Citation Nr: 0106031 Decision Date: 02/28/01 Archive Date: 03/02/01 DOCKET NO. 99-21 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service from January 1955 to January 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 1998 rating decision issued by the Little Rock, Arkansas Regional Office (RO) of the Department of Veterans Affairs (VA). In that rating decision, the RO denied the reopening of the appellant's claim of entitlement to service connection for multiple sclerosis, as well as his claim of entitlement to service connection for the residuals of a subarachnoid block. While the notice of disagreement and the statement of the case addressed both issues, the October 1999 VA Form 9 substantive appeal only addressed the new and material evidence issue. Therefore, the only issue on appeal in this case is the issue listed on the title page. By letter dated January 10, 2000, the appellant was informed that his appeal was being certified to the Board. On October 2, 2000, the Board received additional evidence from the appellant. At the same time, a motion for the submission of evidence beyond the permitted 90-day period was submitted; that motion was granted on October 12, 2000. Although a waiver of initial review of this evidence by the RO was not requested, in light of the Board's decision on appeal, a remand pursuant to 38 C.F.R. § 20.1304 is not necessary. FINDINGS OF FACT 1. Service connection for multiple sclerosis was denied by the RO in a rating decision in December 1966. An appeal to the Board was not perfected as to that rating decision and hence, the denial became final. 2. Evidence submitted since the December 1966 rating decision included private treatment reports dated from 1957 to 1985 and the October 2000 medical opinion of a private physician, who with benefit of review of the evidence in the claims file, to include the service medical records, opined that the appellant's in-service treatment in 1956 optic neuritis of the right ear and post-service treatment in 1963 and 1964 for unusual hearing symptoms and lower extremity numbness were early manifestations of his later-diagnosed multiple sclerosis. 3. There is no other evidence of record which competently (i.e., contrary medical opinion by equivalent specialists) rebuts the findings and conclusions reflected in the October 2000 medical opinion. CONCLUSIONS OF LAW 1. The December 1966 rating decision is final. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.1103 (2000). 2. Evidence submitted since the December 1966 rating decision is new and material, allowing the Board to reopen and review the appellant's claim of service connection for multiple sclerosis. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (2000). 3. Multiple sclerosis was incurred within the seven-year presumptive period after service. 38 U.S.C.A. §§ 1131, 1137, 5107(b) (West 1991); 38 C.F.R. §§ 3.307(a), 3.309(a) (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Governing statutory and regulatory provisions stipulate that unappealed decisions of the RO and decisions of the Board are final, and may be reopened only upon the receipt of additional evidence that, under the applicable statutory and regulatory provisions, is both new and material. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156 (2000). "New" evidence means more than evidence that has not previously been included in the claims folder, and must be more than merely cumulative, in that it presents new information. See Colvin v. Derwinski, 1 Vet. App. 171 (1990); see also Evans v. Brown, 9 Vet. App. 273 (1996) (question of what constitutes new and material evidence requires referral only to the most recent final disallowance of claim). In order to reopen a claim which has been previously finally denied, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 1991). New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Evidence is material if it "tend[s] to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim." Evans, 9 Vet. App. at 284 (1996). Service connection for multiple sclerosis was the subject of an unfavorable rating decision by the RO in December 1966. Since the appellant did not appeal this decision, it became final by operation of law. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.1103 (2000). The evidence considered by the RO in 1966 included the service medical records and the report of a VA compensation examination conducted in November 1966. The service medical records were negative for a diagnosis of multiple sclerosis. The VA examination of November 1966 resulted in a diagnosis of multiple sclerosis. However, the RO denied the claim because the aforementioned diagnosis did not fall within the seven-year presumptive period provided by regulation (38 C.F.R. §§ 3.307, 3.309) Evidence submitted since the December 1966 rating decision included private treatment reports dated from 1957 to 1985, which denoted treatment in 1963 for symptoms of unusual hearing of a possible neurologic origin and treatment in 1964 for numbing in the left arm and thumb and in the right leg; the report of a VA examination conducted in May 1999, which denoted a diagnosis of multiple sclerosis; and, the report of an October 2000 medical opinion of a neuro-radiologist, Dr. C. N. Bash, M.D., who with benefit of review of the evidence in the claims file, to include the service medical records, opined that the appellant's in-service treatment in 1956 optic neuritis of the right ear and post-service treatment in 1963 for unusual hearing symptoms were early manifestations of his later-diagnosed multiple sclerosis. Based on these reports, read together with the balance of the evidence, the Board finds that under the more relaxed new and material standard set forth under Hodge and its progeny, this claim now deserve further consideration on a de novo basis. Fossie v. West, 12 Vet. App. 1 (1998). Specifically, the Board finds that this evidence is "new" because it was not previously reviewed by the RO in connection with its original denial of the claim in 1966, and material because it provides reasonable inference that manifestations of multiple sclerosis had their onset within the seven-year presumptive period after service. On this point, the Board must emphasis that the new-and-material-evidence standard does not require the appellant to prove his claim; to the contrary, evidence is new and material if it "bears directly and substantially upon the specific matter under consideration, . . . and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim." 38 C.F.R. § 3.156(a). In this case, the newly assembled evidence satisfies this regulatory criteria. A merits-based review of a claim requires the Board to provide a written statement of the reasons or bases for its findings and conclusions on material issues of fact and law. 38 U.S.C.A. § 7104(d)(1) (West 1991). To this end, the Board must analyze the credibility and probative value of the evidence, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, the Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record or adequate quotation from recognized medical treatises. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Under pertinent law and VA regulations, service connection may be granted if the facts, shown by the evidence, establish that a disease or injury resulting in disability was incurred coincident with service in the Armed Forces, or if pre- existing such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (2000). Service connection may also be granted for certain enumerated chronic diseases on a presumptive basis, including multiple sclerosis, if manifestations of such diseases are shown to be present to a degree of 10 percent or more within seven years after service. 38 C.F.R. §§ 3.307, 3.309 (2000). Alternatively, with respect to any disease, service connection may be granted if all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2000). The Board concludes that the evidence supports a grant of service connection for multiple sclerosis. When read together with the service medical records and the private treatment reports dated in 1963-64, Dr. Bash's report of October 2000 provides sufficient proof that the appellant's multiple sclerosis had its onset during the presumptive seven-year period after service. The above-cited May 1999 VA examination provides a sufficient basis to show that the appellant currently has this disorder. Regarding its etiology and manifestations, Dr. Bash's medical opinion reflects the following, in pertinent part: The patient presents a history of early, undiagnosed MS [multiple sclerosis] symptoms consistent with the nature of the disease. Early symptoms are often mild or temporary and often do not result in the patient seeking care. At other times, a patient presents symptoms without an obvious etiology to a physician, but the diagnosis is not made because the disease is difficult to diagnose. It is the pattern of episodic symptoms affecting different places in the neurologic system at different times that presents the pattern eventually leading to a diagnosis. MS has a predilection for the optic nerve. Often MS first presents symptoms of optic neuritis. In this patient's Army service record a significant decrease in visual acuity was noted near the time of his release. The patient stated he had symptoms of episodic numbing of the body, feet and hands for years following service. The patient was seen for an unusual hearing problem in May 1963 that was then suspected to be of neurologic etiology. In April 1964 he was seen for numbing of his left arm and thumb in a pattern that does not follow the distribution of a single nerve. In June 1964 the patient was seen for an episode of numbing of the right leg with a history of a prior episode affecting the left leg. By April 1966 the patient was referred to a neurologist and diagnosed with MS by May 1966. In summary, it is my opinion that this patient's episode of unusual hearing symptoms that presented in May 1963 was an early manifestation of his MS. It is also my opinion that the deterioration in visual acuity in his right eye noted in November 1956 was as likely as not an early symptom of his MS. The Board finds that Dr. Bash's medical opinion, which clearly places disabling, treatable manifestations of the condition within the seven-year presumptive period, is sufficient to establish service connection as the appellant was separated from service in January 1957. It is significant that the aforementioned medical opinion was based on a review of the evidence in the file, which included the service medical records and the private treatment records dated from 1957 to 1985. Although a diagnosis of the appellant's multiple sclerosis is not shown by the record to have been made until 1966, or in other words, until after expiration of the presumptive period, the Board finds that the medical opinion of Dr. Bash now provides an approximate balance of evidence for and against the claim which requires that the benefit of the doubt be accorded to the appellant. Accordingly, as there is no other evidence of record which competently rebuts this opinion and finding none, the Board concludes that service connection is warranted on a presumptive basis for multiple sclerosis. 38 U.S.C.A. §§ 1131, 1137, 5107(b); 38 C.F.R. §§ 3.307(a), 3.309(a). ORDER Service connection for multiple sclerosis is granted. CHRISTOPHER P. KISSEL Acting Member, Board of Veterans' Appeals