Citation Nr: 0005453	
Decision Date: 02/29/00    Archive Date: 03/07/00

DOCKET NO.  98-17 419	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Whether new and material evidence has been submitted to 
reopen a claim for service connection for multiple sclerosis.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.


ATTORNEY FOR THE BOARD

Jonathan E. Taylor, Associate Counsel



INTRODUCTION

The appellant served on active duty from October 1964 to July 
1966.

This case comes before the Board of Veterans' Appeals (the 
Board) on appeal from a May 1998 rating decision of the St. 
Petersburg, Florida, Department of Veterans Affairs (VA) 
Regional Office (RO).  The issue of entitlement to service 
connection for multiple sclerosis is the subject of the 
remand herein.


FINDINGS OF FACT

1.  In a January 1994 rating decision, the RO denied the 
appellant's claim for service connection for multiple 
sclerosis.  The appellant was notified of that decision and 
did not appeal.

2.  Since January 1994, the following evidence has been 
received:  (1) the appellant's contentions, (2) an October 
1997 statement by Peter Dunne, M.D., (3) an October 1999 
statement by Craig Bash, M.D., and (4) pages 1474-75 of The 
Merck Manual, 17th edition.

3.  Some of the evidence received since January 1994 is new 
and so significant that it must be considered in order to 
decide the appellant's claim fairly.

4.  The appellant's claim is plausible.


CONCLUSIONS OF LAW

1.  The January 1994 RO rating decision that denied service 
connection for multiple sclerosis is final.  38 U.S.C.A. 
§ 7105(b), (c) (West 1991); 38 C.F.R. § 3.160(d) (1999).

2.  New and material evidence has been received, and the 
appellant's claim for service connection for multiple 
sclerosis is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 
1991); 38 C.F.R. § 3.156(a) (1999).

3.  The claim of entitlement to service connection for 
multiple sclerosis is well grounded, and the Department has 
not satisfied the duty to assist.  38 U.S.C.A. § 5107(a) 
(West 1991).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Factual Background

In October 1993 the appellant filed a claim for entitlement 
to service connection for multiple sclerosis.  The RO 
obtained VA medical records documenting treatment from 
January 1987 to October 1993.  Evidence already of record 
included VA medical records from May 1978 to October 1982; 
the appellant's service medical records; a 1983 lay statement 
by J. B.; the testimony of the appellant and his father at a 
July 11, 1983 hearing before the RO; reports of VA 
examinations in November 1966, October 1971, and March 1973; 
and multiple statements and contentions by the appellant.

The RO, in its January 1994 rating decision, denied service 
connection for multiple sclerosis based on its review of the 
evidence then of record.  The RO specifically held that, 
although the evidence showed that the appellant had been 
diagnosed with motor neuron disorder, spinal cerebellar 
degeneration, primary lateral sclerosis, and multiple 
sclerosis, initial manifestations of these disorders were not 
shown until 1978 and were therefore too remote to be 
reasonably related to service.  The RO concluded that the 
appellant's multiple sclerosis was not incurred or aggravated 
in service and did not manifest to a compensable degree 
within seven years of the appellant's discharge from active 
service.  The appellant was notified of that decision and of 
his appellate rights.  He did not appeal.

In November 1997 the appellant submitted the October 1997 
statement of Peter Dunne, M.D.  Dr. Dunne stated that the 
appellant was being treated for multiple sclerosis.  Dr. 
Dunne stated that the appellant's symptoms began in the late 
1960s, in service, with footdrop and dragging of one foot.  
Dr. Dunne opined that this was the onset of the appellant's 
multiple sclerosis.

In October 1999 the appellant's representative submitted to 
the Board an October 1999 statement by Craig Bash, M.D., who 
is a neuroradiologist.  Dr. Bash stated that he had reviewed 
the appellant's claims folder.  Dr. Bash outlined the 
appellant's medical history based on his review of the claims 
folder.  Dr. Bash stated that he deferred to Dr. Dunne as to 
the diagnosis of multiple sclerosis.  He stated that the 
appellant's multiple sclerosis manifested itself during the 
appellant's period of military service and in 1968 and in 
1973.  Dr. Bash explained that multiple sclerosis was highly 
variable and that patients could undergo long periods of 
remission between exacerbations.

The appellant's representative submitted also pages 1474-75 
of The Merck Manual, 17th Edition.  According to the text, 
symptoms of multiple sclerosis include paresthesias in one or 
more extremities, weakness or clumsiness of a leg, and 
transient weakness in one or more extremities.  Additionally, 
the text provides that the course of multiple sclerosis is 
highly varied, unpredictable, and, in most patients, 
remittent.


II.  Analysis

A.  Finality

A decision of a duly-constituted rating agency or other 
agency of original jurisdiction is final and binding as to 
all field offices of the Department as to written conclusions 
based on evidence on file at the time the veteran is notified 
of the decision.  38 C.F.R. § 3.104(a) (1999).  Such a 
decision is not subject to revision on the same factual basis 
except by a duly constituted appellate authority.  Id.  The 
veteran has one year from notification of a decision of the 
agency of original jurisdiction to file a notice of 
disagreement (NOD) with the decision, and the decision 
becomes final if a NOD is not filed within that time.  
38 U.S.C.A. § 7105(b), (c) (West 1991); 38 C.F.R. 
§§ 3.160(d), 20.302(a) (1999).

In a January 1994 rating decision, the RO denied, on the 
merits, the appellant's claim of entitlement to service 
connection for multiple sclerosis.  A letter from the RO, 
advising the appellant of that decision and of appellate 
rights and procedures, was issued.  The appellant did not 
appeal this decision; therefore, it is final.  38 U.S.C.A. 
§ 7105 (West 1991).

B.  New and Material

In order to reopen a claim which has been previously denied 
and which is final, the claimant must present new and 
material evidence.  38 U.S.C.A. § 5108 (West 1991).  New and 
material evidence means evidence not previously submitted to 
agency decisionmakers which bears directly and substantially 
upon the specific matter under consideration, which is 
neither cumulative nor redundant, and which by itself or in 
connection with evidence previously assembled is so 
significant that it must be considered in order to fairly 
decide the merits of the claim.  38 C.F.R. § 3.156(a) (1999); 
see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

When presented with a claim to reopen a previously finally 
denied claim, VA must perform a three-step analysis.  Elkins 
v. West, 12 Vet. App. 209 (1999).  First, it must be 
determined whether the evidence submitted by the claimant is 
new and material.  Second, if new and material evidence has 
been presented, it must be determined, immediately upon 
reopening the claim, whether the reopened claim is well 
grounded pursuant to 38 U.S.C. § 5107(a) based upon all the 
evidence and presuming its credibility.  The United States 
Court of Appeals for Veterans Claims (formerly known as the 
United States Court of Veterans Appeals) (hereinafter, "the 
Court") concluded in Elkins that the United States Court of 
Appeals for the Federal Circuit (hereinafter, "the Federal 
Circuit") in Hodge effectively "decoupled" the 
relationship between determinations of well-groundedness and 
of new and material evidence by overruling the "reasonable-
possibility-of-a-change-in-outcome" test established by 
Colvin v. Derwinski, 1 Vet. App. 171 (1991).  There is no 
duty to assist in the absence of a well-grounded claim.  Epps 
v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied 
sub nom. Epps v. West,     U.S.    , 118 S. Ct. 2348 (1998); 
see also Winters v. West, 12 Vet. App. 203 (1999).  Third, if 
the reopened claim is well grounded, VA must evaluate the 
merits of the claim after ensuring that the duty to assist 
under 38 U.S.C. § 5107(b) has been fulfilled.

In the rating decision on appeal, the RO adjudicated this 
issue according to the definition of material evidence 
enunciated in Colvin ("a reasonable possibility that the new 
evidence, when viewed in the context of all the evidence, 
both new and old, would change the outcome" of the final 
decision).  The Federal Circuit in Hodge declared this 
definition of material evidence invalid.  Therefore, the 
determination as to whether the appellant has submitted new 
and material evidence to reopen this claim will be made 
pursuant to the definition of new and material evidence 
contained in 38 C.F.R. § 3.156(a), as discussed above.  No 
prejudice to the appellant results from the Board's 
consideration of this claim.  He was provided notice of the 
applicable laws and regulations regarding new and material 
evidence, including 38 C.F.R. § 3.156.  See Bernard v. Brown, 
4 Vet. App. 384 (1993).  Furthermore, the Board's review of 
this claim under the more flexible Hodge standard accords the 
appellant a less stringent "new and material" evidence 
threshold to overcome.  

The evidence received subsequent to January 1994 is presumed 
credible for the purposes of reopening the appellant's claim 
unless it is inherently false or untrue, or it is beyond the 
competence of the person making the assertion.  Duran v. 
Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 
Vet. App. 510, 513 (1992); see also Robinette v. Brown, 8 
Vet. App. 69, 75-76 (1995).  Since the January 1994 rating 
decision, the following evidence has been received:  (1) the 
appellant's contentions, (2) an October 1997 statement by 
Peter Dunne, M.D., (3) an October 1999 statement by Craig 
Bash, and (4) pages 1474-75 of The Merck Manual, 17th 
edition.

To the extent that the appellant contends that he currently 
has multiple sclerosis that was incurred during service, this 
evidence is not new.  He has not submitted any new 
contentions regarding this condition; he has merely, at best, 
repeated his prior assertions.  This evidence is cumulative 
of evidence associated with the claims file at the time of 
the January 1994 rating decision and is not new for purposes 
of reopening a claim.

The rest of the evidence received since January 1994, as 
detailed above, is new in that it was not previously of 
record.  It is necessary, therefore, to decide if this 
evidence is material.  To be material, it must tend to prove 
the merits of each essential element that was a basis for the 
prior denial.  Therefore, in order to be material, there 
would have to be competent evidence tending to show that the 
appellant currently has multiple sclerosis that was incurred 
during military service or manifest to a compensable degree 
during the appropriate presumptive period.

The appellant has submitted material evidence.  Dr. Dunne 
stated that the appellant's multiple sclerosis was incurred 
in service.  His opinion alone might not be so significant 
that it required reopening, because it is a mere conclusory 
statement and based on a report of symptomatology that is not 
shown in the appellant's military medical records, and made 
apparently without review of any service records or earlier 
treatment records.  Dr. Bash, however, did review the 
appellant's claims file and related specific instances noted 
therein as evidence of the onset of multiple sclerosis in 
service or during the presumptive period.  His informed 
review is so significant that it must be considered in order 
to decide the claim fairly.  The Merck Manual provides 
general information about multiple sclerosis, not related 
specifically to this appellant, and would not, in itself, be 
so significant that it required consideration.

Some of the new evidence submitted by the appellant is so 
significant that it must be considered in order to fairly 
decide the merits of his claim, and this evidence is 
therefore material.  Accordingly, the appellant's claim for 
service connection for multiple sclerosis is reopened.  
38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) 
(1999).


C.  Well-grounded Claim

Service connection means that the facts, shown by evidence, 
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, 1131 (West 
1991); 38 C.F.R. § 3.303(a) (1999).  It is the responsibility 
of a person seeking entitlement to service connection to 
present a well-grounded claim.  38 U.S.C.A. § 5107 (West 
1991).  Generally, a well-grounded claim is a "plausible 
claim, one which is meritorious on its own or capable of 
substantiation."  Murphy v. Derwinski, 1 Vet. App. 78, 81 
(1990).  In order to be well grounded, a claim for service 
connection must be accompanied by supporting evidence that 
the particular disease, injury, or disability was incurred in 
or aggravated by active service; mere allegations are 
insufficient.  Tirpak v. Derwinski, 2 Vet. App. 609, 610-611 
(1992); Murphy, 1 Vet. App. at 81. 

A claim for service connection requires three elements to be 
well grounded.  It requires competent (medical) evidence of a 
current disability; competent (lay or medical) evidence of 
incurrence or aggravation of disease or injury in service; 
and competent (medical) evidence of a nexus between the in-
service injury or disease and the current disability.  Epps, 
126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 
(1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table).  This 
third element may be established by the use of statutory 
presumptions.  Caluza, 7 Vet. App. at 506.  Truthfulness of 
the evidence is presumed in determining whether a claim is 
well grounded.  Id. at 504.

In this case, the appellant has a diagnosis of multiple 
sclerosis adequately documented in the record.  Dr. Bash's 
review of the records and opinion based on that review, and 
presuming the credibility and competence of that opinion, 
provides both the incurrence in service or within the 
presumptive period element and the nexus element.  The 
appellant's claim is plausible, therefore.

When a well-grounded claim has been submitted, VA has a duty 
to assist in the development of the claim.  38 U.S.C.A. 
§ 5107(a) (West 1991).  For reasons set forth below, the 
Board finds that the duty to assist has not yet been 
fulfilled.


ORDER

As new and material evidence has been received to reopen the 
appellant's claim for service connection for multiple 
sclerosis, the claim is reopened, and, to that extent, the 
appeal is granted.

The appellant's claim of entitlement to service connection 
for multiple sclerosis is well grounded, and, to that extent, 
the appeal is granted.


REMAND

Having found that the appellant's claim is plausible, the 
Board finds that further development is necessary for a fair 
decision in this case.  

First, it appears from the claims file that not all of the 
appellant's VA treatment records have been obtained.  In his 
December 1981 statement, the appellant indicated that he had 
been treated at the Northport Long Island VA hospital in 
1968.  Although his statement is not clear on that point, he 
may have been treated there for one or two years.  VA records 
are considered part of the record on appeal since they are 
within VA's constructive possession, and these records must 
be considered in deciding the appellant's claim.  See Bell v. 
Derwinski, 2 Vet. App. 611, 613 (1992).

Second, the appellant has stated previously that he receives 
disability retirement benefits from the State of New York and 
disability benefits from the Social Security Administration.  
The appellant has stated that he has received these benefits 
since 1977 or 1978.  These records may contain evidence 
relevant to the appellant's claim of service connection for 
multiple sclerosis.  The RO should ask the appellant to 
either provide the disability retirement determination and 
all supporting medical documentation or to provide a release 
so that the RO may request that information.  The RO should 
request all adjudicative determinations and supporting 
medical documentation from the Social Security Administration 
in connection with the original award of Social Security 
disability benefits and any subsequent readjudication or 
reassessment.

Third, the October 1997 statement from Dr. Dunne indicates 
that the appellant is under his care.  Medical records from 
Dr. Dunne are not in the record.  The appellant should be 
advised to submit those records or to provide a release so 
that they may be requested directly from Dr. Dunne.

After all development has been completed to the extent 
possible, readjudicate the appellant's claim.

Accordingly, this case is REMANDED for the following 
additional development:

1.  Obtain and associate with the file VA 
medical records for treatment from 
October 1993 to the present.  Request VA 
treatment records, outpatient and 
inpatient, from the Northport Long Island 
VA hospital from 1968 to 1971.  Ask the 
hospital to retrieve archived records if 
the appellant's treatment records have 
been archived.  All records maintained 
are to be requested, to include those 
maintained in paper form and those 
maintained electronically (e.g., in 
computer files) or on microfiche.  
Associate all records and responses with 
the claims file.

2.  The RO should obtain from the Social 
Security Administration the 
administrative decision and underlying 
medical records relied upon in granting 
Social Security disability benefits, as 
well as any records of subsequent 
reassessment.  Once obtained, all 
documents must be incorporated into the 
claims folder.

3.  Ask the appellant to submit medical 
records, decisions, and other supporting 
documentation from the State of New York 
in connection with his disability 
retirement, or, in the alternative, to 
provide a release for those records and 
the name and address of the entity from 
which those records may be requested by 
the RO.  If the appellant asks the RO to 
assist in obtaining these records, 
document all requests and responses in 
the claims file.  If the request for the 
records is not successful, notify the 
appellant and his representative so that 
he may avail himself of the opportunity 
to obtain the information and submit it 
himself, in keeping with his ultimate 
responsibility to submit evidence in 
support of his claim.  38 C.F.R. 
§ 3.159(c) (1999).  Associate all records 
received with the claims file.

4.  Ask the appellant to provide releases 
for his treatment records from Dr. Peter 
B. Dunne, and Tampa General/USF MS 
Clinic.  Request the veteran's complete 
medical and clinical records from Dr. 
Dunne and Tampa General/USF MS Clinic.  
If any request for these records is 
unsuccessful, notify the appellant and 
his representative, so he may avail 
himself of the opportunity to obtain the 
records and submit them himself, in 
keeping with his ultimate responsibility 
to submit evidence in support of his 
claim.  38 C.F.R. § 3.159(c) (1999).  
Associate all records received with the 
claims file.

5.  After the development requested above 
has been completed to the extent 
possible, the RO should again review the 
record and make a determination as to 
whether service connection is warranted.  
If the benefit sought on appeal remains 
denied, the appellant and representative 
should be furnished a supplemental 
statement of the case and given the 
opportunity to respond thereto.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the regional office.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

This claim must be afforded expeditious treatment by the RO.  
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 The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and 
Statutory Notes).  In addition, VBA's Adjudication Procedure 
Manual, M21-1, Part IV, directs the ROs to provide 
expeditious handling of all cases that have been remanded by 
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.




		
	J. SHERMAN ROBERTS
	Member, Board of Veterans' Appeals