Citation Nr: 1600209 Decision Date: 01/05/16 Archive Date: 01/12/16 DOCKET NO. 15-06 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for a neurological disability (identified as primary lateral sclerosis (PLS)). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1961 to May 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Des Moines, Iowa Department of Veterans Affairs (VA) Regional Office (RO). Although the RO reopened the Veteran's claim by deciding the issue on the merits, the question of whether new and material evidence has been received to reopen the claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2015). FINDINGS OF FACT 1. An unappealed July 1990 rating decision denied the Veteran service connection for lateral sclerosis based essentially on findings that such disability was not manifested in service or within a year following, and was not shown to be related to the Veteran's service. 2. Evidence received since the July 1990 rating decision includes opinions by the Veteran's private and VA treating physicians identifying his PLS as a variant of amyotrophic lateral sclerosis (ALS) (which, under 38 C.F.R. § 3.318, would warrant presumptive service connection); relates to an unestablished fact necessary to substantiate the claim; and raises a reasonable possibility of substantiating the claim. 3. The Veteran's current neurological disability is reasonably shown to be a variant of ALS. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for the claimed neurological disability may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2015); 38 C.F.R. § 3.156 (2015). 2. On de novo review, service connection for the Veteran's current neurological disability (a variant of ALS) is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.318 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA applies to the instant claim. However, inasmuch as this decision reopens the claim and grants the underlying claim of service connection, there is no reason to belabor the impact of the VCAA in this matter; any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Generally, when a claim is disallowed and not appealed, it is final based on the evidence then of record, and it may not be reopened and allowed unless new and material evidence is received. 38 C.F.R. §§ 5108, 7105. "New" evidence means existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U.S. Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement; it interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In determining whether a claim should be reopened, the credibility of newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). An October 1989 Board decision denied the Veteran service connection for lateral sclerosis based essentially on findings that such disability was not manifested in service or within a year thereafter, and was not shown to be related to his service. The October 1989 Board decision is final. See 38 U.S.C.A. § 7104. In January 1990, the Veteran sought to reopen the claim of service connection for lateral sclerosis. A July 1990 rating decision reopened and denied the claim. He did not appeal this decision. The July 1990 rating decision is the last final decision in the matter. New and material evidence is required to reopen the claim before it may be considered de novo. 38 U.S.C.A. §§ 5108, 7105. Evidence of record at the time of the July 1990 rating decision included the Veteran's service treatment records (STRs) and VA and private treatment records (which did not show that PLS was manifest in service or within a year thereafter). Evidence received since the July 1990 rating decision includes additional VA and private treatment records, a VA medical opinion, and statements from the Veteran's private and VA treating physicians who opined that his PLS is at least as likely as not a variant of ALS. Effective September 23, 2008, 38 C.F.R. § 3.318 establishes a presumption of service connection for ALS for any Veteran who develops ALS at any time after separation from service, provided that (1) there is no affirmative evidence that it was not incurred during or aggravated by service; (2) there is no affirmative evidence that it is due to the Veteran's own willful misconduct; and (3) the Veteran had continuous active service of 90 days or more. See 73 Fed. Reg. 5469 -01 (Sept. 23, 2008). As the claim was previously denied because the RO found that the Veteran's neurological disability was unrelated to service, for evidence to be new and material, it must relate to such unestablished facts, i.e., it must tend to show that his neurological disability might be related to service (or that he is entitled to a presumption of service connection under the liberalizing regulatory provisions of 38 C.F.R. § 3.318). In separate November 2014 opinions, the Veteran's private and VA treating physicians have opined that the Veteran's neurological disability is a variant of ALS. Reviewing the additional evidence received since the July 1990 rating decision, the Board finds that it is both new and material. The opinions by the Veteran's private and VA treating physicians persuasively indicate that his neurological disability is a variant of ALS, warranting a presumption of service connection under the new regulatory provisions of 38 C.F.R. § 3.318. Accordingly, and particularly in light of the "low threshold" standard under Shade, the Board finds that the additional evidence received is both new and material, and that the claim of service connection for a neurological disability may be reopened. The analysis proceeds to de novo review of the claim. The Veteran is not prejudiced by the Board so proceeding in light of the determination herein. He contends that his PLS is the same as, or is a type of, ALS and warrants service connection under 38 C.F.R. § 3.318. In support of his claim, he submitted two articles which suggest that PLS is a variant of ALS. The articles acknowledge that there is a difference of opinion as to whether PLS is a distinct motor neuron disease or a variant of ALS, or whether PLS may progress to ALS. A March 2009 Compensation and Pension Service Bulletin states that, in essence, only ALS (and not PLS) is entitled to a presumption of service connection under 38 C.F.R. § 3.318. In a January 2014 VA medical advisory opinion, a VA osteopath indicated that the Veteran has PLS, an upper motor disorder, which is a separate condition from ALS, a lower motor disorder. In November 2014, the Veteran's VA treating internist stated that individuals with PLS have progressive spasticity, which is a sign of upper motor neuron dysfunction like ALS. Although PLS has a slower progression of impairment than classical ALS, it nonetheless progresses and causes a severe disability. Accordingly, he opined, with a VA neurologist concurring, that it is "at least as likely as not that [the Veteran's] current neurological disability is a variant of ALS." In separate November 2014 opinions, the Veteran's private treating provider noted that ALS and PLS are both considered motor neuron diseases. He and other ALS clinicians view PLS as a motor neuron variant of ALS. He opined 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." Upon reviewing the VA policy guidelines and the medical literature regarding PLS, the presumptive provisions of 38 C.F.R. § 3.318, and the statements submitted by the Veteran's VA and private treating physicians, the Board finds that the issue of whether PLS is a separate and distinct disability or a variant of ALS is a factual determination to be made in this case based on the competent (medical) evidence that addresses the specifics of the case. The competent evidence of record against the Veteran's claim consists of the January 2014 VA opinion provider who concluded that the Veteran's PLS is a separate condition from ALS (and does not fall within the purview of 38 C.F.R. § 3.318). The competent evidence supporting the Veteran's claim includes the November 2014 opinions by his private and VA treatment providers who expressed that it is at least as likely as not that the Veteran's current neurological disability is a variant of ALS. The opinion by the Veteran's VA treating internist indicates endorsement by a VA neurologist. These opinions place the Veteran's case within the purview of 38 C.F.R. § 3.318. The Board finds the evidence of record persuasive that the Veteran's neurological disability is consistent with ALS. His treatment providers have indicated that he has a variant of ALS, and he has also provided textual evidence supporting that PLS is a variant of ALS. Thus, the Board finds that the medical evidence of record shows that it is at least as likely as not that his neurological disability is a variant of ALS, and warrants presumptive service connection under 38 C.F.R. § 3.318. Resolving any remaining reasonable doubt in the Veteran's favor, as required, the Board finds that service connection for his neurological disability (as a variant of ALS) is warranted. ORDER The appeal to reopen a claim of service connection for the Veteran's neurological disability (which was identified as PLS) is granted. Service connection for the Veteran's neurological disability (as a variant of ALS) is warranted. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs