Veterans Medical Advisor

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                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 9820450

Decision Date: 07/02/98 | Archive Date: 07/13/98

DOCKET NO. 97-25 191

On appeal from the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina

THE ISSUE

Entitlement to service connection for amyotrophic lateral sclerosis (ALS).

REPRESENTATION

Appellant represented by: Paralyzed Veterans of America, Inc.

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Julie L. Salas, Associate Counsel

INTRODUCTION

The veteran served on active duty from June 1983 to October 1983 and February 1985 to January 31, 1991.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a March 1997 rating decision of the RO.

The Board notes that the veteran’s original claim raised the issue of permanent and total disability for pension purposes. This issue has not been developed for appeal and is referred to the RO for appropriate action.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that symptoms consistent with ALS existed during service. He alleges that episodes of muscle twitching, cramping and weakness in his extremities experienced during service were the early manifestations of ALS which was ultimately diagnosed in December 1992.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence is in relative equipoise with respect to the claim of service connection.

FINDINGS OF FACT

1. All relevant evidence necessary for an equitable disposition of the veteran’s appeal has been obtained.

2. The veteran was diagnosed as having ALS in December 1992, shortly after his discharge from active duty service.

3. The currently demonstrated disability due to ALS is shown as likely as not to have been first manifested by muscle twitching, cramping and weakness which the veteran has reported experiencing in service.

CONCLUSION OF LAW

By extending the benefit of the doubt to the veteran, his ALS is due to disease which was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107, 7104 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1997).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, the Board finds that the veteran’s claim is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all available relevant evidence has been obtained regarding the claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a).

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The regulations provide that service connection may 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). If the disorder is a chronic disease, service connection may be granted if manifest to a degree of 10 percent within the presumptive period; the presumptive period for organic diseases of the nervous system is one year. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

The veteran and his service representative maintain that he contracted ALS during military service. The veteran testified at his recent hearing that, beginning in 1988, he had begun to experience twitching, cramping and weakness in the muscles of his extremities; symptoms that were later determined by a physician to be the early symptoms of ALS. The veteran specifically recalled experiencing on a weekly basis a cramping of his fingers and feelings of fatigue from his hands to his elbows while performing administrative functions for his unit. He also testified that, in 1988, he began to experience difficulty in passing the Army Physical Fitness Test (APFT) which included requirements for push-ups, sit-ups and completion of a two-mile run. According to the veteran, his difficulty in completing the test varied. He explained that, on some days, he would not be able to complete the two mile run but would have no problem completing the other requirements. On other days, he related having only difficulty with the push-ups or the sit-ups.

Records of the veteran’s APFT Scorecard indicate that on several occasions, beginning in October 1988, the veteran did not complete or pass aspects of the test. In fact, in both October and November 1988, remedial physical therapy was directed in order to prepare the veteran for subsequent re- tests. The service personnel records indicate that the veteran’s failure to complete the APFT was largely responsible for his discharge from service.

The veteran testified that, approximately eight months following his discharge from service, his mother and ex-wife noticed drooping of his hands. He also recalled an incident where he was attempting to jog across a road and thinking he was not going to make it. It was this incident, according to the veteran, that forced him to seek medical treatment for his symptoms in June or July of 1992. The veteran’s testimony indicates that ALS was finally diagnosed in December 1992. A discharge summary prepared by the VA Medical Center in Charleston, South Carolina, is consistent with the veteran’s testimony as to his diagnosis.

In support of his claim, the veteran submitted an April 1997 statement from John A. Gross, M.D., from the Medical University of South Carolina. Dr. Gross indicated that the veteran had been followed for motor neuron disease at the Medical University of South Carolina Muscular Dystrophy Association Clinic since 1992. It was his opinion that the cramps and impairment of manual dexterity allegedly experienced by the veteran in service, as well has his inability to pass his physical fitness test, “were likely manifestations of his motor neuron disease that he did not recognize and thus did not seek medical treatment.”

In support of the veteran’s claim, a June 1998 statement has been received from Craig N. Bash, M.D., of the Uniform Services University of Health Sciences. Dr. Bash concurred with the assessment offered by Dr. Gross and added that “this patient in service had manifestations of his motor neuron disease (ALS) documented in the record as cramps, decreased manual dexterity and decreased physical endurance.”

Against the veteran’s claim is the contemporaneous medical evidence showing an initial diagnosis of ALS in December 1992 when a history of difficulty in grasping objects for one year was recorded.

Based on its review of the evidence as a whole, the Board finds that the “negative evidence” is at least balanced by the “positive evidence” that the veteran first began to experience manifestation of muscle twitching, cramping and weakness in service. The Board concludes, by extending the benefit of the doubt to the veteran, that the medical opinions, when read with this history of service-related manifestations, support the grant of service connection for ALS.

ORDER

Service connection for ALS is granted.




STEPHEN L. WILKINS

Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

4938 Hampden Lane
Bethesda, Md 20814

Cell/Text 240-506-1556
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