Citation Nr: 21003687 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 12-23 910 DATE: January 22, 2021 ORDER Service connection for a neuromuscular condition (also claimed as Charcot-Marie-Tooth disease) is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a right ankle disability is granted. Entitlement to service connection for a left ankle disability is granted. Entitlement to service connection for a low back disability is granted. Entitlement to service connection for a left hip disability is granted. FINDINGS OF FACT 1. The Veteran’s neuromuscular condition is at least as likely as not related to service. 2. The Veteran’s right knee disability is due to his neuromuscular condition. 3. The Veteran’s right ankle disability is due to his neuromuscular condition. 4. The Veteran’s left ankle disability is due to his neuromuscular condition. 5. The Veteran’s low back disability is due to his neuromuscular condition. 6. The Veteran’s left hip disability is due to his neuromuscular condition. CONCLUSIONS OF LAW 1. The criteria for service connection for a neuromuscular condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right knee disability as secondary to a service-connected neuromuscular condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a right ankle disability as secondary to a service-connected neuromuscular condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for a left ankle disability as secondary to a service-connected neuromuscular condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for a low back disability as secondary to a service-connected neuromuscular condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for service connection for a left hip disability as secondary to a service-connected neuromuscular condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1977 to August 1981. The Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ) in March 2018 and again before another VLJ in November 2020 during which the Veteran waived his right to a third hearing before another VLJ. In a December 1981 VA rating decision, the claims for entitlement to service connection for right knee injury, right ankle sprain, and low back pain were denied. In a March 2008 VA rating decision, the claim to reopen entitlement to service connection for low back pain was denied. With respect to both of these determinations, he was notified of his appellate rights and did not submit a timely Notice of Disagreement (NOD) or submit new and material evidence within one year thereafter. In its September 2018 decision and remand, the Board implicitly reopened these claims. In September 2018, the Board increased the disability rating for service-connected bilateral pes planus to 50 percent disabling and remanded the issues of service connection for right knee, right ankle, left ankle, left hip, and low back disabilities, each as secondary to service-connected bilateral pes planus, for additional evidentiary development. The remaining issues on appeal have been returned to the Board for appellate review. Service Connection 1. Preliminary matters. “When a claim is pending and information obtained reasonably indicates that the claimed condition is caused by a disease or other disability that may be associated with service, the Secretary generally must investigate the possibility of secondary service connection; and, if that causal disease or disability is, in fact, related to service, the pending claim reasonably encompasses a claim for benefits for the causal disease or disability, such that no separate filing is necessary to initiate a claim for benefits for the causal disease or disability, and such that the effective date of benefits for the causal disability can be as early as the date of the pending claim.” DeLisio v. Shinseki, 25. Vet. App. 45, 55 (2011). In this case, the claims pending before the Board are for service connection for a right knee disability, a right ankle disability, a left ankle disability, a low back disability, and a left hip disability. In a November 2019 opinion, a VA examiner, who is a neurologist, stated that these disabilities were degenerative processes that were consistent with aging and his neuromuscular condition, which was diagnosed as distal hereditary motor neuropathy, type V. The VA neurologist also explained that the Veteran reported symptoms of a neuromuscular condition in service, and his medical history documented in notes from Dr. Y. from 2006 through 2008 were consistent with his lay reports. As a result, the neurologist concluded that “…by definition of symptoms beginning while in the service,” the Veteran’s neuromuscular condition was at least as likely as not related to service. Because the VA neurologist stated that the Veteran’s right knee, right ankle, left ankle, low back, and left hip disabilities were due to his neuromuscular condition, and that his neuromuscular condition was due to service, the pending claims before the Board reasonably encompass a claim for service connection for the Veteran’s neuromuscular condition. DeLisio, 25 Vet. App. at 55. In March 2008, the RO denied service connection for Charcot-Marie-Tooth disease, and that the decision became final because the Veteran did not submit a timely Notice of Disagreement (NOD), nor did he submit any evidence within one year of the rating decision. This decision became final. In March 2011, the RO inferred a petition to reopen a claim for service connection for a neuromuscular disorder from an informal conference for a separate claim. The RO implicitly reopened and then denied the claim again on its merits January 2012 and the Veteran submitted a timely NOD in March 2012. The NOD was acknowledged in June 2012. However, no Statement of the Case (SOC) was issued. The Veteran filed another petition to reopen his claim in October 2014, and the RO denied his claim again in a rating decision in November 2014 based on a finding of no new and material evidence even though the January 2012 rating decision was still in appellate status. Once an NOD has been filed, further RO decisions that do not grant the benefit sought cannot resolve the appeal that is pending before the Board. Juarez v. Peake, 21. Vet. App. 537, 543 (2008). While under VA regulation, this claim should be remanded for issuance of an SOC under Manlincon v. West, 12 Vet. App. 238 (1999), it is more favorable to the Veteran to extend the Veteran’s pending claims to include one for service connection for the neuromuscular condition as set forth in DeLisio. Any errors regarding due process are non-prejudicial because the benefit is being granted in full. There is a question as to whether the Veteran’s neuromuscular disorder is hereditary. A congenital abnormality that is subject to improvement or deterioration is considered a “disease,” while a congenital abnormality that is more or less stationary in nature and not considered capable of improving or deteriorating is considered a “defect.” VAOPGCPREC 82-90 (July 18, 1990). The Veteran’s neuromuscular condition is a disease, as noted by VA examiners. It is described as progressive, meaning that it is subject to deteriorating and not stationary in nature. Service connection may be granted for congenital (developmental or familial) diseases, when the evidence as a whole establishes that the disease in question was incurred in or aggravated by active service within the meaning of VA law and regulations. VAOPGCPREC 82-90 (July 18, 1990); see Winn v. Brown, 8 Vet. App. 510, 516 (1996); Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). The presumption of soundness applies to a congenital disease. Quirin, 22 Vet. App at 397. The Veteran’s neuromuscular disease was not noted on entry into service and the presumption of soundness therefore attached. A veteran is presumed 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 examination, acceptance, 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. To rebut the presumption of soundness the burden is on VA to satisfy a two-prong test by showing by clear and unmistakable evidence that the Veteran’s disability both existed prior to service and was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Because the Veteran’s description of his symptoms in service are credible and Dr. Y. Y., his private neurologist, noted onset either in service or a few years after, the Board concludes that the disability manifested in service. As described in more detail below, the February 2011 VA examiner stated that it was not possible to know whether the Veteran’s neuromuscular condition existed prior to service. There is no clear and unmistakable evidence that it existed prior to service. Therefore the disability was incurred in service and the remaining question is nexus. As the presumption of soundness is not rebutted, the analysis for the Veteran’s neuromuscular condition would be the same regardless of whether it is congenital or not. The question before the Board is whether there is a nexus to service. 2. Entitlement to service connection for a neuromuscular condition is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disability, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran has been diagnosed with Charcot-Marie-Tooth disease by history, neuromuscular dystrophy, type IB, spinal muscular atrophy type V, and distal hereditary motor neuropathy, type V. He credibly asserts that he began to experience symptoms in service. In January 2008, Dr. Y. Y., a neurologist, stated that the Veteran had “the special type of neuromuscular dystrophy, which is called type IIB. Also it is called the spinal muscular atrophy type V.” Dr. Y. Y. explained that a genetic test for this condition did not exist, but that the Veteran was tested for Charcot-Marie-Tooth disease and the results were negative. Dr. Y. Y. stated that the Veteran had a progression of neuromuscular weakness of the distal muscle group for the last 25 to 30 years. Onset was therefore between 1978 and 1983. The Veteran served on active duty until 1981. Dr. Y. Y.’s letter is probative evidence in support of the Veteran’s claim. In February 2011, he underwent a VA examination where a physician explained that the Veteran underwent genetic testing for Charcot-Marie-Tooth disease and the results were negative. Additionally, he did not have any relatives with this disease. The examiner, who was a physician, explained that, “we do not know that it is hereditary and existed prior to and during service. We only know that this is a progressive neuromuscular disease, which started by history about 3 years after discharge.” Because the Veteran’s genetic testing did not show Charcot-Marie-Tooth disease, the examiner stated that the correct diagnosis was neuromuscular dystrophy, type IB. The examiner stated that following service, the Veteran did not notice symptoms until college, and that he was able to play basketball without difficulty in service. Additionally, the examiner noted that there was no evidence of treatment in service or within one year of service. This reasoning is not probative because there are no medical records associated with the claims file for the year following service. The February 2011 opinion is afforded less probative weight. As discussed above, the Veteran underwent a VA examination with a neurologist in November 2019 where he considered the Veteran’s credible lay reports of onset of symptoms in service and provided a positive opinion based on onset of the condition during service. The neurologist cited medical literature describing how the Veteran’s condition is progressive over a very long period of time. The VA neurologist examined the Veteran, reviewed the record including the statement from Dr. Y. Y., and provided a persuasive rationale for his conclusion. His opinion is probative evidence in support of the claim. The preponderance of the probative evidence of record weighs in favor of the claim of service connection for a neuromuscular condition. Service connection is therefore granted. 3. Entitlement to service connection for a right knee disability is granted. 4. Service connection for a right ankle disability is granted. 5. Service connection for a left ankle disability is granted. 6. Service connection for a low back disability is granted. 7. Service connection for a left hip disability is granted. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board grants service connection for the Veteran’s neuromuscular condition in this decision. The Veteran has been diagnosed with degenerative disc disease of the lumbar spine, right knee arthritis, left hip arthritis, and bilateral ankle arthritis. The November 2019 VA neurologist found that these disabilities are consistent with the aging process and the Veteran’s underlying neuromuscular condition. There is no medical opinion that contradicts the finding that these conditions are due to the neuromuscular condition. (continued on next page)   The preponderance of the probative evidence of record weighs in favor of a finding that the Veteran’s low back, right knee, right ankle, left ankle, and left hip disabilities are caused by his service-connected neuromuscular condition. Service connection for these disabilities is therefore granted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals TBD To Be Determined Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.