Citation Nr: 0515279 Decision Date: 06/06/05 Archive Date: 06/15/05 DOCKET NO. 00-02 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from February 1961 to January 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2001, the Board reopened the claim of entitlement to service connection for multiple sclerosis, but subsequently dated decisions have denied the claim. The claim was most recently denied by the RO in February 2005. The appeal continues. FINDING OF FACT The veteran's multiple sclerosis was first diagnosed more than seven years after her discharge from active service and the competent medical evidence does not link it to her service. CONCLUSION OF LAW Multiple sclerosis was not incurred in or aggravated by the veteran's active military service, nor may multiple sclerosis be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to notify and Assist The President signed into law the Veterans Claims Assistance Act of 2000 (VCAA) on November 9, 2000. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of the VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). These regulations establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits. As required by 38 U.S.C.A. § 5103(a), prior to the initial unfavorable agency of original jurisdiction (AOJ) decision, the claimant must be provided notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claims, or something to the effect that the claimant should give us everything you've got pertaining to your claims. VA satisfied this duty by means of a VCAA letter in March 2001 and a November 2003 supplemental statement of the case (SSOC). By means of these documents, the veteran was told of the requirements to establish service connection for multiple sclerosis and of the reasons for the denial of her claim. These documents advised her as to what evidence the RO had in its possession and what evidence was still needed. Specifically, the veteran was notified that VA would obtain all relevant evidence in the custody of a federal department or agency, including VA, Vet Center, service department, Social Security, and other federal agencies. She was advised that it was her responsibility to either send medical treatment records from any private physician regarding treatment, or to provide a properly executed release so that VA could request the records for her. The veteran was also asked to advise VA if there were any other information or evidence he considered relevant to this claim so that VA could help by getting that evidence. A VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This appeal ensued in 1998. This was prior to the enactment of the VCAA in November 2000. The veteran was initially provided with notice of VCAA in 2001. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. As noted above, a VCAA letter from March 2001 and a SSOC in November 2003 clearly reflect that her claim was readjudicated based upon all the evidence of record with consideration of VCAA. There is no indication that the disposition of his claim would not have been different had he received pre-AOJ adjudicatory notice pursuant to section 5103(a) and § 3.159(b). Accordingly, any such error is nonprejudicial. See 38 U.S.C. § 7261(b)(2). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2004) and Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO obtained the veteran's service medical records (SMRs), Social Security Administration (SSA), and VA treatment records. The claims file includes a myriad of documents indicating that attempts were made to obtain records from various sources as related by the veteran, many times without success, but there is no indication of any pertinent records that the RO failed to obtain and associate with the claims file. The veteran's various communications indicate that she has no additional evidence to submit. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2004). Such an examination was conducted in June 2002. The report of this examination and a July 2002 addendum are in the claims file. Therefore, the Board concludes that no further assistance to the veteran is not required. Service connection The veteran contends that her diplopia (double vision) in 1967, which required corrective surgery, was a symptom of multiple sclerosis. Thus, this condition was well within the seven-year presumptive period after separation from service and service connection should be awarded. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2004). Service connection may 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) (2004). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2004). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2004). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post- service development of a presumptive disease such as multiple sclerosis to a degree of 10 percent within seven years from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The veteran's service medical records show that her neurological health was normal at the January 1961 enlistment and November 1963 separation examinations. At enlistment, she reported wearing eyeglasses since age 2, and the examiner noted moderate myopia. At separation, the veteran reported eye trouble, and the examiner noted correctable mixed bilateral astigmatism and bilateral presbyopia. The service medical records are silent as to any inservice treatment or diagnosis of multiple sclerosis. Post service private and VA treatment records dated in 1974 include that the veteran had multiple sclerosis and that onset had been in July 1973 or July 1974. When examined by VA in July 1974, the veteran indicated that she had developed diplopia and dizziness in 1973. She noted a recurrence of diplopia in early 1974 and was hospitalized at that time. Multiple sclerosis was diagnosed. Another VA document (undated) references that the veteran had diplopia in 1967 for which she underwent surgery. This document appears to be from the mid 1970s as it was submitted with other documents that were dated from that time. R. E. L., Jr., M.D., a private physician, reported in a July 1974 statement that the veteran had difficulty with exotropia from early childhood and that her first visit had been in 1951. Her condition deteriorated and required surgical correction in 1967. The doctor also indicated that the veteran was diagnosed as having demyelinating disease in 1973 and he found her to be developing posterior subcapsular cataracts in each eye in February 1975. VA records reflect that the veteran was hospitalized for approximately 5 days in June 1975 for a relapse of multiple sclerosis. Added to the record in 1998 was a letter of correspondence dated in 1967 from the veteran to her mother and "John." In the body of her letter, the veteran noted that she continued "seeing double." Of record are additional private and VA treatment records dated from 1989 through 2002 which reflect treatment for various conditions, to include multiple sclerosis and eye problems. It is noted that the veteran underwent surgery for cataracts in 1995. The record also reflects that the SSA awarded her disability benefits in 1974 to 1981 and again in 1998 primarily because of multiple sclerosis. Also of record is a VA neurological examination report dated from June 2002 as conducted by A. S., M.D. At that time, the veteran's claims file was not available for review. The examiner, however, summarized the veteran's medical history, to include her childhood eye problems (exotropia) which had deteriorated requiring surgical correction in 1967. It was noted that the veteran stated that after this surgery she developed significant double vision, which persisted for about a month. She subsequently did well until 1973 when her diplopia returned. She also suffered from a staggering gait and dizziness. She was evaluated and ultimately diagnosed as having multiple sclerosis. While her diplopia temporarily disappeared after treatment, it reappeared in 1974 and had persisted ever since. Following evaluation, the diagnosis was clinically definite multiple sclerosis currently inactive with significant visual and motor impairment. In an addendum dated in July 2002, A. S., M.D., noted that the claims file had now been extensively reviewed. It was opined that the veteran multiple sclerosis did not appear to be related to an inservice event. The examiner indicated that the veteran's multiple sclerosis had no relationship to the eye surgery performed 2-3 years after service. It was noted that the veteran did suffer a temporary episode of diplopia after the surgery, and while this could be the first symptom of multiple sclerosis, it very well could have been related to the surgical correction for the eye muscles. Hence, the symptoms could not be labeled definitely as resulting from multiple sclerosis. The VA doctor added that the first clear indication of symptoms secondary to multiple sclerosis emerged in 1973 and included decreased visual acuity, diplopia, and poor coordination. The veteran was diagnosed as having multiple sclerosis based on the clinical evaluation in 1973-1974. In the examiner's opinion, it was not likely that the veteran's multiple sclerosis preexisted service or was aggravated therein. The Board finds that the medical evidence of record does not support the veteran's claim for service connection for multiple sclerosis. Her service medical records are negative for any symptomatology associated with multiple sclerosis and while it is alleged that multiple sclerosis symptoms were noted within the first few years after service separation in 1967, the medical evidence of record was reviewed by a VA neurologist and it is convincing that symptoms experienced by the veteran at that time were unrelated to multiple sclerosis. The VA physician found that multiple sclerosis was first medically shown more than 7 years after separation in 1973. The VA physician, after extensive review of the claims file and examination of the veteran, addressed etiology of multiple sclerosis and date of onset. The VA physician determined that eye surgery in 1967 was unrelated to multiple sclerosis and that the veteran's double vision at that time was likely the result of the surgery to correct the eye muscles. There is no contradictory medical opinion of record, and multiple sclerosis was not definitively diagnosed until sometime in 1974, although the initial symptoms resulting in the diagnosis were noted to have been present in 1973. At any rate, the presence of multiple sclerosis in 1973, is beyond the seven year presumptive period to warrant service connection pursuant to VA laws and regulations. The Board finds the examiner's 2002 opinion persuasive in that it was formed after examination of the veteran and a review of the entire record, to include the veteran's service, VA, private, and SSA medical records and is supported by a detailed discussion of such records. The Board concludes that the opinion is entitled to great probative weight. The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). The private physicians' statements of record which reflect that the veteran has multiple sclerosis are noted, but these doctors do not contradict the VA physician's findings. They simply indicate that the veteran was diagnosed with this condition in the mid 1970s. Accordingly, the Board finds that a grant of service connection for MS is not warranted. Additionally, while the veteran's contentions as to etiology of this condition have been considered, and it is recognized that she is competent as a lay person to report on that which she has personal knowledge, (See Layno v. Brown, 6 Vet. App. 465, 470 (1994), there is no evidence of record that the veteran has specialized medical knowledge to be competent to offer medical opinion as to cause or etiology of the claimed disability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In this case, the preponderance of the evidence is against the claim for service connection for multiple sclerosis. Although the veteran is entitled to the benefit of the doubt when the evidence supporting his claim and the evidence against the claim are in equipoise, the benefit of the doubt doctrine is inapplicable where, as here, the overwhelming preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). ORDER Entitlement to service connection for multiple sclerosis is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs