Citation Nr: 0302084 Decision Date: 02/04/03 Archive Date: 02/19/03 DOCKET NO. 95-21 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for multiple sclerosis, claimed as secondary to exposure to Agent Orange. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. B. Conner, Counsel INTRODUCTION The veteran had active military service from September 1968 to September 1970. He had subsequent service in the Texas Army National Guard, ending with his retirement in October 1992. This matter comes to the Board of Veterans' Appeals (Board) from a November 1994 rating decision of the Department of Veterans Affairs (VA) Waco Regional Office (RO), which denied service connection for multiple sclerosis. FINDINGS OF FACT 1. The veteran had active military service from September 1968 to September 1970, including service in the Republic of Vietnam. 2. He had subsequent service in the Texas Army National Guard from September 1973 to October 1992, although none of this service included active service continuously for 90 days or more. 3. Multiple sclerosis was first manifested approximately in November 1991 and was first diagnosed in January 1993. 4. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted, including multiple sclerosis. 5. The record contains no competent evidence indicating that the veteran's multiple sclerosis is causally related to his active service or any incident therein, to include any exposure to Agent Orange. CONCLUSION OF LAW The criteria for entitlement to service connection for multiple sclerosis have not been met. 38 U.S.C.A. §§ 101(24),1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that VA has satisfied its duties to the veteran, under both former law and the new VCAA. Under the VCAA, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a) (West Supp. 2002); 38 C.F.R. § 3.159(b)(1) (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, VA notified the veteran of the evidence of record and the reasons for the denial of his claim in a May 1994 letter and rating decision, a January 1995 Statement of the Case, and July 1996, November 1996, and June 2002 Supplemental Statements of the Case. He was also advised of the provisions of the VCAA, VA's duties under the VCAA, as well as his responsibility to submit or identify evidence in a December 2001 letter. See also RO letters of June 1993 and December 1997 (advising the veteran of his responsibility to submit pertinent evidence). Thus, the Board finds that VA has satisfied its duties to notify the veteran under the VCAA. See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). Under the VCAA, VA also has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West Supp. 2002); 38 C.F.R. § 3.159(c) (2002). In this case, the veteran's service department medical and personnel records are on file, as are post-service VA clinical records. The RO has also obtained all private clinical records identified by the veteran. 38 U.S.C.A. § 5103A(c) (West Supp. 2002); 38 C.F.R. § 3.159(c)(1) - (3) (2002). There is no indication of relevant, outstanding records, nor is there a need for a VA medical opinion, given the nature of the issue on appeal. 38 U.S.C.A. § 5103A(d) (West Supp. 2002); 38 C.F.R. § 3.159(c)(4) (2002). In that regard, the Board notes that the veteran claims that he has multiple sclerosis, first manifested in November 1991 and first diagnosed in January 1993, as a result of exposure to Agent Orange in service. However, the Secretary has already determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted, including multiple sclerosis. See Disease Not Associated With Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002). Although he has been advised to submit such evidence, see e.g. December 1997 RO letter, the record currently contains no competent evidence contradicting the conclusion that there is no positive association between exposure to Agent Orange and the development of multiple sclerosis. Thus, an additional medical opinion is not necessary in this case. For all the foregoing reasons, the Board concludes that VA's duties to the veteran have been fulfilled. I. Factual Background Service medical records corresponding to the veteran's period of active service from September 1968 to September 1970, are negative for complaints or findings indicative of multiple sclerosis. At his September 1970 military separation medical examination, the veteran's neurological system was normal. The veteran's DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, shows that he had eleven months and seven days of service in the Republic of Vietnam during his period of active service. He was also awarded, inter alia, the Vietnam Service Medal and a Vietnam Campaign Medal. Service personnel records corresponding to the veteran's service with the Texas Army National Guard show that he served from July 1973 to October 1992. These records indicate that he had no periods of active duty, active duty training, or full time training duty in excess of 18 consecutive days. The veteran does not contend otherwise. Service medical records corresponding to the veteran's service with the Texas Army National Guard show that at his July 1973 enlistment medical examination, no pertinent abnormalities were noted. At periodic medical examinations conducted in May 1976, September 1979, September 1983, June 1987, and August 1991, no neurological abnormalities were reported or identified. On a report of medical history completed by the veteran in August 1991, he denied cramps in his legs, neuritis, and paralysis. Private clinical records show that in November 1991, the veteran sought emergency treatment after he experienced an episode of tonic contractions with loss of control. He reported that he had had approximately 7 to 10 of these episodes, lasting approximately five minutes, in the past one to two years. He indicated that he felt an aura before the episodes began and stated that the episodes resolved spontaneously. After examining the veteran, the diagnosis was partial complex seizure; he was prescribed Dilantin. Subsequent private clinical records show that the veteran underwent a CT scan of the brain in November 1991, which was unremarkable and revealed no finding to explain the seizure disorder. In a letter dated later that month, the veteran's private physician indicated that diagnostic testing had revealed no clear evidence of seizure activity or destructive foci. He indicated that he had advised the veteran to try to reduce his driving, but otherwise saw no specific reason to limit his activities. The Dilantin was discontinued. In December 1991, however, the veteran complained of muscle spasms in his left hip and leg, with mild weakness. Dilantin was again prescribed. Subsequent service medical records show that in December 1991, the veteran was seen after his legs gave out at the end of a two mile physical training run. He reported that his legs felt tired. In February 1992, the veteran began receiving treatment from VA. These clinical records show that when he was seen in February 1992, he reported that he had previously received treatment from a private neurologist for episodic spasms in the left leg. He indicated that these episodes had begun in November 1991, and that diagnostic testing had been within normal limits. The diagnosis was muscle spasms. The following month, the veteran reported muscle spasms for the past two years. He indicated that his muscle spasm episodes were beginning to occur more frequently and last longer. He also reported that he had been exposed to Agent Orange in Vietnam. The diagnosis was muscle spasm secondary to fatigue. Subsequent VA clinical records show that the veteran continued to seek treatment for complaints of muscle spasms and fatigue. In November 1992, the diagnosis was questionable multiple sclerosis. In January 1993, an magnetic resonance imaging (MRI) study showed multiple lesions consistent with multiple sclerosis. A lumbar puncture confirmed the diagnosis. Subsequent clinical records show continued treatment for progressive multiple sclerosis, which was noted to have begun in November 1991, with a diagnosis in January 1993. In May 1993, the veteran filed a claim of service connection for multiple sclerosis. In his application, he indicated that he had first been diagnosed with the condition in November 1991, and that he believed it was due to his exposure to Agent Orange in Vietnam. By May 1994 rating decision, the RO denied service connection for multiple sclerosis. In its decision, the RO noted that multiple sclerosis was not one of the diseases for which the Secretary had determined that a positive association existed between exposure to Agent Orange and the subsequent development of the condition. It was also noted that there was no evidence of multiple sclerosis in active service or within the first seven post-service years. The veteran appealed the RO determination, arguing that the medical field had yet to determine the full extent of the harmful effects of Agent Orange. He indicated that it was his belief that he developed multiple sclerosis as a result of his exposure to Agent Orange. He subsequently submitted a July 1997 statement from his VA treating physician to the effect that the veteran had moderate to severe multiple sclerosis and required assistance in all activities of daily living. II. Law and Regulations Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d) (2002). As the law applies in this case, the term "active military, naval, or air service" means active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). In other words, service connection is not warranted for diseases unless the individual was on active duty for training at the time of the disablement or death due to the injury or disease. Brooks v. Brown, 5 Vet. App. 484, 485 (1993); VA O.G.C. Prec. 86-90, 56 Fed. Reg. 45,712 (1990). "Injury" is defined as harm resulting from some type of external trauma and "disease" is defined as harm resulting from some type of internal infection or degenerative process. Where a veteran had active service continuously for 90 days or more during a period of war or during peacetime service after December 31, l946, and multiple sclerosis becomes manifest to a degree of 10 percent or more within 7 years from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of 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 (2002). Pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8018 (2002), a minimum rating of 30 percent is assignable for multiple sclerosis. To establish service connection for a chronic disease on a presumptive basis, it is not required that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in light of subsequent developments it may gain considerable significance. 38 C.F.R. 3.307(c). Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and has a disease listed at § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. §§ 3.307(a)(6), 3.313 (2002). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, PCT, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), certain soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), and Type II diabetes mellitus. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and PCT shall have become manifest to a degree of 10 percent or more within one year of separation, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary has also determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Disease Not Associated With Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002). Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155 (1997). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West 1991 & Supp. 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Analysis As set forth above, the veteran claims that service connection for multiple sclerosis is warranted as he believes that such condition was incurred as a result of his exposure to Agent Orange in Vietnam. Initially, it is noted that multiple sclerosis is not among the disabilities listed in 38 C.F.R. § 3.309(e). Thus, presumptive service connection for this disorder due to Agent Orange exposure is not warranted. McCartt v. West, 12 Vet. App. 164 (1999); 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board has reviewed the evidence of record to determine if service connection for multiple sclerosis on a direct basis is warranted. Combee and Brock, supra. In that regard, the Board notes that the veteran's service medical records are negative for any complaints or findings of multiple sclerosis. Likewise, there are no notations of manifestations of the condition within the first seven years following his separation from service in September 1970, nor does the veteran so contend. In fact, the Board also notes that the post-service medical record is negative for notations of manifestations attributable to multiple sclerosis until November 1991, approximately 21 years after the veteran's separation from active service. (The Board has considered that the veteran had service in the National Guard from 1973 to 1992; however, because the veteran did not have active service continuously for 90 days or more during this period, the presumptive provisions do not apply. Moreover, because multiple sclerosis is obviously a disease, rather than an injury, service connection for multiple sclerosis would not be warranted, as the veteran was not on active duty for training at the time of the disablement. Brooks v. Brown, 5 Vet. App. 484, 485 (1993); VA O.G.C. Prec. 86-90, 56 Fed. Reg. 45,712 (1990)). Based on the foregoing, it cannot be said that multiple sclerosis was present in active service or manifest to a compensable degree within seven years of service separation. However, as noted above, service connection may be granted for disease diagnosed after service discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). In that regard, the Board again notes that the Secretary has determined that there is no positive association between exposure to herbicides and the development of multiple sclerosis. See Disease Not Associated With Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002). In making this determination, the Secretary relied on reports received from the National Academy of Sciences, as well as all other sound medical and scientific information and analyses available. Id.; see also 38 U.S.C.A. § 1116(b)(2) (West Supp. 2002). There is no other medical evidence of record to rebut the conclusion that there is no positive association between exposure to Agent Orange and the development of multiple sclerosis. The Board has considered the veteran's lay contentions that he has multiple sclerosis as a result of exposure to Agent Orange in service. However, as a layperson, the veteran is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation or etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (lay testimony is not competent to establish, and therefore not probative of, a medical nexus). Therefore, his opinion that his multiple sclerosis is causally related to his active is outweighed by the findings of the Secretary, which are based on extensive medical research. Again, there is no competent medical evidence of record suggesting a connection between any claimed in-service exposure to Agent Orange and the veteran's multiple sclerosis. Rather, the veteran's contentions of etiological connection are no more than unsupported speculation on his part. Again, all medical records, to include all VA and private medical records, are entirely negative for any discussion of a nexus between the veteran's multiple sclerosis and his claimed exposure to Agent Orange. After considering all of the evidence of record, the Board must conclude that the clear weight of the evidence is against the veteran's claim of service connection for multiple sclerosis. The Board finds that the preponderance of the probative evidence of record shows that the veteran's multiple sclerosis is not causally related to his active service or any incident therein, including claimed exposure to Agent Orange. As the preponderance of the evidence is against the veteran's claim of service connection for multiple sclerosis, the benefit of the doubt doctrine is not for application in the instant case. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for multiple sclerosis is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.