Citation Nr: 0811607	
Decision Date: 04/08/08    Archive Date: 04/23/08

DOCKET NO.  05-29 041	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, 
Texas


THE ISSUE

Entitlement to service connection for multiple sclerosis.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Associate

INTRODUCTION

The veteran, who is the appellant, served on active duty from 
March 1968 to March 1971, and from August 1972 to August 
1980.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of a rating decision, dated in April 2004, of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Houston, Texas.

In July 2007, the Board remanded the case for additional 
development.  As the requested development has been 
completed, no further action is necessary to comply with the 
Board's remand directives.  Stegall v. West, 11 Vet. App. 268 
(1998).

FINDINGS OF FACT

Multiple sclerosis was not was not affirmatively shown to 
have had onset during service; there is no competent medical 
evidence indicating that the veteran's multiple sclerosis was 
manifest during service or within seven years following the 
veteran's discharge from service, and; multiple sclerosis, 
first diagnosed after service beyond the seven-year 
presumptive period for multiple sclerosis as a chronic 
disease, is unrelated to an injury, disease, or event of 
service origin.


CONCLUSION OF LAW

Multiple sclerosis was not incurred in or aggravated by 
service and service connection for multiple sclerosis as a 
chronic disease may not be presumed to have been incurred 
during service.  38 U.S.C.A. §§ 1110, 1112, 1131, 5107(b) 
(West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 
(2007).

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA amended VA's duties to notify and to assist a 
claimant in developing information and evidence necessary to 
substantiate the claim.  38 U.S.C.A. §§ 5103(a), 5103A; 38 
C.F.R. § 3.159. 



Duty to Notify

Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of 
the information and evidence not of record that is necessary 
to substantiate the claim, which information and evidence VA 
will obtain, and which information and evidence the claimant 
is expected to provide.  Under 38 C.F.R. § 3.159, VA must 
request that the claimant provide any evidence in the 
claimant's possession that pertains to the claim.

The VCAA notice requirements apply to all five elements of a 
service connection claim.  The five elements are: 1) veteran 
status; 2) existence of a disability; (3) a 
connection between the veteran's service and the disability; 
4) degree of disability; and 5) effective date of the 
disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The VCAA notice must be provided to a claimant before the 
initial unfavorable adjudication by the RO.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).  

The RO provided pre- adjudication VCAA notice by a letter 
dated in December 2003.  The veteran was notified of the 
evidence needed to substantiate the claim of service 
connection, namely, evidence of current disability; evidence 
of an injury or disease or event in service, causing injury 
or disease, or an injury, or a disease was made worse during 
service; evidence of a relationship between the current 
disability and the injury, disease, or event in service; and 
the presumption of service connection for certain diseases 
for a former prisoner of war. 

The veteran was also informed that VA would obtain service 
records, VA records, and records of other Federal agencies, 
and that he could submit other records not in the custody of 
a Federal agency, such as private medical records, or with 
his authorization VA would obtain any such records on his 
behalf.  He was also asked to submit evidence, which would 
include that in his possession, in support of his claim.  The 
notice included the general provision for the effective date 
of the claim, that is, the date of receipt of the claim. 

As for content of the VCAA notice, the documents 
substantially complied with the specificity requirements of 
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying 
evidence to substantiate a claim and the relative duties of 
VA and the claimant to obtain evidence); of Charles v. 
Principi, 16 Vet. App. 370 (2002) (identifying the document 
that satisfies VCAA notice); of Pelegrini v. Principi, 
18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); and of 
Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the 
elements of the claim, except for the degree of disability 
assignable). 

To the extent that the VCAA notice was provided after the 
initial adjudication, the timing of the notice did not comply 
with the requirement that the notice must precede the 
adjudication.  

The timing error was cured by adequate content-complying VCAA 
notice and subsequent readjudication as evidenced by the 
supplemental statement of the case, dated in July 2005.  
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

To the extent that the VCAA notice was provided after the 
initial adjudication, the timing of the notice did not comply 
with the requirement that the notice must precede the 
adjudication.  However, the timing defect was cured without 
prejudice to the veteran because he had a meaningful 
opportunity to participate effectively in the processing of 
the claim as he had the opportunity to submit additional 
argument, so that the essential fairness of the adjudication 
has not been affected. Sanders v. Nicholson, 487 F.3d 881 
(Fed. Cir. 2007). 

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to 
assist the claimant in obtaining evidence necessary to 
substantiate the claim.  The duty to assist includes 
providing a medical examination when such is necessary to 
make a decision on a claim.  As to the duty to provide a VA 
examination, addressing the issue of service connection, in 
the absence of findings attributable to multiple sclerosis 
during service or for many years thereafter, or competent 
medical evidence that etiologically links the veteran's 
current diagnosis to service, development for a VA medical 
examination is not warranted.  McLendon v. Nicholson, 20 Vet. 
App. 79 (2006); 38 C.F.R. § 3.159(c)(4)(i). 

The RO has obtained service records, records of the Social 
Security Administration, and private medical records.  As the 
veteran has not identified any additional evidence pertinent 
to his claim, not already of record, and as there are no 
additional records to obtain, the Board concludes that the 
duty-to-assist provisions of the VCAA have been complied 
with.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

The veteran's service medical records show that in August 
1975, the veteran was seen for back pain with no history of 
trauma.  X-rays of the lumbar and thoracic spine were 
negative.  The veteran injured his foot when he jumped off a 
ladder in March 1978.  A medical history report in September 
1978, documented recurrent back pain since 1972.  On 
separation examination in May 1980,  the clinician noted a 
history of tension related intermittent low back spasms, from 
1975 to 1977, that resolved without treatment and with no 
reoccurrence.  The service medical records, to include the 
May 1980 separation examination, contain no complaints, 
diagnosis, or treatment for multiple sclerosis. 

In April 1981, the veteran was treated for neck and shoulder 
pain due to a cervical strain while doing heavy lifting.

In a statement in November 2003, the veteran claimed service 
connection for multiple sclerosis, on the basis that the 
disability had present since service, manifested by pain, 
difficulty walking, and anxiety.  

In March 2000, the veteran was seen for complaints of low 
back pain of 20 years duration.  He indicated that for a year 
and a half he had noticed increasing difficulty standing, 
weakness in the right lower extremity and heel pain.  The 
veteran reported low back pain since the 1960's, along with 
difficulty walking becoming progressively worse over the 
years.  He had sought medical treatment from multiple 
physicians for the past 10 to 15 years.  The clinician 
recorded a history of arthritis.  

In January 2001, the veteran developed bilateral tinnitus and 
vertigo.  

Based on MRI findings in March 2001, the veteran was 
diagnosed with multiple sclerosis in April 2001.  The 
clinician noted that the clinical picture suggested a long-
standing myelopathy, most likely thoracic; or thoracic spinal 
arteriovenous malformation; or in conjunction with his 
abnormal MRI, multiple sclerosis of a progressive form.  

An August 2001 report shows that in December 2000, the 
veteran complained of  pain in the lower back and the right 
hip, gait disturbance and memory difficulties.  He reported a 
history of walking difficulties for over 23 years, along with 
a gradual decline in stiffness and balance.  The veteran also 
related that over the years, he developed weakness in the 
right leg.     

In a January 2004 statement, the veteran claimed that 
multiple sclerosis symptoms were preset in service, although 
the disability was not treated or diagnosed.  He specifically 
noted incidents of back pain and difficulty walking during 
active duty, as symptoms related to the currently diagnosed 
multiple sclerosis.   
  
Principles of Service Connection

Service connection may be granted for a disability resulting 
from disease or injury incurred in or aggravated by service.  
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  

Service connection means that the facts, shown by evidence, 
establish that a particular injury or disease resulting in 
disability was incurred coincident with service, or if 
preexisting such service, was aggravated by service.  This 
may be accomplished by affirmatively showing inception or 
aggravation during service.  38 C.F.R. § 3.303(a).

For the showing of chronic disease in service there is 
required a combination of manifestations sufficient to 
identify the 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 where the condition 
noted during service is not, in fact, shown to be chronic or 
where 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).

Service connection may also be granted for a disease 
diagnosed after discharge, when all the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d).

Where a veteran had active service continuously for 90 days 
or more during a period of war or during peacetime service 
after December 31, l946, and multiple sclerosis becomes 
manifest to a degree of 10 percent or more within seven years 
from the date of termination of such service, such disease 
shall be presumed to have been incurred in service, even 
though there is no evidence of such disease during the period 
of service.  This presumption is rebuttable by affirmative 
evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 
1137; 38 C.F.R. §§ 3.307, 3.309.  (Under 38 C.F.R. § 4.124a, 
Diagnostic Code 8018, the minimum rating for multiple 
sclerosis is 30 percent.)

Analysis

On the basis of the service medical records, multiple 
sclerosis was not affirmatively shown during service.  38 
U.S.C.A. §§ 1110, 1131; 38 C.F.R. §3.303(a).

Although the service medical records document back pain and a 
history of back spasms, for the showing of chronic disease in 
service there is required a combination of manifestations 
sufficient to identify the disease entity and sufficient 
observation to establish chronicity at the time. As the 
service medical records lack the documentation of the 
combination of manifestations sufficient to identify multiple 
sclerosis and sufficient observation to establish chronicity 
during service, then a showing of continuity of 
symptomatology after service is required to support the 
claim.

Although the veteran is competent to describe post-service 
back pain and difficulty walking, because it does not 
necessarily follow that there is a relationship between the 
symptoms described by the veteran and the current multiple 
sclerosis, medical evidence is required to demonstrate such a 
relationship.  Savage v. Gober, 10 Vet. App. 488, 497 (1997).

The medical evidence shows treatment for symptoms related to 
multiple sclerosis in 2000, and a diagnosis of multiple 
sclerosis in 2001.  The absence of documented continuity of 
complaints from 1980 to 2000 is persuasive evidence against 
continuity of symptomatology.  38 C.F.R. § 3.303(b); Maxson 
v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson 
v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper 
to consider the veteran's entire medical history, including a 
lengthy period of absence of complaints.).

Also, multiple sclerosis, was documented in 2001, well beyond 
the seven-year presumptive period for manifestation of 
multiple sclerosis as a chronic disease under 38 U.S.C.A. §§ 
1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).

Also there is no favorable medical evidence that relates 
multiple sclerosis, first documented after service, to 
service.  38 C.F.R. § 3.303(d).

As for the veteran's statements, where as here, the 
determinative issue involves a question of medical causation, 
that is, medical evidence of an association or link between 
the current multiple sclerosis and an injury or disease or 
event during service, competent medical evidence is required 
to substantiate the claim because a lay person is not 
qualified through education, training, and expertise to offer 
an opinion on medical causation.  38 C.F.R. § 3.159; Jandreau 
v. Nicholson, 492 F.3d 1372, (Fed. Cir. 2007).  For this 
reason, the Board rejects the lay statements as competent 
evidence to substantiate the claim on the question of medical 
causation.

As the Board may consider only independent medical evidence 
to support its finding on a question involving medical 
causation, which the veteran as a lay person is not competent 
to provide, and as there is no favorable competent evidence 
to support the claim, the preponderance of the evidence is 
against the claim and the benefit-of-the-doubt standard of 
proof does not apply.  38 U.S.C.A. § 5107(b). 


ORDER

Service connection for multiple sclerosis is denied.


____________________________________________
GEORGE E. GUIDO JR.
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs