Citation Nr: 19166292 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 17-07 620 DATE: August 27, 2019 ORDER Entitlement to service connection for the Veteran’s cause of death is granted. FINDINGS OF FACT 1. The Veteran died in February 2016 from cardiac arrest due to or as a consequence of coronary artery disease. Other significant conditions contributing to death but not related to the other causes are listed as pneumonia, myotonic dystrophy, and normal pressure hydrocephalus. 2. At the time of the Veteran’s death, he was service connected for a right thumb cyst/scar at 10 percent, effective May 2015. 3. The preponderance of the evidence supports a finding that the myotonic dystrophy was etiologically related to, or the result of, active duty service. CONCLUSION OF LAW The criteria for establishing service connection for the Veteran’s cause of death have been met. 38 U.S.C. §§ 1110, 1310, 5107(b); 38 C.F.R. § § 3.102, 3.303, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from May 1961 to May 1965. He died in February 2016. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Entitlement to service connection for cause of death is granted. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a disease or disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To find that the disease or disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c)(1). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). For service connection to be granted for the cause of the Veteran’s death, the Appellant must show (1) a cause of the Veteran’s death is (or should be) service-connected, or (2) a service-connected disability caused the Veteran’s death. Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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 requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). At the time of the Veteran’s death, he was service connected for his right thumb cyst/scar which is not listed as a cause of death on the death certificate. The appellant contends the contributory cause of death of myotonic dystrophy should be service connected as it was related to the Veteran’s active service. Specifically, the appellant has alleged that it was as a result of exposure to contaminants in the water supply at Camp Lejeune. The Veteran was stationed at Camp Lejeune during the prerequisite time period (between August 1, 1953 and December 31, 1987); thus, he is presumed to have been exposed to contaminants in the water supply. 38 C.F.R. § 3.307(a)(7). While certain diseases are presumed to be related to the exposure of contaminants in the water supply, myotonic dystrophy is not one of those diseases. 38 C.F.R. § 3.309(f). Therefore, the Veteran’s exposure to contaminants in the water supply cannot be presumed to be the cause of his myotonic dystrophy. Notwithstanding the foregoing discussion regarding presumptive service connection, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran had a diagnosis of hereditary myotonic dystrophy, thus the first Shedden element of service connection is established. See January 2016 Correspondence. Dr. H.M., the Veteran’s treating physician opined that symptoms of fatigue shown in the Veteran’s STRs indicate the muscular dystrophy was manifesting in-service. A Veteran who served during a period of war is presumed to be in sound condition when enrolled for service, except for any defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as “noted.” 38 C.F.R. § 3.304(b). The presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to service and was not aggravated by such service. 38 U.S.C. § 1111. The presumption of soundness also applies to congenital hereditary diseases that are not noted upon entry into service. Quirin v. Shinseki, 22 Vet. App. 390 (2009). Accordingly, service connection may be granted for congenital hereditary diseases that either first manifest during service, or which preexist service and progressed at an abnormally high rate during service. VAOPGCPREC 67-90; 55 Fed. Reg. 43, 253 (1990). "Only when symptomatology and/or pathology exist can he or she be said to have developed the disease." Id. 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. This must be determined in each case based on all the medical evidence of record. Id. At entrance, the May 1961 Report of Medical Examination reflects a normal examination and the Veteran was determined to be fit for duty. Therefore, a chronic or congenital hereditary disability was not “noted” at the enlistment examination and the presumption of soundness applies. The appellant has submitted an August 2016 private opinion from a Dr. H.M., the Veteran’s treating physician for almost 30 years, indicating that symptoms of the Veteran’s later diagnosed myotonic dystrophy began to present during service. The physician supported this opinion by stating “the [Veteran] was in the military in the early 1960’s and suffered the first symptoms of this [myotonic dystrophy] disorder which presented as persistent fatigue that neither he nor any of his physicians recognized as the beginning of myotonic dystrophy.” Dr. H.M. pointed to two December 1962 STRs in which the Veteran was seen for fatigue and received physical exams that came back unremarkable. A January 1963 STR indicates that the Veteran again reported persistent fatigue and was given the diagnosis of an upper respiratory infection, despite his complaints that he felt tired all the time and had dizziness. A physical exam was performed at that time, and it came back negative. A March 1963 STR indicates the Veteran again complained of being dizzy and passed out. He was then diagnosed again with an upper respiratory infection. In May 1963 the Veteran again presented with complaints of persistent fatigue and of being run down all the time with no appetite. Dr. H.M. further indicated that “one of the first presenting symptoms of degenerative muscular disorders is fatigue that is persistent. It is clear to me as his long-time treating physician that [the Veteran] was suffering the first signs of his myotonic dystrophy but that this went unrecognized by either himself or his military physicians.” Here the Board finds the medical opinion rendered by Dr. H.M. competent and credible. As the Veteran’s treating physician for almost 30 years, he is familiar with the history of the Veteran’s condition. Additionally, his opinion is based on sound rationale and he thoroughly explained where the symptoms of the Veteran’s myotonic dystrophy were present in the STRs. Therefore, this private opinion is extremely probative, and the Board gives it great weight. A VA opinion was obtained in January 2017 as to whether the Veteran’s myotonic muscular dystrophy was etiologically related to his service. The examiner opined that it was as likely as not that the fatigue shown in service was caused by or as a result of the later diagnosed myotonic muscular dystrophy. See January 2017 VA opinion. Thus, it is of considerable probative value in determining whether there is a causal nexus between the Veteran’s myotonic dystrophy and the Veteran’s service. (Continued on the next page)   The Board finds both the VA opinion and the private opinion of Dr. H.M. highly probative. Consequently, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s myotonic dystrophy is etiologically related to his service. For these reasons, and resolving reasonable doubt in the appellant’s favor, the Board finds that the criteria for service connection for cause of the Veteran’s death have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.