Citation Nr: 21074762 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-55 134 DATE: December 16, 2021 REMANDED Entitlement to service connection for myotonic muscular dystrophy (MMD) of the left upper extremity is remanded. Entitlement to service connection for myotonic muscular dystrophy (MMD) of the right upper extremity is remanded. Entitlement to service connection for myotonic muscular dystrophy (MMD) of the left lower extremity is remanded. Entitlement to service connection for myotonic muscular dystrophy (MMD) of the right lower extremity is remanded. REASONS FOR REMAND The Veteran had active naval service from April 2001 to September 2004. This matter comes to the Board of Veteran' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge; however, he withdrew his request in September 2019 written correspondence. Accordingly, the Board finds the Veteran's hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (d). This matter was previously before the Board in November 2019 and June 2021 at which time the claims were remanded for further development. While the appeal has been returned to the Board for further appellate review, unfortunately an additional remand is warranted before the Board can properly adjudicate the claims. In this case, the Veteran contends that service connection is warranted for muscular dystrophy of the bilateral upper and lower extremities. Specifically, in a May 2008 Statement in Support of Claim, the Veteran reported that he broke his right had while on active duty and has experienced weakness in his right hand since that time. He reported that he has been unable to grip, shoot a pistol, or squeeze firmly. Additionally, in his December 2019 central nervous system VA examination, he reported that he was discharged six months early from service because he was unable to fire his gun. In this regard, the Board notes that the evidence appears to show that the Veteran had reserve service after his active duty period. Notably, the Veteran's DD-214 shows active duty service ended in September 2004; however, a military personnel record shows the Veteran was discharged from the United States Navy Reserve in March 2009. There are no other personnel records in the Veteran's claims folder, nor does the record contain service treatment records (STRs) for any reserve period of service; therefore, remand is warranted to verify the Veteran's periods of service and to obtain STRs and his outstanding personnel records. Additionally, a new medical opinion is warranted to determine the etiology of the Veteran's myotonic muscular dystrophy disorder. Pursuant to the Board's remand, medical opinions were obtained in August 2021; however, the Board finds these opinions are inadequate for the following reasons. First, the examiner relied on the absence of treatment or a diagnosis in service which, in and of itself, does not preclude service connection. Here, the Veteran has reported experiencing weakness in his hand since service. Given that STRs confirm the Veteran had a right hand injury in service, the Board finds his statements are credible in this regard. The Board also notes that in the August 2021 medical opinions, the examiner quoted medical literature regarding myotonic dystrophy being genetic or a congenital disease, but the examiner did not explain how this information was relevant to the etiology of the Veteran's disorder. Moreover, in different medical opinions relating to the Veteran's LLE, the examiner provided conflicting opinions where she indicated the condition was less likely related to service, but otherwise found that the condition was at least as likely as not related to service in a different opinion. Therefore, the Board finds the opinions are inadequate and remand is warranted. Further, the Board recognizes that prior remand directives requested an opinion to determine whether the Veteran's in service "left hand" injury may have caused the Veteran's muscular dystrophy although the record shows, and the Veteran has asserted injuring his right hand. Nevertheless, the examiner did not provide an opinion as to this theory of entitlement. Finally, the evidence shows that the Veteran's muscular dystrophy pre-existed service. Thus, the question before the Board is whether the condition was aggravated by service. In addition, there is question as to whether the Veteran's condition is genetic or a congenital disease. The Board notes that congenital or developmental abnormalities are not considered to be disabilities for the purposes of service connection. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, service connection may be granted, in limited circumstances, for a superimposed disability on a constitutional or developmental abnormality (see VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); see also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)). Thus, on remand, a new opinion should be obtained to determine whether the Veteran's muscular dystrophy was aggravated by service and/or whether the Veteran had a superimposed disease or injury. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims folder. 2. Verify the Veteran's periods of service, to include all active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA). 3. Attempt to obtain any outstanding service treatment records and military personnel records for all service periods, including active duty, ACDUTRA, and INACDUTRA. Efforts to obtain these records and/or responses from each contacted entity should be documented in the claims file. Efforts to obtain these records must continue until it is reasonably certain that they do not exist or that further efforts would be futile. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's MMD. Any indicated tests should be accomplished. The examiner must review the record, including this Remand, and should note that review in the report. The examiner is requested to classify the myotonic muscular dystrophy condition as a congenital disease, congenital defect, or acquired disease or injury. If such is identified as a congenital disease or defect, the examiner should indicate if the MMD was aggravated by service, and/or subjected to a superimposed disease or injury during service to include a right hand injury which created additional disability and should identify the nature of any additional disability. Otherwise, if MMD is not a congenital disease or defect, the examiner should provide an opinion as to whether it is at least as likely not (50 percent or greater probability) that MMD had its clinical onset during service or is related to any in-service disease, event, or injury. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. K. R. Laffitte Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.