Citation Nr: 0632584	
Decision Date: 10/19/06    Archive Date: 10/31/06

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, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel


INTRODUCTION

The appellant is a veteran who served on active duty from 
October 1963 to October 1966.  

This matter comes before the Board of Veterans' Appeals 
(Board) by order of the United States Court of Appeals for 
Veterans Claims (hereinafter "the Court") on December 20, 
2005, which vacated a June 2003 Board decision and remanded 
the case for additional development.  The issue initially 
arose from a May 1997 rating decision by the Cleveland, Ohio, 
Regional Office (RO) of the Department of Veterans Affairs 
(VA).  


FINDINGS OF FACT

1.  All relevant evidence necessary for the equitable 
disposition of the issue on appeal was obtained.

2.  The evidence of record demonstrates the veteran's MS was 
onset during active service.


CONCLUSION OF LAW

The veteran's MS was incurred in service.  38 U.S.C.A. 
§§ 1110, 1112, 5107 (West 2002 & Supp. 2005); 38 C.F.R. 
§§ 3.303, 3.307, 3.309 (2006).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's 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. 2005); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2005).  In this case, 
the veteran was notified of the VCAA duties to assist and of 
the information and evidence necessary to substantiate her 
claim by correspondence dated in October 2001.  Adequate 
opportunities to submit evidence and request assistance have 
been provided.  

During the pendency of this appeal, the United States Court 
of Appeals for Veterans Claims (hereinafter "the Court") in 
Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the 
VCAA notice requirements applied to all elements of a claim.  
In light of the favorable decision in this present appeal, 
the Board finds there has been substantial compliance with 
all pertinent VA law and regulations and the appellant is not 
prejudice by this action.  The Board notes, however, that 
appropriate notice as to matters related to effective dates 
and compensation levels should be provided to the veteran as 
soon as practicable.

Factual Background

The veteran served on active duty as a nurse in the U.S. Navy 
from October 1963 to October 1966.  Upon entry into service, 
she was diagnosed as having a minimal estropia of the right 
eye.  In March 1964, she was treated for a concussion after 
she was struck in the head by a patient.  Upon admission to 
the hospital, her symptoms were noted as "staggering gait, 
slight weakness of the left upper extremity;" further 
testing revealed a "paroxysmal abnormality."  She was 
prescribed Dilantin and discharged.  A few months later, she 
was treated for "intermittent hyperventilation syndrome" 
after suffering from palpitations, paraesthesias and labored 
respirations for six weeks.  Further examination revealed 
normal physical and neurological systems.  The examiner 
noted, however, that there were no "residual neurologic 
deficits . . . there is nothing to suggest a convulsive 
disorder."  Following this incident and for the remainder of 
her service, she complained of and was treated for headaches, 
weakness, fatigue, tremors, nausea, and dizziness.  In 
September 1966, she became pregnant and was released from 
active duty. 

In February 1975, the veteran sought treatment for numbness 
and pain in her hips and legs.  She was admitted to the 
hospital for further evaluation and was diagnosed as having 
"demyelinating process."  In her treatment records, the 
examining private physician, Dr. Steinmetz, noted a history 
of numbness and "Lhermitte's sign, or shooting[,] sharp 
sensations up and down her neck, a problem present for many 
years."  Dr. Steinmetz diagnosed her as having "subjective 
hypesthesia below the hips of undetermined etiology and 
significance." 

In August 1975, the veteran sought a second evaluation from a 
private physician, Dr. Paulson.  In correspondence to Dr. 
Steinmetz, Dr. Paulson reported that the veteran suffered 
from Leriche's syndrome during her first pregnancy in 1967, 
with tingling in her left arm.  The tingling in her arm 
remained for almost a year after her pregnancy.  She 
experienced the same symptoms during her second pregnancy, 
along with "grinding fatigue," which Dr. Paulson associated 
with demyelinating disease.  Dr. Paulson also stated that she 
had developed intermittent tachycardia, increased stiffness 
in her legs, weakness in her arms, intermittent blurred and 
double vision and opined further that "it is clear that 
these symptoms have come and gone through the years."  He 
diagnosed her as having MS.  In October 1976, she was 
admitted to the hospital for additional treatment after 
suffering another episode of numbness; the diagnosis was 
again noted as MS. 

In September 1996, the veteran filed an application for VA 
disability compensation, seeking service connection for MS.  
In private medical reports submitted with her application, 
Dr. Rammohan, in June 1989, stated that the veteran was 
diagnosed with MS in 1975 but during her first pregnancy in 
1967 had experienced "excessive fatigue" which disappeared 
after her pregnancy.  However, during her second pregnancy 
she suffered from "weakness and numbness of the left upper 
extremity" that was diagnosed as a pinched nerve and during 
her eighth month of pregnancy was unable to walk, a problem 
that appeared again during her third pregnancy.  She also 
suffered from intermittent periods of blindness during all 
three of her pregnancies.  

Private medical records from Dr. Robert Thompson indicated 
that the veteran had been diagnosed as having MS in 1975.  In 
statements in support of her claim the veteran asserted that 
she had a history of a broad range of symptomatology that 
never led to a conclusive diagnosis and that if examined in 
their appropriate context would have shown the early stages 
of MS, including changes during each pregnancy. 

In August 1998, the veteran underwent a VA neurological 
examination to determine whether her symptoms during service, 
described by the RO as transient dizziness and paraesthesias 
around the mouth and in the extremities with rapid, heavy 
breathing and diagnosed as hyperventilation syndrome were the 
first manifestations of MS or were entirely unrelated to the 
multiple sclerosis first diagnosed years later in 1975.  It 
was the opinion of the examiner, Dr. Parker, that the veteran 
clearly had multiple sclerosis with its first well defined 
attack in 1975 and that an episode in 1967, while certainly 
characteristic of multiple sclerosis, was not documented to 
be an attack, particularly in view of the mention of the 
record of an abnormal electromyogram.  

In an addendum to that report, Dr. Parker stated that the 
veteran had proven multiple sclerosis with the first clear 
cut exacerbation in 1975, but that there was a report of 
numbness of the right upper extremity while the veteran was 
pregnant in 1967.  It was noted that some of the records from 
Grant Hospital at the time of that pregnancy were available 
and that there was a copy of a consultation report noting 
there was no central nervous system disease.  The examiner 
stated these reports reinforced the notion that the numbness 
which was reported by the veteran in 1967 was not an attack 
of multiple sclerosis.  It was Dr. Parker's opinion that 
numbness experienced by the veteran in 1967 was not a 
manifestation of multiple sclerosis

In July 1998, the veteran submitted a statement in support of 
her claim in which she outlined the progression of her 
symptoms over the years, the start of which were noted in 
January through March of 1967, when she was treated by Dr. 
Starkey for numbness and tingling in her right arm, which he 
attributed to a "pinched cervical nerve."  She also 
submitted a February 1999 report from private physician 
Dr. Thompson to VA physician Dr. Rodway, in which Dr. 
Thompson asserted that she had suffered symptoms of MS since 
age 23.  

An April 2003 private medical opinion from a private neuro-
radiologist, Dr. Bash, noted the veteran's service medical 
records, post service medical records, other medical 
opinions, applicable medical literature had been reviewed.  
Dr. Bash concluded that during service the veteran had waxing 
and waning numbness/tingling and visual acuities and that 
these findings were all consistent with the first signs and 
symptoms of MS.  

In an October 2006 independent medical expert opinion Dr. 
Minagar, Associate Professor of Neurology, Louisiana State 
University Health Sciences Center, found a review of the 
records "clearly and beyond a reasonable doubt" 
demonstrated that the veteran had MS as early as 1964.  It 
was noted, in essence, that service medical records showed 
the veteran had significant neurological complaints that 
deserved more extensive diagnostic evaluation, but that from 
the very beginning she had been "branded" with a diagnosis 
of "conversion disorder."  Dr. Minagar noted that MS was a 
complicated and deceptive disease that imitated other 
diseases and had a relapsing course in the majority of 
patients with symptoms and complaints that could resolve even 
without treatment.  It was also noted that the veteran had 
complained of headaches, weakness, nausea, fatigue, tremor, 
and dizziness persistently during active service and that 
complaints such as fatigue, tremor, and weakness presented a 
typical case of MS in its early stages.

Analysis

Service connection may be granted for a disability resulting 
from personal injury suffered or disease contracted in line 
of duty or for aggravation of preexisting injury suffered or 
disease contracted in line of duty.  38 U.S.C.A. § 1110 (West 
2002); 38 C.F.R. § 3.303 (2006).  MS manifested to a degree 
of 10 percent or more within seven years of service may be 
presumed service connected.  See 38 U.S.C.A. § 1112 (West 
2002); 38 C.F.R. §§ 3.307, 3.309 (2006).  

In addition, service connection may be granted for any 
disease diagnosed after discharge, when all of the evidence, 
including that pertinent to service, establishes the disease 
was incurred in service.  38 C.F.R. § 3.303(d).  For the 
showing of chronic disease in service, there are required a 
combination of manifestations sufficient to identify a 
disease entity, and sufficient observation to establish 
chronicity at the time, as distinguished from merely isolated 
findings or a diagnosis including the word chronic.  
Continuity of symptomatology is required only where the 
condition noted during service is not, in fact, shown to be 
chronic or when the diagnosis of chronicity may be 
legitimately questioned.  When the fact of chronicity in 
service is not adequately supported, then a showing of 
continuity after discharge is required to support the claim.  
38 C.F.R. § 3.303(b).

In order to prevail on the issue of service connection on the 
merits, there must be medical evidence of (1) a current 
disability; (2) medical, or in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a disease 
or injury; and (3) medical evidence of a nexus between the 
claimed in-service disease or injury and the present disease 
or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).  
The Federal Circuit has held that a veteran seeking 
disability benefits must establish the existence of a 
disability and a connection between service and the 
disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 
2000).

It is the policy of VA to administer the law under a broad 
interpretation, consistent with the facts in each case with 
all reasonable doubt to be resolved in favor of the claimant; 
however, the reasonable doubt rule is not a means for 
reconciling actual conflict or a contradiction in the 
evidence.  38 C.F.R. § 3.102 (2006).

Based upon the evidence of record, the Board finds the 
veteran's MS was incurred during active service.  Although 
there is evidence both for and against the veteran's claim, 
the October 2006 independent medical expert's opinion as to 
etiology is considered to be persuasive.  The examiner is 
shown to have specific, relevant experience with the 
disability at issue and the provided opinion is shown to have 
been based upon a thorough review of all pertinent evidence 
with reference to medical findings documented during active 
service.  Therefore, entitlement to service connection for MS 
is warranted.




ORDER

Entitlement to service connection for MS is granted.



____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs