Citation Nr: 1754184
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 12-20 810A ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to service connection for post-polio syndrome (claimed as poliomyelitis).

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

A.Lech, Counsel

INTRODUCTION

The Veteran had active service from December 1972 to February 1975.

This matter comes before the Board of Veterans’ Appeals Board on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran originally applied for service connection for his legs in August 1982. His claim was denied in November 1982, and he never appealed the decision.

He filed a claim to reopen the claim in February 2001. The claim was denied in May 2001on the basis that no new and material evidence has been submitted. The Veteran filed a notice of disagreement (NOD) in September 2001. A statement of the case (SOC) was issued in January 2003. The Veteran filed an appeal to the Board (VA Form-9) in January 2003. The Board remanded the case in March 2004 for a VA examination and to obtain additional medical records. A supplemental statement of the case (SSOC) was issued in February 2006. The Board denied the claim in November 2006. The Veteran did not appeal.

The Veteran once again filed a petition to reopen the claim in May 2008. An August 2008 rating decision denied the reopening, once again on the basis that no new and material evidence was submitted.

The Veteran once again filed a petition to reopen the claim in November 2009. A February 2010 rating decision denied the reopening, once again on the basis that no new and material evidence was submitted. The Veteran filed a NOD in November 2010. A SOC was issued in July 2012. The Veteran filed a VA-9 in August 2012. The Board reopened and remanded the case in April 2016. A SSOC was issued in September 2016.

As for the hearings, in September 2003 and September 2015, the Veteran was provided an opportunity to set forth his contentions during a hearing before a retired Veterans Law Judge (VLJ) and the undersigned VLJ, respectively. Transcripts of those proceedings are of record.

The claim is REMANDED to the Agency of Original Jurisdiction (AOJ).

REMAND

The Veteran contended his post-polio syndrome was aggravated by his active military service.

A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014).

Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and the absence of aggravation by clear and unmistakable evidence. Horn v. Shinseki, 25 Vet. App. 231 (2012). A “claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong,” even if clear and unmistakable evidence establishes that a disease preexisted service. Id. In other words, the “burden is not on the claimant to show that his disability increased in severity.” Id. To the contrary, the burden is on VA to “establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease.” Id. This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. Id. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Id.

The presumption of soundness relates to the second requirement – the showing of in-service incurrence or aggravation of a disease or injury. In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarily operates to satisfy the second service connection requirement without further proof. Horn, 25 Vet. App. at 236.

If a veteran is presumed sound at service entrance, a disease or injury that manifested in service is deemed incurred in service if the Secretary is unable to rebut the presumption. Gilbert, 26 Vet. App. at 53.

The Veteran’s Post-polio syndrome was not noted at entry on his December 1972 entrance examination. While the Veteran did check “yes” to “cramps in legs,” the examining physician wrote that the Veteran experienced “cramps on exertion” (presumably referring back to the leg cramps the Veteran mentioned as his sole health problem). The Veteran was deemed fit for duty. He is presumed to have been in sound condition at entry. See 38 C.F.R. § 3.304 (b) (2016).

The July 2016 VA examiner stated that there was no evidence in the Veteran’s STRs of pre-existing post-polio syndrome or of polio residuals such as lower extremity weakness.

This is not the case. The STRs show several notations regarding the Veteran’s lower extremities, as well as a provisional diagnosis of post-polio myalgia. Namely, about a year and a half after the Veteran entered active duty, in August 1973, his STRs show that he reported cramping and soreness in his legs at night year-round. The physician stated that the Veteran had polio at 4 and wore leg braces until he was 9. The physician entered a provisional diagnosis of post-polio myalgia, and ordered further testing to be performed, which was not completed. The Veteran again reported right leg pain in September 1973, bilateral leg pain in January 1974, and left knee and left tibia pain in September 1974.

As such, an addendum opinion must be obtained for the examiner to consider the STRs notations that the examiner previously missed.
Accordingly, the case is REMANDED for the following action:

1. Return the entire claims file (including this Remand) to the July 2016 VA examiner for an addendum opinion regarding the Veteran’s post-polio syndrome. If the July 2016 VA examiner is no longer available or unable to provide the requested addendum opinion, ask another VA examiner to review the Veteran’s claims file and all medical records, and to provide the requested opinion. If the VA examiner wishes to examine the Veteran in order to be able to provide the requested opinions, schedule the Veteran for such an examination. The examiner should address the following questions:

a) Is there clear and unmistakable evidence (i.e., obvious, manifest, undebatable evidence) demonstrating that the Veteran’s post-polio syndrome existed prior to his entry into active duty in December 1972? In addressing this question, the examiner should consider the STRs notations from August 1973, September 1973, January 1974, and September 1974.

b) Is there clear and unmistakable evidence (i.e., obvious, manifest, undebatable evidence) demonstrating that the Veteran’s post-polio syndrome was NOT aggravated (the underlying disability was NOT increased in severity) beyond its normal progression during the Veteran’s active service, as based on sound medical principles? Temporary or intermittent flare-ups of a pre-service condition, without evidence of worsening of the underlying condition, are not sufficient to be considered aggravation. In addressing this question, the examiner should consider the STRs notations from August 1973, September 1973, January 1974, and September 1974.

c) If the examiner determines that the Veteran’s post-polio syndrome or poliomyelitis residuals did not clearly and unmistakably pre-exist service, or was not clearly and unmistakably not aggravated by service, state whether it is at least as likely as not (50 percent or greater degree of probability) that it began in service, was caused by service, or is otherwise related to military service.

Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.

2. Readjudicate the issue on appeal. If the claim is denied, issue and Supplemental Statement of the Case (SSOC) and provide the veteran and his representative the opportunity to respond. Then, return the appeal to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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