Citation Nr: 1817473	
Decision Date: 03/22/18    Archive Date: 04/03/18

DOCKET NO.  14-42 013	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Whether new and material evidence has been received to open a previously denied claim for service connection for muscular dystrophy.

2. Entitlement to service connection for muscular dystrophy.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife




ATTORNEY FOR THE BOARD

A. Creegan, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Air Force from February 1966 to December 1969.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

A videoconference hearing in this matter was held before the undersigned veteran's law judge in July 2017. The transcript is of record. 


FINDINGS OF FACT

1. In an unappealed April 1999 rating decision, the RO denied service connection for muscular dystrophy.

2. The evidence received since the April 1999 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for muscular dystrophy.

3. Muscular dystrophy was manifest in service.






CONCLUSIONS OF LAW

1. The April 1999 rating decision denying service connection for muscular dystrophy is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).

2. Since the April 1999 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for muscular dystrophy; therefore the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

3. The criteria for service connection for muscular dystrophy have been met. 38 U.S.C. §§ 1110, 1111, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

I. New and Material

In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.

New evidence is defined as evidence not previously submitted to agency decision-makers. 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 substantiating the claim. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510,513 (1992). 

In the April 1999 rating decision, the RO denied the Veteran's claims of entitlement to service connection for muscular dystrophy on the basis that there was no evidence that his muscular dystrophy began in or was caused by service. No notice of disagreement was submitted, and new and material evidence was not associated within one year of the rating decision. The decision therefore became final.

In February 2011 the Veteran submitted a new service connection claim, along with evidence consisting of private medical records documenting the Veteran's muscular dystrophy and stating that the Veteran's injuries suffered in service were early manifestations of the disease. In February 2012, the RO cited evidence received since the last denial of the claim and appeared to readjudicate it on the merits.  The RO confirmed that the claim was reopened in a September 2014 statement of the case but continued to deny service connection on the merits. 

As the previous denial was due to a lack of manifestation in service, medical records indicating potential manifestation in service constitute new and material evidence, the Board concurs with the RO that reopening the claim for service connection for muscular dystrophy is warranted. 

II. Service Connection

Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki , 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 was incurred in service. 38 C.F.R. § 3.303(d).

The Veteran contends that his muscular dystrophy is related to his active service. The Veteran was diagnosed with limb-girdle muscular dystrophy in 1975. Genetic testing in 2002 confirmed a diagnosis of Becker's muscular dystrophy, a congenital disease. 

As the condition is genetic and could have pre-existed the Veteran's entry into active duty service, the Board must consider whether the presumption of soundness is applicable in this case. For purposes of establishing service connection under 38 U.S.C. § 1110, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b) (emphasis added). The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 

Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303 (c), 4.9. Service connection is generally precluded by regulation for such "defects", because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127; Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). Thus, the presumption of soundness does not apply to congenital defects. See 38 C.F.R. § 3.303 (c) ; see also Quirin v. Shinseki, 22 Vet. App. at 397; Winn v. Brown, 8 Vet. App. 510, 516 (1996).

However, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Once the presumption of soundness at entrance attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303 (c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progress at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43,253 (1990).

Although muscular dystrophy has been found in this case to be of genetic origin, manifestations of a disability were not noted on the Veteran's physical examination upon entry to active duty. Nor are there any medical records or other evidence indicating that the manifestations preceded his active service. Therefore the presumption of soundness attaches. The question is then whether the Veteran's muscular dystrophy first manifested in service or was aggravated beyond the normal progression of the disease due to activities in service.

The Veteran has stated that during basic training he experienced muscle pain and had difficulty running and competing. He went to see a doctor and was diagnosed with pes planus and given steel arches. Upon graduation from basic training he was prevented from walking in formation due to his "waddling gait." The Veteran states that these symptoms continued throughout his service, which he is competent to report. Jandrea v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Service treatment records show that while in service the Veteran was diagnosed with pes planus and a fractured metatarsal. He had surgery to repair a hernia in 1967. At separation the Veteran denied any medical conditions other than a venereal disease and the hernia.  The Veteran was first diagnosed with muscular dystrophy in 1975. 

The Veteran was provided with a VA examination in May 2011. The VA examiner noted that the diagnoses pes planus and metatarsal fracture in service could "conceivably be early manifestations" of muscular dystrophy. However, the examiner found that the Veteran's denial of any chronic long-term muscular conditions at separation indicated otherwise. In explaining his opinion, the examiner stated that "there is no clear and convincing evidence to conclude whether or not this veterans muscular dystrophy had its onset while on active duty." The standard for service connection is not whether there is "clear and convincing" evidence but rather whether it is "at least as likely as not" that the Veteran's current disability is related to an in-service event. This opinion is therefore inadequate as the examiner used the incorrect standard for formulating the opinion. 

The Veteran also submitted multiple opinions from his private physician, from August 1998, April 2012, and December 2015. The August 1998 opinion states that the Veteran's "heavy work" while in the military "may have contributed to his current level of disability." This opinion is speculative and therefore of low probative weight. However, the April 2012 opinion states that the Veteran's pes planus and fracture while in service were "most likely the beginning" of his muscular dystrophy. The physician noted that the Veteran's waddling gait suggests hip weakness as well as ankle or calf weakness, which are symptoms of muscular dystrophy. Similarly the December 2015 opinion states that the Veteran's pes planus and fracture were "clearly the early symptoms" of his muscular dystrophy. The physician again noted the waddling gait as a sign of muscle weakness. The physician also noted that the Veteran reported that his service duties required lifting 45 pounds of equipment up ladders into aircraft cockpits and had difficulty participating in rigorous physical training and that these stresses on his muscles "...contributed to the progression of his weakness and aggravated his existing weakness." 

As the April 2012 and December 2015 opinions are based on a thorough review of the Veteran's file and provide a substantial rationale, the Board finds they are entitled to significant probative weight.

Due to the strong medical opinions linking the Veteran's noted medical conditions in service to his muscular dystrophy, the Board finds that the weight of the evidence is at least equally balanced both for and against the claim and weighs somewhat in support of a finding that the Veteran's muscular dystrophy disease process first manifested while in service and was aggravated beyond the normal progression by active duty activities. Therefore, service connection is warranted. 


ORDER

The application to reopen the claim for service connection for muscular dystrophy is granted.

Entitlement to service connection for muscular dystrophy is granted. 




____________________________________________
J. W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs