Citation Nr: 18155868 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-20 523 DATE: December 6, 2018 ORDER Whether new and material evidence has been received to reopen a service connection claim for muscular dystrophy is granted. Entitlement to service connection for muscular dystrophy is granted. REMANDED Entitlement to service connection for diabetes mellitus type 2 is remanded. FINDINGS OF FACT 1. The Veteran’s service connection claim for muscular dystrophy was denied in a July 2007 Board decision. The Veteran did not appeal this decision; nor has he asserted clear and unmistakable error in this decision. 2. The evidence received since the July 2007 Board decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the service connection claim for muscular dystrophy. 3. The Veteran’s muscular dystrophy, which is of hereditary origin, first manifested during service, and was aggravated beyond its normal progression therein. CONCLUSIONS OF LAW 1. The July 2007 Board decision denying service connection for muscular dystrophy is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 3.156(c), 20.1100. 2. Since the July 2007 Board decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for muscular dystrophy; and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for muscular dystrophy are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1968 to April 1971. He testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing in November 2018. The presiding VLJ has granted the Veteran’s motion to advance his appeal on the docket based on serious illness, pursuant to 38 C.F.R. § 20.900. Service Connection 1. Whether new and material evidence has been received to reopen a service connection claim for muscular dystrophy Prior to addressing the merits of the Veteran’s service connection claim for muscular dystrophy, the issue of whether new and material evidence has been received to reopen the claim must be addressed, as the service connection claim have been previously denied in a July 2007 Board decision. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 sustaining the claim. 38 C.F.R. § 3.156(a) (2017). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran originally filed a service connection claim for muscular dystrophy in September 2004. The evidence considered at that time included the service treatment records, which were negative for any explicit findings pertaining to muscular dystrophy, and medical statements from the Veteran’s private physician, Dr. Long, dated in April 2005 and April 2006, which noted that the Veteran’s muscular dystrophy first manifested during military service, though it was never diagnosed in service. Another private physician, Dr. David, also submitted a medical statement in April 2005 that the Veteran’s muscular dystrophy was likely symptomatic during his military service; and although it was not induced by service, it was possible that the Veteran underwent some exacerbation of his symptoms as a result of his military service. The Veteran testified at a March 2007 Board hearing that he recalled experiencing symptoms of muscle spasm and aching during his service, but was told his symptoms were due to the weather. In a February 2005 rating decision, the RO determined that the Veteran’s muscular dystrophy was considered a congenital or developmental defect, which was unrelated to military service and not permanently aggravated by service. It was noted that while the Veteran had complaints of pain in the rib cage, lumbar spine, and groin during service, these complaints were acute and transitory and no muscle problems were noted at discharge or until after service in approximately 1996. After the Veteran appealed the denial to the Board, the Board denied the Veteran’s service connection claim for muscular dystrophy in a July 2007 decision. The Board noted that the service treatment records were negative for any complaints or findings referable to muscular dystrophy; that he was not diagnosed with muscular dystrophy until many years after service in 1996; and that the post-service private medical statements relating the Veteran’s muscular dystrophy to military service were not probative, as they were based solely on the Veteran’s reports with no underlying rationale. The Veteran did not appeal the Board’s July 2007 decision. Because the July 2007 Board decision was not appealed, it is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Evidence received since the July 2007 Board decision includes additional statements from Dr. Long. In a February 2013 statement, Dr. Long indicated that the Veteran had a genetic form of muscular dystrophy that became symptomatic during his service years, and continued to progress to a severe level in the years after he separated from service. In a March 2014 statement, Dr. Long noted that the Veteran was diagnosed with muscular dystrophy after a period when he continued to have progressive trunk and leg weakness that went back decades. Dr. Long further noted that the Veteran was clearly symptomatic during his service time but that it could be difficult to make a diagnosis with slow progressive symptoms. Dr. Long determined that the rigors of active duty life almost certainly aggravated his muscular dystrophy and even more so the joints took an undue amount of wear and tear because the muscles were weakened at the baseline. The Board finds that this evidence is both new and material. Specifically, the newly received evidence shows that the Veteran’s muscular dystrophy first manifested during service, even though it was not diagnosed at that time due to the slow progression of the disease. This evidence was not previously considered by agency decisionmakers, is not cumulative or redundant, relates to unestablished facts necessary to substantiate the Veteran’s claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303. Accordingly, the Veteran’s service connection claim for muscular dystrophy is considered reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). 2. Entitlement to service connection for muscular dystrophy The Veteran contends that he has muscular dystrophy related to his military service. The Board concludes that while the Veteran’s muscular dystrophy was not diagnosed during service and did not manifest to a compensable degree within the applicable presumptive period, its symptoms first manifested during service, and there has been continuity of the same symptomatology since service. The Veteran has a current diagnosis of muscular dystrophy, which was first diagnosed in approximately 1996. Service treatment records show the Veteran complained of pain under the right side of his rib cage in July, August, and September 1968 and was diagnosed with muscle spasm. He also was treated for pain in the lumbar spine and groin in January 1970. Further, a private medical statement from the Veteran’s physician, Dr. Long, note that the Veteran had a genetic form of muscular dystrophy that had been present for all of his life. Further statements from Dr. Long in February 2013 and March 2014 note that the Veteran’s complaints in service were early manifestations of muscular dystrophy, but were difficult to diagnose, as it is a slowly progressive disease. As noted in the previous section, Dr. Long determined that the rigors of active duty life almost certainly aggravated his muscular dystrophy and even more so the joints took an undue amount of wear and tear because the muscles were weakened at the baseline. The Veteran is competent to report that he experienced symptoms of joint pain and muscle weakness in service and continued to experience the same since service. His statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows the Veteran’s complaints of joint pain and muscle spasm in service. A VA medical opinion was provided in December 2014 that the Veteran’s muscular dystrophy was a genetic disorder and not caused by or related to Agent Orange exposure in service. However, the VA examiner did not discuss whether the evidence showed that the muscular dystrophy first manifested during service, based on the Veteran’s complaints of joint pain and muscle spasm in the service treatment records. Although the Veteran’s muscular dystrophy is shown to be a hereditary disease, diseases of hereditary origin may be considered to have been incurred in service if their symptomatology did not manifest itself until after entry on duty. The mere genetic or other familial predisposition to develop the symptoms, even if the individual is almost certain to develop the condition at some time in his or her lifetime, does not constitute having the disease. Only when the symptomatology and/ or the pathology exist can he or she be said to have developed the disease. At what point the individual starts to manifest the symptoms of, or have pathological changes associated with the disease is a factual, not a legal issue. Even when a hereditary disease has manifested some symptoms prior to entry on duty, it may be found to have been aggravated during service if it progresses during service at a greater rate than normally expected according to accepted medical authority. VAOPGCPREC 67-90 (July 18, 1990), published at 55 Fed. Reg. 43,253 (1990); see also VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990). In weighing the positive and negative evidence of record, based on the service treatment records showing complaints of joint pain and muscle weakness, the Veteran’s competent and credible statements concerning continued symptoms since service, and the private medical statements from the Veteran’s physician that the Veteran’s muscular dystrophy first manifested during service and was aggravated therein, the evidence for and against the claim is relatively equally-balanced. Thus, all doubt is resolved in the Veteran’s favor that his muscular dystrophy first manifested in service and was aggravated therein. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus type 2 is remanded. VA regulations provide that a veteran who served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iv). The Department of Defense has identified specific units that operated in the Korean DMZ. If a veteran’s unit is not listed, the VA policy is that a request should be sent to the Joint Services Records Research Center (JSRRC) to verify exposure to herbicide agents. If possible, details regarding DMZ service should be obtained from the Veteran. Personnel records show that the Veteran served in Korea from February 1969 to March 1970, and that his military occupational specialty was automobile electrical repairman. His unit is not identified as a unit that operated in the Korean DMZ. Nonetheless, the Veteran asserts that he was exposed to Agent Orange during his service in Camp St. Barbara in December 1969, which was in the same proximate location as the DMZ, only 3,000 meters away. He also asserted that he was exposed to vehicles that he had been sprayed with Agent Orange. The record shows that the RO made a formal finding of unavailability of information to attempt to corroborate the Veteran’s exposure to Agent Orange in service, but did not send a request to the JSRRC to verify exposure to herbicide agents, based on the Veteran’s reports. The matter is REMANDED for the following action: A request should be sent to the Joint Services Records Research Center (JSRRC) to verify exposure to herbicide agents during the Veteran’s service in Camp St. Barbara in December 1969. Document all requests for information as well as all responses in the claims file. S.L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah B. Richmond