Citation Nr: 1807637 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-18 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for cerebellar ataxia, with significant atrophy of the cerebellum. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1984 to February 1987. This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This claim was previously before the Board in February 2016, at which time it was remanded for additional development. FINDINGS OF FACT 1. The evidence clearly and unmistakably shows that the Veteran's cerebellar ataxia preexisted service. 2. The evidence does not clearly and unmistakably show that the Veteran's cerebellar ataxia was not worsened beyond the natural progress of the disease during service. CONCLUSION OF LAW The Veteran's preexisting cerebellar ataxia was aggravated during active service. 38 U.S.C. §§ 1111, 1131, 1137, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, the Board is granting, in full, the benefit sought on appeal. Accordingly, any error with respect to either the duty to notify or the duty to assist was harmless and need not be further considered. Service Connection In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection may also be granted for any 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 veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C. §§ 1111, 1137 (2012). Here, the Veteran's cerebellar ataxia was not noted at service entry. Since this condition was not noted at entry, to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C. § 1153 (2014); 38 C.F.R. §§ 3.304, 3.306(b) (2017). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of a disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2017). The Board finds that there is clear and unmistakable evidence to show that the Veteran's cerebellar ataxia pre-existed service. The Veteran received a private neurology assessment in October 2010, and the neurologist found that his cerebellar ataxia was hereditary. He also received a VA examination in April 2016, and the examiner indicated that the disease had an insidious onset at about 6 years old, characterized by awkwardness and falling. He found that the cerebellar ataxia was more likely than not a disease that would be considered congenital due to its significant hereditary component. Furthermore, the examiner noted that the Veteran's symptoms began early in his youth. Having found that the evidence clearly and unmistakably shows that the Veteran's cerebellar ataxia preexisted service, the Board must now consider whether the evidence clearly and unmistakably shows that the preexisting disorder was not aggravated by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The evidence of record does not clearly and unmistakably show that the Veteran's cerebellar ataxia was not worsened beyond the natural progress of the disease during service. The April 2016 medical opinion states that, based on the history obtained, there was no evidence that the ataxia and related symptoms were aggravated beyond their natural course during the Veteran's active duty. This is based on a lack of exacerbation or increase in rate of progression of symptoms during the service. This medical opinion is found to be probative but this finding, and the basis for the finding, is not found to rise to the level of clear and unmistakable evidence. (CONTINUED ON NEXT PAGE) The "clear and unmistakable" standard required to rebut the presumption of soundness is a higher standard of proof than the "less likely than not" standard, which is typically applied in denying service connection. In this case, the examiner reviewed the Veterans service treatment records, lay statements, and evidence of pre-service injury, but could only conclude that there was a lack of evidence that the Veteran's cerebellar ataxia was worsened beyond the natural course of the disease during service, not that it was undebatable that no such increase in disability occurred. Therefore, the Board finds that service connection for cerebellar ataxia by way of aggravation is warranted. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for cerebellar ataxia is granted. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs