Citation Nr: 0812853 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 04-16 846A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from May 1966 to May 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). In November 2007, a Travel Board hearing was held before the undersigned. A transcript of this hearing is of record. FINDINGS OF FACT 1. An unappealed July 1977 rating decision denied service connection for multiple sclerosis essentially based on findings that there was no confirmed diagnosis of multiple sclerosis within the postservice presumptive period for such disease. 2. Evidence received since the July 1977 rating decision, including a letter from a private neurologist stating that the veteran likely had multiple sclerosis dating back to 1970, relates to previously unestablished elements necessary to substantiate the claim seeking service connection for multiple sclerosis, and raises a reasonable possibility of substantiating the claim. 3. The record contains competent medical evidence indicating that the veteran's multiple sclerosis was incurred within seven years following his discharge from service. CONCLUSIONS OF LAW 1. Evidence received since the July 1977 rating decision is new and material, and the claim of service connection for multiple sclerosis may be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 2. Service connection for multiple sclerosis is warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Inasmuch as the determination below constitutes a full grant of the appellant's claim, there is no reason to belabor the impact of the VCAA on this matter, since any error in notice timing or content is harmless. Accordingly, the Board will address the merits of the claim. B. Factual Background A July 1977 rating decision denied service connection for multiple sclerosis, finding that no evidence had been presented of a diagnosis of such disease in service or within seven years of discharge. The appellant did not appeal this decision, and it became final. The evidence of record in July 1977 included statements from the veteran that he had injured his back in service, with supporting statements received in January 1974 from his wife and mother-in-law. Service medical records (SMRs) reflect that in his March 1968 report of medical history he complained of recurrent back pain. No complaints, findings, treatment, or diagnoses were attributed to multiple sclerosis during service. Postservice treatment medical evidence included a June 1976 letter from Dr. L.N.G. stating that upon neurological evaluation of the veteran, it was possible he had demyelinating disease as well as compressive disease. On his recommendation, the veteran was admitted to the hospital for further evaluation and was discharged with the diagnosis of "multiple sclerosis, suspect improved." In a September 1976 medical statement, Dr. L.N.G. said that multiple sclerosis was suspect. An undated medical statement from Dr. M.P.B. received in September 1976 showed that the veteran had complained of back pain, and tingling and numbness along the left side of his lower abdomen; multiple sclerosis was diagnosed. Evidence received subsequent to the July 1977 rating decision includes: * October 1995 to August 2001 private treatment records from Dr. L.E.J. show that in July 2000 the veteran complained of numbness in his legs that had continued to travel upwards. During that office visit, it was recalled that in 1976, the veteran underwent a series of tests, and multiple sclerosis was diagnosed initially and then later changed to a pinched nerve in the neck. He was referred for additional evaluation, including a July 2000 MRI of the cervical spine which showed some abnormality, it was noted that, "Differential diagnostic considerations would include multiple sclerosis, transverse myelitis. Spinal cord tumor is considered much less likely." From August 2000 to August 2001, the veteran received follow-up care for transverse myelitis. * A July 2000 discharge summary from Halifax Medical Center shows that transverse myelitis was diagnosed. * July 2000 to April 2001 private treatment records from Dr. J.W.W. show that he was consulted for urological evaluation when the veteran was hospitalized in July 2000 for possible transverse myelitis. * July 2000 to September 2001 private treatment records from Dr. J.A.S. show that he was consulted for follow-up treatment regarding the veteran's transverse myelitis diagnosed in July 2000. In September 2000, an MRI of the cervical spine showed some improvement. The possibility of multiple sclerosis was also discussed, with the doctor noting that "there was no way to say for sure that this was or was not [multiple sclerosis]." In July 2001, it was noted that there were no signs of multiple sclerosis at that time. * A November 2003 neurological report from Dr. E.A.S. who performed both a physical examination of the veteran and reviewed about 100 pages of outside medical records, stated that the veteran likely had multiple sclerosis dating back to 1970 when he first presented with paresthesias and experienced episodes of unexplained fatigue and myelitis. The doctor acknowledged that the diagnosis was more difficult to make given the veteran's normal brain scan, but observed that males will frequently have this opticospinal pattern. At the veteran's November 2007 Travel Board hearing, he testified that in September 1976 he and a few other servicemen were assigned to lift and transport a "four- deuce" mortar. In doing so, he hurt his back severely and reported it to a doctor; however, the doctor did not document his complaints. He also testified that while stationed at Fort Knox, he was assigned to pick up rocks and hurt his back. He reported his back pain complaints to a medic, who rubbed him down with alcohol and gave him pain medication. He did not believe this incident was ever documented either. C. Legal Criteria As noted above, the appellant's claim of entitlement to service connection for multiple sclerosis was denied in July 1977. He was properly notified of the decision and of his appellate rights, and he did not appeal. Accordingly, the July 1977 decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. 38 C.F.R. § 3.156(a), which defines "new and material evidence" was revised, effective for all claims to reopen filed on or after August 29, 2001. The instant claim to reopen was filed after that date (in August 2002) and the new definition applies. "New" evidence means existing evidence not previously submitted to agency decisionmakers "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable probability of substantiating the claim. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection also may be granted for any disease initially 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). In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Where a veteran had active service continuously for 90 days or more during a period of war or during peacetime services after December 31, 1946, and multiple sclerosis becomes manifest to a degree of 10 percent or more within seven years from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). D. Analysis Reopening of the Claim The evidence received since the July 1977 includes a November 2003 neurological report from Dr. E.A.S., which is new as it contains information that was not considered in July 1977. The evidence is material because it relates symptoms experienced by the veteran during the seven years following service to his current diagnosis of multiple sclerosis, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim seeking service connection for multiple sclerosis may (and must) be reopened. De Novo Review - Service Connection for Multiple Sclerosis The veteran currently has multiple sclerosis, as diagnosed by a private neurologist, Dr. E.A.S., in November 2003. Although his SMRs are silent for any complaints, findings, treatment, or diagnoses relating to multiple sclerosis, multiple sclerosis is a chronic disease. Therefore, the presence of that disease to a compensable degree within seven years after service is sufficient to establish service connection. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). There is conflicting evidence as to when exactly multiple sclerosis was manifested. Although it was not clinically diagnosed until November 2003, the veteran reported symptomatology as early as during service when he complained of back pain that continued after service; his family members have supported this history. Based on her thorough review of the veteran's medical records, Dr. E.A.S. concluded that the veteran likely had multiple sclerosis dating back to 1970 when he was first started noticed tingling in his hands and paresthesias was eventually diagnosed in 1976. The neurologist's opinion is weakened by the fact that during the presumptive period, multiple sclerosis was suspected but never diagnosed, and symptoms were attributed to other causes. However, for an appellant to prevail in his claim, it must only be demonstrated that there is an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for benefits to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board finds the November 2003 private opinion to be probative and persuasive. It is based on a thorough review of the medical records, given by a qualified specialist, and there are no opinions to the contrary. Furthermore, as Dr. E.A.S. noted, the evidence of symptoms during the presumptive period are compatible with the symptoms leading towards her diagnosis of multiple sclerosis. Resolving reasonable doubt in the appellant's favor, the Board finds that multiple sclerosis was manifested during the seven year, presumptive period following service. Multiple sclerosis warrants a minimum evaluation of 30 percent, thus the disease was present to a compensable degree. 38 C.F.R. § 4.124a, Diagnostic Code 8018 (2007). Accordingly, the Board concludes that service connection multiple sclerosis is warranted. ORDER New and material evidence has been submitted to reopen a claim for service connection for multiple sclerosis. Service connection for multiple sclerosis is granted. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs