Citation Nr: 18156934 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-47 290 DATE: December 11, 2018 ORDER Entitlement to service connection for Charcot-Marie-Tooth disease (CMT) with foot drop claimed as leg weakness is denied. REMANDED Entitlement to service connection for ptosis is remanded. Entitlement to service connection for neurofibromatosis is remanded. FINDING OF FACT The Veteran's Charcot Marie Tooth Disease (CMT) with foot drop claimed as leg weakness is a congenital defect and did not incur an additional disability due to aggravation by a super-imposed injury during active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for Charcot Marie Tooth Disease (CMT) with foot drop, claimed as leg weakness have not been met. 38 U.S.C. §§ 1110, 1131 (2017); 38 C.F.R. §§ 3.303 (c), 4.9 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the US Air Force from September 1968 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) as a result of a May 2013 rating decision of the VA Regional Office, Indianapolis, Indiana. The Veteran was afforded a Video Conference Board Hearing in April 2017 before the undersigned Veterans Law Judge, and a transcript has been associated with the record. The issue of entitlement to service connection for ptosis and neurofibromatosis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). SERVICE CONNECTION FOR CHARCOT MARIE TOOTH DISEASE WITH FOOT DROP CLAIMED AS LEG WEAKNESS Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.30. That an injury or disease occurred in service alone is not enough; there must be current disability resulting from that injury. 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9. Service connection is only possible for a congenital defect if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514- 15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. The Veteran contends that service connection is warranted for his Charcot Marie Tooth (CMT) disease with foot drop claimed as leg weakness. As he indicated during his April 2017 hearing, the Veteran was given a provisional diagnosis of CMT in 1981, when he first began experiencing symptoms. The Veteran states that he began to wear a brace for his condition in 1981. He was diagnosed with CMT by his private neurologist in 1982. The record shows that Veteran has a current disability of CMT, based on a progress note from Veterans private neurologist and 2013 VA examination. The Board finds that the Veteran has a current disability. With respect to the second element of service connection, an in-service incurrence or aggravation of a disease or injury, the Veteran contends that he was treated for leg weakness while he was in Vietnam. He states that he was sent for physical therapy and given a diagnosis of quadricep insufficiency. He also testified during his hearing that he was diagnosed earlier with chondromalacia, which he described as “painful knees.” Here, the Board notes that "chondromalacia" is defined as a "softening of the articular cartilage, most frequently in the patella." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1930 (32d Ed., 2012). The Veteran stated that he had “developed instability.” The Veteran and his representative also contend, that he was misdiagnosed in service. The Veteran testified during his April 2017 Video Conference Hearing that there was no further treatment that he had in-service, relating to treatment for his knees. See Hearing Transcript, page 17. The Veteran was qualified, by the undersigned VLJ during his Video Conference Hearing, to provide some medical testimony because of his education and background experience as a nurse. The Board finds that the Veteran’s hearing testimony is credible. The record therefore establishes the first two elements of service connection: a current diagnosis and an in-service injury as it relates to the Veteran’s claim of entitlement for CMT with foot drop. The essential question before the Board becomes whether there is a link between the Veteran’s in-service injury and current disability of CMT with foot drop. With respect to the third element of service connection, a link between the current disability and in-service injury, the evidence establishes that the Veteran's CMT with foot drop was congenital. As noted earlier, congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9. Service connection is only possible for a congenital defect is there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514- 15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. The Veteran was afforded a VA examination in April 2013 to address this third element of service connection. The examiner did confirm that the Veteran has a diagnosis of CMT with bilateral leg weakness based on a review of medical records from the Veterans private neurologist, and in-person examination. The examiner also confirmed that the Veteran was diagnosed with “quadricep insufficiency” in November 1969 while in service. The examiner noted that the Veteran received six physical therapy visits for his quadricep insufficiency in service, and was discharged from physical therapy. The examiner indicated that on the Veteran’s June 1972 separation exam, it was “completely normal to include musculoskeletal and bilateral extremity findings, with the exception of “scar right eyelid….several small neurofibromas scattered over trunk.” The April 2013 examiner also provided a competent medical opinion against service connection, stating there is no relationship between the Veteran's diagnosis of CMT with foot drop and service. The examiner provided the following rationale: The examiner indicated that the Veterans bilateral “quadricep insufficiency” that occurred in November 1969 while in service had been resolved. The examiner noted the Veteran was diagnosed with CMT in 1981, 10 years after separation from service. The Veteran’s diagnosis, however was not related to his quadriceps, rather it was related to his feet. The examiner did note that the “Veteran definitely has bilateral foot drop which is stabilized with AFOs brace and the use of a walker. However, he does not have a diagnosis or complications with his quadriceps.” The examiner indicated that the Veteran was not diagnosed with CMT while in service, and “unfortunately, this condition would have occurred regardless of his military service.” The examiner indicated that “CMT is a known hereditary motor and sensory disorder, currently incurable, and one of the most `common inherited neurological disorders. Due to the lack of muscle associated with this disease process, a common early onset complication is foot drop.” The examiner concludes that the Veteran’s “current diagnosis of foot drop as a result of CMT was not caused by the resolved quadricep insufficiency that occurred in 1969.” The Board finds this opinion persuasive and highly probative because the opinion was offered after comprehensive review of the Veteran's relevant medical history and it was supported by rationale. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). The Board has also evaluated whether the Veteran incurred an additional disability or super-imposed injury as a result of his CMT. In making this determination, the board considered the Veteran’s April 2017 Board Hearing testimony, and the April 2013 VA examination report. The Veteran stated in his hearing, that he had not received any further treatment during service as it relates to his knees. See Hearing Transcript, pages 16-17. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran indicated in his April 2017 testimony, in response to a question from his representative, that he first had an indication that there was “foot drop or associated symptoms” in 1981, at which point the Veteran was given a “working diagnosis” of CMT. See Hearing Transcript, page 17. The Board notes that this is a 9-year gap in time, between the Veteran’s discharge from active duty service in 1972, and initial manifestations of the disease at issue. In addition, the Board notes that the VA examiner indicated that the Veteran’s “quadricep insufficiency” had been resolved after six physical therapy appointments while in service. This was corroborated by the Veteran’s separation exam, which indicated “normal musculoskeletal and bilateral extremity findings.” The record is silent regarding any further complaints or treatment for the Veteran’s chondromalacia, “painful knees” or quadricep insufficiency during service. Therefore, the Board finds that the Veteran did not incur an additional disability or super-imposed injury as a result of his CMT with foot drop during service. Thus, service connection for the Veteran's hereditary CMT foot condition is precluded. In reaching this conclusion, the Board has weighed the Veteran's assertions connecting his CMT with foot drop claimed as leg weakness to service. While the Board finds the Veteran’s lay testimony credible and competent, given the Veteran’s medical expertise as a nurse, they do not outweigh the evidence provided by the medical examiner that there was no connection between the Veteran’s diagnosis in service and his current CMT foot drop, along with the Veteran’s April 2017 testimony that he had no further treatment for his painful knees during service, corroborated by normal bilateral extremity findings on the Veteran’s June 1972 separation exam. The Board finds this evidence overall persuasive and highly probative. Therefore, the Veteran's statements linking his disability to service are outweighed by the other evidence against the claim, establishing that his congenital condition was not aggravated during service due to a super-imposed injury. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is denied. 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Entitlement to service connection for Ptosis is remanded. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. When a defect, infirmity, or disorder is noted on the enlistment examination, the presumption of soundness does not attach, and the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153 (West 2014); 38 C.F.R. § 3.306 (a) (2017). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). Here, the Veteran’s ptosis was noted on entry, therefore the presumption of soundness does not attach and the only question is whether the Veteran’s ptosis was permanently aggravated by service activities. The Veteran was afforded a VA examination on March 2013 in which the examiner opined that Veteran’s ptosis is due to the neurofibromatosis, which existed before service, and has no clinical association with any service activities. The examiner did not address the question whether the Veteran’s ptosis, which existed before service, was permanently aggravated by service activities. As a result, the Board finds this exam to be inadequate, and finds that an addendum opinion is needed to sufficiently address the issue. 2. Entitlement to service connection for NEUROFIBROMATOS is remanded. Accordingly, if a disorder was not "noted" upon entering service but it believed to have pre-existed, the law requires that the VA show clear and unmistakable evidence that the disability preexisted service, and that the preexisting disability was NOT aggravated by service in order to overcome the presumption of soundness. Therefore, simply finding no evidence of aggravation by service is not sufficient. A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C. § 1153 (West 2014); 38 C.F.R. § 3.306 (2017). A VA examination was afforded to the Veteran on March 2013 in which the examiner opined that the Veteran’s neurofibromatosis did not clearly and unmistakably exist prior to service, and therefore could not have been aggravated beyond its natural progression during service, based on a neurofibroma removed from the Veteran’s right eye lid while in-service. An additional examination was provided to the Veteran on August 2016, in which the examiner opined that the Veteran’s neurofibroma clearly and unmistakably pre-existed service, and was not permanently aggravated. The Board finds that a new VA examination and addendum opinion is warranted in light of the conflicting medical opinions of record. The Board remands this matter for a new VA examination and addendum opinion concerning whether there is "clear and unmistakable evidence" that the Veteran's neuro fibrosis pre-existed service and if so, whether there is also "clear and unmistakable evidence" that such pre-existing neurofibromatosis was not aggravated by the Veteran's service. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (defining "clear and unmistakable evidence" as evidence that is obvious, manifest, and undebatable). The matters are REMANDED for the following action: 1. Return the March 2013 examination report and claims file to a physician of appropriate knowledge and expertise for an addendum opinion regarding the Veteran’s ptosis claim. The claims file and a copy of this Remand must be made available to and be reviewed by the physician in conjunction with the examination. It is up to the discretion of the physician if a new examination is necessary, or in the alternative, an addendum opinion is sufficient. If it is determined that another examination is needed to provide the required opinion, the Veteran must be afforded the appropriate VA examination. Based on a review of the record, the physician should determine: Is it clear and unmistakable that the Veteran's pre-existing ptosis WAS NOT aggravated beyond the natural progress of the disorder by his active military service? The physician is specifically directed to review the Veteran’s lay testimony during the April 2017 Video Conference Hearing related to March 1970 and November 1971 surgeries, and the Veteran’s August 2017 affidavit concerning his eye surgeries, in addition to the March 2013 examination report. In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the pre-existing condition. The physician is advised that the Veteran served on active duty from September 1968 to September 1972. The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In comparison, "clear and unmistakable evidence" means "with a much higher certainty than 'at least as likely as not' or 'more likely than not.' The physician should explain the medical basis for the conclusions reached. If the physician is unable to offer the requested opinion, it is essential that the physician offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). 2. Schedule the Veteran for a VA examination by a physician of appropriate knowledge and expertise for his neurofibromatosis claim. The claims file and a copy of this Remand should be made available and reviewed by the physician. The physician should respond to the following questions: Did the Veteran's current neurofibromatosis clearly and unmistakably pre-exist service? If yes, is it clear and unmistakable that the Veteran's pre-existing neurofibromatosis WAS NOT aggravated beyond the natural progress of the disorder by his active military service? The physician is specifically directed to review Veteran’s lay testimony noted during an April 2017 Video Conference Hearing relating to removing neurofibromas from his back and neck, his June 1972 separation exam, his August 2017 affidavit concerning repeated surgeries on his spine, and VA examinations of March 2013 and April 2016. In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the pre-existing condition. The physician is advised that the Veteran served on active duty from September 1968 to September 1972. The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In comparison, "clear and unmistakable evidence" means "with a much higher certainty than 'at least as likely as not' or 'more likely than not. The physician should explain the medical basis for the conclusions reached. If the physician is unable to offer the requested opinion, it is essential that the physician offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD CLittle, Associate Counsel