Citation Nr: 0708621 Decision Date: 03/22/07 Archive Date: 04/09/07 DOCKET NO. 96-28 043 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to service connection for claimed muscular dystrophy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The veteran served on active military duty from October 1966 to October 1969. This case was remanded in February 2006 by the Board of Veterans' Appeals (Board) to the RO for additional action. FINDINGS OF FACT 1. The veteran is shown to have muscular dystrophy that clearly and unmistakably existed prior to entry on to active duty. 2. The preexisting muscular dystrophy is shown as likely as not to have undergone an increase in severity beyond natural progression during the veteran's period of military service. CONCLUSION OF LAW As the presumption of soundness is not rebutted, the veteran's disability manifested by muscular dystrophy was incurred in active duty. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initial Considerations The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issue decided hereinbelow. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 17 Vet. App. 412 (2004). Unfortunately, because this appeal began prior to the enactment of VCAA, notice to the veteran was not done in this case until later in the claims process. Nevertheless, in April 2006, the RO sent the veteran a letter, with a copy to his representative, in which he was informed of the requirements needed to establish entitlement to service connection. In accordance with the requirements of VCAA, the letter informed the veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. The letter explained that VA would make reasonable efforts to help him get evidence such as medical records, employment records, etc., but that he was responsible for providing sufficient information to VA to identify the custodian of any records. No additional private medical evidence was received from the veteran. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. The duty to notify the veteran of necessary evidence and of responsibility for obtaining or presenting that evidence has been fulfilled. In the above-noted letter, the veteran was also advised to submit additional evidence to the RO, and the Board finds that this instruction is consistent with the requirement of 38 C.F.R. § 3.159(b)(1) that VA request that a claimant provide any evidence in his possession that pertains to a claim. The Board also notes that the veteran was informed in the October 2006 Supplemental Statement of the Case of the applicable regulations on disability ratings and effective dates if his claim was granted, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. An Independent Expert Medical (IME) nexus opinion was obtained in March 2005. The Board concludes that all available evidence that is pertinent to the claim decided herein has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue. The veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that VA has complied with general due process considerations. See 38 C.F.R. § 3.103 (2006). Finally, to the extent that VA has failed to fulfill any duty to notify and assist the veteran, the Board finds any defect to be harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998). In this case, however, as there is no evidence that any failure on the part of VA to further comply with VCAA reasonably affects the outcome of this case, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Law And Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. When determining whether a disability or disease was incurred in service, or preexisted service, a veteran will be considered 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 into service, 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.A. § 1111; 38 C.F.R. § 3.304; VAOPGCPREC 3-03; 69 Fed. Reg. 25178 (2004). The burden of proof is on the government to rebut the presumption of sound condition upon induction by clear and unmistakable evidence showing that the disorder existed prior to service, and by showing that the condition was not aggravated in service. VAOPGCPREC 3-03; 69 Fed. Reg. 25178 (2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 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.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). In making a determination as to whether clear and unmistakable evidence exists in order to rebut the statutory presumption of soundness at service entrance, VA must consider all medically accepted evidence bearing on whether the veteran had the disorder in question prior to induction and should give weight to particular evidence based on accepted medical standards and medical knowledge regarding the known characteristics of particular disorders. See Harris v. West, 203 F.3d 1347, 1350 (Fed. Cir. 2000). In short, what is required is that the evidence, whatever it may be, must lead, clearly and unmistakably, to the conclusion that the injury or disease existed prior to service. Id. at 1349. All of the evidence of record must therefore be considered. VA may look to contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion. See Miller v. West, 11 Vet. App. 345, 348 (1998). However, it must also be shown by clear and unmistakable evidence that the preexisting disability was not aggravated by service. VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004). Aggravation for purposes of entitlement to VA compensation benefits requires more than that a preexisting disorder become intermittently symptomatic during service; rather, there must be permanent advancement of the underlying pathology. Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, is worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon v. Brown, 8 Vet. App. 529, 536-7 (1996). Analysis There was no notation of a disability indicative of muscular dystrophy on preservice evaluation in September 1966, although the veteran did note cramps in his legs on his September 1966 preservice medical history report. Consequently, muscular dystrophy was not noted when the veteran was examined and accepted for service. However, the Board finds clear and unmistakable evidence that the muscular dystrophy existed prior to the veteran's entry into military service. It was reported in December 1966 that the veteran had large calves and had symptoms of tightness in his calves when running. He complained again of having pain in his legs in March 1967. His complaints of leg cramps were again noted in the veteran's October 1969 separation medical history report. The initial post-service notation of muscular dystrophy was in private medical records beginning in August 1982, when it was noted that the veteran had a Becker's type of muscular dystrophy. The VA's Office of General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, the VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. It was concluded that the provisions of 38 C.F.R. § 3.304(b) are inconsistent with 38 U.S.C.A. § 1111 insofar as § 3.304(b) states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service. It was held that 38 C.F.R. § 3.304(b) is therefore invalid and should not be followed. See VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004); see also Cotant v. Principi, 17 Vet. App. 116 (2003) (holding that the clear and unmistakable evidence standard in 38 C.F.R. § 3.306(b) is "onerous" and requires an "undebatable" result). In making a determination as to whether clear and unmistakable evidence exists in order to rebut the statutory presumption of soundness at service entrance, VA must consider all medically accepted evidence bearing on whether the veteran was suffering from the disorder in question prior to induction and should give weight to particular evidence based on accepted medical standards and medical knowledge regarding the known characteristics of particular disorders. See Harris v. West, 203 F.3d 1347, 1350 (Fed. Cir. 2000). In short, what is required is that the evidence, whatever it may be, must lead, clearly and unmistakably, to the conclusion that the injury or disease existed prior to service. Id. at 1349. All of the evidence of record must therefore be considered. The RO may look to contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion. See Miller v. West, 11 Vet. App. 345, 348 (1998). With respect to the case at hand, the Board notes that the veteran has reported having had leg cramps prior to service and such complaints were reported less than two months after service entrance to be related to exercise. After a review of the claims file, a March 2005 IME opinion from a Professor of Neurology referred to the veteran's childhood fatigability and hypertrophied calf muscles and concluded that these early signs of muscular dystrophy clearly showed that the disability began long before his military service. Consequently, because there is unambiguous medical evidence in and after service showing that symptoms of muscular dystrophy preexisted military service, the Board finds that there is clear and unmistakable evidence that muscular dystrophy preexisted the veteran's military service. However, it must also be shown by clear and unmistakable evidence that the preexisting disability was not aggravated by service. VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004). Therefore, the Board must next determine whether the veteran's preexisting muscular dystrophy underwent an increase in severity during his active military service. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Aggravation for purposes of VA compensation benefits requires more than that a preexisting disorder become intermittently symptomatic during service; rather, there must be permanent advancement of the underlying pathology. Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, is worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon v. Brown, 8 Vet. App. 529, 536-7 (1996). In reviewing the medical evidence to determine whether there was aggravation of the veteran's preexisting muscular dystrophy, the Board would note that there is medical evidence that is both for and against the claim in this case. The medical evidence in favor of aggravation is a February 1997 opinion from S.J.M., M.D., who noted that it was possible that muscle stress, overuse and exertion while in service exacerbated the veteran's condition. On the other hand, the March 2005 IME is against the claim, in concluding that there was no medical evidence that any rigorous exercise in service accelerated the rate of progression of the disability after the exercise stopped. As such, the evidence in its entirety does not serve to establish to a clear and unmistakable extent that the veteran's muscular dystrophy was not aggravated by service. As the presumption of soundness cannot be rebutted in this case, the Board concludes that service connection for muscular dystrophy is warranted. ORDER Service connection for muscular dystrophy is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs