BVA9502880 DOCKET NO. 94-25 630 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a progressive neuromuscular disease currently diagnosed as spinal muscular atrophy. 2. Basic eligibility to receive an automobile and adaptive equipment pursuant to 38 U.S.C.A. §§ 3901-04 (West 1991). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife. ATTORNEY FOR THE BOARD NOAVA INTRODUCTION The appellant is a veteran of active military service from March 1959 to March 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating determinations by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In December 1993, a hearing was held at the RO at which the appellant and his wife appeared and explained their contentions. A transcript of that hearing is of record. In December 1994, the appellant filed with the Board a motion pursuant to 38 C.F.R. § 20.900(c) (1993) to advance his case on the Board's docket due an imminent life-threatening illness. In January 1995, the Board granted that motion. During the course of this appeal, the appellant appears to have initiated an additional claim seeking increased ratings for all of the service-connected disabilities. Since he is already rated totally disabled on the basis of individual unemployability, this claim would seem to be largely, if not entirely, moot. However, since the questions involved are not inextricably intertwined with those currently before the Board, this additional claim is referred to the attention of the RO for clarification of the appellant's intentions, further development, or other action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that his currently diagnosed spinal muscular atrophy is directly related to the cerebral hemorrhage he experienced in service in 1962. He also contends that he qualifies to receive an automobile and adaptive equipment since he has experienced the total loss of use of both legs and both arms as a result of service-connected disabilities. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 appellant has failed to present a well-grounded claim seeking service connection for a progressive neuromuscular disease currently diagnosed as spinal muscular atrophy; and that the preponderance of the evidence is against the claim seeking an automobile and adaptive equipment under 38 U.S.C.A. §§ 3901-04 (West 1991). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. The claim seeking service connection for a progressive neuromuscular disease currently diagnosed as spinal muscular atrophy is not plausible. 3. Entitlement to service connection has presently been established for a skull defect, rated 50 percent disabling; for the residuals of a cerebral hemorrhage, including partial right foot drop, rated 40 percent disabling; for chronic brain syndrome, rated 30 percent disabling; and for the residuals of a cerebral hemorrhage involving the right upper extremity, rated 20 percent disabling. These service-connected disabilities have never resulted in the loss of use of any extremity, foot, or hand. CONCLUSIONS OF LAW 1. The claim seeking service connection for a progressive neuromuscular disease currently diagnosed as spinal muscular atrophy is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The requirements for the award of an automobile and adaptive equipment have not been met. 38 U.S.C.A. §§ 3901-04 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background In October 1962, while serving in the military, the appellant experienced a grand mal seizure. On admission to a military hospital, a mass was found in the brain, necessitating a craniotomy. A large hematoma consisting of 20 cc. of blood was found and removed. It was eventually felt that this cerebral hemorrhage was due to the rupture of a congenital aneurysm of the left branch of the anterior cerebral artery. No evidence of a tumor was found. Postoperatively, the appellant developed weakness and a limp in the right leg and foot which improved somewhat with physical therapy. A Medical Board found the appellant physically unfit for further military service, and he was given a medical discharge in March 1963. In the summer of 1967, the appellant underwent pneumoencephalography because of progressive weakness on the right side superimposed on the mild residual weakness of the right leg. That clinical study raised the suspicion of a space- occupying lesion deep within the left cerebral hemisphere. Another craniotomy was performed, and another intracerebral hematoma was found and evacuated. Postoperatively, the appellant continued to have some weakness in the right leg, and he also developed focal motor seizures which affected the right arm. These were treated from 1967 to approximately 1990 by the appellant's neurologist, D.E. Glass, M.D., who reported that the focal seizures were controlled to a good degree by anti- convulsant medication. In the summer of 1992, Dr. Glass referred the veteran to a neuromuscular clinic for further evaluation due to progressive muscular weakness resulting in several falls. Examination and laboratory investigation were consistent with some sort of progressive neuromuscular disease, initially diagnosed as amyotrophic lateral sclerosis (ALS) syndrome and currently diagnosed as spinal muscular atrophy. It is reported that the appellant is currently virtually a quadriplegic as a result of this new disease, having lost the use of both upper and both lower extremities with movement only from the neck up. Service Connection for a Progressive Neuromuscular Disease Currently Diagnosed as Spinal Muscle Atrophy Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131 (West 1991). In addition, chronic neurological disease such as progressive muscular atrophy may be presumed to have been incurred in service if it was manifested to a compensable (10 percent) degree within one year of the claimant's separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Finally, service connection is also appropriate for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). The aforementioned factual basis may be established by medical evidence, competent lay evidence, or both. 38 C.F.R. § 3.307(b). In general, lay witnesses, such as the appellant, are only competent to testify as to factual matters, such as what symptoms an individual was manifesting at a given time; however, issues involving medical causation or diagnosis require competent medical evidence. Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Grottveit v. Brown, 5 Vet.App. 91 (1994). In addition, a claimant is always obliged to present evidence of a well-grounded claim; that is, a plausible claim, one which is either meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Moreover, a well- grounded claim must be supported by evidence, not just allegations. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). If a claim is not well-grounded, then no duty to assist the claimant in the development of that claim attaches to VA. 38 U.S.C.A. § 5107(a). In the present case, the evidence of record does not demonstrate, nor has the appellant contended, that the disability at issue was present at any time during his active military service or within one year afterward. This disability was initially diagnosed in August 1992, almost 30 years after the appellant's discharge from service, and it was associated at that time with the onset of symptoms no earlier than 1988. Thus, the present claim is based entirely upon the appellant's assertion that there is a causal relationship between his current spinal muscular atrophy and the cerebral hemorrhage he experienced in 1962. The Board recognizes the undoubted sincerity of the appellant's arguments and the gravity of his progressive muscular atrophy syndrome. However, as previously mentioned, the appellant, as a layman, is not competent to express an opinion on a question involving medical causation. Moreover, the evidentiary record currently certified to the Board does not reflect any competent medical evidence to support the appellant's contention that such a causal connection exists. The evidentiary record certified to the Board contains extensive medical records dating from service to 1994, as well as several statements from physicians who have treated the appellant from the 1967 incident up until the present (1995). Although most of those medical statements indicate at least a general awareness of the appellant's medical history, none of those statements clearly reflects an opinion that the appellant's current progressive neuromuscular disease is directly related to the 1962 cerebral hemorrhage in service or that it was directly caused by one or more of the service-connected disabilities. One of the physicians treated the veteran from 1967 to 1990 when the veteran moved to another state. The appellant testified at his hearing in December 1993 that one of his VA physicians, Dr. Dolin, "thought" there was a connection between the service-connected disabilities and his current problems (Transcript, p.3). However, such hearsay evidence is insufficient to establish a well-grounded claim, at least in part due to the significant possibility that a layman such as the appellant may innocently misunderstand exactly what the doctor is saying. Cf. Warren v. Brown, 6 Vet.App. 4, 6 (1993). Moreover, a statement signed by Dr. Dolin in May 1993, apparently at the solicitation of the appellant, has been submitted in support of the present claim and is of record. In that statement, Dr. Dolin definitely does not express an opinion which would support the appellant's contentions concerning the etiology of the disability at issue in this appeal. At the December 1993 hearing, the appellant also argued that his correct diagnosis is focal motor neuron disease and that this disability must be related to the service-connected focal motor seizures which affected the right arm (Transcript, p.2). Once again, however, as a layman, the appellant is not competent to diagnose his own problem. In addition, a copy of two pages from a medical textbook entitled Neurologic and Psychiatric Disorders, which the appellant submitted at the hearing in support of his claim, indicates that focal motor neuron disease "affects only one area of the body, most commonly the shoulder girdle." Since the appellant's current disability has affected both arms and both legs, resulting in virtual quadriplegia, it can clearly be said, based upon the foregoing medical text, that he does not have focal motor neuron disease affecting only one area of the body. In addition, the same excerpt from the medical text entitled Neurologic and Psychiatric Disorders indicates that the exact cause of ALS is unknown, although allergic, infectious, and viral causes have been proposed (none of which correspond to the appellant's theories in the present appeal) and five to ten percent of the cases are familial. It mainly affects people between the ages of 40 and 70 years (the veteran is 55). Furthermore, it is indicated therein that it is unclear whether spinal muscular atrophy (Kugelberg-Welander Syndrome) is a variant of ALS or a separate disease entity. This is undoubtedly the explanation for the inability of the appellant's physicians to express an opinion as to the origin of his current problems: the exact cause of those problems has not yet been identified by medical science, and any theory as to causation is nothing more than speculation at the present time. However, in the absence of competent medical evidence linking the appellant's currently diagnosed spinal muscular atrophy to the 1962 cerebral hemorrhage in service or to one or more of the service-connected disabilities, the claim must be dismissed as not well grounded. Eligibility for an Automobile and Adaptive Equipment Initially, the Board notes that the appellant's claim is found to be well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that the appellant has presented a claim which is plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board is also satisfied that all relevant facts have been properly developed with respect to that claim, and that no further assistance to the appellant is required in order to comply with VA's duty to assist him in the development of his claim, as mandated by 38 U.S.C.A. § 5107(a). Pursuant to 38 U.S.C.A. §§ 3901-04, a veteran is eligible to receive an automobile and adaptive equipment if he is entitled to VA compensation benefits for a service-connected disability which results in: (1) Loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; or (3) visual impairment of both eyes as described in the statute. 38 U.S.C.A. § 3901(1)(A). Eligibility for adaptive equipment, alone, is established if the person is entitled to VA compensation benefits for ankylosis of one or both knees, or one or both hips. 38 U.S.C.A. § 3902(b)(2). At the December 1993 hearing the appellant testified that his claim is not based upon visual impairment or upon ankylosis of one or both knees or hips (Transcript, pp.6-7). It is not disputed that the appellant currently has lost the use of both feet and both hands, probably permanently. However, this is due to the progressive neuromuscular disease currently diagnosed as spinal muscular atrophy for which entitlement to service connection has been denied. The service-connected disabilities affecting the right leg and right arm are not shown by the evidence to have resulted in the permanent loss of use of one foot or one hand before the effects of those service-connected disabilities were completely overwhelmed and submerged by the advance of the nonservice-connected progressive neuromuscular disease. Loss of use of a hand or foot is held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. The determination is made based upon the actual remaining function of the hand or foot, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance and propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63 (1994). In the present case, the appellant's cerebral hemorrhages resulted in mild-to-moderate weakness in the right leg, including partial foot drop for which a foot-drop brace was sometimes necessary. With the use of this brace, the appellant was perfectly able to ambulate, although with a limp. Complete paralysis of the external popliteal nerve due to the service- connected weakness of the right leg has never been reported. The appellant was also service-connected for focal motor seizures which affected the right arm from the 1960's. Dr. Glass has reported that these seizures varied from three or four per month to up to four or five per day, but that in general these seizures were well-controlled by anti-convulsant medication. As late as April 1992, at which time the progressive neuromuscular disease had already begun to advance, it was reported by J.W.N. Foster, M.D., that the only neurological deficit was that of right foot drop, and that the appellant was fully ambulatory with normal use of his upper extremities except for minor motor function loss on the right. These findings fall far short of permanent loss of use of a hand or foot. Since the legal requirements for the award of the requested benefits have not been satisfied, the claim must be denied. ORDER As to the claim seeking service connection for a progressive neuromuscular disease currently diagnosed as spinal muscular atrophy, the appeal is dismissed for failure to present a well- grounded claim. As to the claim seeking an automobile and adaptive equipment, the appeal is denied. (CONTINUED ON NEXT PAGE) SAMUEL W. WARNER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 (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.