Citation Nr: 21004417 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-46 988 DATE: January 27, 2021 REMANDED Entitlement to service connection for chronic inflammatory demyelinating polyneuropathy (claimed as bilateral peripheral neuropathy, lower extremities) is remanded. REASONS FOR REMAND The Veteran had active military service from July 1957 to February 1987. The Veteran was scheduled for a hearing before this Board that was to occur in January 2021. Prior to the hearing, however, in a statement submitted that same month, he withdrew his hearing request and asked that a decision be made on his claim, instead, based on the evidence already of record. See VA Form 21-4138. But, before deciding his appeal of this claim, the Board finds that a supplemental medical opinion is first needed. A prior November 2015 VA examiner concluded the Veteran’s chronic demyelinating polyneuropathy is less likely than not due to an automobile accident in service. This examiner noted that the Veteran’s service treatment records (STRs) and immediate post-service medical records do not reference any relevant trauma or consequent disability. This examiner also noted that it was more than five decades after the Veteran’s service before he was diagnosed with suspected genetic/hereditary polyneuropathy. It additionally was noted that genetic testing (peripheral myelin protein 2 (PMP2)) was pending, and that it was suspected the Veteran had Sjogren’s disease. In August 2016 Sacred Heart Medical Group correspondence, Dr. Orth indicated the Veteran had been her patient since January 2016 and had presented with symptoms of polyneuropathy four years prior and treated by his neurologist with prednisone and IVIG. Dr. Orth diagnosed polymyalgia rheumatica. In August 2016 Naval Hospital Pensacola correspondence, Dr. Cahill stated that the Veteran has a diagnosis of symmetric polyneuropathy likely from autoimmune disease (CIDP, Sjogren’s Syndrome) and has been followed in the Neurology Clinic since 2012. Dr. Cahill explained that the Veteran’s condition “likely presented many years prior, even likely going back as far as his 30s and 40s though he was not symptomatic until later in life.” Dr. Cahill did not provide any rationale as to why the Veteran would have had the disease in his 30s or 40s if he was not symptomatic until he was in his 70s. The Veteran was born in 1939 and retired from service in 1987; thus, he was in service in his 30s and 40s. In an October 2017 VA clinical addendum, Dr. Troche stated that the Veteran’s reported symptoms of peripheral neuropathy are due to his chronic inflammatory demyelinating polyneuropathy, which has nothing to do with his service-connected neck disability or his military service. Dr. Troche indicated the Veteran’s condition, instead, is hereditary. Every 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 the examination, acceptance, and enrollment into service, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). Only such conditions as are recorded in examination reports are to be considered as "noted" for the purpose of this analysis. 38 C.F.R. § 3.304(b).   If a condition is not "noted" upon entrance into service, VA must rebut the presumption of soundness by showing clear and unmistakable evidence that (1) there was a pre-existing condition and (2) that the pre-existing condition was not aggravated during or by the Veteran's service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). Congenital or developmental "defects" automatically rebut the presumption of soundness and, therefore, are considered to necessarily have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). 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; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). However, VA's Office of General Counsel has distinguished between congenital or developmental defects (for which service connection is precluded by regulation) and congenital or hereditary diseases (for which service connection may be granted if the disease initially manifested during or was aggravated by service). See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is "more or less stationary in nature," while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at para. 2.   As already explained, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C.A. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c); Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Terry, 340 F.3d at 1385-86 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). Notably, however, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. If it is determined during service that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Since 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 also has 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 that either first manifest themselves during service or that preexisted service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43, 253 (1990). In short, service connection is available for congenital diseases (but not defects) that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. The claims file in this appeal includes Naval Hospital Pensacola Florida records dated from August 2016 to March 2017; however, as the Veteran began treating with neurology in 2012, VA should also obtain his earlier-dated records. Also, although the evidence indicates the Veteran has a hereditary condition, the PMP2 results confirming this are not associated with the claims file, so they, too, should be obtained. As well, additional medical comment is needed to determine whether the condition the Veteran has is a disease or defect, whether it first manifested during his service, or whether instead it pre-existed his service and progressed at an abnormally high rate during his service to, in turn, warrant concluding there was aggravation. The recent January 2021 appellant brief suggests the Veteran’s disability is due to trauma from the automobile accident in service already alluded to; however, there already has been opinion concerning that posited correlation, and the appellant’s cited reference notes single-nerve injury, whereas the Veteran has polyneuropathy. The appellant brief also references exposure to toxins in service and cardiovascular disease, but the Veteran’s claim is not one for cardiovascular disease, so further development is not warranted based on those arguments made in this very recent appellant brief. Nevertheless, the claim is REMANDED for the following other additional development and consideration: 1. Obtain all Naval Hospital Pensacola records for the Veteran from January 1, 2012 to the present, including his 2015 neurology and laboratory genetic test (PMP2) results. 2. Thereafter, obtain a supplemental opinion to the October 2017 VA clinical addendum/clarification. The examiner is asked to specifically opine on the following: (A) Does the Veteran have a genetic and/or hereditary condition causing his polyneuropathy? (B) If the Veteran has a genetic and/or hereditary condition, is it a defect (structural or inherent abnormality or condition that is more or less stationary in nature) OR instead a disease (a condition capable of improving or deteriorating)? (C) If the Veteran’s has a genetic/hereditary “disease”, is it as likely as not that it manifested in service or was aggravated (worsened beyond its natural progression) by his service? (D) If instead a “defect”, an opinion is required as to whether it was as likely as not subject to a superimposed disease or injury during active military service that resulted in disability apart from the congenital or developmental defect. When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority.   The clinician designated to provide this additional comment should discuss the August 2016 Naval Hospital Pensacola correspondence by Dr. Cahill, who stated that the Veteran likely had an autoimmune disease presenting as far back as his 30s and 40s – even though he was not symptomatic, and should provide rationale to support or disapprove that assessment. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.