Citation Nr: 21012193 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-25 912 DATE: March 3, 2021 ORDER Entitlement to service connection for residuals of polio is denied. Entitlement to service connection for a neurologic disability of the bilateral lower extremities, to include as secondary to residuals of polio, is denied. Entitlement to service connection for a neurologic disability of the bilateral upper extremities, to include as secondary to residuals of polio, is denied FINDINGS OF FACT 1. Residuals of polio were not caused or aggravated by any aspect of service. 2. A neurological disability of the bilateral lower extremities did not manifest, was not aggravated by, or otherwise attributable to, service. 3. A neurological disability of the bilateral upper extremities did not manifest in active duty service, was not aggravated by, or otherwise attributable to, active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of polio have not been met. 38 U.S.C. § 1101, 1110, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 2. The criteria for entitlement to service connection for a neurologic disability of the bilateral lower extremities have not been met. 38 U.S.C. § 1101, 1110, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria for entitlement to service connection for a neurologic disability of the bilateral upper extremities have not been met. 38 U.S.C. § 1101, 1110, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to December 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) Service Connection The Veteran contends that his polio and its residuals, which pre-existed service, were aggravated by beyond natural progression by the “rigors of military training,” caused nerve damage to his bilateral upper and bilateral lower extremities. See Statement in Support of Claim, received June 2011. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled in service, except for defects, diseases, or infirmities noted at the time of entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C. § 1111. According to 38 C.F.R. § 3.304(b), 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 will be considered together with all other material evidence in determining the question of when a disease or disability began. See 38 C.F.R. § 3.304 (b)(1). Determinations of whether a condition existed prior to service should be “based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to... manifestations, clinical course, and character of the particular injury or disease or residuals thereof.” Id. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A preexisting disease will be presumed to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). 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 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see also Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition itself, as contrasted with mere symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Evidence and Analysis The Veteran reported that he had German Infantile Paralysis in 1952 when he was three-and-a-half in his February 1968 Enlistment Report of Medical History. In the physician’s summary of this report, the examiner indicated that the Veteran had polio between age three and four, which only affected the Veteran’s right arm. Additionally, the physician noted that the had experienced benign leg cramps. In a January 1969 Report of Medical History, a physician noted “polio? as child—no residual.” In the Veteran’s December 1971 Separation Report of Medical Examination, a clinician provided a normal clinical evaluation of the Veteran’s neurological status, upper extremities, and lower extremities. In the summary defects portion of this Report, a clinician indicated “none,” adding a notational concerning the Veteran’s heart (which is somewhat muddled). Upon a November 2006 VA primary care clinical note, A VA nurse practitioner (NP) indicated that the Veteran had polio at the age of 5, which manifested in right-hand weakness. Upon neurological assessment, the NP reported normal reflexes at all 4 extremities; good grip strength; normal vibratory sensation at all 4 extremities; normal gait; erect posture; cerebellar function intact with finger to finger; and cranial nerves that were grossly intact. In an August 2008 diabetes mellitus examination report, a clinician noted that the Veteran endorsed that he experienced diminished sensation at the feet—without numbness, tingling, or burning. In June 2011, the Veteran submitted a statement. In pertinent part, he conveyed that the “rigors of military training and duty” caused his residual complications of polio to progress beyond normal progression. This, in turn, led to nerve damage to both upper and lower extremities. In August 2011, the Veteran elaborated upon this statement by noting his lack of digital dexterity and weakness at the bilateral extremities. The Veteran also wrote that he had difficulty dressing and maintaining balance. Upon VA magnetic resonance imaging (MRI) of the brain in May 2013, a radiologist noted mild mucosal thickening at the bilateral ethmoid sinus. Associated records provide tentative diagnoses of possible polyneuropathy and motor neuron disease. Upon a May 2013 VA clinical neurophysiology laboratory evaluation, a physician noted that the Veteran had a history of polio and residual weakness in the right arm and hand. The Veteran did not endorse such symptoms in either the left arm or legs. Upon diagnostic testing, the physician concluded that EMG/NCS of the left extremity and right lower extremity were normal. Clinical correlation was suggested. A provisional diagnosis of muscle weakness was provided. A review of VA progress notes and treatment records shows the clinicians were cognizant of the Veteran’s history of infantile polio with residual right-hand weakness. In October 2012, a clinician provided an assessment of post-polio syndrome. Such was also classified as late effects of acute poliomyelitis. Clinicians also took note of the Veteran’s endorsements of extremity weakness. In May 2013, The Veteran was afforded a VA examination. A VA neurologist reviewed the claims file; considered the Veteran’s subjective accounts; and conducted an appropriate evaluation (hereinafter “VA examination protocols”). The neurologist provided a diagnosis of late effects of acute poliomyelitis. Upon an extensive assessment of the evidence of record, the neurologist opined that, I was unable to find any credible evidence that the Veteran’s neurological status declined during military service. […] Individuals with polio such as the Veteran may have progressive neurological decline due to the natural history of polio, development of ‘post-polio syndrome,’ or both. Moreover, ‘the normal aging process contributes to further loss of motor unit’ in patients with polio. Accordingly, I am unable to conclude that the Veteran’s polio was aggravated beyond its natural progression by […] service without resort to mere speculation. Thus, the neurologist opined that the Veteran’s claimed condition (residuals of polio), which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. As a rationale for this negative nexus opinion, the neurologist, in pertinent part, re-conveyed the text cited above. Upon a VA peripheral nerves examination of the same month, this VA neurologist, indicated that EMG testing disclosed right upper extremity abnormality. Otherwise, EMG testing results were normal as to the extremities. Here too, this neurologist provided a negative nexus opinion, largely duplicative of that cited above. As the Board noted in its August 2019 remand, this neurologist did not clearly identify the Veteran’s residuals of polio or confirm whether the Veteran has neurologic disability of the bilateral lower extremities and/or neurologic disability of the bilateral upper extremities. In addition, this neurologist relied upon the lack of evidence in the Veteran’s records as s rationale for his negative nexus opinion, failing to address the Veteran’s contentions that his service itself, specifically, the “rigors of military training” aggravated his preexisting polio disability beyond its natural progression. In December 2019, the Veteran was afforded another VA examination. A VA physician followed VA examination protocols. The physician provided a current diagnosis of post-polio syndrome. Also, this physician reported that neurologic effects, to include weaknesses, are attributable to post-polio syndrome. This physician opined that this is a case of post-polio syndrome likely aggravated by extreme use right upper and lower extremity rigors of service. As a rational for this positive nexus opinion, the physician noted that muscle use and activity is known to aggravate post-polio muscles which apparently occurred in this case. This baseline activity cannot be established as there is no documentation to support the original level of the Veteran prior to levels documented in 2013. Hence, one must assume that the Veteran’s level of function on induction into service in 1968 was deemed sufficient for duty. However, since there is a history of polio in childhood with some extremity weakness, it would be assumed and likely that the rigors of service would have aggravated any muscle weakness due to polio, therein muscle weaknesses in the extremities and aggravation service connected (sic). In a July 2020 VA treatment record, a clinician opined that the Veteran was experiencing loss of balance In October 2020, the Veteran was afforded an VA opinion to reconcile the conflicting May 2013 and December 2019 VA examination reports. A VA physician performed a comprehensive reassessment of all of the evidence of record and rendered an opinion suffused with evidence and medical/epidemiological knowledge. As to direct service connection, this physician provided a negative nexus opinion. A review of the Veteran’ s service treatment records shows that the Veteran was diagnosed with poliomyelitis in childhood prior to service. As noted above, the Veteran’s enlistment exam is negative for residuals of poliomyelitis and his separation exam show neither residuals of poliomyelitis nor neurological abnormalities—while on active duty it or within one year of separation from service. The Veteran was first diagnosed with post-myelitis syndrome, 40 years after separation. The Veteran’s poliomyelitis/post-polo has followed the predicted natural progression of the disease. There is no evidence in the record (rigors of military training) while on active duty which caused or permanently aggravated poliomyelitis/post-polio syndrome beyond its natural progression to include neurologic manifestations in the extremities. Moreover, poliomyelitis, often referred to as “polio,” is an acute infectious disease in which motor neurons of the spinal cord and brainstem are damaged by poliovirus—a neurotropic enterovirus. Although poliomyelitis no longer poses the worldwide public health threat that it once did; small areas of endemic wild-type poliovirus still exist in parts of Asia, and (in rare cases) oral polio vaccine (OPV)-associated poliomyelitis continues to occur. Survivors of poliomyelitis live with static neuromuscular sequelae of polio. In addition, some patients experience a syndrome of new or progressive disability, usually occurring decades after the disease itself. This syndrome, termed “post-polio syndrome” (PPS) has variable manifestations that may include increased muscle weakness, generalized muscle atrophy, fatigue, pain, and decreased ambulatory abilities. PPS refers to new or progressive muscle weakness and disability in survivors of poliomyelitis, usually occurring decades after the initial infection. Estimates of the incidence and prevalence of PPS vary greatly according to the criteria used for establishing the diagnosis. If patients are simply asked whether they have experienced new symptoms related to prior polio, approximately one-half respond affirmatively. These symptoms include weakness, pain, fatigability, and concentration difficulty. However, if new, progressive weakness is a criterion, the frequency drops to approximately 20-to-30 percent of polio survivors. On average, the onset of new symptoms occurs approximately 35 years after the initial polio episode, but the delay can range between 8 and 71 years. PPS occurs sooner in patients with more severe original disease. In addition to the severity of the original paralysis, two other risk factors influence the likelihood of developing PPS: The age at which polio occurred (when acute poliomyelitis occurs in adolescents and adults, the disease is generally more severe than in infants or children, and these older people are more likely to develop PPS). Further, this physician wrote that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service injury of event, injury, or illness. Here, the physician applied, in great part, the rationale employed above. A review of the Veteran’ s service treatment records shows that the Veteran was diagnosed with poliomyelitis in childhood prior to service. The Veteran’s enlistment exam is negative for residuals of poliomyelitis and his separation exam shows neither residuals of poliomyelitis nor neurological abnormalities. The Veteran was first diagnosed 40 years after separation. The Veteran’s poliomyelitis/post-polo has followed the predicted natural progression of the disease. There is no evidence in the record (rigors of military training) while on active duty which caused or permanently aggravated poliomyelitis/post-polio syndrome beyond its natural progression to include extremities. The Board may favor the opinion of one competent medical examiner over that of another as long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert’s examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. See Guerrieri v. Brown, 7 Vet. App. 467 (1993). Greater weight may be placed on one practitioner’s opinion over another depending on factors such as reasoning employed and whether or not and the extent to which they reviewed prior clinical records and evidence. See Gabrielson v. Brown, 7 Vet. App. 36 (1994). Furthermore, the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App, 140 (2003). The December 2019 VA examination report bases a positive nexus opinion on absences and conjecture. While the VA physician opined that “muscle use and activity is known to aggravate post-polio muscle which apparently occurred in this case,” the VA physician provides no guidance or explanation from whence this knowledge is derived. Moreover, this physician wrote that it would be assumed and likely that the rigors of service would have aggravated any muscle weakness due to polio. Assumption does not supplant evidence or specific medical or epidemiological findings. Thus, the physician relies upon lacks and assumptions to support causation in these matters. The Board assigns diminished probative weight to this physician’s report for these reasons. The Board also finds that the December 2019 VA examiner did not address whether the Veteran’s right upper extremity symptoms were aggravated beyond the natural progression of the disease. In that regard, a temporary aggravation is not the same as a permanent aggravation beyond the natural progression of the disease. The examiner does not explain this conclusion in light of the lack of indication of a worsening of symptoms on service separation or for many decades following service separation. Furthermore, as was done so in great detail by the October 2020 VA examiner, the December 2019 VA examiner did not account for the medical knowledge and research showing that survivors of polio often experienced neurological symptoms many years following the cessation of the illness. Such is significant, as the record does not demonstrate, nor does the Veteran contend with any specificity, that he suffered from a worsening of symptoms in his extremities since service. Rather, he has stated that he suffers from neurological manifestations currently, or at the least, many years following service separation. This inconsistency makes the opinion of less probative value. Here, the Board assigns far greater probative weight to the October 2020 VA opinion. The physician who prepared this opinion performed a comprehensive reassessment of all of the evidence of record and rendered an opinion suffused with evidence and medical/epidemiological knowledge. Moreover, this physician conducted an extensive evaluation of the incidences and age-related vectors of the disease entities of poliomyelitis and PPS. Survivors of poliomyelitis live with static neuromuscular sequelae of polio. And, the Veteran’s poliomyelitis/post-polio has followed the predicted natural progression of the disease. There is no evidence in the record (rigors of military training) while on active duty which caused or permanently aggravated poliomyelitis/post-polio syndrome beyond its natural progression to include extremities. Therefore, the Board finds that the weight of evidence supports that the Veteran’s polio and right arm “residuals,” which clearly and unmistakably existed prior to active duties service, were not aggravated beyond their natural progression by the “rigors of military training.” However, the weight of evidence is against finding that the Veteran’s left-upper-extremity- and bilateral-lower-extremities- neurologic disabilities were as likely as not incurred in or aggravated by service—to include as a residual of polio and to include due to the “rigors of military training.” (Continued on the next page)   The Veteran believes that that his polio and residuals, which clearly and unmistakably pre-existed service, were aggravated by the “rigors of military training,” which caused the disease and residuals to progress beyond normal progression, causing nerve damage to his bilateral upper and bilateral lower extremities. Indeed, the Veteran is competent to provide opinions as to that which is discernable, such as pain. Nevertheless, as a layperson, the Veteran lacks the specialized medical training and clinical expertise to render opinions as to etiology, aggravation, or causation. See Jandreau, supra. Therefore, the preponderance of evidence is against the Veteran’s three service connection claims. As such, there are no doubts to be resolved. See 38 U.S.C. § 5107(b); Gilbert, supra. R. Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.