Citation Nr: 0518270 Decision Date: 07/05/05 Archive Date: 07/14/05 DOCKET NO. 97-20 475A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Tierney, Counsel INTRODUCTION The veteran served on active duty from July 1971 to December 1971. This appeal arises from an adverse decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, dated in November 1996, that denied the veteran's request to reopen the previously denied claim of entitlement to service connection for multiple sclerosis. In May 2000, the Board of Veterans' Appeals (Board) granted the veteran's appeal of the November 1996 rating decision, reopening the veteran's claim for service connection and remanding the issue of service connection for multiple sclerosis. Review of the actions performed by the RO reveals that the mandate of that remand has been fulfilled. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The RO has provided all required notice and obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The preponderance of the evidence shows the veteran is not currently diagnosed with multiple sclerosis. CONCLUSION OF LAW Multiple sclerosis was not incurred or aggravated in active service. 38 U.S.C.A. §§1110, 1131, 5103, 5107 (West 2002); 38 C.F.R. §§3.102, 3.303, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist As a preliminary matter, the Board finds that VA has satisfied its duties to the veteran under the Veterans Claims Assistance Act of 2000 (VCAA). In an October 2003 letter, and follow-up letters in December 2003, January 2004 and February 2004 the RO notified the veteran of the information and evidence needed to substantiate and complete her claim, and of what part of that evidence was to be provided by her and what part VA would attempt to obtain for her. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2003); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also contained language in effect advising the veteran to submit or identify any evidence that she believed would help the RO decide her claim. See Pelegrini v. Principi, 18 Vet. App. 413 (2004), cf. VA O.G.C. Prec. Op. No. 1-2004. Here, the Board acknowledges that the VCAA notice was provided to the veteran long after the initial adjudication of her claim in November 1996. The U.S. Court of Appeals for Veterans Claims (Court) has expressed the view that a claimant is entitled to VCAA notice prior to initial adjudication of the claim. Pelegrini, 18 Vet. App. at 420- 421. In this case, however, it is obvious that the RO could not have provided the VCAA notice prior to the initial adjudication because that adjudication took place four years prior to the enactment of the VCAA and the promulgation of its implementing regulations. The Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Complete compliance of VCAA notice to the appellant was given before the RO transferred the appeal to the Board for appellate consideration. The content of the notice fully complied with the requirements of 38 U. S.C. §5103(a) and 38 C.F.R. §3.159(b). The appellant has been provided with every opportunity to submit all evidence and argument in support of his claim, and to respond to the VCAA notice. The VCAA only requires that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Sutton v. Brown, 9Vet. App. 553 (1996). Here, because each of the four content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the appellant covering all content requirements is harmless error. As such, the Board concludes that any such error is harmless and does not prohibit consideration of this matter on the merits. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Regardless, the Board finds that the veteran was not prejudiced by the post-initial adjudication VCAA notification. Throughout the course of this longstanding appeal, the veteran has been repeatedly advised of the evidence of record and the applicable rating criteria. He has continued to submit or identify additional evidence in support of his appeal and that evidence was duly considered by the RO. Indeed, in the May and November 2004 Supplemental Statements of the Case, the RO indicated that it had again reviewed the veteran's claims folders in their entirety. Thus, the Board finds that the veteran received the same benefit of the RO's full consideration of the all the evidence of record, as she would have received had she received the VCAA notice prior to initial adjudication. Moreover, the Board notes that the effective date of any award based on additional evidence would have been fixed in accordance with the claim that was the subject of the initial adjudication. 38 C.F.R. § 3.156(b) (2003) (new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision, if a timely appeal has been filed, will be considered as having been filed with the claim, which was pending at the beginning of the appeal period); see also 38 C.F.R. § 3.400(q)(1) (2003) (providing that when new and material evidence is received within the appeal period, the effective date will be set as if the prior denial had not been made). For the reasons set forth above, the Board finds that VA has fully satisfied its notification duties to the veteran and that he has not been prejudiced by any post-initial adjudication notification. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that VA has also fulfilled its duty to assist the veteran in obtaining evidence needed to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2004). As noted above, consistent with this duty, the Board remanded the matter in May 2000 to obtain additional records as well as VA examination reports. The RO has complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). In addition prior to this Remand, the Board also sought a VHA medical opinion regarding the complex issues in the veteran's claim. It is also noted that the veteran's service department medical records are on file, as are relevant post-service clinical records. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(1) - (3) (2004). There is no indication of outstanding records, nor is there a need for another VA medical opinion, given the thoroughness of the examination reports recently obtained by the RO. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2004). For all the foregoing reasons, the Board concludes that VA's duties to assist the veteran have also been fulfilled. Service Connection Law and Regulation Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2004). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (specifically addressing claims based on ionizing radiation exposure). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b) (2004); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2004). Multiple sclerosis is presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within seven years of the date of separation from service. 38 U.S.C.A. § 1112(a)(1) (West 2002); 38 C.F.R. § 3.307(a)(3) (2004); see 38 U.S.C.A. § 1101(3) (West 2002); and 38 C.F.R. § 3.309(a) (2004). The Board notes that the minimum rating for multiple sclerosis pursuant to the rating schedule is 30 percent. See 38 C.F.R. § 4.124a Diagnostic Code (DC) 8018 (2004). Thus positive identification of manifestations of multiple sclerosis within seven years of the date of separation from service, in this case December 1971, would serve to establish service connection on a presumptive basis for multiple sclerosis. Factual Background Review of the veteran's service medical records does not show complaint, treatment, or diagnosis of multiple sclerosis. Review of the veteran's post service medical records reveal a multitude of notations of multiple sclerosis as a diagnosis during the treatment of neurological symptomatology, her seizure disorder, as well as more generally for unrelated acute and chronic medical conditions. Because the basis of the current decision is the lack of a current diagnosis of multiple sclerosis, the Board will not itemize the complete medical history of the veteran. The evidence, spanning several claims folders, shows initial treatment by Dr. LJ and Dr. IS for neurological problems beginning in September 1975. The veteran has undergone many years of treatment by private and VA physicians and neurologists. Based upon the most recent and thorough diagnostic testing and evaluation performed by VA in January 2001 and June 2003, as well as private medical opinions, these diagnoses appear to have been based upon history provided by the veteran, or were based upon symptomatology that was "consistent" with a diagnosis of multiple sclerosis but was never found to be supported by diagnostic testing. There are several private medical opinions that have been submitted to the Board in support of the veteran's claim. On October 5, 1994, Dr IS noted in his treatment record that he had not seen the veteran since August 1985. He noted that she had intermittent follow-up the VA in Tucson where it seemed a lot of testing had been done and multiple sclerosis was strongly suspected. He noted that the veteran had normal evoked potential testing which he had reviewed and a normal MRI in 1987. He noted that he could find no stigmata of multiple sclerosis. He noted the multiple diagnoses the veteran was then carrying, including epilepsy, thalamic syndrome, mitrovalve prolapse with supraventricular tachycardia, angina, lupus, osteoporosis, arthritis of the spine, multiple sclerosis, right sided hemiparesis and hypoglycemia. He noted that the veteran's neurological examination was somewhat bizarre. There did appear to be some degree of right sided hemiparesis which the veteran had when she was originally seen in 1975. She also had rather bizarre turning of the ankle which did not appear to be entirely spastic but she definitely had some spasticity in the right side of the body. She was barely able to walk and even with crutches it was extremely laborious. She appeared unable to keep her balance but her finger/nose and heel/shin testing was essentially normal. The examination of the cranial nerves showed no abnormalities. There was no other neurologic abnormality noted. Her deep tendon reflexes were active but not abnormal. He noted in conclusion that he would like to sort out all of the veteran's problems, but primarily the neurological problems first of all. He noted that he advised the veteran and her husband that certainly multiple sclerosis would be an attractive diagnosis that would explain a lot of her symptoms going back at least 20 years. He noted that the problem with the diagnosis was that there was simply not a sufficient amount of documented evidence that would convince him that this was indeed what she had. The letter that was sent to VA on October 7, 1994, by Dr. IS was worded more strongly in support of the veteran. He noted that he had been treating the veteran since September 1975 for multiple neurological problems. At that time, he noted she developed symptoms of neurological abnormalities associated with seizures. At that time, he noted that no specific diagnosis was established. He noted that she had evidence of brain stem dysfunction as well as seizure disorder that could be traced back for several weeks, while the seizures had begun around the age of 15 in the late 1960's. He noted that after the veteran moved to Nevada a VA doctor at the Tucson VAMC had diagnosed her neurologic problem as multiple sclerosis. He noted that there was no doubt that the condition had originated in 1975 or earlier. He opined that the symptoms of brain stem dysfunction that she showed in 1975 would be fully compatible with the diagnosis of multiple sclerosis. In July 1996, Dr. IS submitted another statement noting that the veteran had been intermittently under his care for 20 years. He noted she suffered from a progressive neurologic disease that had been diagnosed by several neurologists as representing multiple sclerosis, having started prior to 1975. He noted his agreement with that assessment. In June 1997, the veteran's treating physician, Dr. RS, submitted a statement that she was being treated for a neurological condition that appeared to be consistent with multiple sclerosis. He noted that Dr. EP had seen her in January 1997 and found that the veteran had a very long extensive history of multiple neurological diagnoses including seizure disorder and presumed multiple sclerosis. In April 2000, the veteran's claims folder was reviewed at the Board's request by a neurologist. He noted that from his review of the record, the veteran did indeed suffer from a neurological disorder, but it was unclear whether the disorder was multiple sclerosis and also unclear when the disorder began. He noted that it was disturbing that several of the examiners of the veteran had concluded that many of the veteran's apparent neurological difficulties were, in fact, not genuine. He reviewed the evidentiary record and noted that it was possible that the veteran had multiple sclerosis despite the lack of any positive evidence for the diagnosis in the medical record. He noted that the veteran should be re-evaluated and undergo a thorough neurological examination, a lumbar puncture with testing for IgG index and measurement of oligoclonal bands, MRI scanning of her head and spinal cord, and repeat multi-modality evoked potential testing. He noted that if all the tests were normal, and, in particular, if her examination remained elaborated, he would not accept the diagnosis of multiple sclerosis. As noted, the Board therefore remanded the veteran's claim for further testing. In January 2001, the veteran underwent a VA neurology examination specifically to answer the question of whether or not she had multiple sclerosis. The veteran reported that she had had the diagnosis for years. He reviewed the veteran's early treatment records, including a January 1976 treatment note where Dr. IS noted that the veteran had a right sided hemiparesis and left sided facial weakness. He was noted to have thought perhaps she had a brainstem dysfunction because of the crossed findings, but did not mention multiple sclerosis. MRI scans done after that time were reported as normal. In May 1985 there had been an area of low signal in the left thalamus, but on repeat testing of the brain MRI in 1987, this was not seen and hence thought to be an artifact. The examiner noted that there had never been reports of any high signal intensity changes in the white matter that would be compatible with multiple sclerosis. The examiner reviewed her current symptomatology and performed a physical evaluation. The veteran had another MRI scan in January 2001 which showed mild volume loss, but was otherwise normal. A lumbar puncture was also completed in January 2001, which was described as normal. The examiner noted that in his opinion the veteran had a seizure disorder that dated back to childhood and could be posttraumatic or idiopathic. This was well-controlled on medication and was not significantly impacting her life. He noted that while the demyelinating profile had not yet returned from the lumbar puncture, he did not believe the veteran had multiple sclerosis. He noted that a thirty year history of multiple sclerosis was not consistent with a totally normal brain and a cervical and thoracic spine that did not show any signs of white matter changes that would be associated with the disease. He noted that while it was possible to have multiple sclerosis without MRI findings, after thirty years of symptoms waxing and waning he would expect to find some evidence of abnormalities on an MRI. The protein in her cerebrospinal fluid was also normal which also argued against multiple sclerosis. Her reported symptomatology was also not terribly consistent with multiple sclerosis, as the majority of her symptoms came and went of the span of minutes. He noted that neurological examination was not pointing to any upper motor neuron lesions at all. She had various findings on examination, but he opined that they were embellishment. At most, there was a mild right sided weakness, but that was difficult to test because of the veteran's lack of effort. He noted that there was give-way weakness and this could hide a bit of weakness. He noted that she did not have significant hyper-reflexia or up going toes. She did not have an afferent pupillary defect nor did she have any cerebellar findings. Her speech was clear and there was no sign of abnormal eye movements. He noted that all of these white matter tracts would be expected to have been involved at one time or another and to have lesser residual signs. He concluded that at the time of the examination he found absolutely nothing to substantiate the idea that she had multiple sclerosis. The examiner noted in an addendum that the cerebrospinal fluid results were reviewed and were normal, with the exception of four oligoclonal bands. He noted that this was a non-specific finding and was not diagnostic of any particular neurological disorder. He again concluded that based on her clinical history and neurological examination the veteran did not have multiple sclerosis. In a September 2002 consultation note, Dr. LJ, after a recent hospitalization following a fall, noted that he did not have a clear identity of the cause of her problems. He noted multiple diagnoses of multiple sclerosis, but noted that at other times examiners had felt that she did not have multiple sclerosis. He noted that at this point in time, some of her presentation of related symptoms and signs would suggest perhaps the possibility of some conversion hysteria, but one also had to determine whether there was some exacerbation of multiple sclerosis or whether in fact she did have multiple sclerosis. He noted the determinations were beyond his capability and he was going to arrange a consultation with her neurologist. This consultation, with Dr. JP, a private neurologist, included a complete history and examination. She concluded that the diagnosis of multiple sclerosis had not been adequately substantiated within the available records. Dr. JP noted that Dr. IS had treated the veteran with steroids in 1994 with some success under the belief that she had multiple sclerosis. She noted however that based on the veteran's report of symptoms occurring intermittently over minutes and described as episodes of increased tone in her right arm and leg that produced falling with improvement over minutes to hours, this would not be consistent with the diagnosis of multiple sclerosis. The veteran underwent another complete examination at VA in June 2003 to determine whether she has multiple sclerosis. This resulted in a report dated in September 2003. The examiner noted that objective testing was administered in an attempt evaluate the presence of multiple sclerosis. An MRI was avoided at the veteran's request due to a previous experience of cardiac arrhythmia. The Board notes the records of that previous MRI at a private medical facility are of record in the veteran's claims folder. During the veteran's two day hospital admission, she received a spinal tap that found no oligoclonal bands, an IgG synthesis rate of 0.6 (low value), and an IgG index of 0.59 (low value). She underwent multi-motile evoked potentials that showed no abnormalities on visual evoked response, median nerve somatosensory evoked response, and brain stem auditory evoked response. Since all of these laboratory findings were entirely within normal limits, the neurology examiner concluded that there was no objective evidence for multiple sclerosis. In a January 2004 treatment note, Dr. XYY, the veteran's private neurologist, reviewed her treatment and history including Dr. JP and Dr. EP's opinions. After performing her own neurological examination, she concluded that the veteran's neurological deficits were not consistent with multiple sclerosis. In a follow up May 2004 treatment note, Dr. XYY again reviewed the veteran's treatment history. She noted that the veteran had multiple somatic complaints with spells of transient neurological symptoms resulting in extensive workup by multiple neurologists in the past without consistent diagnosis of multiple sclerosis. She noted Dr. IS' opinion that there simply was not a sufficient amount of documented evidence that would convince him that is what the veteran has. Dr. XYY also concluded that she did not see enough evidence for a diagnosis of multiple sclerosis. Analysis Review of the evidence of record reveals that the veteran had a seizure disorder which pre-existed service, and for which service connection has been denied. The issue of entitlement to service connection for this seizure disorder is not before the Board. The evidence clearly shows that subsequent to service, the veteran began experiencing a range of neurological difficulties that have been variably diagnosed. The Board finds that a preponderance of the evidence shows the veteran does not now, and did not within seven years of service, have multiple sclerosis. Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, service connection is not warranted in the absence of proof of a present diagnosis of multiple sclerosis. The Board bases this finding upon the extensive testing performed in 2001 and 2003 that was interpreted by the examiners as not supportive of a diagnosis of multiple sclerosis. This was also supported by the private evaluations of Dr.s XYY and JP. The Board's review of the record fails to show any diagnosis, private or VA, which is clearly supported by either testing or examination. The strongly supportive statements submitted by the veteran's treating physician, Dr. IS, are clearly not supported by his own treatment notes. Finally, the Board observes that the veteran herself asserts that her current neurological disorder is multiple sclerosis and dates to within seven years of service. Additionally, the veteran has submitted several lay statements from family members and friends attesting to the debilitating nature of her neurological symptomatology and seizure disorder. As lay people, they are all competent to relate and describe visible signs and symptoms. However, to the extent that these neurological symptoms may have multiple causes, a determination as to the etiology in this case requires medical knowledge. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, these lay opinions are not competent evidence required to establish service connection. See 38 C.F.R. § 3.159(a)(1) (2004) In sum, the preponderance of the evidence is against the claim for service connection for multiple sclerosis. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER The claim of service connection for multiple sclerosis is denied. ____________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs