Citation Nr: 1318647 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 12-35 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for a bilateral ankle disorder, claimed as Charcot-Marie-Tooth disease. 2. Entitlement to service connection for Charcot-Marie-Tooth disease. REPRESENTATION Appellant represented by: Peter Meadows, Attorney at Law ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1960 to April 1964, with subsequent Reserve service. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO) that confirmed and continued the previous denial of service connection for a progressive muscular disorder. Service connection for a bilateral ankle disorder, progressive muscular atrophy, was denied by an unappealed September 1968 rating decision. Following submission of additional evidence, the denial was confirmed an continued in an unappealed October 1968 rating decision. The Veteran filed a claim to reopen in May 2011, now claiming his ankle condition as Charcot Marie Tooth Disease. In August 2012, the RO denied his claim. The question of whether new and material evidence has been received to reopen the claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. FINDINGS OF FACT 1. In September 1968, the RO denied service connection for an ankle condition, on the basis that there was no evidence of a disability or injury during service. The Veteran was notified of this decision, but did not file an appeal. 2. In October 1968, following the submission of additional evidence, the RO confirmed and continued the September 1968 denial. The Veteran was notified of this decision, but did not file an appeal, and no additional evidence was submitted within one year of the October 1968 denial. 2. Evidence received since the final October 1968 rating decision includes evidence not of record at the time of that decision and raises questions about the nature and etiology of the Veteran's Charcot-Marie-Tooth disease; relates to an unestablished fact necessary to substantiate the claim of service connection; and raises a reasonable possibility of substantiating the claim. 3. Charcot-Marie-Tooth disease has been diagnosed and found to be a hereditary or genetic disease, which clearly and unmistakably pre-existed service. 4. The evidence is not clear and unmistakable that the pre-existing Charcot-Marie-Tooth disease was not aggravated during active service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a bilateral ankle disorder may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The criteria for service connection for Charcot-Marie-Tooth disease have been met. 38 U.S.C.A. §§ 1110, 1111, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, inasmuch as this decision grants in full that portion of the claim that is being addressed, there is no reason to belabor the impact of the VCAA on this matter, since any notice error or duty to assist omission is harmless. New and Material Evidence A final decision can be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). A September 1968 rating decision denied the Veteran service connection for a bilateral ankle condition assessed as progressive muscular atrophy was based essentially on a finding that there was no evidence of disability in service. He was notified of the September 1968 decision and he did not file a notice of disagreement with that decision. Additional evidence was received and the RO issued an October 1968 rating decision which confirmed and continued the September 1968 decision. The Veteran did not submit additional pertinent evidence within one year following notice of the October 1968 decision; therefore, that decision is final. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) ("VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim."). The evidence of record at the time of the September 1968 rating decision included the Veteran's service treatment records (STRs). A July 1960 enlistment examination noted high arches on the Veteran's feet. In October 1960, high arches were again noted and arch supports were recommended. It was noted that he could not march. Also in that month, a record noted the Veteran had been turning his ankle 1-3 times per week since being issued arch supports. He was seen again later that month for continually twisting his ankles. He was advised to tighten his shoes. October 1960 X-rays of the ankles revealed no significant abnormalities. In December 1960, the Veteran was advised to get new shoes. In April 1962, the Veteran was seen for a swollen ankle. On March 1964 separation report of medical history, the Veteran reported swollen/painful joints, cramps in his legs, lameness, and foot trouble. The separation examination noted January 1964 swelling of the Veteran's left foot causing lameness, but noted that this subsided without medical treatment. The examiner also noted occasional leg cramps at night. Post-service records consisted of August 1968 ankle X-rays, which revealed essentially normal ankles. The Veteran was diagnosed with residuals of an old injury to the ankles with pes cavus deformity bilaterally; progressive muscular atrophy. Evidence received since the September 1968 rating decision consists of the following: Private treatment records reveal a diagnosis and continued treatment for Charcot-Marie-Tooth disease since 1975. A 1976 treatment record diagnosed flail feet due to Charcot-Marie-Tooth disease. December 1999 genetic testing confirmed the diagnosis of Charcot-Marie-Tooth disease. VA treatment records similarly reveal a diagnosis and treatment for Charcot-Marie-Tooth disease. In October 2011, the Veteran submitted 3 statements from private physicians. Dr. J. Quinlan, who has treated the Veteran for 20 years and is the director of the University of Cincinnati Muscular Dystrophy Clinic, noted that high arches and weak ankles noted in service were early findings of Charcot-Marie-Tooth disease (CMT) and that since his military training, the Veteran has continued to experience progressive weakness of the ankles, legs, and upper extremities. Dr. M. E. Shy, the Director of the CMT Clinic at Wayne State University, and S. Feely, a certified genetic counselor, noted that "[p]eople with Charcot-Marie-Tooth disease often experience weakness in the ankles, feet, and hands, which leaves them prone to frequent injuries, like the one [the Veteran] experienced while running the obstacle course in basic training and his frequent sprains thereafter. If the injuries continue, permanent damage can be sustained, causing more impairment to the ankles and other joints. We typically advise patients to avoid consistent strain on ankles and other joints . . . . It is our opinion that people with CMT who maintain a low-impact exercise routine during their lifetime [d]o better over time." Dr. J.R. Schrand stated that the weakness in the Veteran's ankles and feet was related to the beginning of Charcot-Marie-Tooth disease and led to the multiple injuries he sustained in service. This doctor noted that the Veteran never had any problems prior to service. In May 2012, the Veteran was afforded a VA examination. This examiner also noted a diagnosis of Charcot-Marie-Tooth disease, but opined that this disease was less likely than not caused by or permanently aggravated beyond the normal progression of the disease by service. The examiner explained that the Veteran's condition is genetic and thus preceded service. As for aggravation, the examiner stated that the Veteran was "never found to have any weakness during military service consistent with any neuromuscular condition and was never put on profile because he could not perform physical training." He further stated that the lameness that was referenced was due to a swollen ankle and was noted to resolve. The examiner stated that weakness due to Charcot Marie Tooth disease does not resolve. The examiner noted there was "nothing in the objective evidence of record to support that he had any weakness at that time, much less weakness sufficient to cause loss of ankle stability." The Veteran submitted a private opinion in January 2013 prepared by Dr. G. L. Winfield. Dr. Winfield noted that he had reviewed the relevant medical records and stated that based on his review of the records and a clinical interview of the Veteran, it is his opinion that the Charcot Marie Tooth disease was "aggravated by his service because it was unmasked by the rigors of service and worsened beyond what would be the natural progression of the disease as a result of repeated physical trauma experienced by [the Veteran] while on active duty." The Veteran submitted an additional private opinion in April 2013 by Dr. C. N. Bash. Dr. Bash opined that the Veteran's service aggravated his Charcot-Marie-Tooth disease (beyond that which would be expected) and made his ankle stability worse, which in turn worsened his foot pes cavus. He further stated that basic training activities accelerated or aggravated the Veteran's disease, and noted the previous opinions submitted by the Veteran attesting to this (see October 2011 physician statements). Additionally, the Veteran submitted lay statements since the September 1968 rating decision. He stated that his induction physical noted high arches (pes cavus), and that he has since learned that pes cavus is an early symptom of Charcot Marie Tooth disease. He further stated that he has learned that overexertion for someone with his disease is harmful and to be avoided. In addition, he stated that overworking muscles in persons suffering from a peripheral neuropathy like Charcot-Marie-Tooth disease is likely to speed up the weakness caused by muscle wasting. He thus claims that his activities in service were detrimental to his physical well-being. Evidence received since the September 1968 rating decision includes evidence of a diagnosis of Charcot-Marie-Tooth disease and nexus opinions regarding aggravation in service. This evidence is new evidence in that it was not received prior to the September 1968 rating decision and it is material, as it raises a reasonable possibility of substantiating the claim. See also Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010) (Section 3.156(a) "must be read as creating a low threshold" which "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim."). Thus, the additional evidence received is new and material, and the claim of service connection for Charcot-Marie-Tooth disease is reopened. Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). It is undisputed that CMT is a hereditary/genetic disorder. The Court has recognized that congenital diseases, but not defects, may be service connected. See Winn v. Brown, 8 Vet. App. 510, 516 (1996). VA's General Counsel has also held that service connection may be granted for diseases (though not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. The General Counsel opinion draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that the former is "more or less stationary in nature" while the latter is "capable of improving or deteriorating." VA Gen. Couns. Prec. 82-90 at p. 2; Quirin v. Shinseki, 22 Vet. App. 390 (2009). The Board finds that CMT is a congenital disease because it is not "more or less stationary in nature." The medical evidence, including the expert opinion of Dr. Shy clearly shows that CMT is a "slowly progressive (peripheral neuropathy) nerve disease." The presumption of soundness applies here as the Veteran's congenital condition was not noted at entry. See Monroe v. Brown, 4 Vet. App. 513, 515 (1993). For purposes of service connection pursuant to § 1110, 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. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Considering the evidence of record (described in detail above), the evidence is clear and unmistakable that the Veteran had Charcot-Marie-Tooth disease prior to service, as this disease is genetic. See December 1999 report of genetic testing. Private treatment providers and VA providers have both noted that this is a genetic disorder. The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Wagner, 370 F.3d at 1096; Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). First, the evidence is not clear and unmistakable that there was no increase in disability during service as the STRs indicate that the Veteran was seen on multiple occasions for ankle problems, including weakness and swelling. On March 1964 separation report of medical history, the Veteran reported swollen/painful joints, leg cramps, lameness, and foot trouble, none of which was noted at entrance. Second, the evidence is not clear and unmistakable that any increase in disability was due to the natural progression of the condition. In January 2013 and April 2013, private medical opinions found that the Veteran's Charcot-Marie-Tooth disease was aggravated by his service beyond the natural progression of the disease due to repeated physical trauma experienced while on active duty and in basic training. Further, military service cannot be considered to allow one to "maintain a low-impact exercise routine" which Dr. Shy recommends for his patients in order to decrease the chance of sustaining permanent damage. The VA examiner opined that the Veteran's disease was not aggravated beyond its natural progression in service, the examiner based his conclusions in part on a finding that there was "nothing in the objective evidence of record to support that he had any weakness at that time, much less weakness sufficient to cause loss of ankle stability." Clearly there is a conflict in the medical evidence regarding whether the Veteran's disease was aggravated beyond its natural progression in service. Not only does this conflict show that the issue is debatable, it is in fact being debated. Thus, the Board finds that the evidence is not clear and unmistakable with regard to whether the condition was not aggravated during service. The presumption of soundness has not been rebutted. Wagner, supra. As the presumption of soundness has not been rebutted, the Veteran's Charcot-Marie-Tooth disease claim is one for direct service connection. Based on the conclusions of Drs. Quinlan and Schrand that the Veteran's weak ankles and foot problems in service were early manifestations of CMT, and given the numerous treatment records and the Veteran's statements that confirm that symptomatology and problems related to CMT have continued and progressively worsened after service, service connection for CMT is granted. ORDER The claim of entitlement to service connection for a bilateral ankle disorder is reopened. Entitlement to service connection for Charcot-Marie-Tooth disease is granted. ____________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs