Citation Nr: 0901042 Decision Date: 01/09/09 Archive Date: 01/14/09 DOCKET NO. 06-19 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for residuals of a stroke, status post craniotomy with removal of left cerebral arteriovenous malformation with residual right hemiplegia and seizures. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). The veteran had active military service from March 1980 to June 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The veteran testified before the undersigned Acting Veterans Law Judge at a June 2008 hearing conducted via videoconference. A transcript of the hearing is of record. FINDINGS OF FACT 1. An arteriovenous malformation (AVM) or related disorder was not recorded in the veteran's February 1980 service entrance examination report. 2. The veteran's arteriovenous malformation, which has resulted in a stroke and residuals thereof, is a congenital defect that was subject to an increase in severity due to superimposed diseases and/or injuries that occurred during the veteran's active military service. CONCLUSION OF LAW Disability attributable to an arteriovenous malformation is by operation of law found to have been incurred in active duty service. 38 U.S.C.A. §§ 1111, 1131, 1137, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2008); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the Veterans Claims Assistance Act (VCAA) of 2000 (codified at 38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled in service, except for defects, diseases, or infirmities noted at the time of entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. § 1111, 1137 (West 2002). According to 38 C.F.R. § 3.304(b) (2008), the term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began. See 38 C.F.R. § 3.304(b)(1) (2008). Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to ... manifestations, clinical course, and character of the particular injury or disease or residuals thereof." Id. For purposes of entitlement to benefits, the law provides that congenital defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. Thus, VA regulations specifically prohibit service connection for congenital defects unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). A preexisting disease will be presumed to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2008). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b) (2008); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The law further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, the VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-2003. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The Board must follow the precedent opinions of the General Counsel. 38 U.S.C.A. § 7104(c). Also pertinent is the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), issued on June 1, 2004, summarizing the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. On the other hand, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. Wagner, 370 F. 3d at 1096. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2008). In the instant case, an arteriovenous malformation (AVM) or related disorder was not recorded in the veteran's February 1980 service entrance examination report. Therefore, he is presumed to have been in sound condition with respect to this disability at service entrance. See 38 C.F.R. § 3.304(b). The Board nevertheless finds that the evidence of record clearly and unmistakably demonstrates the veteran's AVM is a congenital defect and as such, by its nature, pre-existed active service. In this regard, at the request of the Board, the veteran's claims file was reviewed by an independent medical expert (IME) specializing in neurology. In a detailed and extensive report received by the Board in September 2008, the IME opined that "[a] cerebral AVM should be regarded as a congenital defect of the intracranial vasculature and is not an acquired disorder. The cerebral AVM is considered to develop in the human brain during fetal or early post-natal life....It can and should be assumed that the AVM in the veteran's brain pre-existed military service." (Emphasis in original). Furthermore, in a December 2008 statement, a VA neurologist, indicated to be the Chief of the Neurology Section at a VA Medical Center, concurred in the IME's opinion. For these reasons, the Board finds the veteran's AVM clearly and unmistakably pre-existed his active service. Turning to the question of aggravation, the Board notes that the September 2008 IME opinion includes a finding that that there exists clear and unmistakable evidence that the veteran's AVM was not aggravated beyond its normal progression during active military service. However, the Board observes the IME uncharacteristically did not provide a rationale or basis for this aspect of his opinion, but rather provided only a one-word answer to the question posed. By contrast, the VA neurologist noted that, while he knows of no evidence supporting either conclusion, "it is certainly conceivable that the AVM could have been influenced by the blow to the left eye [in a July 1980 racquetball injury]." In weighing these differing opinions, the Board notes that both physicians are highly qualified and highly credentialed in their fields, but that only the VA neurologist provided an underlying rationale for his opinion on this critical point. As such, the Board finds that there is not clear and unmistakable evidence to establish that the veteran's AVM was not aggravated beyond its normal progression during active service. Therefore, the presumption of sound condition upon entry into service is not rebutted, and the veteran is presumed to have been in sound condition upon entering service. See Cotant, Wagner, supra. If the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Service medical records indicate the veteran sought treatment approximately seven months after entrance into active service for headaches, tenderness to the temple and chronic reflex sympathetic dystrophy of the right upper extremity. In this regard, an October 1980 service treatment record indicates the veteran complained of headaches after being hit in the left eye with a racquetball in approximately June 1980, with no visible trauma. Furthermore, a January 1981 neurological examination showed evidence of extreme weakness and mild atrophy of all right hand muscles, including thenar and hypothenar eminence. At a February 1981 neurological examination, the veteran was diagnosed as having reflex sympathetic dystrophy. The IME opined that there is a greater than 50% probability that all in-service symptomatology reported by the veteran was causally related to his cerebral AVM. Again, the VA neurologist concurred in his December 2008 opinion. Yet, upon clinical evaluation at entrance into service, no disability or symptomatology now known to have been attributable to his AVM was noted. The competent medical evidence demonstrates that the veteran was essentially in good health upon entry into service, and underwent a dramatic increase in symptomatology and superimposed AVM-related disease processes several months after entrance into active service. As such, the Board finds that, consistent with the December 2008 VA neurologist's opinion, while the veteran's cerebral AVM is a congenital defect, it cannot be rued out that the AVM underwent an increase in severity due to superimposed disease and/or injury during service, resulting in chronic disability, to include a post-service stroke and craniotomy. See VAOPGCPREC 82-90, supra. In sum, as the record indicates that the veteran's AVM clearly and unmistakably preexisted service, but does not clearly and unmistakably indicate the veteran's condition was not aggravated beyond its normal progression during active service, the presumption of soundness applies. The medical experts who have addressed this matter have found that the veteran did experience worsening manifestations of his AVM during service, and that the veteran's in-service chronic reflex sympathetic dystrophy of the right upper extremity, and stroke and resulting hemiplegia shortly after service, were manifestations of his AVM and related disease processes. In light of the December 2008 opinion of the Chief of Neurology at a VA Medical Center, the government has not met its evidentiary burden of showing that the AVM clearly and unmistakably did not worsen beyond natural progress during active service, and it is clear that a dramatic worsening of symptoms did take place several months into active service. As such, and affording all benefit of the doubt in favor of the veteran, the Board finds that service connection for residuals of a stroke, status post craniotomy with removal of left cerebral AVM, is warranted. ORDER Service connection for residuals of a stroke, status post craniotomy with removal of left cerebral arteriovenous malformation with residual right hemiplegia and seizures, is granted. ____________________________________________ STEPHEN L. HIGGS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs