiculopathy...or in post-polio syndrome." Id. The Veteran has been afforded multiple VA examinations for his polio disability. In a January 2008 VA examination, the Veteran reported a "multitude of physical complaints" primarily regarding his right side. See January 2008 VA examination. The Veteran reported right shoulder pain with right hand numbness, and pain on the right side of his face including his right eye facial drooping. Id. After conducting an examination, the examiner concluded that there was no evidence of "post-polio syndrome." The record first reflects complaints of falls and pain separate from the Veteran's right lower quadrant and lower back in 2008. Specifically, a September 2008 MRI identifies diagnoses of "mild spondylosis" of both the cervical and lumbar spine. See September 2008 VAMC Primary Care Note. The Veteran began experiencing pain in both his left and right shoulders in 2009, with a May 2009 MRI identifying diagnoses of "high-grade tendinosis versus small partial tear of supraspinatus tendon...small joint effusion...mild early changes of chronic rotator cuff disease." Id. Regarding his left shoulder, in April 2009 he reported that he "had some intermittent left shoulder symptoms after lifting a sandbag approximately a year ago." See April 2009 VAMC Orthopedic Surgery note. In addition to painful extremities, in 2009 the Veteran first began reporting other body mechanics which he "feels [is] associated with postpolio syndrome," such as his "jaw drooping at night" and tooth numbness and drooling. See September 2009 VAMC Primary Care note. Also in September 2009, the Veteran reported a fall, noting that he "fell 4 months ago and bruised [his] left flank, still sore...tripped over slipper and landed on table." Id. The March 2010 independent medical examination (IME) report of Dr. C.N.B. opines that the Veteran has "post-polio syndrome" and that "most if not all of his current neurologic signs and symptoms" are part of this syndrome because his "records do not contain another more likely cause." See March 2010 B. IME. Dr. C.N.B. noted that the Veteran's "progressive neurologic losses" in his "right shoulder, right hand/fingers, jaw, swallowing, neck and eyes" are due to his polio. Id. The Veteran was next afforded a VA examination in November 2010. See November 2010 VA examination. The examiner diagnosed the Veteran with poliomyelitis with right lower extremity atrophy and post-polio syndrome. Id. The examiner conducted a full examination, noting that there was "no prescribed bed rest & treatment due to claimed conditions during the last 12 mo." Id. The Veteran reported needing assistance with eating because he chokes, but a "5/27/08 modified barium swallow study showed...a good clean, coordinated swallow." Id. The examiner noted the Veteran's current complaint of aching from head to toe "all over the right side of his body," but identified that his "right shoulder pain is from unrelated supraspinatus tendon tear/tendonitis." Id. Additionally, the examiner stated that it was as likely as not caused by or a result of condition treated at Camp Pendleton. Id. However, while the examiner discussed the Veteran's other reported medical conditions, he did not specifically state whether the Veteran's right shoulder, right hand/fingers, swallowing, jaw, neck, and/or eye conditions were at least as likely as not caused by or a result of his poliomyelitis. While the examiner did report that the Veteran had such conditions, he stated that they were of an unclear etiology, and not a known feature of polio. As discussed in the April 2012 Board remand, the examiner failed to state a rationale as to why he believed that the Veteran's conditions were not caused by his poliomyelitis. A December 2011 VA addendum opinion concurred with the November 2010 examiner, concluding that the "examination findings on 12/10/10 are consistent with poliomyelitis with right lower extremity atrophy, not left." See December 2011 VA addendum opinion. The January 2012 independent medical examination (IME) report of Dr. C.N.B. opines that the Veteran's "current degenerative cervical/lumbar spine, right knee, right ankle, left knee and left shoulder [are] all due to polio and/or secondary his numerous falls." See January 2012 Bash IME. Dr. B. based his rationale on the "cumulative effect of [the Veteran's] many falls due to his weak polio effected right leg," resulting in spine, knee, ankle, hip, and shoulder pathologies "out of proportion to his age." Id. Dr. C.N.B. also concluded that the Veteran has cervical radicular signs and symptoms and advanced arthritis based upon a review of medical literature, including Firestein, Kelley's Textbook of Rheumatology (8th ed. 2008. Id. Dr. C.N.B. also noted that the "time lag interval" between the Veteran's falls and development of osteoarthritis, and between his service-time polio symptoms and development of latter symptoms are both "consistent with known medical principles and the natural history of the disease[s]." Id. Dr. C.N.B. further noted that the records "do not support another more plausible etiology" for his spinal, shoulder, hip knee and ankle pathologies. Id. Lastly, Dr. C.N.B. concluded that the Veteran's already repaired bilateral inguinal hernias were likely "due to his abdominal weakness from his polio." Id. The Veteran was again afforded a VA examination in June 2012, where the examiner concluded that degenerative joint disease and tendonitis of the right shoulder; degenerative arthritis of the right hand and wrist; cervical spondylosis; and intermittent oropharyngeal dysphagia, were not caused or aggravated by poliomyelitis. See June 2012 VA examination. As noted in the August 2014 Board remand, the examiner did not sufficiently address the question of aggravation or adequately explain the rationale for this opinion, but instead offered the opinion that the Veteran's diagnosed musculoskeletal disorders were likely age-related. Id. The examiner was unable to establish cause/etiology of the Veteran's dysphagia without resorting to mere speculation. Id. A June 2012 eye examination revealed no current or otherwise known diagnoses. See June 2012 VA eye examination ("c file for this Veteran reviewed by this examiner in its entirety, ocular health WNL each eye, no subjective visual or ocular complaints.") The August 2012 independent medical examination (IME) report of Dr. C.N.B. opines that the June 2012 VA examination should be "discounted." See August 2012 B. IME. Specifically, Dr. C.N.B. noted that the June 2012 examination was cursory, noting that the examiner was "uncertain about the etiology of his cognitive disorder." Id. Dr. C.N.B. also disputed the examiner's conclusion rationale that the Veteran's "right shoulder, right hand/wrist, and cervical spine are all due to the normal aging process." Id. His rationale is that the Veteran "is only 61 years old," and that the examiner did not "discuss the post-polio syndrome or the literature." Id. In August 2015, the Veteran was afforded his most recent VA medical addendum report. See August 2015 VA examination. Following a review of the record, the August 2015 examiner identified each of the Veteran's non-lower right quadrant complaints, assessed that each was not related or aggravated by his service-connected poliomyelitis, and provided alternative theories for their existence. Id. Specifically, the examiner identified that there is "no clinical correlation" between the Veteran's shoulder AC degenerative joint disease (DJD), supraspinatus tendinosis vs small partial tear or chronic rotator cuff disease and poliomyelitis. Id. The examiner explained that these disorders were not diagnosed until 38 years after service, and that the DJD is "most likely caused by and related to natural age." Id. The rotator cuff disease and tear are as likely as not "caused by a post-service injury," noting that the Veteran reported injuring his left shoulder lifting a sandbag in 2009 and most likely "utilized both shoulders/arms to lift a sandbag." Id. The examiner also found no clinical correlation between the Veteran's right hand/wrist degenerative arthritis or cervical spondylosis because there were likely due to age, as were first diagnosed 42 and 38 years, respectively, after service. Id. The examiner further rationalized that the Veteran's DJD/osteoarthritis/spondylosis results from "a complex interplay of multiple factors" including "aging, occupation, sports activities, previous injury, small insults over time." Id. The examiner cited to medical literature for his theory, including February 2011 UpToDate and The Guides Newsletter AMA Jul/Aug 2009. Id. ("disc degeration is inevitable with aging.") Regarding the Veteran's August 2006 mild oropharyngeal dysphagia, the examiner could not render an opinion because there is no current condition. Id. The examiner noted that following the 2006 diagnosis, studies in 2008 and 2014 were normal and therefore did not suggest "motor neuron disorder or neuromuscular disorder." Id. Lastly, the examiner commented upon the opinions provided by Dr. C.N.B. Id. The examiner opined that attributing the Veteran's "right shoulder condition, right hand/fingers condition, swallowing/jaw condition, neck condition and eyes condition," to the Veteran's poliomyelitis was in error as the conditions are either "non-existent" like his eye issue, "resolved" like his swallowing, or due to unrelated musculoskeletal changes "consistent with natural, age-related progression." Id. Analysis Given the evidence of record, the Board finds that service connection for the Veteran's current muscular disorders, other than weakness and atrophy of the right lower extremity, is not warranted on either a direct, presumptive, or secondary basis. Initially, the record does not show, nor does the Veteran contend that he experienced any polio related symptoms or post-polio syndrome, other than the already service connected poliomyelitis of the right lower extremity, during his active duty. Rather, as identified by the August 2015 VA examiner, his back, shoulder, and other discussed complaints first appeared approximately 30 years after military service. See August 2015 VA examination; see also January 2006 Northwest Neurology report ("low back pain and right leg pain since 1993.") Furthermore, there is no evidence in the record which demonstrates that the Veteran's diagnosed degenerative joint disease or osteoarthritis was manifested to any identifiable degree during service or within a year after. 38 C.F.R. § 3.309. As such, service connection on a direct or presumptive basis is not warranted. With regard to the Veteran's claim that his current conditions are secondary to his service-connected poliomyelitis, the Board finds the conclusions rendered by the August 2015 VA examiner to be the most probative of the proffered medical opinions, including the 2010 and 2012 private opinions. Dr. C.N.B.'s opinions are without any supporting rationale, other than merely disagreeing that the Veteran's muscle degeneration was not age appropriate. Also, as pointed out by the August 2015 examination, Dr. C.N. B.'s contentions in part relied on the Veteran's history of "undocumented falls" for the secondary cause of injury. However, as noted above, the medical evidence of record contains only a single incident in May 2009 of this sort, involving a trip over a slipper that did not result in medical follow-up. Dr. C.N. B.'s opinion is based on speculation that "undocumented falls" were of the type and severity to cause permanent damage to the Veteran's entire body. Speculative opinions are insufficient to support an award of service connection. In total contrast is the August 2015 VA opinion, which consisted of a complete review of the claims folder and accurate citations thereto, and reference to pertinent studies pertaining to the association between musculoskeletal degeneration and age. In formulating the August 2015 opinion, the VA physician refers to specific medical studies regarding neurological muscular degeneration and the relationship to the findings identified in the treatment record. As noted above, the August 2015 VA examiner succinctly concluded that the disorders claimed by the Veteran to be part and parcel of his service-connected disability, are either non-existent, resolved, or because of unrelated degenerative musculoskeletal changes due to aging. In support of this well-reasoned rationale, the examiner noted that these alleged secondary conditions did not arise until approximately 40 years after the Veteran's discharge. The Board accepts the August 2015 opinion as being the most probative and persuasive medical evidence on the subject, as it contains a detailed rationale for the medical conclusions and is based on sound medical principles. See Boggs v. West, 11 Vet. App. 334 (1998). The Board has considered the Veteran's lay statements in support of this claim, including the voluminous statements in support by friends and relatives and assorted internet medical articles. In this regard, the Board notes that the Veteran, his friends, and his relatives are competent to provide their lay observations of symptoms the Veteran experiences. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the etiology of musculoskeletal and neurological disorders generally falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d at 1377 n.4. The Veteran's musculoskeletal and neurological disorders have multiple potential etiologies so expert medical evidence is necessary to establish a credible nexus. Here, the most probative expert medical evidence is against the claim. Consequently, the Board finds that the preponderance of the evidence is against entitlement to service connection. As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the appeal is denied. ORDER Entitlement to service connection for residuals of poliomyelitis, other than weakness and atrophy of the right lower extremity, is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs