Citation Nr: 0311237 Decision Date: 06/02/03 Archive Date: 06/10/03 DOCKET NO. 97-30 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for multiple sclerosis (MS). REPRESENTATION Appellant represented by: Sandra E. Booth, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Bredehorst, Associate Counsel INTRODUCTION The veteran served on active duty from October 1963 to October 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio that denied service connection for MS. In March 2000, the Board denied service connection for MS. In a February 2001 Order, pursuant to a joint motion from the parties, the United States Court of Appeals vacated the Board decision and remanded the matter for consideration of the Veterans Claims Assistance Act of 2000 (VCAA). Thereafter, the Board remanded the case to the RO in a September 2001 decision for consideration and application of the VCAA. The Board notes that additional evidence has been received that is not the subject of a supplemental statement of the case. However, the veteran, through her attorney, has waived additional consideration of that evidence by the RO. Therefore, the Board will proceed with adjudication of this claim. FINDINGS OF FACT 1. All of the evidence necessary for an equitable disposition of the claim has been obtained by the RO. 2. There is no competent medical evidence to show that MS had its onset in service, or within seven years following separation from service. CONCLUSION OF LAW MS was not incurred in or aggravated by service, nor may service incurrence be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), was signed into law. This liberalizing law is applicable to this appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). To implement the provisions of the law, the VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). The Act and implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also includes new notification provisions. Through the October 2001 letter, the veteran was informed of the aforementioned provisions, including VA's duty to assist and Duty to notify, and the actions that VA would undertake to insure that those provisions had been met. Factual Background Service medical records include an August 1963 enlistment examination that shows minimal right esotropia without diplopia. Bilateral distant vision was 20/20. In the Report of Medical History also dated in August 1963, it was indicated that glasses and eye exercises helped her vision. The veteran also gave a history of leg cramps with strain. In March 1964, will a nursing student, the veteran sustained a head injury after being struck by a patient. This resulted in a 10-day hospitalization. During a September 1964 physical examination, it was noted that she suffered from a psychoneurotic personality disorder manifested by conversion reaction. A consultation report dated in October 1964 noted the veteran's medical history of an injury in March 1964. It indicated that after she was discharged from the hospital in April 1964, she had frequent periods of blackout spells and severe headaches. She rested during the summer with little or no symptoms. At the beginning of the following school year, there was a reoccurrence of headaches and periodic blackout spells. There was a tremor following these blackout spells which were not clonic movements and she also noticed some twitching. She also noted a feeling of seeing things from a distance, associated with these spells, but all in all the spells were rather vaguely described and in no way really resembled a true seizure. Neurologic examination revealed that the cranial nerves were intact. Gait, station and coordination were normal. Motor examination revealed a feigned weakness in the left extremities; however, she was strong in all muscle groups. Sensory examination revealed a vague, unanatomic hypesthesia on the left side of the body including the left face, but not including the left upper extremity; it also included the left lower extremity. The borders of this area of hypesthesia varied during the examination as much as 4 to 5 inches. An electroencephalogram was conducted that was interpreted to be normal. Her symptoms were considered to be a conversion reaction. A Report of the Board of Medical Survey, dated in November 1964, included the veteran's history of being hit with full force in the forehead by a patient in March 1964 causing her to pass out later in the day. She was sent to the hospital. An electroencephalogram revealed a paraoxysmal abnormality. In the autumn of 1964, she had approximately a six-week period of typical intermittent hyperventilation syndrome with rapid palpitations, paresthesias, and labored respirations. A later electroencephalogram in November 1964 was found to be normal and a consultant's opinion was that the veteran was suffering from conversion reaction. Neurological tests were performed and the results were normal. She related that she had been married in February 1964 (before her injury), and that sexual adjustment was good, except that she hyperventilated during intercourse. Staff psychiatrists and neurologists reviewed her records and found no evidence of a conversion reaction, and that her complaints had resulted from her becoming ambivalent and losing motivation for commissioning in the Nurses' Corp. In September 1965, the veteran complained of headache, faint feelings, and possible hyperventilation. She indicated that she arose suddenly from a chair and became weak, dizzy and uncoordinated. After going to bed she became nervous and was aware of rapid deep breathing with subsequent paresthesias around the mouth and in the extremities. The diagnosis was tension headache and transient postural hypotension with subsequent hyperventilation syndrome. According to emergency room records, she had a similar episode in December 1965. She reported that she became weak, collapsed, and lost consciousness. The impression was again hyperventilation syndrome. A September 1966 separation examination report noted distant visual acuity of 20/30 in the right eye and 20/20 in the left eye. A report of medical history dated in September 1966 indicated that on fatigue or increased blood pressure, the veteran underwent a period of tremors, dizziness, nausea, and semi awareness of her environment followed by a period of weakness. A physician indicated on the report that the veteran had been struck by a patient at State Hospital that resulted in a concussion and hospitalization for 10 days. After returning to duty, she had dizzy spells, headaches, and tremors. In September 1966, while three months pregnant, she was seen for an episode of dizziness and light-headedness with no real syncope. Possible hyperventilation was described by an observing nurse. The veteran was hospitalized at Grant Hospital in May 1968 due to the birth of her baby. Complaints of tingling and numbness in the left arm were noted. A consultation report indicated that she had been seen before and had complaints of left arm numbness that she experienced off and on during her pregnancy. There were negative neurological findings. An EEG was the same as the one that had been done previously and there was no change in the central nervous system. A medical bill from R. W. Starkey, M.D., dated in May 1969 indicated the veteran was seen for a consultation and underwent an electromyogram, nerve conduction studies, and x- rays. A private medical bill indicated the veteran underwent a brain scan and x-rays of the chest and skull in January and February 1975. Inpatient records from Lee Memorial hospital dated in February 1975 indicated the veteran was hospitalized for evaluation of complaints of numbness from her waist down after scuba diving. It was reported that six months prior, transient numbness developed in the left hand. She described symptoms of shooting, sharp-like sensations up and down her neck that had been present for many years. Neurological examination revealed sensory findings which were difficult to interpret and possibly functional. Electrocardiogram and electroencephalogram results were normal. Brain scans revealed no abnormality. The diagnosis was demyelinating process. Lipomatous-like mass adjacent to D-11. A consultation report from Edward F. Steinmetz, M. D., dated in February 1975 noted complaints of numbness from the waist down. The veteran reported a history of numbness from the thumb up to the left side of the neck after the birth of her second baby. Since that time, she continued to have intermittent problems in the left hand. She described fairly characteristic Lehrmitte's Sign. She indicated she had two previous head injuries. The first was at the age of 7 and the second was when she was 20 years old. The impression was soft tissue lipomatous-like mass adjacent to the left D10, 11 vertebral body; questionable seizure history by history; and head injuries by history. A consultation report from Harry M. Lowell, M.D., dated in February 1975 included complaints that were consistent with previous reports. The impression was that there was a functional problem. He doubted the veteran had MS or a structural lesion. A medical bill indicated that the veteran was seen for a neurological consultation in July 1975. A discharge summary from Lee Memorial Hospital indicated the veteran was admitted in October 1976 for treatment of MS. Private medical records from M.J. Somple, M.D., indicated the veteran had been evaluated in September 1987 for MS. He had also seen her four years earlier for the same disorder. She received follow-up care in April 1988. June 1989 medical records included notes from Ohio State University Hospital that summarize the veteran's medical history as follows: The veteran had extreme fatigue five months into her first pregnancy in 1967. Weakness and numbness of the upper arm were noted four month into her second pregnancy in 1968. It was diagnosed as a pinched nerve. By the eighth month of her pregnancy, she could not walk. In 1973, the veteran had difficulty walking during her third pregnancy. It was noted that she had 24 hours of blindness after each pregnancy. The veteran had problems with standing and walking in 1976. She also complained of stiffness around the knees. A report from Kottil W. Rammohan, M.D. dated in June 1989 included a history of the veteran's MS. There was no change in the reported history. Results of an August 1989 cerebral MRI were compatible with a demyelating disorder. A report from Dr. Rammohan dated in September 1989 noted continued treatment for MS. A report from Robert J. Thompson, M.D., dated in June 1992 indicated that the veteran was evaluated for MS. A brief reference to her medical history indicated that symptoms dated back to the 1960's. Records from Good Samaritan Medical Center indicated the veteran was hospitalized in February 1995 due to MS. In a discharge summary from Bethesda Hospital that showed the veteran was hospitalized in February and March 1995 due to MS, it was noted that the disorder dated back to 1975. A history of her illness was consistent with prior medical records. The veteran received follow-up care for MS from Dr. Thompson in November 1995. The veteran underwent a VA examination in August 1998 performed by James M. Parker, M.D., a neurologist. A narrative of her medical history was consistent with that which has been previously reported. The impression was that the veteran had MS and the first well-defined attack was in 1975 when the initial diagnosis was made. The episode that happened in 1967 was opined to be characteristic of MS, but could not be documented as an attack, particularly in view of the mention of the record of an abnormal electromyogram. The results of the electromyogram were not available for review. In an addendum, the physician opined that the episodes that occurred up to and including December 1965 were not manifestations of MS. The first episode that could have been MS occurred in 1967, but the documentation did not allow a determination on that point because of the fact that, at that time, the question was raised about a nerve compression lesion. A second addendum, dated in November 1998, indicated additional records were available that the physician had not previously reviewed. Specifically, records from Grant Hospital were reviewed. It was noted that the first clear- cut exacerbation was in 1975. Reference was made to an electromyogram that was not available for review. A consultation report from Dr. Limebach indicated that there was no central nervous system disease. The reports would tend to reinforce the notion that the numbness that was reported in 1967 was not a MS attack. If the electromyogram records were located and reviewed, it would probably allow absolute confirmation. In the absence of the records, the opinion was that the numbness experienced by the veteran was not a manifestation of MS. A consultation report from Dr. Thompson dated in February 1999 noted manifestations of MS and associated problems. He indicated that her symptoms began when she was 23 years old. In February 2000, the veteran testified during a travel board hearing that she first experienced MS symptoms while on active duty. In 1966 and 1967, during her first pregnancy, she experienced back pain, headaches, nausea, some blindness, and difficulty walking. The symptoms stopped after her pregnancy and reappeared during her second pregnancy in 1968. She had right arm numbness diagnosed as a pinched nerve. The symptoms again alleviated after the birth of her second baby. After the third pregnancy in 1972 and 1973 she was unable to walk during the second half of the pregnancy and was blind for about three weeks after the delivery of her baby. The symptoms came back in 1975, which was when she was diagnosed with MS. She initially had periods of exacerbations and remissions, but her disorder progressed to where she was chronic and no longer had drastic swings. The veteran's medical file underwent an independent medical review in April 2003 by Craig N. Bash, M.D. He reviewed the veteran's service medical records, post service medical records, other medical opinions, and medical literature. He opined that during service, the veteran had waxing and waning numbness/tingling and visual acuities and that those findings were all consistent with the first signs and symptoms of MS. He referred to Merritts textbook of neurology 8th ed. 1989 that listed initial signs and symptoms as visual disturbances, blurred vision, paresthesias including spontaneous feelings of numbness and tingling in the limbs, trunk, or face. He cited to specific references in service medical records that reported visual acuity, numbness, weakness, hyperventilation, and headaches. Beginning in 1967, he cited medical records that referenced various diagnoses that were accepted and rejected, studies and tests, numbness and tingling in left upper extremity, visual acuity, and other symptomatology. The opinions of Dr. Thompson, who only attributed symptoms to MS only as far back as 1975, and the VA examiner, who indicated symptoms in 1967 could not be documented as an attack, were addressed. Reasons were provided as to why these opinions were considered invalid. Dr. Bash did not examine the veteran. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2002). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2002). In addition, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002 & Supp. 2002); 38 C.F.R. § 3.303(d) (2002). Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service incurrence will be presumed for multiple sclerosis, if manifested to a compensable degree within seven years of the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2002); 38 C.F.R. § 3.307, 3.309. Private and VA physicians agreed that the veteran has a diagnosis of MS. The opinions differed, however, as to whether the disorder was directly related to service or manifested to a compensable degree during the presumptive period of 7 years after separation from service. The Board has reviewed the opinions and statements regarding the onset of the disorder that were provided over the years. Dr. Thompson indicated that the veteran had symptoms dating back to the 1960's. In 1999, he indicated that her symptoms began when she was 23 years old. These comments have little probative value because there is no indication of what evidence was relied upon when these conclusions were made. Moreover, the context in which the comments were made was not to establish the etiology or determine the onset of the illness. There were presented merely as part of a brief history of the veteran's illness. The more noteworthy opinions are those offered by a VA physician in 1998 and Dr. Bash, who evaluated the veteran in 2003. Both physicians evaluated the veteran's illness and reviewed her medical records for the express purpose of making a determination with regard to the onset of the illness and any possible relationship with service. Despite reviewing of the same records, the physicians offered opposite opinions. When faced with conflicting diagnoses the Board must compare and weigh the probative value of the two opposing medical opinions. If they are found to be in equipoise, then the benefit of the doubt is applied in the veteran's favor. Based on the evidence of record, we do not find the conflicting opinions to be in equipoise. Initially, the Board questions the credibility of Dr. Bash. Reference is made to the Internet website of the American Medical Association (AMA), www.ama-assn.org. which "provides information on virtually every licensed physician in the United States and its possessions". A search of that website, produced an AMA Physician Sheet on Craig Bash, M.D (copy attached). The information on that sheet was provided by Dr. Bash. Dr. Bash lists Neuroradiology as "Primary Practice - Specialty Self Designated by Physician". In a disclaimer associated with the website, the AMA states, Self-Designated practice specialties/Areas of Practice (SDPS) listed on the AMA physician Masterfile have historically related to the record- keeping needs of the American Medical Association and do not imply "recognition" or "endorsement" of any field of medical practice by the Association. The fact that a physician chooses to designate a given specialty/area of practice on our records does not necessarily mean that the physician has been trained or has special competence to practice the SDPS. (emphasis added) A review of decision rendered by the Board of Veterans' Appeals in 2002 revealed that Dr. Bash rendered opinions in 25 cases, including cases involving gastrointestinal disorders, orthopedic disability, cardiovascular disorders, pulmonary disorders, exposure to ionizing radiation, and exposure to herbicides, to name a few. The table provided below lists the individual cases and where they may be found in the public record. DECISION CITATION NUMBER RECORD NUMBER DISABILITY FOR WHICH OPINION RENDERED BY CRAIG N. BASH, M.D. IN 2002. 1 BVA 02-00721 2984/39454 Shoulder, elbow, hand (orthopedic) 2 BVA 02-01398 4348/39454 Peptic ulcer disease caused death 3 BVA 02-01584 4724/39454 Thyroid disease caused by herbicide (TCDD) exposure 4 BVA 02-01884 5328/39454 Myocardial infarction due to renal disease, first manifested as peripheral edema in service. 5 BVA 02-01999 5558/39454 Gastrointestinal disorder 6 BVA 02-02502 6560/39454 Cervical spine injury 7 BVA 02-03188 7940/39454 Low back and right leg 8 BVA 02-04350 10280/3945 4 Chronic obstructive pulmonary disease 9 BVA 02-04446 10472/3945 4 Low back disorder 1 0 BVA 02-04863 11308/3945 4 cardiovascular disease 1 1 BVA 02-04946 11480/3945 4 Gouty arthritis and back disorder contributed to cardiovascular disease causing death 1 2 BVA 02-04963 11514/3945 4 Amputation of toes and foot disorder caused death by heart disease 1 3 BVA 02-05175 11938/3945 4 Lyme disease due to insect bite 1 4 BVA 02-05332 12254/3945 4 Deep Venous Thrombosis caused pseudomonas causing death 1 5 BVA 02-05560 12720/3945 4 Low back disorder 1 6 BVA 02-07192 16006/3945 4 Medication for reflux disease caused esophageal cancer 1 7 BVA 02-09584 20796/3945 4 Abdominal aortic aneurysm and related disabilities due to VA exam and treatment 1 8 BVA 02-09591 20810/3945 4 Multiple system disease due to ionizing radiation exposure 1 9 BVA 02-11086 23820/3945 4 Primary sclerosing cholangitis 2 0 BVA 02-13145 27958/3945 4 Cervical spine 2 1 BVA 02-11489 24626/3945 4 Left hip due to Left heel 2 2 BVA 02-14400 30474/3945 4 Degenerative joint disease 2 3 BVA 02-15479 32656/3945 4 Meniere's disease 2 4 BVA 02-15595 32892/3945 4 Parietal-occipital AVM bleed with stoke 2 5 BVA 02- 17048 35826/3945 4 knees It should also be noted that in 2001, Dr. Bash, a neuroradiologist, offered well over 20 opinions in a variety of medical fields in various medical cases before the Board. However, the fact remains that Dr. Bash is, by training, a neuroradiologist. There is no proof that he has received training in many of the areas in which he has, in the past, provided a medical opinion. More specifically, there is no indication in the record that Dr. Bash, possesses any specialized knowledge regarding multiple sclerosis, as would be necessary to render an opinion in this case. Furthermore, there is no indication that Dr. Bash personally examined the veteran. The references to medical textbooks address only the general symptoms, and not those specific to the veteran's case. However, in 1998, this case was remanded to the RO in order that the case be referred to a VA neurologist, preferably a physician with a specialization in MS. In this case, the veteran was examined by James M. Parker, M.D., in August 1998. A review of the AMA Physician Sheet on Dr. Parker indicates training in neurology, the area of medicine most directly involved with multiple sclerosis (copy attached). Therefore, after assessing the medical credentials of Dr. Bash, a radiologist, and Dr. Parker, a neurologist, the Board is inclined to place a greater weight on the opinion of Dr. Parker. In the present case, the Board finds that the requirements of Thurber v. Brown 5 Vet App. 119 (1993) are inapplicable to this case, inasmuch as the appellant and her attorney retained Dr. Bash and thus are aware of his medical credentials. Furthermore, the AMA information on Dr. Parker is provided only to reaffirm that the VA properly ordered an examination by a qualified neurologist. Finally, this information, including that provided in the table, does not provide additional evidence in this case, but addresses the credibility of the physicians offering their opinion on the evidence; therefore, the holding in Thurber is does not apply. Copyright 1995-2003 American Medical Association. All rights reserved. Based on the foregoing, the weight of the evidence is against the veteran's claim of service connection for MS. As the facts presented do not present an approximate balance between positive and negative evidence, the benefits-of-the doubt rule is not applicable. 38 U.S.C.A. § 5107(b) (West Supp. 2002); Gilbert v. Derwinski, 1 Vet. App. 491 (1990). ORDER Service connection for MS is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.