Citation Nr: 0808726 Decision Date: 03/14/08 Archive Date: 03/20/08 DOCKET NO. 99-15 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Associate Counsel INTRODUCTION The veteran had active service from November 1969 to June 1971. This matter comes back before the Board of Veterans' Appeals (Board) on Remand from the United States Court of Appeals for Veterans Claims regarding a Board decision rendered in June 2005. This matter was originally on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO). In December 2004, the veteran testified at a central office hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of that hearing is of record. In cases such as these when an Veterans Law Judge who held a hearing is no longer employed by the Board, the veteran is notified and asked if he wishes to have another hearing. However, because the claim is granted in full, no prejudice to the veteran results from the Board's consideration of his claim. FINDING OF FACT Resolving doubt in the veteran's favor, multiple sclerosis was manifested within seven years after separation from service. CONCLUSION OF LAW Multiple sclerosis is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 1116 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The Board observes that in light of the favorable outcome of this appeal, any perceived lack of notice or development under the VCAA should not be considered prejudicial. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As for statutory presumptions, service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1131 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Multiple sclerosis can be service-connected on such a basis is manifested to a compensable degree within seven years of discharge from service. Under the rating schedule, multiple sclerosis may be rated from 30 percent to 100 percent, based on impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. The regulations provide the following additional guidance: Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. Id. Private treatment records dated in March 1978 noted the veteran's complaints of numbness in the right side of his face and intermittent vertigo. A possible sinus infection or infected tooth was indicated, though an X-ray was negative. In September 1978, the veteran complained that his "arms go to sleep." Private medical records from August 1993 indicate that the veteran was admitted to the hospital with two week history of fluctuating right hemi paresis, marked incoordination and clumsiness of his right hand and some spacticity in the upper extremities, somewhat reminiscent of a spell he had somewhere around 7 years prior. The veteran was admitted to the hospital for suspected exacerbation of multiple sclerosis with prior history suggestive of illness of at least 6 to 7 years duration. On a July 1997 VA examination in connection with a compensation claim for a low back disability, the examining physician noted that the veteran had multiple sclerosis and that the problems associated with the disorder were causing spasticity and some contracture to the right lower extremities with balance problems. The examiner asserted that the veteran's multiple sclerosis would probably be a prominent disabling factor. He did not comment as to the etiology of the veteran's multiple sclerosis but noted that the veteran reported that in 1977 the veteran had an episode where he began staggering with walking and had balance problems. In March 1998, the veteran submitted a statement from his former wife noting that his eyes got blurry in 1974, and that he lost equilibrium and balance in 1977. In October 1999, T.M.H. stated that he had been following the veteran since 1993 with regards to his diagnosis of multiple sclerosis. He indicated that the veteran had alleged that he had signs and symptoms consistent with a diagnosis of multiple sclerosis back in 1976. Dr. T.M.H. asserted that if the veteran indeed had unexplained neurologic complaints including double vision and weakness of the legs as he described, he would be confident in stating that his onset of multiple sclerosis was in 1976. In December 1999, Dr. L.T. stated that the veteran first reported to his office on March 15, 1978 with complaint of mid-dorsal pain, which extended up into the cervical area and some degree of dizziness was also mentioned. Dr. L.T. noted that over the next 20+ years, the veteran was seen off and on for various musculoskeletal conditions and that he always got good results from chiropractic care. Dr. L.T. noted that the veteran's dizziness and periodic loss of balance kept reappearing throughout the course of twenty+ years. On evaluation for treatment purposes at a VA neurological clinic in January 2000, the examining physician noted the veteran's history of multiple sclerosis symptoms in 1976 and 1978, indicating that he had no symptoms of multiple sclerosis between 1978 and 1993 when he was diagnosed with the disorder. The examiner opined that the veteran's history was suggestive of formerly relapsing-remitting disease with secondarily progressive multiple sclerosis for the past 4 to 6 years. In October 2002, the RO requested a medical review of the veteran's claims folder for compensation purposes related to his multiple sclerosis claim. The RO asked for an opinion as to whether symptoms of the disease were present within seven years after the veteran's active military service. In response, in a December 2002 opinion, the reviewing VA physician, Dr. M.A.M., stated that although the veteran had given a history of some transient neurological symptoms in 1976, there was no supporting documentation from any medical facility. As such, Dr. M.A.M. concluded that she was left with only the records firmly establishing the diagnosis of MS in 1993, and had no evidence to support a claim of symptoms prior to 1993. In a March 2003 letter, Dr. T.M.H. stated that he had had the chance to review some medical records that predated his first encounter with the veteran in 1993. Dr. T.M.H. noted that when the veteran presented in 1993, it was clear that he had already developed established multiple sclerosis but that it had not been diagnosed. Dr. T.M.H. noted Dr. L.T.'s 1999 letter, medical records from Dr. B., and the written statement of the veteran's former wife. Dr. T.M.H. stated that it was his understanding that there were no medical records documenting any type of neurologic complaints from 1969 to 1971 and that the veteran did not seek immediate medial attention for his dragging his leg intermittently in the first couple of years following that. Dr. T.M.H. noted, however, that the statement of the veteran's former wife supports his contingent that he did come out of the military with some intermittent problems with dragging his leg which in all likelihood was the beginnings of his multiple sclerosis. Dr. T.M.H. noted that in the 1975 to 1978 range, the veteran began having some visual disturbance which would also be consistent with multiple sclerosis that simply went undiagnosed at that time. In a November 2003 statement, M.A.W., D.C., stated that he had reviewed the veteran's medical records and noted the complaints of numbness of the face in March 1978. It was further noted that a frequent presenting symptom of multiple sclerosis was paresthesia involving one side of the face that may occur years before the disease was recognized. He indicated that early diagnosis of multiple sclerosis was difficult and remissions of the disease had been known to last longer than 25 years. Dr. W. stated that in his opinion the numbness involving the right side of the veteran's face complained about in March 1978 "may have been an early indication/symptom of multiple sclerosis." In December 2003, the RO requested another VA medical opinion in connection with the veteran's claim for service connection for multiple sclerosis based a review of the claims file. The physician was requested to provide an opinion as to whether there was objective evidence of multiple sclerosis within seven years of the veteran's separation from service in June 1971, and to address the report of Dr. M.A.W. in November 2003 concerning reported numbness of the right side of the veteran's face in March 1978. Attention was also directed to the December 2002 VA medical opinion. The requested opinion was provided a few days later in December 2003. The physician, Dr. J.V.J. reported that the veteran's claims file had been examined and specific note was made of the March 1978 medical report indicating that the veteran had numbness and vertigo. Following his review, the examiner stated that multiple sclerosis could present with virtually any neurologic complaint. He further stated that in medical literature, it was noted that of all people diagnosed with multiple sclerosis, 40 percent will have paresthesia at the initial presentation and that within 5 to 10 years of the initial symptoms, 80 percent would have complaints of paresthesias. Based on the evidence of record, the examiner opined that there was no objective evidence in the veteran's records for a diagnosis of multiple sclerosis within 7 years of discharge from service. He noted that there was no additional neurological progression that occurred over the next 5 to 10 years after the veteran's March 1978 complaints. The examiner stated that while he would not disagree with an opinion that the numbness involving the right side of the veteran's face "may" have been an early indication or symptom of multiple sclerosis, it did not meet the objective evidence criteria nor the probability that it was 50 percent or more likely that it was the initial symptom. While this isolated symptom may have been an indication and symptom of multiple sclerosis, the lack of progression over the next 5 to 10 years pointed to the conclusion that it was not at least as likely as not that this episode of paresthesia over the right maxillary sinus area was related to the subsequent diagnosis of multiple sclerosis made 15 years later. In a June 2004 report, Dr. M.C., opined, following a review of the veteran's March 1978 medical records, that unexplained nerve paresthesias that resolved spontaneously were certainly consistent with first episodes of multiple sclerosis, and the episode recorded in March 1978 was certainly consistent with first presenting symptoms of multiple sclerosis. In December 2007, the Board requested a medical expert opinion as to the likelihood that the symptoms the veteran displayed in the late 1970s were symptoms of multiple sclerosis. In February 2008, the Board received the medical expert's opinion. Dr. N.A.R. stated, [The veteran] complained of subjective feeling of numbness of face with intermittent vertigo in 3/78. Since, weakness or numbness, sometimes both, in one or more limbs in the initial symptom in half the patients with Multiple sclerosis; an early attack cannot be totally excluded. However, Multiple Sclerosis attacks last for several days to weeks and sometimes, the deficits are permanent. Such history is not present. Review of the charts does not reveal any objective findings supportive of Multiple Sclerosis documented at that time. It is to be noted that similar symptoms certainly occur with numerous diseases other than Multiple sclerosis including sinus infections. Pt also had a feeling of arms going [to] sleep in 9/78 and again no further details are documented. Since, the pt subsequently developed Multiple sclerosis and sensory manifestations are a frequent initial feature of the disease, this symptom as well could be to Multiple Sclerosis. Again, the symptoms of numbness of arms can due to multiple other causes. The symptoms of right arm numbness and left leg numbness and dragging of right leg in '89 however, appear to be more consistent with Multiple Sclerosis. It is to be noted that the diagnosis of Multiple Sclerosis requires objective evidence of lesions disseminated in time and space. In summary, [the veteran] had symptoms clinically suspicious for Multiple Sclerosis in '89 and definitely in '93. The symptoms right facial numbness or numbness of arms in '78, are as likely as not, indicators for multiple sclerosis. In deciding whether the veteran's multiple sclerosis was manifested to a compensable degree within seven years of his discharge from service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id. However, a more detailed discussion of the specific opinions, credentials of the diagnosticians, and circumstances of opinions in this case would not clarify the matter. It would merely highlight that there is not a clear, rational basis for the Board to prefer one opinion to another. Accordingly, the Board finds that the competent medical evidence of record, both for and against a finding that the veteran's multiple sclerosis manifested to a compensable degree within seven years of his discharge from service, is in a state of equipoise. Accordingly, all doubt is resolved in favor of the veteran and the Board concludes that service connection for multiple sclerosis is warranted. ORDER Entitlement to service connection for multiple sclerosis is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs