Citation Nr: 0902012	
Decision Date: 01/16/09    Archive Date: 01/22/09

DOCKET NO.  05-06 023	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for multiple sclerosis.  


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.


ATTORNEY FOR THE BOARD

Nancy Snyder


INTRODUCTION

The veteran had active service from April 1964 to April 1966.
This matter came before the Board of Veterans' Appeals 
(Board) on appeal from a decision of June 2004 by the 
Department of Veterans Affairs (VA) St. Paul, Minnesota, 
Regional Office (RO).


FINDING OF FACT

The veteran's multiple sclerosis was incurred in service.  


CONCLUSION OF LAW

The criteria for service connection for multiple sclerosis 
have been met.  38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & 
Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309, (2008).  


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (VA) 
has a duty 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. 2008); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).  In this case, 
the Board is granting in full the benefit sought on appeal.  
Accordingly, assuming, without deciding, that any error was 
committed with respect to either the duty to notify or the 
duty to assist, such error was harmless and will not be 
further discussed.  

Service connection may be granted for a disability resulting 
from injury or disease incurred in or aggravated by active 
service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  To 
establish service connection for the claimed disorder, 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 current disability.  Service connection may 
also be granted for multiple sclerosis when manifested to a 
compensable degree within seven years of separation from 
service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 
3.307, 3.309.

Dorland's medical dictionary defined multiple sclerosis as a 
chronic neurologic disease in which there are patches of 
demyelination scattered throughout the white matter of the 
central nervous system, sometimes extending into the gray 
matter, with symptoms including weakness, incoordination, 
paresthesias, speech disturbances, and visual disturbances, 
most commonly double vision.  The course of the disease is 
usually prolonged, with remissions and relapses over many 
years.  See Dorland's Illustrated Medical Dictionary 973 
(30th ed. 2003).

The evidence indicates that the veteran was initially 
diagnosed with multiple sclerosis in 1983.  The veteran 
contends that his symptoms began in service and that the 
disease was incurred in service.  The veteran has reported 
that he generally did not seek treatment for the symptoms in 
service because he believed the symptoms were attributable to 
other factors, such as lack of sleep or his combat injuries.  
See, e.g., November 1985 Board hearing transcript.  

Initially, the Board notes that, with the exception of a 
history of "eye trouble" at separation, the service medical 
records do not report any findings of multiple sclerosis or 
treatment for or histories of symptoms suggestive of multiple 
sclerosis, and the March 1966 separation examination reports 
the veteran's history of being in "excellent health" with 
the exception of pain in his right ear as a result of being 
near an exploding grenade the previous day.  

Post-service records dating in 1968 and 1983 indicate the 
veteran's histories of muscle spasm, muscle cramps, spastic 
paresthis, progressive difficulty with coordination and 
balance, and vertigo since 1963, however.  Additionally, in 
August 1984, the veteran submitted notarized statements from 
former service colleagues and people who knew him during 
service or within seven years of separation in which the 
authors indicate that, beginning in service, the veteran's 
motor coordination, balance, and stamina progressively 
worsened.  The authors provided anecdotal evidence of these 
contentions, with stories about the progressive illegibility 
of the veteran's cursive handwriting and the veteran's 
"clumsiness," fatigue, slurred speech, and change in gait.  
Several authors also stated that the veteran often reported 
episodes of vertigo/dizziness and numbness or prickling in 
the skin during service and soon thereafter.  

In November 1984, a private physician submitted a statement 
in which he stated that, based on the aforementioned 
histories, it was "clear that [the veteran] appear[ed] to 
have exhibited a constellation of physical symptoms dating 
back to his days in airborne training, which are classically 
seen in patients suffering from multiple sclerosis."  See 
November 1984 Ramirez statement.  In September 1985, a 
private neurologist indicated that, based on the veteran's 
history and review of the aforementioned statements, he 
believed the reported symptomatic history was "consistent 
with a diagnosis of multiple sclerosis".  See September 1984 
Westreich statement.  In September 2004, a VA Multiple 
Sclerosis Program Director submitted a letter, indicating 
that "after reviewing extensive testimony from eyewitness 
reports of [the veteran's] symptoms during active duty, it 
[was his] opinion that many of these symptoms were due to 
Multiple Sclerosis" and that it was therefore, "more likely 
than not that [the veteran's] multiple sclerosis started 
during his period of active duty."  See November 2004 
Goldish statement.  See also September 2004 VA treatment 
record (physician provides opinion that, based on veteran's 
reported in-service symptoms, it was "more likely than not" 
that the veteran had multiple sclerosis in service and that 
it was aggravated by the stress of combat).   

In March 2007, the claims file was provided to a VA medical 
professional for an opinion as to whether the veteran's 
multiple sclerosis onset in service.  The reviewer, after 
review of the evidence and examination of the veteran, opined 
that the veteran's multiple sclerosis was not incurred within 
seven years of separation and it did not causally relate to 
service.  In support of this opinion, the reviewer stated 
that there was "no medical evidence from 1963 to 1983" 
indicative of multiple sclerosis.  The reviewer noted that 
there were "multiple testimonial letters from friends" 
reporting the veteran's symptoms during this period, but she 
discounted the letters but emphasizing that these letters 
were written after the veteran was diagnosed with multiple 
sclerosis and almost 20 years after separation and that "the 
neurologic problems associated with multiple sclerosis would 
likely have been noted by medical personnel from whom the 
veteran sought any type of medical care during that period."  
She also noted that "many of the reviewed medical records 
(all dating after 2000) note the veteran history of an onset 
of symptoms and an initial diagnosis in 1985.  

After review of the evidence of record, the Board finds that 
service connection is warranted for multiple sclerosis.  
Initially, the Board notes that the veteran and his 
"friends" are competent to report the symptoms the veteran 
exhibited both during service and soon thereafter, and the 
Board finds the histories credible.  38 C.F.R. § 3.159(a)(2); 
Layno v. Brown, 6 Vet. App. 465, 471 (1994).  Additionally, 
the Board finds the multiple medical opinions which indicate 
that the reported symptoms are consistent with multiple 
sclerosis are both competent and highly probative.  The Board 
notes that the opinions were not provided after a review of 
the entire record.  Such a review is not required, however; 
the mere absence of a review of the record does not strip an 
opinion of its probative value.  See Rodriguez v. Peake, No. 
06-312 (U.S. Vet. App. Dec. 1, 2008).  In contrast to the 
positive opinions, the Board finds that the VA examiner's 
opinion has diminished probative value.  This finding is 
based on the fact that the examiner neglected to discuss the 
veteran's history of eye trouble at separation, his history 
of muscle spasm and cramping in 1968, or his history of 
spastic paresthis, progressive difficulty with coordination 
and balance in June 1983.  Additionally, the Board notes that 
the examiner does not discuss the fact that the June 1983 
treatment record suggests that there are previous treatment 
records which have not been obtained (the record cites to an 
old chart).  Based on the suggestion of possibly absent 
relevant records, the Board finds that the mere absence of 
medically reported symptoms should not be a dispositive 
factor in making a determination.  Thus, based on the 
competent and credible histories provided by the veteran and 
other persons and the multiple competent and probative 
opinions, and resolving all reasonable doubt in favor of the 
veteran, the Board finds that service connection is 
warranted.  




ORDER

Service connection for multiple sclerosis is granted. 



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs