Citation Nr: 1119815 Decision Date: 05/23/11 Archive Date: 06/06/11 DOCKET NO. 09-40 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for vision problems secondary to service-connected multiple sclerosis. 2. Entitlement to an evaluation in excess of 40 percent for bladder dysfunction prior to May 18, 2010. 3. Entitlement to an evaluation in excess of 60 percent for bladder dysfunction from May 18, 2010. 4. Entitlement to an evaluation in excess of 10 percent for headaches prior to May 18, 2010. 5. Entitlement to an evaluation in excess of 30 percent for headaches from May 18, 2010. 6. Entitlement to a compensable evaluation for bowel dysfunction, to include irritable bowel syndrome (IBS), prior to May 18, 2010. 7. Entitlement to an evaluation in excess of 30 percent for bowel dysfunction, to include IBS, from May 18, 2010. 8. Entitlement to an effective date earlier than May 30, 2008, for the award of service connection for multiple sclerosis and associated disabilities of dysthymic disorder, headaches, and hemiparesis of the right lower extremity. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from November 1986 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2008 and February 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. By way of the December 2008 decision, the RO granted service connection for multiple sclerosis with a disability rating of 30 percent. An effective date for the award of service connection was set to May 30, 2008. In February 2009, the RO increased the rating for multiple sclerosis to 70 percent effective from May 30, 2008. The 70 percent rating included evaluation of residual manifestations, including dysthymic disorder. By way of the February 2009 decision, the RO also, in part, granted service connection for: bladder dysfunction as associated with multiple sclerosis, evaluated as 40 percent disabling; headaches as associated with multiple sclerosis, evaluated as 10 percent disabling; hemiparesis of the right upper extremity as associated with multiple sclerosis, evaluated as noncompensably (zero percent) disabling; and bowel dysfunction as associated with multiple sclerosis, evaluated as noncompensably disabling. Service connection for vision problems (characterized as double vision or blurry vision) was denied by the RO at that time. The Veteran appealed the denial of service connection for vision problems and for higher initial ratings for bladder dysfunction, headaches, hemiparesis of the right upper extremity, and bowel dysfunction. In September 2009, the Veteran withdrew his appeal of the rating issue pertaining to hemiparesis of the right upper extremity after the RO increased the initial rating to 10 percent earlier in September 2009. See 38 C.F.R. § 20.204 (2010). In November 2010, during the pendency of the appeal, the RO increased the rating for multiple sclerosis to a total (100 percent) rating. At that time, the RO also increased the rating for bladder dysfunction to 60 percent, the rating for headaches to 30 percent, and the rating for bowel dysfunction to 30 percent. The effective date of the three higher ratings was set to May 18, 2010. Additionally, IBS was added to the characterization of the bowel dysfunction disability. Because less than the maximum available benefit for a schedular rating was awarded for each disability and because the increases were not granted effective from the initial date that service connection was awarded, the claims are before the Board and the issues have been characterized as such on the title page. See Fenderson v. West, 12 Vet. App. 119 (1999); AB v. Brown, 6 Vet. App. 35 (1993). In April 2009, the Veteran also disagreed with the effective date of the award of service connection for multiple sclerosis. Although the Veteran referred to dysthymic disorder, headaches, and hemiparesis of the right lower extremity, the Board interprets the Veteran's contentions as an appeal for an earlier effective date for the award of service connection for multiple sclerosis. This is particularly so as dysthymic disorder, headaches, and hemiparesis of the right lower extremity were each considered to be associated with his multiple sclerosis. In adjudicating the issue, the RO also addressed the effective date of the multiple sclerosis award. Thus, the Board has characterized the issue as entitlement to an effective date earlier than May 30, 2008, for the award of service connection for multiple sclerosis and associated disabilities of dysthymic disorder, headaches, and hemiparesis of the right lower extremity. The Board notes that caselaw reflects that VA must read sympathetically an appellant's claim of clear and unmistakable error (CUE). See Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005); see also Canady v. Nicholson, 20 Vet. App. 393, 402 (2006) (a claim of CUE may be inferred from a sympathetic reading). CUE claims concerning past decisions may arise in the course of effective date appeals. In April 2009, the Veteran used the term "clear and unmistakable error," but he appeared to be referring to error by the VA health system for not identifying his multiple sclerosis at an earlier date. A review of the record reveals no express claim of CUE and one cannot be inferred from the Veteran's statements even when read sympathetically. Additional evidence was associated with the claims file subsequent to the RO's final consideration of the earlier effective date issue in a September 2009 statement of the case (SOC). Because the evidence consists of more recent medical evidence, it is not pertinent and does not have a bearing on the effective date issue on appeal. Moreover, after the case was certified to the Board, medical records were received in addition to the Veteran's contentions. However, the records are duplicative or redundant of the records already existing in the claims file. Therefore, a remand to the agency of original jurisdiction (AOJ) for a supplemental SOC (SSOC) is not required. See 38 C.F.R. §§ 19.31, 19.37, 20.1304 (2010). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). (The decision below addresses the Veteran's claim of service connection for vision problems and the issue of an earlier effective date. The rating issues on appeal are addressed in the remand that follows the Board's decision.) FINDINGS OF FACT 1. The Veteran's vision problems, including diplopia and blurry vision, are as likely as not caused by his service-connected multiple sclerosis. 2. The Veteran first filed a claim of service connection for multiple sclerosis no earlier than May 30, 2008. 3. In accordance with the fact found, entitlement to service connection for multiple sclerosis and associated disabilities of dysthymic disorder, headaches, and hemiparesis of the right lower extremity arose no earlier than May 30, 2008. CONCLUSIONS OF LAW 1. The Veteran has vision problems, including diplopia and blurry vision, that are proximately due to service-connected multiple sclerosis. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2010). 2. The assignment of an effective date earlier than May 30, 2008, for the award of service connection for multiple sclerosis and associated disabilities of dysthymic disorder, headaches, and hemiparesis of the right lower extremity is not warranted. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Secondary Service Connection-Vision Problems Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). Service connection may also be granted for disability that is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310 (2010). The Veteran asserts that he has visions problems, including double vision and blurry vision, as a result of service-connected multiple sclerosis. He does not contend, and the record does not reasonably raise, the theory of direct service connection. The Veteran states that his vision problems had their onset in April 2007-approximately 15 years after his period of active military service. He maintains that any current disability manifested by vision problems is related to the multiple sclerosis. Thus, the Veteran contends that service connection is warranted on a secondary basis and the Board will limit its analysis to that theory of entitlement. A review of the evidence of record reveals that the Veteran was seen in the emergency department at the Comanche County Memorial Hospital (Comanche) in April 2007. His complaints included problems with blurry vision and double vision. The assessment included diplopia and the Veteran was prescribed Atarax for blurred vision. The Veteran submitted a letter dated in May 2008 from K.R.L., D.O., his primary care physician at the Lawton VA outpatient clinic. In Dr. K.R.L.'s opinion, it was very likely that the Veteran's vision problems had been caused by his previously undiagnosed multiple sclerosis. A separate letter dated in May 2008 from N.H.Z., M.D., a neurologist, reflects that the Veteran suffers from visual difficulties secondary to his multiple sclerosis. In January 2009, the Veteran underwent VA examination of the eye. The Veteran reported complaints of blurry vision and double vision. A history of two episodes of diplopia was noted. The Veteran did not have diplopia during the course of the examination. Uncorrected distant visual acuity was 20/30 bilaterally and near visual acuity was 20/25 bilaterally. The examiner's assessment was that there were no ocular signs of multiple sclerosis at the time of the examination. The examiner noted that, although there were no signs of diplopia during the examination, diplopia can be a symptom of multiple sclerosis. In May 2010, the Veteran underwent additional VA examination of the eye in conjunction with the claim. The Veteran reported having blurry vision that comes and goes when his multiple sclerosis flares up. The Veteran had 20/25 corrected distant vision bilaterally and 20/20 corrected near vision bilaterally. An optical coherence tomography (OCT) laser scan was performed on the retinas. The OCT showed a retinal pigment detachment on the left eye in the macula. The examiner diagnosed the Veteran with retinal pigment epithelial detachment of the left eye with subjective factors of blurry vision. The examiner gave the opinion that the eye condition was not secondary to, or aggravated by, the Veteran's multiple sclerosis. The examiner stated that the most likely cause of this retinal pigment epithelial detachment is a result of central serous chorioretinopathy (CSCR). The examiner indicated that she could not confirm the opinion, but only make an educated guess that the detachment was the result of an episode of CSCR. The examiner also stated that the effect of the eye condition was blurry vision. VA treatment records in 2008 contain entries regarding a history of episodes of double vision. Diplopia appeared on the Veteran's VA medical problem list as recently as 2010. In regards to the relationship between the Veteran's vision problems and his service-connected multiple sclerosis, the record contains conflicting medical evidence. The Board must weigh the opinions in light of the entire record. See, e.g., Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The May 2008 letters from Drs. K.R.L. and N.H.Z. are compelling because the two physicians are familiar with the Veteran's multiple sclerosis disability picture as they are his treatment providers. They both provided highly confident statements that the Veteran's vision problems are secondary to his multiple sclerosis. Additionally, they have indicated that other symptoms and disabilities are related to his multiple sclerosis, some of which have been service connected. Thus, they have a good reputable history of identifying secondary conditions. The letters are not dispositive as they generally lack a detailed rationale for the opinions. The January 2009 VA examination tends to support the Veteran's claim more so than not. The examiner indicated that diplopia could indeed be a secondary condition of multiple sclerosis. The main thrust of the report was that the Veteran was not experiencing diplopia at the time of the examination. The United States Court of Appeals for the Federal Circuit has held that lay evidence can be competent and sufficient to establish a diagnosis when, among other things, a layperson is competent to identify the medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Experiencing diplopia, or double vision, is likely a condition that a layperson is capable of identifying. The January 2009 examiner did not otherwise indicate that he did not believe the Veteran or that the Veteran was in error. Additionally, although diplopia was not found during the January 2009 VA examination, it was documented in the Comanche records as well as a medical problem in the VA treatment records. In McClain v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that a current disability may be shown even though the disability resolves prior to the adjudication of the claim as long as the veteran has a disability at the time the claim is filed or during the pendency of the claim. 21 Vet. App. 319, 321 (2007). Here, diplopia (as well as blurry vision) has been evidenced during the pendency of the claim. Although constant diplopia has not been shown, the evidence reflects that the Veteran has diplopia, at least on an occasional basis. Thus, in light of the holding in McClain, current disability has been established. The May 2010 examination report tends to weigh against the claim, at least as it pertains to blurry vision. Even so, the examiner primarily commented on the blurry vision and did not expressly address diplopia. Additionally, the report was not dispositive as the examiner indicated that she could only make an educated guess as to the origin of the retinal detachment. In consideration of the evidence, the Board finds that the Veteran's vision problems, including diplopia and blurry vision, are as likely as not caused by his service-connected multiple sclerosis. Although there is conflicting medical evidence, the record contains two opinions linking the two conditions that at least place the evidence in equipoise. When this is the case, reasonable doubt is resolved in a veteran's favor. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). Thus, with resolution of reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's visions problems are proximately due to service-connected multiple sclerosis. Therefore, service connection is warranted for vision problems on a secondary basis. See 38 C.F.R. § 3.310(a). II. Effective Date-Multiple Sclerosis Service Connection Award Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2010). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision as to the claim for an earlier effective date has been accomplished. Through a July 2008 notice letter, the Veteran was notified of the information and evidence necessary to substantiate his underlying claim of service connection for multiple sclerosis. The notice letter informed the Veteran of the general criteria for assigning effective dates. The July 2008 notice letter also satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the Veteran was notified that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Consequently, a remand for further VCAA notification is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the effective date issue on appeal. The outcome of this appeal turns on a determination as to the date that a claim of service connection was filed based on information and evidence that has already been associated with the claims file. There is no need for a medical examination and or opinion. There is no suggestion that additional evidence, relevant to this matter, exists and can be procured. No further development action is required. Analysis By a December 2008 rating decision, the Veteran was granted service connection for multiple sclerosis as a disability related to military service. Specifically, it was determined that the evidence showed that multiple sclerosis, as a chronic disease, had become manifest to a degree of 10 percent within 7 years from the date of the Veteran's separation from service even though it was not otherwise established that his multiple sclerosis was incurred in service. See 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2010). An effective date of May 30, 2008, was assigned for the award of service connection. The Veteran contends that the service connection award should have an earlier effective date. Specifically, he believes that the effective date should be retroactive to when he first experienced symptoms of, and underwent treatment for, related problems that were eventually attributed to multiple sclerosis. The Veteran maintains that he filed claims for these types of disabilities and symptoms as early as 1995 and that the effective date should be earlier than May 30, 2008, because he was eventually granted service connection for the problems. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.400 (2010). That is, the effective date shall be fixed in accordance with the facts found. 38 U.S.C.A. § 5110(a). Specifically, in regards to presumptive service connection for chronic diseases under 38 C.F.R. §§ 3.307, 3.309, the effective date of an original award of direct service connection is the date entitlement arose, if the claim is received within 1 year after separation from active duty; otherwise date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(ii). A review of the claims file reveals that there was no claim filed within 1 year of the Veteran's separation from service. He initially filed an application for compensation and benefits that was received on October 5, 1995. Nothing in the application can be construed as a claim of service connection for multiple sclerosis. The Veteran subsequently filed multiple service connection claims for various disabilities. He was not awarded service connection for any disability. None of the claims was for multiple sclerosis. The record shows that the Veteran first filed a claim of service connection for multiple sclerosis as part of an application for compensation benefits that was received by the RO on May 30, 2008. Although the application's cover letter from the Veteran's representative was dated May 29, 2008, the application was not received by VA personnel until the following day. The application also contained service connection claims concerning multiple disabilities and symptoms that were claimed to be related to multiple sclerosis. Here, the RO assigned the effective date for the award of service connection as the date of receipt of the Veteran's claim. Additionally, when other disabilities were service connected as secondary to multiple sclerosis, the effective date was set to May 30, 2008. This was so for bladder dysfunction, bowel dysfunction to include IBS, headaches, hemiparesis of the right upper extremity, hemiparesis of the right lower extremity, hearing loss, and erectile dysfunction. Moreover, dysthymic disorder, major depressive disorder, extreme fatigue, loss of short and long-term memory, lack of concentration, and impaired thinking were considered to be associated symptoms and disabilities to be evaluated as part of the multiple sclerosis service connection award. There is no document of record that was received by the RO earlier than May 30, 2008, that could be construed as a claim of service connection for multiple sclerosis. Previous service connection claims of record pertained to posttraumatic stress disorder (PTSD), depression, bipolar disorder, "Persian Gulf War Syndrome," migraine headaches, joint and muscle pain, and gastritis and IBS. These claims were all denied and no reference was made to multiple sclerosis. In April 2000, the Veteran submitted a statement that could be construed as an informal claim of service connection. The disabilities and problems he listed were PTSD, depression, family problems, diarrhea, chronic fatigue, night sweats and rashes, muscle and joint pain with stiffness, headaches, difficulty sleeping, and short term memory loss. There was no indication that the statement represented a claim of service connection for multiple sclerosis. Thus, the Board finds that the Veteran first filed a claim of service connection for multiple sclerosis no earlier than May 30, 2008. Even so, the record reflects that, in accordance with the fact found, entitlement to service connection for multiple sclerosis and associated disabilities such as dysthymic disorder, headaches, and hemiparesis of the right lower extremity arose no earlier than May 30, 2008. In fact, the initial diagnosis of multiple sclerosis was not made until February 2008 when the Veteran was receiving treatment at the VA Medical Center (VAMC) in Oklahoma City, Oklahoma. Evidence submitted with the Veteran's claim in May 2008 appeared to show that the Veteran's multiple sclerosis had existed prior to the February 2008 diagnosis, but that it was never diagnosed. A May 2008 letter from Dr. K.R.L. indicated that the Veteran had multiple problems caused by his "previously undiagnosed" multiple sclerosis. In May 2008, Dr. N.H.Z. stated that it was more likely than not that the Veteran was experiencing symptoms of multiple sclerosis since 1998 and was undiagnosed until February 2008. Later, in a November 2008 letter, Dr. N.H.Z. gave the opinion that the Veteran had reported symptoms of a previously undiagnosed multiple sclerosis as early as February 1993. In November 2008, the Veteran underwent VA neurological examination. The examiner gave the opinion that it was as likely as not that there was sufficient medical evidence to show that the Veteran had symptoms of multiple sclerosis within the seven-year period following his military service. Thus, based on the facts, entitlement did not arise until November 2008, or at least no earlier than May 30, 2008. Notably, even if entitlement arose prior to the date of claim, an earlier effective date would not be assignable because the effective date is controlled by the latter of those two occurrences. See 38 C.F.R. § 3.400(b)(2)(ii). As noted previously, VA medical records that were received in connection with the claim document a diagnosis of multiple sclerosis as early as February 2008. Although the treatment occurred prior to the date of claim, the dates of treatment for multiple sclerosis can not serve as a basis for an earlier effective date. The regulations allow for a report of examination or hospitalization to be accepted as an informal claim for benefits in certain circumstances. See 38 C.F.R. § 3.157 (2010). However, the section only applies to claims for an increase and claims to reopen. The Veteran's present claim was not one of these types of claims. See 38 C.F.R. § 3.160 (2010). In sum, because the Veteran first filed a claim of service connection for multiple sclerosis no earlier than May 30, 2008, and because entitlement to service connection for multiple sclerosis and associated disabilities arose no earlier than May 30, 2008, the assignment of an effective date earlier than May 30, 2008, for the award of service connection for multiple sclerosis and associated disabilities of dysthymic disorder, headaches, and hemiparesis of the right lower extremity is not warranted. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. ORDER Service connection for vision problems, including diplopia and blurry vision, as a disability that is proximately due to service-connected disability, is granted. Entitlement to an effective date earlier than May 30, 2008, for the award of service connection for multiple sclerosis and associated disabilities of dysthymic disorder, headaches, and hemiparesis of the right lower extremity is denied. REMAND The Board finds that additional development is warranted in regards to the rating issues on appeal. The record reflects that the Veteran may be in receipt of disability benefits from the Social Security Administration (SSA) or has at least applied for SSA benefits. In April 2009, the Veteran stated that "SSDI," presumably Social Security Disability Insurance, was pending and he was told that he was a "no brainer" for SSDI compensation. Additionally, in an April 2009 "Application for Increased Compensation Based on Unemployability," the Veteran checked the box "yes" when asked if he received or expects to receive disability retirement benefits. In discussing his unemployability, the Veteran referred to the combined rating of his multiple sclerosis that prevented his employment. Because his bladder dysfunction, headaches, and bowel dysfunction with IBS are each considered to be associated with his multiple sclerosis, SSA records may contain evidence relevant as to the severity level of the three disabilities. Consequently, the claims must be remanded in order to obtain any available SSA records. See, e.g., Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). It appears that the Veteran receives regular treatment at the Oklahoma City VAMC and its associated outpatient clinics. Updated treatment records should be obtained in light of the remand. Accordingly, these issues are REMANDED for the following actions: 1. Request from SSA the records pertinent to the Veteran's claim for Social Security disability benefits and the medical records relied upon concerning that claim, as well as any subsequent periodic examinations. Follow the procedures outlined in 38 C.F.R. § 3.159(c)(2). 2. Obtain the Veteran's more recent treatment records (since November 2010) from the Oklahoma City VAMC and its outpatient clinics, and associate the records with the claims folder. 3. After undertaking any other development deemed appropriate, re-adjudicate the staged rating issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs