Citation Nr: 21015362 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-30 949A DATE: March 17, 2021 ORDER Entitlement to service connection for Charcot Marie Tooth (CMT) disease is granted. Entitlement to service connection for bilateral ankle disability, to include atrophy as secondary to CMT, is granted. FINDINGS OF FACT 1. There is no clear and unmistakable evidence that the Veteran’s preexisting CMT disease was not worsened during active duty service. 2. The evidence shows that the Veteran’s bilateral ankle disability, to include atrophy, is secondary to the now service-connected CMT. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for CMT disease are met. 38 U.S.C. §§ 1110, 1111, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2019). 2. The criteria for service connection for bilateral ankle disability as secondary to CMT are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1971 to March 1972. The Board recharacterized the issues on appeal as reflected in the title page of this decision. Specifically, the bilateral ankle disability is intertwined with the claimed CMT disease. Service Connection for CMT and Associated Bilateral Ankle Disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). 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, 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. § 1111; 38 C.F.R. § 3.304(b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran’s entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304(b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the “preexistence prong” and the “aggravation prong.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). 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 are therefore considered to 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). 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 initially manifested in or 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 noted above, 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. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c); see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2007); 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”). 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. Id. However, 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 pre-existed 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 pre-existed service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA’s Office of General Counsel has also 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 which either first manifest themselves during service or which pre-exist 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. Quirin, 22 Vet. App. at 394-397. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so, whether there was aggravation during service. Id. at 395. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). Analysis The Veteran asserts that his bilateral CMT disease and associated bilateral ankle atrophy and instability were aggravated by active duty service. Initially, the Board notes that the Veteran has a current diagnoses of CMT and associated bilateral ankle disabilities that have been medically attributed to CMT. See e.g., VA treatment records dated in 2012. CMT is a congenital hereditary disease and as discussed above, this does not always rebut the presumption of soundness. Specifically, in the present case, the Veteran’s induction examination showed no evidence of the CMT. However, it was determined after a few months of active duty service that the condition clearly and unmistakably preexisted service. Thus, the burden is now on VA to prove that the CMT was clearly and unmistakably not aggravated during service. The evidence shows that the Veteran was asymptomatic at the time of entrance to active duty service and it was only after beginning basic training that he began complaining of foot pain and he is competent to report such. That complaint of pain eventually led to his discharge. The Board notes that a May 2012 VA examiner opined that if an adequate physical examination was performed at the time of induction, the Veteran’s CMT disease would have been discovered and prevented him from military service. The examiner further opined that the Veteran’s CMT disease is a genetic disorder that clearly and unmistakably existed prior to his entrance into military service and as evidenced by the history elicited during the examination, the disease was “a stand-alone entity” that was not adjunct nor aggravated by active military service. However, it appears that the examiner only considered the in-service event of the Veteran twisting his ankle during basic training as that is the only history that is listed under the medical history portion of the examination report. In other words, if the examiner elicited any additional history from the Veteran, especially for any symptoms of CMT prior to service, such was not documented in the examination report. On the contrary, during the January 2021 Board hearing, the Veteran testified that during his induction examination, he notified the medical professional that he felt that he was more awkward than others and that he had difficulty with running and sports as a kid. He further testified competently and credibly that despite having these issues, he never had pain, or any specific symptomatology associated with the disease until he began basic training. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that it is unable to conclude by clear and unmistakable evidence that the Veteran’s CMT was not aggravated by service, given that he developed symptoms during service, and was asymptomatic at entrance. Service connection is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.