Citation Nr: 1753778 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 14-03 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES Entitlement to a service connection for muscular dystrophy. Entitlement to a compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Larry D. Schuh, Attorney at law WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T. Monrose, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1976 to October 1980 and from January 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 (bilateral hearing loss) rating decision and October 2014 (muscular dystrophy) rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In November 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). The issue of entitlement to an increased rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The competent and credible evidence does not show that the Veteran's muscular dystrophy condition was related to or aggravated by his active duty service. CONCLUSION OF LAW The criteria for service connection for muscular dystrophy have not been met. 38 U.S.C. §§ 1131, 1153, 5103 (West 2012); 38 C.F.R. § 3.303 and 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION Muscular dystrophy The Veteran's service treatment records (STRs) are unavailable. While the VA has a heightened duty to assist when STRs are unavailable, a medical examination is not required under McClendon v. Nicholson, 20 Vet. App. 79 (2006), because the Veteran does not allege nor does the evidence of record indicate that the Veteran's condition is associated with an in-service event, injury, or disease. The medical evidence includes a current diagnosis of fascioscapulohumeral dystrophy by Dr. P. Giriyappa, whose records note it is an inherited dystrophy. Records reflect that it was first diagnosed in approximately 2002 and was based on genetic testing. See private treatment records from Holy Family Memorial dated January 2012 and VA Fox Valley outpatient treatment records dated March 2013. In July 2006, he and his wife reported that he had difficulty with the right knee that had been giving way perhaps for as long as two to three years, and his wife noted that for perhaps five or six years he had worn a brace on the knee. The impression was myopathy. See private treatment records from Aurora Manitowoc Clinic. The Veteran also developed weakness in his bilateral upper extremity with more weakness on the right side. See private treatment records from Prevea Workmed dated January 2009, which was furnished by the Social Security Administration. Separate criteria exist for the establishment of a service connection for congenital defects and congenital diseases. For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration. In contrast, a "disease" is capable of improvement or deterioration. See VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). The Veteran's fascioscapulohumeral muscular dystrophy is repeatedly referred to as inherited or hereditary condition in the medical records. See Holy Family Memorial medical records dated January 2012 and VA Fox Valley outpatient treatment records dated March 2013. Specifically, the Veteran's private physician explained that "there was a gene deletion noted." See Holy Family Memorial medical records dated September 2010. The medical evidence did not clearly determine whether the manifestation of this genetic abnormality as muscular dystrophy was a congenital defect or disease. Thus, the Board will consider whether service connection is available under the appropriate regulations for both congenital defects and congenital diseases. Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9. However, if superimposed injury or disease occurred, the resultant disability might be service-connected. See VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). The Veteran has not alleged an injury or disease superimposed on his congenital muscular dystrophy during his active duty service. The Veteran's STRs are unavailable for all periods of active duty service. See Formal Finding on the Unavailability of Complete Service Treatment records dated July 2008. The Veteran's correspondence dated July 2011 correctly states that the lay evidence may be considered especially in the absence of STRs based on the case law in Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). However, the Veteran's lay statements do not aid his cause. During the November 2016 Board hearing, the Veteran testified that he believes that his symptoms of weakness began prior to his second period of active duty service in 1991 and after his first period of active duty service ended in 1980. Hr. Tr. pp. 7-8. Thus, the preponderance of the evidence is against a finding that service connection is warranted on the basis that the Veteran has a congenital defect that sustained a superimposed disease or injury in service. A congenital disease may be service connected where the disease first manifested during service (incurrence), or where it preexisted service but was worsened beyond its normal progression as a result of service (aggravation). See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513 (1993). As noted above, the Veteran's Board hearing testimony suggests that his symptoms manifested prior to his second period of active duty service. While the Veteran's STRs are not available, the Board is not without medical guidance regarding the normal progression of the Veteran's condition. In private treatment records from January 2012, the physician opined that the Veteran was getting weaker and more fatigued over the years, but the natural progression of his condition has been very slow. See Holy Family Memorial medical records. In fact, the Veteran's spouse testified that a neurologist, Dr. E., advised the Veteran that his symptoms had it onset later in life because he was physically active due to his military service and while building houses after leaving the military. See November 2016 Board Hr. Tr. pp. 6-7. The other medical evidence of record does not refute this. The Board finds that the Veteran does not contend nor the does the evidence show that the Veteran's condition was first manifested in service or was aggravated by his military service. The Veteran and his spouse are competent to report symptoms of pain, weakness, and lack of coordination which occurred between periods of service and after active duty service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran and his wife are not shown to have appropriate training and expertise necessary to provide opinions regarding the etiology or aggravation of his genetic condition. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In this instance, therefore, the Veteran and his spouse, as lay persons, are not capable of making medical conclusions, especially as to complex medical diagnoses such as whether his muscular dystrophy was aggravated by his military service. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not applicable. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. ORDER Entitlement to a service connection for muscular dystrophy is denied. REMAND Bilateral hearing loss The Veteran contends that an increased rating for his bilateral hearing loss is warranted. When the evidence of record does not reflect the current state of the claimant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2017). The Veteran's last VA examination was completed more than three years ago in March 2014 and may not reflect the current state of his disability. During the Board hearing held in November 2016, the Veteran testified that his hearing has worsened since his VA examination two years prior to the hearing. Hr. Tr. p. 16. In fact, his hearing aid was adjusted in 2015 to enable him to hear better. Id. at pp. 16-17. Accordingly, the Board finds that the RO should schedule the Veteran for a new VA examination to address the current severity of his bilateral hearing loss. Accordingly, the case is REMANDED for the following action: 1. Secure for the record copies of any (and all) updated clinical records of any relevant VA and/or private treatment. 2. After completing the above development, schedule the Veteran for an audiological examination to determine the current severity of his bilateral hearing loss disability. The claims folder must be made available to and reviewed by the examiner. The examiner must explain the rationale for all opinions, citing to supporting clinical data as appropriate. If the examiner is unable to provide any required opinion, he or she should explain why the opinion cannot be provided. 3. After completing the above development, review the record and readjudicate the claim for a higher rating for bilateral hearing loss. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs