Citation Nr: 18155193 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 15-44 637 DATE: December 3, 2018 ORDER Entitlement to service connection for myasthenia gravis is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for an acquired psychiatric disorder to include PTSD, MDD, and alcohol abuse is remanded. Entitlement to an initial compensable rating for residuals of a right thumb fracture is remanded. FINDING OF FACT Myasthenia gravis was not manifest in service or within one year of service discharge, and is not otherwise attributable to service or a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for myasthenia gravis have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Navy from October 1971 to October 1974. He had additional service in the Army National Guard. Entitlement to service connection for myasthenia gravis The Veteran appeals the denial of service connection for myasthenia gravis. He argues that his disability is related to his service. Alternatively, he argues that his myasthenia gravis is secondary to his service-connected residuals of a right thumb fracture. In support of his claim, the Veteran has submitted treatise information indicating that myasthenia gravis can be aggravated by fatigue, illness, stress, extreme heat, and some medications. The Board observes that myasthenia gravis is an autoimmune disease wherein the body’s immune system makes antibodies that block or change some of the nerve signals to the muscles, causing weakness in voluntary muscles. https://medlineplus.gov/myastheniagravis.html. Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (Courts may take judicial notice of facts not subject to reasonable dispute). As discussed below, the Board has obtained opinion from a rheumatology specialist with the Veterans Health Administration (VHA). A rheumatologist is an internist or pediatrician who received further training in the diagnosis (detection) and treatment of musculoskeletal disease and systemic autoimmune conditions commonly referred to as rheumatic diseases; these diseases can affect the joints, muscles, and bones causing pain, swelling, stiffness, and deformity. https://www.rheumatology.org/I-Am-A/Patient-Caregiver/Health-Care-Team/What-is-a-Rheumatologist. The Veteran appears to challenge the competency of the examiner by arguing that his myasthenia gravis (MG) is not an autoimmune disease but rather a disease “that breaks down the nerves and muscles.” Notably, the Veteran’s treating VA physician refers to the Veteran as having an auto-immune disease. See, e.g., VA Clinic Record dated January 12, 2017 (citing “Follow up for Auto Immune Myasthenia Gravis”). The Veteran also cites a deficiency to the extent that the VHA examiner has not met and examined the Veteran, and is unaware of the Veteran’s long-standing history of treatment. The Board observes that the diagnosis of myasthenia gravis is not in dispute and the dispositive issue concerns the onset and potential service-connected cause for this disease. The VHA examiner has reviewed the Veteran’s entire documented history as well as the specific theories offered by the Veteran. The VHA examiner is a specialist for diagnosing and treating autoimmune diseases, and gave no indication in the examination report that he was not qualified to answer the questions posed by the Board. Overall, the Board is not persuaded from the Veteran’s arguments that the VHA examiner is not qualified to provide an opinion in this case as the Veteran’s own treating physician has stated that he manifests “Auto Immune Myasthenia Gravis,” which is consistent with medical definitions of the disease process, and rheumatologists have specialized training in auto-immune diseases. Furthermore, the examiner has reviewed the entire claims folder, including the theories offered by the Veteran, and the need for actual examination is not shown. Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that “the tie goes to the runner.” Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102 Following review of the record, the Board finds that the preponderance of the evidence is against the claim for service connection for myasthenia gravis. In this regard, the Board notes that the Veteran’s service treatment records are negative for any complaints, treatment, and/or diagnoses pertaining to myasthenia gravis. Rather, the September 1974 separation examination, March 1975 training duty examination, April 1977 training duty examination, September 1977 enlistment examination, February 1982 periodic examination, August 1986 retention examination and October 1990 annual examination disclosed normal findings for the neurologic, eyes and lower extremities. The Veteran also denied swollen or painful joints, nervous trouble of any sort, eye trouble and leg cramps during the April 1977, September 1977, February 1982, August 1986 and October 1990 examinations. During the March 1975 examination, the Veteran reported eye trouble. At that time, corneal abrasion May 1975 with no residual was noted. The Board has reviewed the available service examination reports, VA medical records, VA examinations, and private treatment records of file. In short, there is no competent, credible evidence that the Veteran’s disability is related to his military service. To the contrary, during the June 2014 VA examination, the VA examiner opined that the Veteran’s lumbar spine disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. He reasoned that the Veteran did not have any back conditions while in service and that there were no medical records to show that he had a back condition. The Veteran stated at the examination that his back condition was caused by his myasthenia gravis which primarily causes him to have problems breathing when he bends over. These symptoms according to the VA examiner are not a function of a back condition but myasthenia gravis and that the condition of myasthenia gravis was not present while in service. After examination in November 2016, a VA examiner opined that the Veteran’s myasthenia gravis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. He reasoned that the onset of the Veteran’s myesthesia gravis condition at age 60 is typical of the condition as myasthenia gravis is an acquired autoimmune disease which typically in men usually onsets in the 5th to 8th decade of life. In July 2018, Dr. H opined that the current myasthenia gravis was not caused by or a result of his service, nor a result of any incident in service (less than 50 percent probability). He noted that myasthenia gravis is an auto-immune disease and as such has no relationship with his service-connected right thumb disability (less than 50 percent probability). He further stated the Veteran’s myasthenia gravis was not caused nor aggravated beyond the normal progress of the disorder by medications taken for his service-connected disability (less than 50 percent probability). He reasoned that such could be explained by the assumption that the fracture occurred years before the onset of myasthenia gravis and that medications commonly used to treat symptoms of fracture are not usually implicated or known causes of myasthenia gravis or symptom aggravation of myasthenia gravis. He further noted that the treatise information of record indicating that myasthenia gravis can be aggravated by fatigue, illness, stress, extreme heat and some medications has no significance and no relation to the Veteran’s disability or his service as he could see. The Board finds that the medical opinions rendered by the VA examiners and Dr. H are persuasive and assigns them greater probative weight than the lay statements of record. The opinions were rendered by medical professionals with the expertise to opine on the matters at issue in this case. The examiners addressed the Veteran’s contentions and based the opinions on a review of the claims folder, to include consideration of the in-service history, post-service history and the nature of the current disability. Notably, the VA examiner attributed back pain as a symptoms of myasthenia gravis. To the extent that back pain could be a presenting symptom of myasthenia gravis, the Board finds that the most credible lay evidence demonstrates that recurrent back pain was not present during active service from October 1971 to October 1974 as the Veteran specifically denied this symptom. See, e.g, Reports of Medical History dated March 1975 and April 1977. The Board places great probative weight to these statements as being reliable as they were made contemporaneous in time to service discharge and bear the indicia of reliability as being made in the context of identifying any pertinent medical conditions. See generally LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The record is unclear whether myasthenia gravis can be considered an “organic disease of the nervous system” for presumptive service connection purposes. See generally 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). There is no medical evidence or opinion that myasthenia gravis was manifested in service or within one year of service. The Veteran himself, in a Report of Medical History in April 1977 (more than one year after service discharge) reported no known medical problems. Furthermore, the Board is aware that the Veteran had periods of Active Duty for Training (ACDUTRA) and inactive duty for training (INACDUTRA). The Board observes that the applicable laws and regulations permit service connection only for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6. However, the Veteran has not identified any period of ACDUTRA where myasthenia gravis reportedly first manifested, and a disease manifesting during a period of INADUTRA is not subject to service connection. See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010) (when a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA; with respect to a claim for aggravation of a preexisting condition during ACDUTRA, the claimant must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA). On the other hand, the only evidence tending to show a service-connected etiology for myasthenia gravis is the Veteran’s personal opinion with reference to medical treatise-like materials. The Board acknowledges that the Veteran is competent to report pain and the circumstances surrounding it. However, the Board does not find that the Veteran’s lay description of symptoms describes the onset of myasthenia gravis to a period of service and the medical opinion of record finds that his symptoms manifested many years later. As it pertains to actual onset and etiology, the nature and etiology of an autoimmune disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but is not competent to provide opinions on more complex medical questions). The medical treatise articles indicating that myasthenia gravis can be aggravated by fatigue, stress, illness, extreme heat and some medications have some probative value. However, the Board places much greater probative value to the VHA opinion which specifically considered these treatise materials and applied the principles to the specific facts of this case. On the other hand, articles are general in nature and do not specifically relate to the facts and circumstances surrounding this particular case. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (treatise evidence cannot simply provide speculative generic statements not relevant to the veteran’s claim, but, “standing alone,” must include “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion” (citing Sacks v. West, 11 Vet. App. 314, 317 (1998))); see also Stadin v. Brown, 8 Vet. App. 280, 284 (1995). For these reasons, the Board finds the opinions of the VA examiner and Dr. H far more probative and persuasive on the question of etiology. Furthermore, the Veteran does not allege recurrent/persistent myasthenia gravis symptoms since service and did not manifest this disorder until many years after service, his disability is not subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) or as a chronic disease being manifest within the first postservice year under 38 C.F.R. § 3.309(a). To the extent the Veteran argues that his myasthenia gravis may be secondary to his service-connected right thumb disability to include medications taken for his disability, the Board finds against this theory. As noted, in July 2018 Dr. H specifically found that myasthenia gravis is an auto-immune disease and as such has no relationship with his service-connected right thumb disability (less than 50 percent probability). He further found that medications commonly used to treat symptoms of fracture are not usually implicated or known causes of myasthenia gravis or symptom aggravation of myasthenia gravis. There is no competent evidence to the contrary. In sum, the most probative evidence of record preponderates against a finding that the Veteran’s myasthenia gravis related to service. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107. The appeal is denied. REASONS FOR REMAND 1. Entitlement to a lumbar and cervical spine disability is remanded. The Veteran appeals the denial of service connection for a lumbar spine and cervical spine disability. He claims that his lumbar spine and cervical spine problems started in service and have continued since that time. In relation to his claim, the Veteran was afforded a VA examination in June 2014. The VA examiner opined that the Veteran’s lumbar spine disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. He reasoned that the Veteran did not have any back conditions while in service and that there were no medical records to show that he had a back condition. The Veteran stated at the examination that his back condition was caused by his myasthenia gravis which primarily causes him to have problems breathing when he bends over. These symptoms according to the VA examiner are not a function of a back condition but myasthenia gravis and that the condition of myasthenia gravis was not present while in service. The VA examiner essentially found that the Veteran did not have nor has had a lumbar spine disorder. Despite x-ray findings of grade 1 spondylolisthesis of L4 on L5-2 and moderate degenerative changes of the lumbar spine, the VA examiner checked that the Veteran did not now have or has ever been diagnosed with a thoracolumbar spine (back) condition. The Board also notes that the Veteran has been assessed with low back pain and lumbar spine radiculopathy to include having surgery for such in October 2015. In light of the lumbar spine diagnoses, the Board finds that another examination is needed to determine if the Veteran has a lumbar spine disability that is related to service. As the Veteran has not had a VA examination regarding his claim for service connection for a cervical spine disability, he should also be afforded such an examination on remand. 2. Entitlement to service connection for an acquired psychiatric disorder to include PTSD, MDD, and alcohol abuse. The Veteran appeals the denial of service connection for an acquired psychiatric disorder to include PTSD, MDD, and alcohol abuse. With regard to his claim for service connection for an acquired psychiatric disorder, the Veteran has reported multiple stressors. First, he claims that while on active duty around May 1973 he was attacked by his platoon sergeant, B.H. He reports that he was “beaten pretty badly” and that the supervisor was charged with the attack. Secondly, the Veteran reports that while on active duty for training around July/August 1984 in San Juan, Puerto Rico he had to help unload wounded patients from helicopters and that the images of the wounded soldiers bothered him. Lastly, a July 2014 lay statement from Sgt. R.T has been submitted asserting that during the summer of 1990 the Veteran was called to active duty training and on the way to training he witnessed a fatal motor vehicle accident involving his mother. Sgt. R.T. also noted that following the mission the Veteran found out that his wife was having an affair with another soldier in the unit. The Veteran punched the soldier in the face which was behavior Sgt. R.T. claims to have never seen from the Veteran before. Sgt. R.T claims that the Veteran started drinking excessively after these events. The Veteran asserts that his current psychiatric disabilities are related to the aforementioned events in service. In a May 2013 statement, Dr. D.H. indicated that the Veteran was disabled in part due to his “previous past stressful situation as a Veteran in Vietnam.” While the Veteran reports that he received a Combat Infantry Badge and a Navy Commendation Medal with a “V” device for valor, his DD 214 does not reflect combat service and/or that he was a recipient of a Combat Infantry Badge and/or a Navy Commendation Medal with a “V” device for valor. Nevertheless, the record contains the Veteran’s claim of psychiatric problems that are related to service, lay evidence detailing stressful events that transpired in service and the notation of Dr. D.H., the Veteran has not been afforded a VA examination in relation to this claim for service connection. On remand, he should be afforded such an examination. 3. Entitlement to an initial compensable rating for residuals of right thumb fracture. The Veteran appeals the denial of an initial compensable rating for residuals of right thumb fracture. In relation to his claim, the Veteran was last afforded a VA examination in June 2014. During his VA examination, the Veteran reported that he does not have the mobility that he used to have and that he aches every night. The Veteran reported painful motion. Examination disclosed there was no gap thumb between the thumb pad and the fingers, and no gap between any finger tips and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the palm with the fingertips. There was also no showing of ankylosis of the thumb and/or fingers. It is noted, however, that the VA examiner was unable to determine whether pain, weakness, fatigability or incoordination significantly limited functional ability during flare ups or with repeated use over a period of time. The examiner indicated that determining the extent of motion loss during flares required resort to speculation as the Veteran was not experiencing a flare at the time of examination, which does not comply with a recent holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Given the inadequacies of the June 2014 VA examination report, the Board has no option but to again remand the appeal for further development. See Stegall v. West, 11 Vet. App. 269, 271 (1998). The matters are REMANDED for the following action: 1. Update for the record all relevant private and VA treatment records. 2. Schedule the Veteran for an examination to address the nature and etiology of any lumbar and cervical spine disorders. The examiner is to be provided access to the electronic record. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. For each lumbar and cervical spine disorder, diagnosed during the examination and/or in the record, the examiner must opine whether it is at least as likely as not (50 percent probability or more) that any diagnosed disorder is attributable to service. The examiner must consider: (1) the x ray findings of grade 1 spondylolisthesis of L4 on L5-2 and moderate degenerative changes of the lumbar spine, (2) the September 1974 separation examination, March 1975 training duty examination, April 1977 training duty examination, September 1977 enlistment examination, February 1982 periodic examination, August 1986 retention examination and October 1990 annual examinations which disclosed normal findings for the spine- other musculoskeletal and neck, and (3) the Veteran’s denial of recurrent back pain during the April 1977, September 1977, February 1982, August 1986 and October 1990 examinations. A complete rationale for any opinion should be provided. The examiner must not rely solely on the absence of a mental health diagnosis or symptom in service as the basis for a negative opinion. It is also noted that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. Any opinion should be reconciled with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran. If the lay evidence is rejected, an explanation must be provided. If an opinion cannot be made without resort to speculation, please state so and include an explanation for that conclusion. 3. Schedule the Veteran for a VA psychiatric examination to address the nature and etiology of any psychiatric disorders. The examiner is to be provided access to the electronic record. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. For each psychiatric disorder, diagnosed during the examination and/or in the record, the examiner must opine whether it at least as likely as not (50 percent probability or more) that any diagnosed psychiatric disorder is attributable to service. In doing so, the examiner must consider the Veteran’s reports of: (1) witnessing a fatal motor vehicle accident involving his mother while driving to active duty for training, (2) being attacked around May 1973 by his platoon sergeant, and (3) memories of helping to unload wounded patients from helicopters and the images of the wounded soldiers. A complete rationale for any opinion should be provided. The examiner must not rely solely on the absence of a mental health diagnosis or symptom in service as the basis for a negative opinion. It is also noted that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. Any opinion should be reconciled with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran. If the lay evidence is rejected, an explanation must be provided. If an opinion cannot be made without resort to speculation, please state so and include an explanation for that conclusion. 4. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected right thumb disability. Access to the electronic claims file must be made available to the examiner for review. In accordance with the latest worksheets for rating the thumb, the examiner is to provide a detailed review of the Veteran’s pertinent medical history, current complaints and the nature and extent of his disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. The examiner must test and record the range of motion for the thumb in active motion, passive motion, weight-bearing, and nonweight-bearing for the joint in question and any undamaged paired joint. The degree at which pain begins must be documented. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. (continued on next page) 5. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issues on appeal. If the benefits sought are not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S. Willie