Citation Nr: 21007152 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-38 643 DATE: February 8, 2021 ORDER Service connection for polio/post-polio syndrome is denied. FINDING OF FACT The Veteran’s polio/post-polio syndrome was not caused or aggravated by his service or other service-connected disabilities. CONCLUSION OF LAW The criteria to establish service connection for polio/post-polio syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1962 to April 1966. The Board remanded this appeal in December 2019 for additional development. Service connection for polio/post-polio syndrome Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of 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); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection is also warranted 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). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). 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. 38 U.S.C. § 1111. The term “noted” denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but it will be considered together with all the other evidence in question as to the commencement of the disease or disability. Determinations of whether a condition existed pre-service should be based on a thorough analysis of the evidentiary showing and careful correlation of all medical facts, with due regard to manifestations, clinical course and character of the particular injury or disease or residuals thereof. 38 C.F.R. § 3.304 (b)(1). An injury or disease that has been determined to be preexisting will then be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. The burden to show no aggravation of a pre-existing disease or disorder during service lies with the government. Cotant v. Principi, 17 Vet. App. 117, 131 (2003). However, the presumption of aggravation is rebutted where there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In deciding an aggravation claim, after having determined the presence of a preexisting disability, the Board must determine whether there has been any measurable worsening of the disability during service and whether this worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306 (b). The Veteran’s November 1962 enlistment examination noted the Veteran’s history of polio. His clinical examination report indicated that a “letter noted had [an] attack of polio but [he] was not paralytic [and] has no muscular wasting.” A November 17, 1962 letter authored by J. Hamilton Allan, M.D., (orthopedics) indicates that the Veteran had an attack of polio in June 1950 and was treated and “recovered completely.” The physician reported that the Veteran’s then-current musculoskeletal system was “entirely normal,” and the Veteran then had “no evidence of any muscle weakness.” The physician assessed the Veteran’s physical condition at “satisfactory for duty ashore or at sea.” The Veteran’s in-service medical records and April 1966 separation examination contain no evidence of relevant complaints, treatments, or diagnoses. His spine and musculoskeletal system were reported on “clinical evaluation” as normal, as were his lower extremities on his discharge. In September 2007, the Veteran was diagnosed with post-polio syndrome and multiple treatment notes confirm the Veteran’s persistent symptoms of muscle cramps, spasms, and weakness. However, the treatment notes show no evidence of aggravation by the Veteran’s service. In a July 2014 letter authored by Yi-Wen Michelle Pu, the physician indicated that the Veteran’s in-service exposure to “asbestosis (sic)” and strenuous labor “could have potentially exacerbated the degeneration of his motor neurons originally affected by the polio virus.” In October 2018, the Veteran testified before the undersigned at a Travel Board hearing. In substance, he indicated that while in service, he worked in a strenuous occupation in the boiler shop and boiler room. He alleged that his “muscles wasn’t (sic) fully developed.” He also alleged that in boot camp, he wore leggings but that he was given an exemption from doing so because his legs bothered him. He also stated that while performing his duties on ship, he went to sick bay twice but the corpsman only gave him aspirin. In a February 2020 treatment note, the Veteran was noted to have aching leg pain attributed to post-polio syndrome. The examiner noted that multiple therapies have had a poor overall therapeutic effect but did not provide an opinion as to the etiology of the Veteran’s post-polio syndrome. In June 2020, records from the Memorial Hermann Rehabilitation and Research facility (TMHRR) were received. The TMHRR records indicate that the Veteran had an onset of poliomyelitis in 1949 when he was four years old and his initial evaluation was at a TMHRR post-polio clinic in September 2007. In a December 2014 treatment note, the Veteran’s clinician noted the Veteran was a chronic smoker, had manifestations of asbestosis and have been exposed to Agent Orange. The clinician did not state that the Veteran’s polio/post-polio syndrome was due to or aggravated by Agent Orange or asbestosis exposure. In October 2020, the Veteran was afforded a VA examination. The examiner noted that there was clear evidence that the Veteran had pre-existing polio-post syndrome. While the examiner noted that the Veteran continued to experience symptoms while in-service, she observed that this was “typical of the condition” – although the Board observes as above that there is no evidence of any musculosketal symptoms or complaints recorded in the service treatment records. The examiner nonetheless reported that there was no evidence of aggravation of the disorder. In this context, she noted progression of lumbar degenerative changes, and observed that there are many possible causes for degenerative changes, including age. The examiner concluded that the Veteran’s pre-existing poliomyelitis condition was not aggravated beyond its natural progression by service. The law recognizes that the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the veteran’s claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data); Miller v. West, 11 Vet. App. 345 (1998) (observing that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). The Board has considered the statements of Dr. Pu indicating that the Veteran’s service “could have potentially exacerbated” his polio/post-polio syndrome. However, the opinion is speculative. Polovick v. Shinseki, 23 Vet. App. 48 (2009)(holding doctor’s equivocal statement that veteran’s brain tumor “may well be” connected to herbicide exposure was speculative, as are statements such as “may well be,” “could be,” or “might be”); see also Goss v. Brown, 9 Vet. App. 109 (1996) (noting that the use of the phrase “could not rule out” was too speculative to establish medical nexus). The October 2020 VA examiner’s opinion is well reasoned, and the Veteran’s entire record was reviewed in support of the opinion. The October 2020 VA examination is also consistent with the evidence, primarily the fact that the Veteran did not experience significant symptoms while in-service and his examination for service separation is silent for relevant complaints, treatments, or diagnoses. Therefore, the Board affords the October 2020 VA examiner’s opinion significantly more probative weight. The Board finds the Veteran is not credible in his assertion of being excused from wearing leggings as customary during initial Naval training. An excusal of this kind, as premised on a physical complaint during strenuous initial training, would have very likely been noted and recorded by training cadre as directly indicative of the Veteran’s physical capability for duty as a recruit. See generally Fed. R. Evid. 803 (7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded); see AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (in claim of service connection, recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred). As noted above, the Veteran’s service treatment records and separation examination are silent for complaints, treatments, or diagnosis for his polio/post-polio syndrome. The Veteran was first seen for his polio/post-polio syndrome in September 2007, 41 years after service separation and the most probative medical evidence in the record reflects that the Veteran’s polio/post-polio syndrome was not caused or aggravated by the Veteran’s service or by a service-connected disability. The claim of entitlement to service connection for his polio/post-polio syndrome must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Wozniak, 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.