Citation Nr: 0712218	
Decision Date: 04/26/07    Archive Date: 05/08/07

DOCKET NO.  05-20 880	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, 
Minnesota


THE ISSUE

Entitlement to an effective date earlier than November 6, 
1995, for the grant of service connection for multiple 
sclerosis.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.


ATTORNEY FOR THE BOARD

David S. Ames, Associate Counsel


INTRODUCTION

The veteran served on active duty from February 1991 to 
August 1991.

This matter comes properly before the Board of Veterans' 
Appeals (Board) on appeal from a rating decision by the 
Department of Veterans Affairs (VA) Regional Office in St. 
Paul, Minnesota (RO).


FINDING OF FACT

Evidence of multiple sclerosis was of record prior to October 
31, 1994.


CONCLUSION OF LAW

The criteria for an effective date of October 31, 1994 for a 
grant of service connection for MS have been met.  38 
U.S.C.A. §§ 5103A, 5107, 5110 (West 2002); 38 C.F.R. § 3.400 
(2006).


REASONS AND BASES FOR FINDING AND CONCLUSION

In November 2000, the Veterans Claims Assistance Act of 2000 
(VCAA) was signed into law.  See 38 U.S.C.A. §§ 5100, 5102, 
5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005).  VA 
has issued regulations implementing the VCAA.  38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326 (2006).  Without deciding 
whether the notice and development requirements of the VCAA 
have been satisfied in the present case, this law does not 
preclude the Board from adjudicating the issue involving the 
veteran's claim of entitlement to an effective date earlier 
than November 6, 1995, for the grant of service connection 
for multiple sclerosis as the Board is taking action 
favorable to the veteran by granting an earlier effective 
date for this disorder.  As such, this decision poses no risk 
of prejudice to the veteran.  See, e.g., Bernard v. Brown, 4 
Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. 
App. 412 (2004).

The effective date of an evaluation and award of compensation 
based on an original claim is the date of receipt of the 
claim or the date entitlement arose, whichever is later.  38 
U.S.C.A. § 5110; 38 C.F.R. § 3.400.

The veteran filed an informal claim for entitlement to 
service connection for multiple sclerosis on October 31, 
1994.  No action was taken on this claim until a formal claim 
for entitlement to service connection for multiple sclerosis 
was received in October 2002.  Service connection for 
multiple sclerosis was granted by a March 2004 rating 
decision and an effective date of February 4, 2004 was 
assigned.  Subsequently, a June 2005 rating decision granted 
an earlier effective date of November 6, 1995 for service 
connection for multiple sclerosis.  This decision was based 
on the date of a diagnosis of multiple sclerosis.

The proper effective date here therefore, is the later of the 
date of the informal claim, October 31, 1994, and the date 
that entitlement arose.  In order to establish service 
connection for a disorder, there must be (1) medical evidence 
of a current disability; (2) medical, or in certain 
circumstances, lay evidence of in-service incurrence or 
aggravation of a disease or injury; and (3) medical evidence 
of a nexus between the claimed in-service disease or injury 
and the current disability.  See Hickson v. West, 12 Vet. 
App. 247, 253 (1999).  The determination as to whether these 
requirements are met is based on an analysis of all the 
evidence of record and the evaluation of its credibility and 
probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 
(1999).

The veteran claims that he had multiple sclerosis prior to 
October 31, 1994 and that the effective date should 
accordingly be the date of filing of the informal claim.

A February 4, 1993 letter from a private medical examiner 
stated that the veteran's "presentation is very consistent 
with demyelinating disease, etiology uncertain.  There are 
other demyelinating diseases that can cause his 
symptomatology, one of which would be garden variety 
demyelinating disease, subclassification, [MS]."


A March 22, 1993 letter from a private medical examiner 
stated, "[w]e are going to go forward with an evaluation to 
determine if he does have demyelinating disease/MS or whether 
this represents some other form of neurodegenerative 
disorder."

An April 8, 1993 letter from a private medical examiner 
stated "[a]t this point [the veteran] fits the category of a 
neurodegenerative disorder.  The possibility that he does 
have [MS] remains.  I would not treat him aggressively for 
[MS] based on what I have at this point."

A December 2, 1993 letter from a private medical examiner 
stated,

I explained [to the veteran and his wife] 
that this was a very difficult situation 
but that it was my impression, based on 
the laboratory studies as well as his 
clinical history, that he has possible 
[MS]. . . . [i]n conclusion . . . [the 
veteran] has a normal [cerebrospinal 
fluid] which, by the way, can be seen in 
about 10 percent of people who have 
unequivocal [MS].

In a May 3, 1994 Social Security Administration disability 
report, the veteran stated his condition was 
"[d]emyelinating diseases which [have] been diagnosed as 
[MS] - adult onset. . . . My diagnosis is now multiple 
sclerosis with regular progression changes. . . . I am 
currently being treated by [a private physician] and will 
continue to see [the private physician] for what has now been 
diagnosed as [MS] - adult onset."

A November 1995 Social Security Administration disability 
decision included a list of evidence used to decide the case.  
This evidence list included a July 5, 1995 examination by a 
neurologist "who concluded that [the veteran] was suffering 
from [MS]."  The list also included an August 28, 1995 
examination by a different neurologist who "noted that [the 
veteran] was suffering from MS."  Neither of these medical 
reports is currently associated with the record.

A November 6, 1995 private medical report included a 
"Clinically Definite" diagnosis of multiple sclerosis.  A 
November 2004 VA medical report gave an impression of "MS 
diagnosed 1994."

The evidence of record shows that the veteran has repeatedly 
claimed that multiple sclerosis was diagnosed at the 
Minneapolis VA Medical Center "around 1994."  The RO 
repeatedly requested that all of the veteran's medical 
records from this facility be provided to VA.  However, the 
evidence shows that the records from this time period were 
not at the Minneapolis VA Medical Center and could have been 
archived in any of three other VA facilities.  Of these three 
facilities, one reported that they had no records, one 
reported that their records were missing, and one found the 
veteran's records, but "the folder was empty."

The medical evidence of record shows that the veteran began 
treatment for a demyelinating disease in 1993.  The symptoms 
and disease process that the veteran sought treatment for in 
1993, through testing and clinical examinations, have 
subsequently been shown to be multiple sclerosis.  
Accordingly, the veteran had multiple sclerosis in 1993.  The 
veteran filed a claim for entitlement to service connection 
for multiple sclerosis on October 31, 1994.  Therefore, the 
effective date of service connection for multiple sclerosis 
is the date of receipt of the claim, October 31, 1994.  38 
U.S.C.A. § 5110; 38 C.F.R. § 3.400.


ORDER

An effective date of October 31, 1994 for multiple sclerosis 
is granted.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs