Citation Nr: 21024551 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-34 760 DATE: April 23, 2021 ORDER Entitlement to service connection for a disability manifested by limited balance, claimed as ataxia, is granted. FINDING OF FACT The evidence is at least evenly balanced that the Veteran’s current disability manifested by limited balance is proximately due to, or the result of, his service-connected peripheral neuropathy of the lower extremities. CONCLUSION OF LAW The criteria for service connection for a disability manifested by limited balance, claimed as ataxia, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1961 to February 1988. This case comes to the Board from a May 2014 decision of the Agency of Original Jurisdiction (AOJ), which denied service-connected compensation for ataxia. In his substantive appeal (VA Form 9), the Veteran asked to testify at a videoconference hearing. The requested hearing was scheduled for March 27, 2019. It was postponed at the Veteran’s request. In May 2020, the Veteran withdrew his hearing request. Under these circumstances, this appeal can proceed without a hearing. See 38 C.F.R. § 20.704(e). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and an in-service precipitating disease, injury, or event. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection “basically . . . means that . . . a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces . . . This may be accomplished by affirmatively showing inception or aggravation during service. . .” 38 C.F.R. § 3.303(a). Service connection may be granted for a disease first 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). A veteran may also establish a right to compensation on a secondary basis if the claimed disability is proximately due to, the result of, or aggravated by, a disease or injury which is service connected. See 38 C.F.R. § 3.310. Ataxia is a “failure of muscular coordination; irregularity of muscular action.” Dorland’s Illustrated Medical Dictionary, 170 (32nd ed. 2012). The Veteran’s service treatment records do not mention ataxia. Nor do they seem to describe any difficulties with walking or balancing. Indeed, the Veteran does not claim to have developed ataxia in service. Instead, the Veteran suggests that he is eligible for compensation for ataxia as a secondary result of his service-connected peripheral neuropathy of the lower extremities pursuant to 38 C.F.R. § 3.310. The post-service medical records do not necessarily use the term “ataxia” consistently or precisely. Sometimes the records use “ataxia” to describe a kind of irregular gait. For example, a March 2009 report from the Veterans’ treating neurologist described his gait as “mildly wide-based without ataxia. He gives a few steps on heels and toes. He has minor difficulties performing a tandem gait.” But in April 2009, the same neurologist reported the following diagnostic impression: “idiopathic distal sensorimotor polyneuropathy resulting in a degree of sensory ataxia without significant neuropathic pain.” In January 2014, the Veteran’s treating physician indicated diagnoses of both peripheral neuropathy and ataxia. The symptoms attributed to ataxia impaired the Veteran’s balance. According to the physician, if the Veteran stands suddenly, he will fall forward. He also will fall backwards or toward his side when getting out of a car. The Veteran told the physician that he “cannot move his feet to correct for falling. He can arrest a fall by pointing a walking stick. This is noted [since] 2007. It has been progressive since. He requires a walking stick for safety.” Near the conclusion of the January 2014 note, the physician provided a favorable medical opinion linking the Veteran’s ataxia to his service-connected peripheral neuropathy. In the physician’s opinion, “It is at least as likely as not that ataxia and neuropathy are related.” The AOJ granted service connection for the Veteran’s peripheral neuropathy of the lower extremities after a May 2017 peripheral nerves examination, performed by a physician assistant. The examiner’s report indicated a diagnosis of peripheral neuropathy since 2004. The symptoms consisted of moderate intermittent pain, paresthesias or dysesthesias, and numbness in both lower extremities. In the examiner’s opinion, the Veteran’s neuropathy was related to his spondylolisthesis at L5-S1. The May 2017 report indicated that the Veteran’s gait was abnormal, described as “antalgic with cane.” According to the examiner, the neuropathy was the reason for the Veteran’s gait abnormality. The AOJ also requested an opinion from the May 2017 examiner to help resolve the Veteran’s separate ataxia claim. The examiner provided this response: “Ataxia is a central nervous system disorder with peripheral manifestations, such as ataxic gait. This veteran has no documented history of a central [n]ervous condition. The veteran does not have Ataxia.” The unfavorable opinion of the May 2017 is inadequate to support a decision denying the claim. The Board may not deny service-connected disability benefits merely because the initial application misidentifies the specific clinical diagnosis associated with the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Pursuant to Clemons, the Veteran’s claim should be understood to include a claim for compensation, not merely for ataxia, but for the symptoms of any current disability manifested by limitations in his ability to balance. Moreover, according to the medical dictionary cited above, there are several kinds of ataxia. Some varieties are, as the examiner suggested, associated brain tumors or disease of the cerebellum or cerebrum. But there is also spinal ataxia (“ataxia due to disease of the spinal cord”) and truncal ataxia (“ataxia affecting the muscles of the trunk”). Dorland’s, supra at 170-71. The May 2017 opinion also failed to address the neurologist’s April 2009 diagnosis of sensory ataxia or the January 2014 physician’s opinion linking ataxia to the Veteran’s service-connected peripheral neuropathy. The Board has considered the possibility of remanding the claim for a clarifying opinion. But the January 2014 opinion, when considered together with the records of the neurologist, supports findings that it is at least as likely as not that the Veteran does have a current disability manifested by impairment of balance and that his disability is related to his service-connected peripheral neuropathy. According to the May 2017 examination report, the Veteran first developed peripheral neuropathy in 2004. The January 2014 opinion identifies 2007 as the approximate time the Veteran first experienced symptoms ataxia. This chronology is consistent with the physician’s favorable opinion. By law, the doubt resulting from this equipoise in the evidence is resolved in the appellant’s favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only ‘an approximate balance of positive and negative evidence’... , the nation, ‘in recognition of our debt to our veterans,’ has ‘taken   upon itself the risk of error’ in awarding... benefits.”). Thus, the Board will grant service connection for a disability manifested by impaired balance. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.