Citation Nr: 1605470 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 05-32 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for arthritis, including sensory ataxia and polyneuropathy, to include as secondary to herbicide exposure. 2. Entitlement to service connection for a chronic neurological disorder, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran, Veteran's Wife, and Veteran's Daughter ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1968 to February 1970. This appeal comes before the Board of Veterans Appeals (Board) from a November 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi that denied the Veteran's claims of entitlement to service connection for arthritis and a chronic neurological disorder. In March 2008, the Veteran testified at a Travel Board hearing before an Acting Veterans Law Judge (VLJ) who is no longer employed at the Board. In May 2012 the Veteran's claims were remanded to afford him a new hearing. Nevertheless, a transcript of the hearing is associated with the claims file. The Veteran testified before the undersigned VLJ during a Travel Board hearing in March 2015. A transcript of the hearing has been associated with the Veteran's claims file. FINDINGS OF FACT 1. The record does not contain clear and unmistakable evidence demonstrating that the Veteran had arthritis, including sensory ataxia and polyneuropathy that existed prior to his entry to active service. 2. The record does not contain clear and unmistakable evidence demonstrating that the Veteran's chronic neurological disorder existed prior to active service. 3. Resolving all doubt in the Veteran's favor, the Veteran's current arthritis, including sensory ataxia and polyneuropathy was manifested in service. 4. Resolving all doubt in the Veteran's favor, a chronic neurological disorder was manifested in service. CONCLUSIONS OF LAW 1. The criteria for service connection for arthritis, including sensory ataxia and polyneuropathy have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for service connection for a chronic neurological disorder have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a) (2014); 38 C.F.R. § 3.159(b) (2015). In light of the favorable determination being reached in regards to the Veteran's claims, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. General Legal Principles The Board has reviewed all of the evidence in the Veteran's claim file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). As the evidence in this case is extremely voluminous, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issue on appeal. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). A Veteran is 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 and was not aggravated by such service. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2014); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness . . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). If a Veteran is presumed sound at service entrance and VA is unable to rebut the presumption, a disease or injury that manifested in service is deemed incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012) (noting that such a finding establishes the second element of service connection). However, even if an injury or disease is deemed to have been incurred in service pursuant to application of the presumption of soundness (or by a finding that the injury or disease was actually incurred in service), a Veteran must nonetheless establish by a preponderance of the evidence that a current disability is related to the in-service injury or disease. Gilbert, 26 Vet. App. 48 (citing Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) ("The presumption of soundness . . . does not relieve the Veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof."). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Presumption of Soundness As an initial matter, there is evidence in the record to suggest that the Veteran's arthritis and chronic neurological disorder may have existed prior to service. Treatment notes in the Veteran's service treatment records indicate that in July 1968 (only a few months after entry) the Veteran reported having a 10 year history of arthralgia of hips, knees, and ankles. Similarly, an August 1968 notation indicates that the Veteran complained of joint pain and was referred to rheumatology. An October 2014 VA examiner relied on the Veteran's STRS opining that the Veteran's joint symptoms "would have precluded his time in service [and] there is no indication with documentation that any of these conditions were aggravated during his period of service though they did continue to be symptomatic." Furthermore, although no disability was noted on the Veteran's April 1968 entrance physical, on his report of medical history, the Veteran indicated that he had a history of swollen or painful joints and broken bones. He also reported that he had a history of tumor, growth, cyst, and/or cancer. See Service Treatment Records. However, in an April 2010 letter, the Veteran reported that he was in perfect physical condition at service entry, ran a mile twice each week and that his current medical conditions started in service after basic training and three hospitalizations that occurred while in service. See April 2010 Correspondence. Similarly, a letter dated February 25, 2005 from Dr. L.L. indicated that the Veteran had fully recovered from Rheumatic fever which he had in 1957 and 1958 and he had no complications, disabilities or residual of symptoms when he enlisted in the Army in 1968. Although there is evidence to suggest that the Veteran's disabilities may have preexisted service, the evidence does not rise to the level of clear and unmistakable evidence. See 38 U.S.C.A. § 1111. Therefore, the presumption of soundness at service entrance has not been rebutted. 38 U.S.C.A. § 1111. The Board will analyze the Veteran's claims of service connection for arthritis and chronic neurological disorder under a direct service connection theory. Service Connection The Veteran contends that his arthritis and neurological disorders had their onset in service. As explained above, service connection will be granted if there is (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Here, the record is clear that the Veteran has current diagnoses of arthritis and neuropathy. The Veteran was diagnosed with unspecified osteoarthritis of wrist and degenerative/traumatic arthritis. See October 2011 VA Medical Examination Report. A March 2010 VA examination report also indicated that the Veteran has a diagnosis of lumbar spondylosis and degenerative disk disease, polyarthritis/ polyarthralgia with multi joint degenerative disease. During a VA neurological examination in July 1991, two Board certified neurologists were unable to make a definitive diagnosis but found that test results indicated mild to moderate sensory ataxia. The VA examiner opined that the constellation of neurologic abnormalities suggested problems in the posterior columns and/or peripheral nerves of uncertain cause. The examiner also noted that further testing would not lead to a more definitive diagnosis. See July 1991 C&P Examination Report. However, a letter from private physician Dr. L.P. dated September 2014 indicates that the Veteran has been diagnosed with spinocerebellar degeneration, peripheral neuropathy, possible primary progressive multiple sclerosis, possible toxin exposure or chemical injury. Dr. L.P. reported that the Veteran has progressive neurologic problems with lower extremity peripheral neuropathy, spondylosis of lumbar and cervical regions, chronic back and leg pain, worsening gait with leg weakness and imbalance leading to falls, hip arthritis, tremor, incoordination of arm and leg movements - all slowly progressive over many years with no ability to treat to make better other than symptomatic treatment. The Veteran is totally disabled and will remain so. As the record is clear that the Veteran has a current diagnosis, the remaining issue to be determined is whether or not the Veteran's disabilities were incurred in or are related to service. The Veteran contends that he became sick with flu-like symptoms while serving in Korea and that his symptoms were so severe he was ordered to remain in the barracks for 48 hours. The Veteran initially reported having problems with both his legs including numbness and potential circulatory problems below his knees. He reported numbness in his fingers and the upper right side of his face. Because of the Veteran's leg problems, he had difficulty walking for any length of time and could not negotiate stairs safely. See October 15, 1985 Correspondence. The Veteran also reports having symptoms of arthritis and a neurological disorder right after leaving Korea. The Veteran states that he was spastic as soon as he left service and upon return home could not participate in many of the physical activities he previously partook in. See March 2015 Hearing Transcript. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Additionally, the Veteran's testimony regarding the onset and progression of his symptoms has been consistent throughout the appeal period. As such, the Board finds the Veteran credible. There is conflicting medical evidence as to whether or not the Veteran's arthritis and neurological disorders are related to service. In a letter dated August 1989 from private Dr. L.L., he stated that "the Veteran has a progressive illness of obscure etiology which has been symptomatic and progressive for many years. In reviewing his clinical course, I think it highly probably that the symptoms which he noted as far back as 1968 may have been early manifestations of his illness." In a January 2004 letter, Dr. C.N.B. opined that the Veteran's disabilities were incurred in service. Dr. C.N.B. states "it is clear that [the Veteran] has several symptoms that have been present since his service time. His hip arthralgias were present in service in 1968 and he had a positive x-ray of his hips in 1985, which showed degenerative changes at the young age of 40. It is clear that these hips [sic] degenerative changes were first observed during service time and he should therefore be considered for a VA rating because I did not find any other plausible etiology in his medical records." Dr. C.N.B. reasoned that because "the Veteran entered service fit for duty, had several multisystem symptoms during service, which [were] never worked up and which [were] likely attributable to a systemic disease because many of the individual organ system diseases have been ruled out, and the Veteran's vertebral body and disc change do not fully account for all of his systemic problems . . ." the Veteran's cerebellar syndrome/s likely began during service. Furthermore, a letter dated February 25, 2005 from Dr. L.L. stated "[The Veteran's] current neurological conditions of atypical spinocerebellar degeneration, spinal-cord stenosis and peripheral neuropathy started and existed in military service and still continues today, and have disabled him completely." The Board finds these private medical opinions adequate and highly probative to the question at hand. The physicians possessed the necessary education, training, and expertise to provide the requested opinions. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, Drs. L.L. and C.N.B. provided adequate rationales for their opinions. They also reviewed the Veteran's claims folder, which contained his service treatment records and post-service medical evidence. It is clear that the medical service providers took into consideration all relevant factors in giving their opinions. By contrast, however, in an October 2004 VA medical opinion report, the examiner stated that there was "no substantial evidence that any of the claimed joints as identified as generalized arthritis by the Veteran, had their origin in service . . ." Therefore, the examiner opined that the Veteran's joint symptoms were not caused by or a result of the Veteran's period of service. With respect to the Veteran's neurological disorder an October 2004 VA examiner stated that there is "insufficient documentation to establish the onset of [the Veteran's] neurological deficits. The first documentation of neurologic symptoms was 1985, and appears to have been well established by 1987-88. It clearly has been progressive in nature since that time. However, I cannot tie the onset of symptoms to the period of service or within two years of discharge without resort to mere speculation." Moreover, in a November 2006 VA examination report, the examiner stated that he could not tie the Veteran's current neurologic symptoms to the arthralgia expressed in service without speculation. In a February 2010 VA examination report, the VA examiner found that there was "no objective evidence to associate or connect the current rheumatologic conditions or complaints to arthralgias or complaints registered during the time of service. Current radiographs show minimal arthritic change that would not be unexpected given the patient's age." Similarly, a July 2009 VA examination report indicates that the examiner was unable to propose any relationship between the Veteran's neurological disorder and his military service. With respect to the Veteran's arthritis, a VA examiner stated that he found no objective evidence to associate or connect the current rheumatologic conditions or complaints to the arthralgias or complaints registered during the time of military service. The examiner indicated that current radiographs show minimal arthritic change that would not be unexpected given the Veteran's age. See February 2010 VA Examination Report. In view of the totality of the evidence, including the symptoms the Veteran exhibited while in service, the private medical opinions from Drs. L.L. and C.N.B indicating that the Veteran's disabilities manifested in service, and the credible lay assertions of record, the Board finds that the evidence is in relative equipoise. Therefore, the Board finds that the Veteran's arthritis and chronic neurological disorder had their onset during service. Resolving all doubt in the Veteran's favor, the Board finds that entitlement to service connection for arthritis and a chronic neurological disorder is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board acknowledges that the Veteran asserts that during service he often drove military personnel and civilians to and from the Demilitarized Zone (DMZ) while serving in Korea and that his arthritis and neurological disorders are a result of exposure to herbicides. See April 2010 Correspondence. The Board finds it unnecessary to address this argument as the criteria for direct service connection has been met. ORDER Service connection for arthritis, including sensory ataxia and polyneuropathy is granted. Service connection for a chronic neurological disorder is granted. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs