Citation Nr: 0004372 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 95-04 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for post polio syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from May 1942 to September 1947. This appeal arises from a November 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board remanded the veteran's claim to the RO in July 1998. The issue of service connection for post-traumatic stress disorder was referred to the RO in the introduction to the remand. The RO denied service connection for post- traumatic stress disorder in July 1999. The claims folder does not include a notice of disagreement with that determination. Thus, this issue is not currently in appellate status. FINDING OF FACT The preponderance of the evidence reflects that the veteran does not suffer from post polio syndrome; the sensory and motor loss in the veteran's lower extremities is more consistent with a progressive peripheral neuropathy than it is with post polio syndrome (post-polio syndrome should not involve any sensory findings). CONCLUSION OF LAW Post-polio syndrome was not incurred or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria. To establish service connection for a claimed disability, the facts as shown by evidence must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d) (1999). Factual Background. The veteran has testified that he contracted polio in service in July 1945. The National Personnel Records Center (NPRC) responded to requests for the veteran's service medical records with the information that the veteran's service medical records may have been destroyed in a fire at the NPRC. Attempts to reconstruct the veteran's service medical records have been unsuccessful. The NPRC searched the Surgeon General's records and found that no records of the facility where the veteran was treated existed subsequent to 1944. The veteran has submitted copies of letters he wrote to his spouse in August 1945. They reveal that he was hospitalized for observation for suspected polio. In addition, the veteran has submitted a letter from his spouse and a statement from his brother-in-law which supports his claim that he was hospitalized for what he was told was polio. The veteran testified at hearings before a Hearing Officer at the RO in September 1996 and before a Member of the Board in May 1998 that after treatment for polio in 1945 he again experienced pertinent symptoms in 1989 when he developed a rash and a fever. A private medical report from a rheumatologist dated in May 1990 revealed a diagnosis of Pauci-articular low grade inflammatory arthropathy involving the right knee and left ankle. A private neurologist diagnosed axonal neuropathy in August 1992. He informed the veteran that prior alcohol use may have been an etiological factor as may his elevated random glucose. The neurologist recommended a series of B-12 shots. In April 1993 a VA examiner diagnosed status post poliomyelitis and peripheral neuropathy with right foot drop. The veteran submitted material which he obtained from the National Institute of Neurological Disorders and Stroke, of the National Institute of Health in April 1995. It included articles about post polio syndrome. In an April 1991 article from The New England Journal of Medicine post polio syndrome was defined as consisting of a variety of musculoskeletal symptoms with muscular atrophy that created new difficulties with activities of daily living 25 to 30 years after the original attack of acute paralytic poliomyelitis. Post- poliomyelitis muscular atrophy was characterized by slowly progressive, weakness in muscles previously affected or, less often, in muscles seemingly spared during the original illness. The veteran's family physician, R. Latimer, Jr., M.D., stated in a July 1995 letter that the veteran had a history of polio dating back to World War II. In June 1996 Dr. Latimer submitted a statement which reads as follows: I have known (the veteran) for a year and a half. I am strongly suspicious that, despite his lack (of) military records documenting polio in service, he has post polio syndrome with gradual decline, as a result. A VA neurological examination was performed in September 1998. Examination revealed that cranial nerves II through XII were intact. The veteran's gait was stiff-legged. He used a cane. He had right foot drop. There was decreased vibratory sensation in the fingers and in the entire lower extremity, bilaterally. Strength was 5/5 in the upper extremities except for 4/5 in the interossei and grip, bilaterally. In the lower extremities the strength was 4- in the right iliopsoas, the right hamstrings, and the right quadriceps, and 3/5 in the right foot and toe dorsiflexor. The strength was 4/5 in the left iliopsoas, hamstrings, and quadriceps, and 4/5 in the left foot and toe dorsiflexor. The deep tendon reflexes were +1 in the upper extremities and absent in the lower extremities with bilateral downgoing toes. The examiner wrote the following comment: The pattern of this patient's illness with gradual and progressive sensory loss and motor loss in the lower extremities is more consistent with a progressive peripheral neuropathy than it is with post-polio syndrome, which should not involve any sensory findings whatsoever. Additionally, it is not at all clear if the patient had acute poliomyelitis in 1945; it is more likely that he had some other type of gastroenteritis; and therefore there is no basis for the diagnosis of poliomyelitis in the first place. In April 1999 Dr. Latimer wrote the following: I have known (the veteran) since the early 1990's. He has a history of post- polio syndrome with gradual deterioration of the strength of his legs. He is working with an exercise program. He also has a history of congestive heart failure with corpulmonali, hypertension and retinal vein occlusion. The RO sent a letter to Dr. Latimer in August 1999. It reads in part as follows: We need additional information concerning your statement of April 17, 1999. You stated that (the veteran) has post-polio syndrome. Please furnish us with the medical rationale for this diagnosis as a VA neurological examination in September 1998 noted that clinical findings were most consistent with progressive peripheral neuropathy and was negative for evidence of poliomyelitis. Dr. Latimer responded as follows in September 1999: In reference to (the veteran) and my letter of April 17, 1999, I have no documentation other than historical data as presented by (the veteran) himself. Analysis. The Board, in the July 1998 Remand, held that the veteran's claim for service connection for post-polio syndrome included elements of a well grounded claim. There was evidence of a disability in service, a current diagnosis and an opinion of a competent medical professional that those symptoms were attributable to post-polio syndrome. It is important to note the United States Court of Appeals for Veterans Claims (Court) held in Robinette v. Brown, 8 Vet. App. 69, 76 (1995), that in order for a claim "to be well grounded [it] need not be supported by evidence sufficient for the claim to be granted. Rather, the law establishes only a preliminary threshold of plausibility with enough of an evidentiary basis to show that the claim is capable of substantiation." See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (holding medical evidence as to nexus to service expressed as "possible" suffices for that aspect of a well- grounded claim); Molloy v. Brown, 9 Vet. App. 513, 516 (1996) (citing Lathan v. Brown, 7 Vet. App. 359, 366 (1995) (illustrating that medical opinions need not 'be expressed in terms of certainty in order to serve as the basis for a well- grounded claim")). The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). He has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). The Board noted in the remand that the NPRC informed the RO that the veteran's service medical records were presumed destroyed in the fire at the NPRC. The RO attempted to obtain records from other sources. As noted above, the alternate sources included the records of the Surgeon General's Office. The response noted that no records were available for 1945. After reviewing the claims folder the Board has determined that the RO made a reasonably exhaustive search for additional service records. See Dixon v. Derwinski, 3 Vet. App. 261 (1992). When an appellant's service records are missing or incomplete, the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule is heightened. Moore (Howard) v. Derwinski, 1 Vet. App. 401, 406 (1991); see also O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). For purposes of this decision the Board has assumed that the veteran had polio in service. Even though the evidence indicates there may be some question as to whether the veteran was merely observed to determine if he had polio or actually was diagnosed with polio. The issue of whether the veteran actually had polio is only pivotal if the veteran's current symptoms are related to polio are post-polio syndrome. Several physicians have examined the veteran and stated their opinion as to the origins of his current lower extremity symptoms. The first was a private neurologist in August 1992 who stated that the veteran's predominantly axonal neuropathy had important etiological factors such as prior alcohol use and elevated random glucose. In April 1993 a VA neurologist diagnosed (1) status post poliomyelitis and (2) peripheral neuropathy with right foot drop. The VA neurologist did not diagnose post-polio syndrome or indicate that there was any relationship between poliomyelitis and peripheral neuropathy. Only the veteran's private physician, Dr. Latimer, has indicated that there is a relationship between the claimed polio in service and the current lower extremity symptoms. Dr. Latimer stated that he based that conclusion on the historical data presented by the veteran. He did not offer any clinical basis for his diagnosis. In order to answer the questions presented in this case the RO requested an opinion from a VA physician. It is set out above. The physician stated that the clinical findings, which included sensory findings, were more consistent with progressive neuropathy than post-polio syndrome. That statement is consistent with the diagnosis of the private physician in August 1992 and the medical text submitted by the veteran which describe post-polio syndrome as causing muscle weakness but contain no references to any sensory findings related to post-polio syndrome. The Board has placed greater weight on the diagnosis and findings of the private and VA neurologist than the statement of Dr. Latimer. The private and VA neurologist, both offered their reasons for determining the etiology of the veteran's neuropathy was unrelated to polio. Dr. Latimer did not offer any supporting medical basis for his conclusion other than the veteran had told him he had polio and now had muscle weakness. The preponderance of the evidence is against the veteran's assertion that his current peripheral neuropathy is related to polio in service. The Board has noted the statements of the veteran that he currently has post-polio syndrome. A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Inasmuch as the preponderance of the evidence is against the claim, service connection for post-polio syndrome is not warranted and the benefit-of-the-doubt rule is not applicable. Cf. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for post polio syndrome is denied. Gary L. Gick Member, Board of Veterans' Appeals