Citation Nr: 1805150 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-25 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for mitochondrial degeneration. 2. Entitlement to service connection for Meniere's disease. 3. Entitlement to service connection for bilateral macular degeneration. 4. Entitlement to service connection for disorders affecting the bilateral lower extremity, claimed as peroneus brevis muscular myopathy and superficial peroneal nerve neuropathy. 5. Entitlement to service connection for bilateral hearing loss, claimed as secondary to Meniere's disease. 6. Entitlement to service connection for bilateral upper extremity neuropathy. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had honorable active duty service from June 1955 to April 1959. He died in March 2017 and appellant is his surviving spouse. The appellant has been substituted as the claimant. See 38 U.S.C.A. § 5121A. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the June 2014 rating decision denied service connection for right and left peroneus brevis muscle myopathy; right lower extremity neuropathy, also claimed as superficial peroneal nerve; and left lower extremity neuropathy, also claimed as superficial peroneal nerve. As these claims all involve the lower extremities, those claims have been recharacterized as listed on the title page. The claims were remanded by the Board in July 2017 in order to schedule the appellant for a requested hearing. Appellant and her daughter presented testimony at a personal hearing before the undersigned Veterans Law Judge in October 2017. A transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT The competent evidence in this particular case is in equipoise as to whether the Veteran's mitochondrial degeneration is related to toxic exposures during his military service, and is in equipoise as to whether the remaining disabilities are associated with the mitochondrial degeneration. CONCLUSIONS OF LAW 1. The criteria for service connection for mitochondrial degeneration have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for Meniere's disease have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 3. The criteria for service connection for bilateral macular degeneration have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 4. The criteria for service connection for disorders affecting the bilateral lower extremity, claimed as peroneus brevis muscular myopathy and superficial peroneal nerve neuropathy, have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 5. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 6. The criteria for service connection for bilateral upper extremity neuropathy have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Prior to his death, the Veteran sought service connection for Meniere's disease; bilateral macular degeneration; disorders affecting the bilateral lower extremity, to include peroneus brevis muscular myopathy and superficial peroneal nerve neuropathy; bilateral hearing loss; mitochondrial degeneration; and bilateral upper extremity neuropathy, which he asserted were the result of his exposure to contaminated water while stationed at Camp Lejeune. The claimed exposure has been conceded. The Veteran's medical history is complex, and many of his medical records are reportedly not available for review due to their destruction. In a statement written by the Veteran prior to his death, he reported that he began having problems with his vision and balance within his first year of discharge, which was eventually diagnosed as Meniere's disease and led to hearing loss in both ears, and that a few years later, he began experiencing muscle loss in his extremities. The medical evidence that has been obtained establishes that the Veteran was found to have bilateral medial nerve delay and prolonged sensory latencies and evidence of motor action potentials in both peroneal nerves during electromyogram and nerve conduction studies of the lower extremities in May 1986. An October 1987 record indicates that the Veteran had a condition of the inner ear resulting in episodic dizziness. A December 1988 letter reports that the Veteran was first seen in March 1971 with complaint of hearing loss, at which time he reported he had suffered a sudden hearing loss accompanied by dizziness in 1962. Audiometric testing at that time did not show the typical pattern for noise-induced hearing loss. In December 1989, the Veteran was noted to have Meniere's disease and muscle atrophy of his legs. An August 1990 record indicates that the Meniere's disease led to a total loss of hearing on the right and a partial loss on the left. A September 1991 medical record documents complaints and symptoms affecting both upper extremities. In a May 2000 letter, Dr. Z.S., a professor of neurology at Ohio State University Medical Center, reported that the Veteran was seen that month for predominantly lower extremity weakness and sensory deficit. It was noted that he had at least a 30 year history of slowly progressive lower extremity weakness which started distally to affect the ankle stabilizers. About that time, he also started to experience difficulty with his hearing. Recent symptoms were basically in the form of myalgias and muscle spasms. He complained of pain in his legs that he described as toothache. Dr. S. noted that in 1985, the Veteran was diagnosed with macular degeneration. Dr. S. also noted that the Veteran's family history was incomplete, but if taken at face value, it appeared that the transmission is autosomal dominant from his father's side because the Veteran's father had hearing loss and similar leg problems and a paternal aunt also had longstanding leg problems. Following detailed examination, Dr. S. noted that the Veteran's problems were interesting and that the components of the disease process clearly include the hearing impairment and retinal degeneration in addition to the presence of a possible neuromyopathy. Examination also showed a considerable extent of peripheral nerve impairment and the presence of significant weakness in hip flexors, gastrocnemius, and hamstrings suggestive of an additional myopathic component. Dr. S. concluded that all these aspects of the examination and family history could be put together with a mitochondrial cytopathy. A superficial peroneal nerve and muscle biopsy was scheduled for the following month. The impression in the July 2000 surgical pathology report indicates that findings of the nerve biopsy were consistent with longstanding neuropathy with features of repeated regeneration and degeneration. The prominent finding in the muscle was the presence of abnormal mitochondria and collection of small size mitochondria in large quantities suggesting recent proliferation. In addition, there was evidence of mitochondrial degeneration. This finding was coupled with what appeared to be excessive glycogen and lipid in occasional fibers, suggesting an underlying metabolic abnormality related to energy metabolism. The diagnoses provided were longstanding superficial peroneal nerve neuropathy with moderate degree of fiber loss; and peroneus brevis muscle myopathy. The RO obtained an opinion in August 2015. The VA examiner determined that the claimed condition was less likely than not incurred in or caused by service. In pertinent part, the rationale was based on the fact that cited medical literature did not show association between the development of mitochondrial diseases manifest as myopathy, neuropathy, and visual and hearing impairments/degeneration and exposure to contaminated water. The examiner further indicated that even if one were to view the Meniere's disease and macular degeneration as unrelated to the Veteran's mitochondrial disease, the literature still does not show an association between these conditions and exposure to contaminated water at Camp Lejeune. The Board notes that the VA examiner cited Dr. S's May 2000 neurological evaluation and the July 2000 muscle biopsy report in the rationale section and that the examiner indicated that the Veteran would have been exposed to occupational solvents during his 20 year employment history with an automobile manufacturer from 1970 to 1999. The Board notes, however, that this determination does not account for the 10 years between the Veteran's discharge from service and when he began working for that company. The Veteran's daughter obtained an opinion from Dr. S. in February 2016. Dr. S. reported that she was asked to give a professional opinion regarding the possible role of exposure to contaminated drinking water, which contained two industrial chemical solvents (trichloroethylene (TCE) and perchloroethylene (PCE)), upon the Veteran's neurological condition. Dr. S. indicated that the possibility of a hereditary cause for the Veteran's longstanding predominantly lower extremity weakness and sensory deficits, macular degeneration, hearing impairment and prominent high arches was brought up after extensive studies suggested an underlying mitochondrial abnormality was causing the Veteran's clinical picture. Dr. S. further indicated that the Veteran later contacted her with information that he was exposed to TCE and PCE in service. Dr. S. reported that scientific literature, which was attached to the letter, now showed that TCE is recognized as a mitochondrial toxin and that there are reports endorsing a hypothesis that a variety of environmental risk factors may cause nigrostriatal degeneration in genetically predisposed individuals. Dr. S. also noted that PCE is also toxic to mitochondria. Dr. S. provided an opinion that based on the observations of significant mitochondria damage and abnormalities found in the Veteran's biopsy material, the Veteran had a genetic risk to begin with and the possibility that exposure to TCE and PCE may have contributed to his disease process was a valid one that could not be dismissed. The Board has read the scientific literature submitted in conjunction with Dr. S's February 2016 opinion. It has also reviewed the statements submitted and testimony provided by the Veteran's daughter, who is an adult geriatric primary care nurse practitioner, as well as the medical information she has submitted in support of the claims. Considering the lay and medical evidence of record longitudinally, the unique facts of this particular case and after resolving all doubt in the appellant's favor, the Board finds the evidence to be in equipoise as to the relationship between the Veteran's service and his claimed disabilities. In rendering this conclusion, the Board has considered that the Veteran reportedly began having a loss of hearing and lower extremity muscle weakness shortly after his discharge from service; the complex nature of his medical problems; Dr. S's May 2000 determination that the Veteran's disease process of mitochondrial cytopathy included hearing impairment and retinal degeneration in addition to the presence of a possible neuromyopathy; the July 2000 muscle biopsy findings consistent with longstanding neuropathy with features of repeated regeneration and degeneration, abnormal mitochondria, mitochondrial degeneration, and the suggestion of an underlying metabolic abnormality related to energy metabolism, with diagnoses of longstanding neuropathy with moderate degree of fiber loss of the superficial peroneal nerve and peroneus brevis muscle myopathy; and the opinion provided by Dr. S. in February 2016. While the VA examiner provided a competent and probative opinion against the claim, the Board finds the positive and negative evidence to be in equipoise. The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). According, based on the unique facts of this case and after resolving all doubt in appellant's favor, the Board concludes that that service connection for mitochondrial degeneration, and the remaining associated conditions listed on the cover page, is warranted. 38 C.F.R. §§ 3.102, 3.303, 3.310. ORDER Service connection for mitochondrial degeneration is granted. Service connection for Meniere's disease is granted. Service connection for bilateral macular degeneration is granted. Service connection for disorders affecting the bilateral lower extremity, claimed as peroneus brevis muscular myopathy and superficial peroneal nerve neuropathy, is granted. Service connection for bilateral hearing loss is granted. Service connection for bilateral upper extremity neuropathy is granted. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs