Citation Nr: 0307361 Decision Date: 04/16/03 Archive Date: 04/24/03 DOCKET NO. 94-24 146 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for claimed multiple sclerosis. (The issue of an increased rating for the service-connected chondromalacia of the right knee will be the subject of a later decision.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from August 1972 to April 1977. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a May 1993 rating decision by the RO. In January 2000, the Board found that the veteran had presented a well-grounded claim of service connection for multiple sclerosis and remanded that matter to the RO for additional development of the record, along with the issue of an increased rating for the service-connected chondromalacia of the right knee. The Board is undertaking additional development on the issue of an increased rating for the service-connected chondromalacia of the right knee pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (which has since been codified at 38 C.F.R. § 19.9(a)(2) (2002)). When it is completed, the Board will provide notice of the development as required by Rule of Practice 903. 67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (which has since been codified at 38 C.F.R. § 20.903 (2002)). After giving the notice and reviewing your response to the notice, the Board will prepare a separate decision addressing this matter. FINDINGS OF FACT 1. The veteran is shown to have exhibited symptoms of consistent head pain around the eyes and numbness of the extremities in service. 2. The veteran's multiple sclerosis is shown as likely as not to have its clinical onset in 1982 during the presumptive period following service. CONCLUSION OF LAW By extending the benefit of the doubt to the veteran, his multiple sclerosis may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1137, 1153, 5107(a), 7104 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that the early signs and symptoms of his multiple sclerosis were present during service or the presumptive period thereafter. A careful review of the veteran's service medical records is negative for any diagnosis of multiple sclerosis (MS). A January 1975 medical record notes that the veteran was seen complaining of having headaches over his eyes, usually occurring in the morning and originally preceded by numbness of the left arm and leg, but not occurring as frequently. The impression was that of headaches, probably vascular. The other service medical records show that the veteran continued have complaints of having headaches during service. During a VA examination in January 1983, the veteran complained of having numbness and distress over the medial aspect of the medial condyle of the right femur. In a VA outpatient record dated in January 1985, the veteran complained of having numbness of the right leg. During an examination in May 1986, the veteran complained of having numbness in the right knee. He also reported having weakness in the right leg. A July 1988 VA neurology clinic report noted that the veteran had progressive difficulty with his gait and equilibrium for many years, perhaps dating almost back to his service years. The veteran reported that his neurological problems began in 1982, when he noted that his right leg would suddenly go numb for about 15 minutes. The first MS diagnosis of record is noted in an October 1988 VA medical report. The veteran's chief complaint was that of having spasticity and numbness in the extremities. The report noted that the veteran had an operation of the right knee in December 1987 under spinal anesthesia and, since that time, had had intermittent episodes of leg numbness and paresthesia, starting in the right leg and now involving left leg and arms. The veteran also described having some visual difficulties, bladder problems and difficulty walking due to weakness and numbness in both legs. The veteran noted that his symptoms were worse in the hot summer days. The neurological examination revealed the mental status to be grossly intact; however, the veteran did have a somewhat labile affect. The sensory examination was notable for decreased light touch and pin prick on the left side of the body on the trunk and on the lower extremities. The veteran also had decreased vibration sense on the lower extremities and was normal in the upper bilateral extremities. His deep tendon reflexes were notable for upgoing toes. The cerebellar exam revealed a decreased left hand; a finger-nose-finger test with end point dysmetria and on the left side; and a somewhat ataxic heel-knee-shin examination as well. The veteran was unable to tandem walk and had a positive Romberg on examination. The veteran was admitted for inpatient testing to evaluate the diagnosis of MS. The veteran's initial work up included a computerized axial tomography (CAT) scan without contrast, but this was notable primarily for moderately enlarged ventricles bilaterally with extension somewhat of the posterior horns and lateral ventricles, however, there were no other masses or local lesions noted. The veteran had brain stem auditory evoked responses which showed some mild bilateral slowing but were otherwise within normal limits as was visual evoked responses. The veteran was prescribed a steroid regimen and discharged. The inpatient report notes a final diagnosis of probable multiple sclerosis. At a VA outpatient clinic in April 1990, the veteran complained of having severe headaches, suffering from those headaches in the past. A December 1992/January 1993 VA consultation report noted left hemiparesis secondary to MS which by history dated back to 1982. The veteran's first symptoms were those of numbness of the hands, numbness of the feet and loss of visual acuity. The physician indicated that the MS should be service- connected because its onset of symptoms dating back to 1982. The RO obtained an expert medical opinion from a VA neurologist in November 1993. The doctor noted the past medical history, indicating that the various statements were conflicting and confusing, with neurological symptoms dating from either 1987 or 1982. The examiner noted that the veteran's headaches occurred in association with brief left-sided numbness in 1975, most likely representative of migraine (vascular) headaches and were unlikely related to MS. The doctor noted that other physicians related symptoms dating to 1982, but no records from that year were provided for corroboration. The doctor noted that if confirmed, the symptoms from 1982 could be consistent with MS. However, based solely on the content of the provided medical records, no firm conclusion could be made regarding the veteran's neurological status in 1982. In January 2000, the case was remanded to the RO for additional development of record, to include another VA examination in June 2002. The examiner reviewed the veteran's medical history, as noted hereinabove, and noted the first diagnosis of MS in 1987. The examiner also determined that the earliest date of onset for the veteran's symptoms of numbness and paresthesias would have been the late 1980's; there was no evidence of those complaints occurring during the 1970's. The examiner noted that the veteran had had progressive left-sided weakness over the years, but that there was no evidence of any complaint of treatment or diagnosis connected with MS in the service medical records. The veteran was noted to have had sinus discomfort in the late 1970's as well as occasional headaches. The impression at that time was that of chronic sinusitis. The examiner also pointed out that there were no neurological abnormalities found on the veteran's separation examination. The examiner also pointed out that a January 1983 VA examination revealed deep tendon reflexes were equal and active. The examiner noted that symptoms consistent with MS were noted in the late 1980's, but that no evidence of MS manifested to a compensable degree within 7 years of discharge from service. The examination revealed weakness in the periphery and wasting of the lower extremities and muscles. There was no evidence of leg edema or varicosities. Deep tendon reflexes were 3+ bilaterally with 3/5 power in both lower extremities. The veteran did have coldness of the lower extremities with decreased dorsalis pedis and posterior tibial pulses. There was decreased sensation throughout the upper and lower extremities. The diagnosis was that of MS. The examiner noted that there was no evidence in the medical record of any complaint consistent with MS within 7 years of his discharge from service. The earliest complaints consistent with MS (poor bladder control, numbness and paresthesia) occurred in the late 1980's and his complaint of numbness did not occur before this time. Prior to that, his complaints were centered around his right knee pain from the injury to his knee. Pertinent laws and regulations provide that service connection may be granted for disability resulting from disease or injury incurred in the line of duty or for aggravation of a pre-existing injury suffered, or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2002). 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 service. 38 C.F.R. § 3.303(d) (2002). Certain diseases shall be granted service connection if manifested to a compensable degree during a presumptive period after service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2002). Multiple sclerosis may be service connected although not otherwise established in service if manifested to a degree of 10 percent within 7 years from the date of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002), 38 C.F.R. §§ 3.307, 3.309 (2002). When all the evidence is assembled, the determination must then be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). There is of record competent evidence showing current disability due to MS in this case. The VA Medical Center records have documented a definitive diagnosis of multiple sclerosis after service. This diagnosis was rendered outside of the presumptive period for multiple sclerosis; however, the evidence of record shows as likely as not that the first manifestations of MS began during the presumptive period following service. The Board finds that the medical evidence is in relative equipoise in this case. The medical evidence shows that the veteran complained of the presence of MS symptomatology such as headaches and numbness in service. Furthermore, the postservice medical evidence tends to support the veteran's assertions that he exhibited symptoms of MS within the presumptive period following service. For example, a VA neurological study in 1992 notes that the veteran developed symptoms of MS in 1982, only 5 years after service. By extending the benefit of the doubt to the veteran, the Board concludes that service connection for MS is warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 3.307, 3.309 (2002). Finally, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act (VCAA) of 2000, which has since been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). This change in the law is applicable to all claims filed on or after the date of enactment of the Veterans Claims Assistance Act of 2000, or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107. The regulations implementing the VCAA are now published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (which have since been codified at 38 C.F.R. § § 3.102, 3.156(a), 3.159 and 3.326). Except as specifically noted, the new regulations are effective on November 9, 2000. The RO has not had an opportunity to address this new legislation with regard to the veteran's claim for increase. However, given the favorable action taken hereinabove, the veteran is not prejudiced thereby and no further assistance in developing the facts pertinent to his claim is required. In this case, the Board finds that there is sufficient evidence of record to decide his claim properly. ORDER Service connection for multiple sclerosis is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, 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.