Citation Nr: 0943274 Decision Date: 11/13/09 Archive Date: 11/25/09 DOCKET NO. 07-16 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for multiple sclerosis. 2. Entitlement to service connection for a disability manifested by loss of use of the lower extremities as secondary to multiple sclerosis. 3. Entitlement to service connection for bladder incontinence as secondary to multiple sclerosis. 4. Entitlement to service connection for a left eye disorder, including decreased visual acuity and ocular neuritis, as secondary to multiple sclerosis. 5. Entitlement to service connection for facial neuropathy as secondary to multiple sclerosis. 6. Entitlement to service connection for neuropathy of the upper extremities as secondary to multiple sclerosis. 7. Entitlement to service connection for neuropathy of the lower extremities as secondary to multiple sclerosis. 8. Entitlement to service connection for a bowel disorder as secondary to multiple sclerosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1954 to March 1956. Prior to his active duty, the Veteran also served in the Naval Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Paul, Minnesota. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he is entitled to service connection for multiple sclerosis (MS) as well as a number of disabilities associated this disease. Throughout this appeal, the Veteran has asserted that he has experienced MS symptoms since service despite not formally diagnosed with MS until 1973. In a letter received by the VA in March 2006, the Veteran described an incident during his active duty service in which an aircraft he was travelling on made an emergency landing at George Air Force Base. He contends that he began to experience feelings of weakness and general insufficiency as well as vision impairment and ringing in his ears following this event. According to the Veteran, he sought treatment at the infirmary at El Toro Marine Corps Air Station, was diagnosed with a "nervous disorder," and was treated with a barbiturate. Following service separation he continued to experience intermittent periods of similar symptoms; his private family physician diagnosed him with possible depression or arthritis. He eventually sought neurological evaluation in 1973 after experiencing visual symptoms and facial numbness; the diagnosis was MS. The Veteran's service treatment records are silent for any complaints of the symptoms described above. Similarly, there is no record of treatment for a "nervous disorder" at the El Toro infirmary. Nevertheless, the Veteran's treating VA neurologist provided the following opinion in April 2007 based on the Veteran's self-reported history: "In my opinion, the [Veteran's] symptoms that he described while in the Marine Corps could indeed have been the onset of multiple sclerosis. Fatigue, loss of balance, and dizziness are all consistent with that disorder. His description of being told he has arthritis and the recommendation that he use a cane following discharge also suggest that he had symptoms of multiple sclerosis at that time." [emphasis added] VA Neurology Clinic Staff Note dated April 25, 2007. VA law and regulations provide that the VA has a duty to provide a medical examination and/or obtain a medical opinion when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in- service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4) (2009). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83 (2006). In the present case, the Veteran has presented lay evidence that he experienced various symptoms during his active duty service which his treating physician has speculated "could indeed" have been the onset of his MS. Furthermore, the Veteran has indicated that he was treated during service for these symptoms, yet there is no such record of this treatment in his current service treatment records, nor is there any indication that a specific search has been completed for these alleged service treatment records. Such records are clearly relevant to the current appeal in light of the significant gap in time between the Veteran's military service and his diagnosis of MS in 1973. Under these circumstances, the Board is of the opinion that a remand is necessary to (1) allow the Veteran an opportunity to provide additional details regarding his alleged in- service treatment for a "nervous disorder" so that the VA might conduct a search for these records, and (2) obtain a medical examination and opinion which specifically addresses the etiology of the Veteran's claimed MS. See id.; see also 38 U.S.C.A. § 5103A(d). With respect to the Veteran's remaining claims on appeal, the Board observes that the Court of Appeals for Veterans Claims has held that all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran asserts that he is entitled to service connection for a disability manifested by loss of use of the lower extremities, bladder incontinence, a left eye disorder (including decreased visual acuity and ocular neuritis), facial neuropathy, neuropathy of the upper and lower extremities, and a bowel disorder, as secondary to his MS. The Veteran's contemporaneous treatment records suggest that these disorders may be secondary to his MS. As such, the Board finds that the VA examiner, in addition to considering the etiology of the Veteran's MS, should also consider the nature and etiology of any disorders claimed as secondary to his MS. See 38 U.S.C.A. § 5103A(d). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Contact the Veteran to obtain the names and addresses of all medical care providers who have treated him for his multiple sclerosis as well as dates of treatment. After securing any necessary release(s) from the Veteran, make reasonable efforts to obtain these records. 2. Ask the Veteran to provide information regarding his alleged treatment during active duty for a "nervous disorder." Such request should inform the Veteran that he must provide a 60-day timeframe during which such treatment occurred. 3. Based on the Veteran's response to the above request, the agency of original jurisdiction (AOJ) should contact the appropriate authorities, including the National Personnel Records Center (NPRC), to obtain any outstanding clinical treatment records pertaining to the Veteran. The AOJ should search not only under the Veteran but also the name of the facility where the alleged treatment was rendered. Any attempts to obtain these service treatment records should be documented in the claims file, including any responses, negative or positive. Requests must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain the Veteran's service separation examination would be futile. 4. After the above records are obtained, to the extent available, schedule the Veteran for an examination with a medical professional with the appropriate expertise for the purpose of ascertaining the nature and etiology of the Veteran's multiple sclerosis and any associated disorders. The claims file, including a copy of this REMAND, must be made available to the examiner for review, and the examination report should reflect that the claims file was reviewed in connection with the examination. After reviewing the record, including any lay evidence submitted by the Veteran, examining the Veteran, and performing any medically indicated testing, the examiner should answer the following questions, providing a detailed rationale for all opinions. (a) Is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's multiple sclerosis first manifested as of, or prior to, March 1963? (b) Does the Veteran have any current disability manifested by loss of use of the lower extremities, bladder incontinence, left eye disorder (including decreased visual acuity and ocular neuritis), facial neuropathy, neuropathy of the upper and lower extremities, or a bowel disorder? If so, the examiner should provide a diagnosis for all identified disabilities and then provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's multiple sclerosis caused, contributed to cause, or chronically worsened, any identified disability(ies). 5. After completion of the above, and any other development deemed necessary, review the expanded record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefit sought. Unless the benefit sought on appeal is granted, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).