Citation Nr: 21004423 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 19-01 039 DATE: January 27, 2021 ORDER Entitlement to an effective date of June 6, 1959, for the award of service connection for amyotrophic lateral sclerosis (ALS) with impairment of the upper right extremity is granted. REMANDED Propriety of an initial evaluation for service-connected ALS with impairment of the right upper extremity from June 6, 1959, to July 19, 2016, to include the assignment of separate evaluations for manifestations of service-connected ALS under the appropriate rating criteria throughout the appeal period, is remanded. FINDINGS OF FACT 1. In July 1959, within one year of the Veteran’s separation from active duty on June 6, 1959, he filed a claim with the Department of Veterans Affairs (VA) to establish service connection for a disability manifested by progressive muscular dystrophy affecting the right arm and hand. 2. In a September 1959 rating decision, the Agency of Original Jurisdiction (AOJ) established service connection for myelopathy, and a 30 percent initial evaluation was assigned from June 6, 1959; the Veteran did not appeal that decision, nor was any new and material evidence submitted within the appeal period. 3. On July 19, 2017, VA received from the Veteran a claim to establish service connection for several disabilities, to include ALS. 4. In connection with the Veteran’s July 2017 claim, the AOJ obtained complete copies of the Veteran’s service treatment and personnel records, which included service department records that are relevant to the disabilities at issue in 1959 and currently and were extant, but not associated with the Veteran’s VA file, at the time of the September 1959 rating decision. 5. The service department records obtained by the AOJ in August 2017 overcame the finality of the September 1959 rating decision, and the Veteran’s July 1959 claim to establish service connection for a disability manifested by progressive muscular dystrophy affecting the right arm and hand remained open and pending. 6. In an October 2017 rating decision, the AOJ established service connection for ALS with impairment of the right upper extremity; a 100 percent initial evaluation was assigned, effective from July 19, 2017; however, the effective date of this award was later changed to July 19, 2016, by the AOJ in a November 2018 Decision Review Officer (DRO) decision. 7. The criteria to establish service connection for ALS with impairment of the upper right extremity were met prior to the Veteran’s separation from active duty and at the time of the September 1959 rating decision. CONCLUSIONS OF LAW 1. The September 1959 rating decision became final with respect to the dispositions regarding the Veteran’s July 1959 claim to establish service connection for a disability manifested by progressive muscular dystrophy affecting the right arm and hand, to include the characterization of the Veteran’s claim and assigned initial evaluation and effective date. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156 (b), 20.302, 20.1103. 2. The finality of the September 1959 rating decision with respect to the dispositions regarding the Veteran’s July 1959 claim to establish service connection for a disability manifested by progressive muscular dystrophy affecting the right arm and hand, to include the characterization of the Veteran’s claim and assigned initial evaluation and effective date, was overcome by VA's receipt of relevant service department records that were extant, and yet, not associated with the Veteran's VA file at the time of the September 1959 rating decision. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156 (c), 20.302, 20.1103. 3. The criteria for an effective date of June 6, 1959, but no earlier, for the award of service connection for ALS with impairment of the upper right extremity have been met. 38 U.S.C. §§ 5103A, 5107, 5110, 5304; 38 C.F.R. §§ 3.156 (c), 3.159, 3.303, 3.400, 3.501, 3.654, 3.700. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1956 to June 1959, at which time he was transferred to the Temporary Disability Retirement List (TDRL). On June 5, 1964, the Department of the Army removed the Veteran from the TDRL and placed him on the Permanent Disability Retired List (PDRL). This matter comes to the Board of Veterans' Appeals (Board) from an October 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the AOJ. The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In September 2020, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the September 2020 hearing is associated with the file. Characterization of the issue on appeal The present appeal involves a myriad of procedural, legal, and medical intricacies that shape the benefits sought by the Veteran and how such may be pursued and/or awarded. In sum, the Veteran seeks entitlement to a 100 percent evaluation for ALS from the date of his separation from active duty on June 6, 1959; however, the AOJ’s characterization of the Veteran’s service-connected disability and appealed issue throughout the pendency of the appeal has truncated the benefits available to him. Accordingly, in light of the complexities involved in the present matter, which will be outlined below, and in an effort to more accurately frame the benefits sought by, and available to, the Veteran, the Board has bifurcated and recharacterized his appeal as stated on the title page. Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012). As all of these issues comprising the Veteran’s appeal are being granted in full or remanded for additional development, he is not prejudiced by the Board’s actions in this regard. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 1. Entitlement to an effective date prior to July 19, 2016, for ALS with impairment of the right upper extremity is granted. As alluded to above, the Veteran’s appeal is highly dependent on several factual matters that have downstream impact on the Veteran’s ability to pursue the benefits he wishes to be awarded. As such, the Board concludes that a brief recitation of pertinent facts is necessary to provide clarity of the benefits being awarded and those which may flow from the Board’s determinations herein. The Veteran entered active duty in the United States Army in October 1956, and his enlistment examination report is devoid of any notation of a disability affecting the right arm and hand. In mid-1957, the Veteran began experiencing weakness in his right arm, hand, and fingers, and these symptoms progressed throughout several instances of treatment and evaluation. The Veteran was hospitalized in late-1957 at Fort Huachuca in Sierra Vista, Arizona, and he was later transferred to Letterman Army Hospital for further testing to identify the neurodegenerative and/or muscular disability underlying his chronic and progressive symptoms. The Department of the Army convened a Medical Board in May 1959, which recommended that the Veteran be transferred to the TDRL due to “atrophy, muscular, myelopathic, progressive, of muscles supplied by the radial, ulnar, and median nerves of the right upper extremity, chronic” and that he be subject to future, periodic Physical Evaluation Board (PEB) evaluations to determine his fitness for return to active duty or transfer to the PDRL within the next five years. A PEB report signed on May 11, 1959, adopted the findings of the Medical Board, and the above disability was noted to be moderate and evaluated under Diagnostic Code 8024. The Veteran’s May 8, 1959, separation examination reflects that he was found to be unfit for duty due to “atrophy, muscular, myelopathic, progressive, of muscles supplied by the radial, ulnar and median nerves of the right upper extremity,” and he was administratively transferred from active duty to the TDRL on June 5, 1959. In July 1959, the Veteran filed a claim with VA to establish service connection for a disability manifested by progressive muscular dystrophy affecting the right arm and hand. The Veteran was provided a VA examination September 1959 in connection with this claim, and the VA clinician cited the above evidence and provided a diagnosis of myelopathy involving the anterior horn cells at levels C-5 – C-8 with severe motor impairment, at the present, limited to the right hand. Additionally, the VA examiner remarked that the Veteran’s symptoms “may be the beginning of progressive muscular atrophy,” and he “must” be followed for further progress of the underlying disability and clarification of the diagnosis. In a September 1959 rating decision, the AOJ established service connection for myelopathy, and a 30 percent initial evaluation was assigned from June 6, 1959. The Veteran did not appeal that decision, nor was any new and material evidence submitted within the appeal period. As such, the September 1959 rating decision became final with respect to the dispositions regarding the Veteran’s July 1959 claim. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. The Veteran’s initial post-service PEB evaluation was undertaken on June 20, 1960, at the Key West Naval Hospital, and the report of such reflects the physician’s notation of a continued diagnosis of ALS, which was initially rendered one year prior. This diagnosis was continued, and the Veteran was discharged to home and recommended for future periodic PEB evaluation to determine his fitness for return to active duty or transfer to the PDRL. These findings and recommendations were echoed after PEB evaluations completed in December 1961, June 1963, and December 1963. In March 1964, the Department of the Army convened a PEB at Walter Reed Army Medical Center, and it was recommended that the Veteran be transferred to the PDRL due to ALS manifested by incomplete paralysis of the median and ulnar nerves. In August 1977, the Veteran contacted the Adjutant General of the Department of the Army, requesting copies of service department records and an increased evaluation of his service-connected disability. In October 1977, these requests were forwarded to the AOJ. As would be later noted by the AOJ, the Veteran’s August 1977 claim did not include a date stamp commemorating the document’s receipt at a VA facility; however, his request for copies of service department records (which was sent and received in the same packet) had such a date stamp showing the AOJ’s receipt in November 1977. The AOJ notified the Veteran in a November 1977 letter that he previously elected to receive retirement pay from the Department of the Army, and if he wanted to receive VA benefits in addition to the assigned 30 percent evaluation, he needed to file a claim for such. On July 19, 2017, VA received from the Veteran a claim to establish service connection for several disabilities, to include ALS. In connection with this claim, the AOJ obtained complete copies of the Veteran’s service treatment and personnel records, which included several service department records relevant to the disabilities at issue in 1959 and in the instant case, which were extant, but not associated with the Veteran’s VA file, at the time of the September 1959 rating decision. Of particular importance is a record dated May 29, 1959, from the United States Army Physical Review Council (APRC), which was an administrative body whose function was to review and approve findings of PEB proceedings for approval by the Secretary of the Army. In the record, the APRC substantially modified the findings of the May 11, 1959, PEB regarding the disabilities rendering the Veteran unfit for duty. Specifically, the prior diagnosis of “atrophy, muscular, myelopathic, progressive, of muscles supplied by the radial, ulnar, and median nerves of the right upper extremity, chronic” was modified to ALS manifested by incomplete paralysis of the right ulnar (moderate) and median (mild) nerves, and the disabilities were to be rated under Diagnostic Codes 8017, 8516, and 8515, respectively. The initial onset of this disability was also modified to reflect September 1957. The AOJ provided the Veteran with a VA examination in October 2017, and after a review of the totality of the evidence and physical examination of the Veteran, a VA physician confirmed that the Veteran’s ALS initially manifested in 1959. In an October 2017 rating decision, the AOJ established service connection for “ALS with impairment of the right upper extremity”; a 100 percent initial evaluation was assigned, effective from July 19, 2017. The Board notes that the Codesheet section of this rating decision reflects that this disability and evaluation were assigned in addition to the 30 percent evaluation assigned for myelopathy in the September 1959 rating decision. In April 2018, the Veteran expressed disagreement with the AOJ’s determination regarding the effective dates assigned for service connection for ALS and the 100 percent evaluation for such. In accompanying statements, the Veteran noted that a diagnosis of ALS was of record at the time of the September 1959 rating decision, and that the rating criteria for this disability, which had changed several times in the nearly 60-year period since 1959, had not been properly applied. His theories of entitlement for the awards sought included (1) that the September 1959 rating decision included Clear and Unmistakable Error (CUE), (2) that his August 1977 claim for an increased evaluation for this disability remained pending until the October 2017 rating decision, and (3) non-application of liberalizing laws regarding VA’s rating criteria for ALS. To address some of the Veteran’s contentions, the AOJ obtained a VA medical opinion in October 2018 which confirmed that the Veteran’s in-service symptoms were early manifestations of ALS and initially diagnosed during the Veteran’s active duty in 1959. In a November 2018 DRO decision, the AOJ partially granted the Veteran’s appeal by establishing the award for service connection for ALS with impairment of the right upper extremity and 100 percent evaluation for such from July 19, 2016 – one year prior to VA’s receipt of his July 2017 claim. In the Narrative section of this decision, the AOJ found that an earlier effective date for this disability and corresponding evaluation could not be assigned because the September 1959 rating decision did not contain CUE and the Veteran’s August 1977 claim for an increased evaluation did not reflect a date stamp showing that such had been received by the AOJ, even though the request for records accompanying such did. Curiously, the Codesheet section of the November 2018 DRO decision includes information which is inconsistent with the Narrative section of the same. Specifically, it is noted that service connection for ALS with impairment of the right upper extremity (previously as myelopathy of the right upper extremity under Diagnostic Codes 8099-8010) was established since June 6, 1959, and evaluated 30 percent disabling prior to July 19, 2016, and 100 percent disabling, thereafter, under Diagnostic Code 8017. Further, myelopathy is not noted among the Veteran’s service-connected disabilities or disabilities for which service connection had been previously denied. In sum, it appears that the AOJ attempted to recharacterize the Veteran’s service-connected disability for rating purposes in the November 2018 DRO decision, but in doing so, severed service connection for myelopathy (which had been in effect for nearly 60 years) and posited that ALS had been service-connected and rated under Diagnostic Code 8017 since June 6, 1959. The Veteran continued to express disagreement with the AOJ’s determinations regarding these matters, to include at the September 2020 Board hearing, and the matter was subsequently transferred to the Board. Analysis Initially, the Board notes that the Veteran is seeking the earliest possible effective dates for the awards of service connection for ALS and a 100 percent evaluation for such that are allowable under the applicable laws in the unique facts of the present case. As a preliminary matter, the Board’s ability to readjudicate the Veteran’s appeal is slightly frustrated by the internal inconsistency of the AOJ’s determinations in the November 2018 DRO decision. Chiefly, the Narrative section of this readjudication states that service connection for ALS with impairment of the right upper extremity is granted from September 17, 2016; however, the Codesheet section of the same document reflects that this disability has been service-connected since June 6, 1959. In an effort to resolve this incongruity, the Board notes that the AOJ could not have established service connection for ALS with impairment of the right upper extremity unless it was determined that revision of the September 1959 rating decision was necessary due to CUE in the same, which is inconsistent with findings expressed in the Narrative and Codesheet sections of the same document. As such, the initial matter for the Board is to determine whether an effective date earlier than September 17, 2016, is warranted for the award of service connection for ALS with impairment of the right upper extremity. As noted above, the Veteran’s theories of entitlement for the awards sought include (1) that the September 1959 rating decision included CUE, (2) that his August 1977 claim for an increased evaluation for this disability remained pending until the October 2017 rating decision, and (3) non-application of liberalizing laws regarding VA’s rating criteria for ALS, and each theory, if granted by the Board, would result in allowances of varying degrees. The Board acknowledges these assertions and observes each has a certain amount of merit; however, for the reasons discussed below, the Board concludes that the benefits sought by the Veteran may be awarded under a separate theory which will comprise the focus of the Board’s analysis. The Board observes that the Veteran and AOJ have focused much discussion on propriety of revision of the September 1959 rating decision due to CUE in the same. While noting this theory of entitlement and the merits of the Veteran’s assertions in this regard, the Board concludes that such discussion is premature in the present case, as CUE may only be found in rating decisions that are final. To this point, while it is clear that the September 1959 rating decision became final regarding the downstream elements of the award stemming from the Veteran’s July 1959 claim, such was overcome by VA’s August 2017 receipt of the May 1959 record from the APRC, which is relevant to the matters at issue and was extant, but not associated with the Veteran’s file, at the time of the September 1959 rating decision. When presented with “relevant” service records, VA must reconsider the claim unless VA “could not have obtained [the records] when it decided the claim.” 38 C.F.R. § 3.156(c)(2). The file is devoid of any reason why the May 1959 document from the APRC could not have been obtained by VA prior to the September 1959 rating decision. Thus, reconsideration of the September 1959 rating decision was appropriate, and such took place in the October 2017 rating decision that granted service connection for ALS with impairment of the upper right extremity, citing to the Veteran’s service treatment and personnel records, which included the May 1959 document from the APRC. Under 38 C.F.R. § 3.156(c)(3), entitlement to an earlier effective date occurs when VA relied at least in part on the newly associated service records. The AOJ’s citation to the Veteran’s service treatment and personnel records, which included the record from the APRC, fulfills this requirement. Consequently, under subsection (c)(3), the award of service connection for ALS with impairment of the right upper extremity should be “effective on the date entitlement arose or the date VA received the previously denied claim.” 38 C.F.R. § 3.156(c)(3). To the above point, the Board underlines that such a determination may be promulgated in consideration of all of the evidence of record. This evidence, to include the May 1959 document from the APRC, the PEB reports dated in June 1960 December 1961, June 1963, December 1963, and March 1964, and the October 2017 and October 2018 VA opinions, unambiguously reflects that ALS with impairment of the right upper extremity arose during the Veteran’s active duty. As such, entitlement to service connection for ALS with impairment of the upper right extremity, based on the Veteran’s July 1959 claim, is warranted from June 6, 1959, (the day after the Veteran’s separation from active duty) under the theory of direct service connection or presumptive service connection. This represents a full allowance regarding this particular issue, but only a partial allowance of the totality of the benefits sought by the Veteran in his appeal. As will be explained below, substantial evidentiary and procedural development is necessary prior to readjudication of the balance of the Veteran’s appeal. REASONS FOR REMAND 1. Propriety of an initial evaluation for service-connected ALS with impairment of the right upper extremity from June 6, 1959, to July 19, 2016, to include the assignment of separate evaluations for manifestations service-connected ALS under the appropriate rating criteria throughout the appeal period, is remanded. The Board’s partial allowance, detailed above, results in a 57-year period (from June 6, 1959, to July 19, 2016) during which ALS with impairment of the upper right extremity must be rated in the first instance by the AOJ. This matter includes several complexities which may only be addressed after significant evidentiary and procedural development, as outlined below. As an initial matter, the Board observes that the Veteran’s VA file is devoid of medical evidence detailing the frequency and severity of the manifestations of the Veteran’s service-connected ALS with impairment of the right upper extremity between the March 1964 PEB proceeding and 2017 – a period of 53 years. The Board finds it extremely unlikely that the Veteran did not seek treatment for this disability, which the AOJ has noted to be “progressive” and “terminal,” for over half a century. As such, the AOJ must request that the Veteran identify any outstanding private treatment records pertinent to the disability at issue. Any treatment records identified by the Veteran must be obtained and associated with the record. Acknowledging that some of these records may not be available due to the passage of time and closure of the Veteran’s private provider(s), the Court has held that VA’s duty to assist may include development of medical evidence through a retrospective medical evaluation where here is a lack of medical evidence for the time period being rated. Chotta v. Peake, 22 Vet. App. 80 (2008). To this point, the Veteran is competent to report symptoms that he has experienced on a first-hand basis, and his lay statements regarding such may not be discounted for a lack of corroborating objective medical evidence. After ensuring that the file adequately reflects the frequency and severity of all symptoms attributable to his service-connected ALS from June 6, 1959, to July 19, 2016, the AOJ must ensure that such is properly applied to the appropriate rating criteria, much of which has changed throughout the appeal period. Specifically, from June 6, 1959, to January 18, 2012, Diagnostic Code 8017 provided that ALS was to receive a minimum evaluation of 30 percent with a higher rating for “ascertainable residuals.” In the present case, the record currently reflects ascertainable residuals of ALS since June 1959 to be myelopathy (which has been service-connected and rated 30 percent disabling for more than 60 years), and incomplete paralysis of the right median (mild in 1959) and ulnar (moderate in 1959) nerves, as reflected within the May 1959 record from the APRC. As with the rating for ALS, these ascertainable residuals and any others identified by the development directed by the Board must be evaluated under the appropriate rating criteria (former and current) throughout the pendency of the appeal. Further, effective January 19, 2012, Diagnostic Code 8017 was revised to provide for a single rating of 100 percent for service-connected ALS. 76 Fed. Reg. 78823 (Dec. 20, 2011). The Board’s application of 3.156(c) in this case, detailed above, allows for implementation of this liberalizing law from the effective date of the act (January 19, 2012), as the Veteran’s appeal remained open and pending reconsideration since 1959. 38 C.F.R. § 3.114(a); 76 Fed. Reg. 78823. Further, as noted elsewhere, the AOJ’s actions in the November 2018 DRO decision appear to have severed service connection for myelopathy, which had been service-connected and evaluated 30 percent disabling for nearly 60 years. Noting that the evidence of record reflects that myelopathy was/is an ascertainable residual of ALS prior to and since the Veteran’s separation from active duty, the AOJ must specifically address whether this rating was protected by the governing regulation (38 C.F.R. § 3.951), statute (38 U.S.C. § 1159), and case law (such as, but not limited to, Murray v. Shinseki, 24 Vet. App. 240 (2011) and Read v. Shinseki, 651 F. 3d. 1296 (Fed. Cir. 2011).) Finally, the Board wishes to underline the importance of expediting the directed evidentiary and procedural development in light of the Veteran’s progressive and terminal disability, as acknowledged by the AOJ. The matters are REMANDED for the following actions: 1. The AOJ must request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who have treated him for his service-connected ALS and any residual of such from June 6, 1959, to July 19, 2016. After securing appropriate release(s) from the Veteran, make two attempts to obtain any identified private treatment records which are not already associated with the file or make a formal finding that a second request for such records would be futile. The Veteran must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 2. The AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the frequency and severity of all ascertainable residuals of his service-connected ALS from June 6, 1959, to July 19, 2016. After a review of the complete record, to include this remand, the examiner is requested to address the following: a. Identify each ascertainable residual of the Veteran’s service-connected ALS that he has experienced since June 6, 1959. *In addressing the above, the examiner is on notice that the Veteran’s PEB evaluations from 1959 to 1964 already reflect that his service-connected ALS manifested in myelopathy and incomplete paralysis of the right median and ulnar nerves. *Further, the Veteran is competent to report symptoms which he experiences first-hand, and his reports of such may not be discounted based purely on a lack of contemporary objective medical corroborating his lay statements. b. For each ascertainable residual of ALS identified in part (a), the examiner is requested to fully describe the frequency and severity of such residuals from June 6, 1959, to July 19, 2016, to include the associated functional impairment and impact on the Veteran's employability. *In addressing the above, if the examiner finds that any identified ascertainable residual of service-connected ALS has waxed or waned during the period under consideration, an explanation of this finding and date(s) of increase and/or decrease, citing to medical evidence and/or lay statements from the Veteran, must be provided. *As many parts of VA's rating schedule have changed several times during the extended appeal period under consideration, the examiner is encouraged to request that the AOJ provide all iterations of pertinent rating criteria for each ascertainable residual of service-connected ALS identified from June 6, 1959, to July 19, 2016, to ensure that the symptoms are described in a way that will allow for rating such. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. Thereafter, the AOJ must implement the Board’s allowance, detailed above, and readjudicate the downstream issue remanded by the Board. If the benefits sought are not granted to the fullest extent or the Veteran’s satisfaction, he and his representative must be provided a copy of this readjudication and afforded an appropriate timed to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.