Citation Nr: 0706115 Decision Date: 03/02/07 Archive Date: 03/13/07 DOCKET NO. 05-12 148 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for multiple sclerosis with claimed loss of use of both feet. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD G. Jackson, Associate Counsel INTRODUCTION The veteran served on active duty from August 1992 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision issued by the RO. FINDINGS OF FACT 1. The veteran is shown to have manifested symptoms of multiple sclerosis, including poor coordination and balance during service. 2. The veteran is not shown to have obviously or manifestly suffered from multiple sclerosis prior to his period of active service. 3. The currently demonstrated multiple sclerosis is shown as likely as not to have been first clinically manifested during his period of active service. CONCLUSIONS OF LAW 1. The legal presumption of soundness at enlistment is not rebutted by clear and unmistakable evidence showing that multiple sclerosis existed prior to the veteran's entering active military service. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2006). 2. The veteran's disability manifested by multiple sclerosis with loss of use of both feet is due disease that was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1132, 5107, 7104 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107) became law. Regulations implementing the VCAA provisions have since been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board has considered this new legislation with regard to the matter on appeal. Given the favorable action taken hereinbelow, no further assistance in developing the facts pertinent to this limited matter is required at this time. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the case of a preexisting injury or disease, service connection may be granted where there is an increase in disability during service not due to the natural progression of the disease. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.306. A careful review of the service medical records reveals that the veteran was seen with complaints of poor coordination and balance on numerous occasions during his period of active service. On the enlistment examination dated in October 1991, the examiner noted asymptomatic moderate pes planus and poor coordination and balance. The veteran was seen with complaints of difficulty standing and walking straight on several occasions in September 1992. On the first such occasion, the medical examiner instructed the veteran to practice his balance when able. If the condition persisted, the veteran was instructed to return for a new medical work up. On a separate occasion the veteran returned with the same complaints of "shakiness" and difficulty with coordination. The veteran was directed to the Recruit Evaluation Unit (REU) to evaluate his fitness for duty. The veteran was examined and diagnosed with severe adjustment disorder. The REU "strongly recommended" that the veteran be separated from service. Subsequent to service, the veteran was seen by a private physician for a complaint of difficulty with his legs in December 1992. The veteran reported beginning to have problems with "shaky legs" after he entered service. After he was discharged from service the problem continued. On examination, the veteran displayed evidence of bilateral optic atrophy and spasticity in the lower extremities. He was able to stand on his heels and toes. Sensory examination revealed slight decrease in vibratory sense in the lower extremities. Reflexes were markedly increased. There was unsustained clonus in both lower extremities. Plantar responses were absent bilaterally. His gait showed a mild spasticity with decreased balance. The doctor cautioned the veteran that there were signs that the problems would prove to be multiple sclerosis. A MRI examination dated February 1993 revealed multiple, varying sized, abnormal foci of increased signal within periventricular white matter. Lesions were also noted at the colossal septal interface. The MRI results confirmed a diagnosis of multiple sclerosis. In September 2000, the veteran was seen by an examiner at the South Carolina Neurological Clinic for long standing progressive multiple sclerosis. The veteran reported his gait had gotten progressively worse. He denied problems with his upper extremities, but did have bladder and bowel dysfunction. He was diagnosed with severe paraparesis secondary to probable multiple sclerosis. In a June 2001 follow-up medical record the veteran reported his left extremities were weaker than his right extremities. Further he used a tripod cane to walk. The examiner diagnosed the veteran with severe neurological deficit caused by multiple sclerosis. In a September 2001 medical record the veteran reported some sensory loss and mild weakness in his left hand. He used a wheel chair to navigate around long distances. For shorter distances he was still able to walk using a tripod cane. A December 2001 medical record noted the veteran had not shown much progression from his multiple sclerosis. He could stand with the aid of a cane and walk slightly and unsteadily. He still had clonus and hyperactive reflexes. He still experienced more weakness in the left extremities. In a March 2003 private medical record, the examiner diagnosed the veteran with severe multiple sclerosis. During an April 2004 VA examination, the veteran reported developing weakness in his legs in 1992. The veteran was taking Avonex to treat the multiple sclerosis, but had recently discontinued using the medication. He had been confined to a wheel chair since 2002. The veteran was diagnosed with transverse myelitis due to multiple sclerosis. In a December 2004 addendum opinion to the VA examination, the examiner who performed the April 2004 examination reviewed the claims file. He noted that the veteran complained of having had multiple times of poor balance and "dyscoordination" of the legs while in service. He opined that the symptoms "[were] most likely evidence of multiple sclerosis that was starting at that time." In a separate December 2004 addendum opinion, another VA examiner reviewed the claims file. The examiner opined that "it [was] at least as likely as not that [the veteran] had multiple sclerosis prior to entry into military service, though it was not diagnosed at that time." The doctor further opined that "it [was] less likely than not that military service aggravated his condition." The examiner stated that "while he was not yet diagnosed with multiple sclerosis at the time of entry into the military, [the veteran] was displaying the symptoms that eventually led to that diagnosis." In August 2006, the Board requested a VA medical expert opinion to determine (1) if the veteran's multiple sclerosis clearly and unmistakably existed prior to service; (2) if so, was the multiple sclerosis clearly and unmistakably aggravated by service; and (3) if so, did the multiple sclerosis undergo an increase in severity beyond natural progress during service. The VA medical expert responded that the veteran's multiple sclerosis did not clearly and unmistakably exist prior to service. Although the expert opined that it was highly likely, the expert further stated that it was clear that there was a notable change in the veteran's condition in September 1992 and that was the first time that the veteran recognized any symptoms of his disease. The medical expert noted that there was controversy as to whether multiple sclerosis could be caused or aggravated by either physical trauma or stress. The examiner stated that the America Academy of Neurology (AAN) concluded in a position paper that trauma, especially head trauma had only a small effect on multiple sclerosis onset or exacerbation. The AAN also concluded that it was possible that stress could affect multiple sclerosis onset or exacerbation. However, there was not sufficient data to establish any such relationship with reasonable medical certainty. Finally, the medical expert stated that the veteran's multiple sclerosis was not clearly and unmistakably shown to have permanently increased in severity beyond it natural progress during his period of service. The expert stated that, because it was unlikely that service caused or exacerbated the veteran's multiple sclerosis, it therefore could not have clearly and unmistakably been altered by service. However, the expert opined that if trauma or stress were associated with the veteran's multiple sclerosis, then one must conclude that the multiple sclerosis was not clearly and unmistakably unaffected by the veteran's period of service. In Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), the U.S. Court of Appeals for the Federal Circuit held that to rebut the presumption of soundness in the case of a wartime veteran, the evidence must clearly and unmistakably show not only that the disorder at issue pre-existed entry into service, but that the disorder did not undergo aggravation in or as a result of service. As described, in the October 1991 Enlistment examination, the examiner noted symptoms that could be associated with multiple sclerosis. However, the Enlistment examination was negative for any reference to or diagnosis of multiple sclerosis. In addition, in responding to the August 2006 Board request, a VA medical expert found that the veteran's multiple sclerosis did not clearly and unmistakably exist prior to service. As such, the Board finds no obvious or manifest basis for concluding that multiple sclerosis existed before service. The evidence of record does not clearly and unmistakably establish that multiple sclerosis was not aggravated by service. Accordingly, the presumption of soundness in this case has not been rebutted, and the Board finds that the evidentiary record shows that multiple sclerosis was first clinically demonstrated during the veteran's period of active service. As such, the evidence shows that the currently demonstrated multiple sclerosis had its clinical onset during the veteran's period of active service. Accordingly, service connection for multiple sclerosis is warranted. See 38 C.F.R. § 3.303(d). ORDER Service connection for multiple sclerosis with claimed loss of use of both feet is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs