Citation Nr: 0812504 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 00-17 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for multiple sclerosis (MS). REPRESENTATION Appellant represented by: Kathy A. Lieberman ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active military service from February 1974 to February 1977. He also had approximately four-and-a-half months of prior active service. This case originally came before the Board of Veterans' Appeals (Board) on appeal from an October 1999 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied the appellant's claim of entitlement to service connection for multiple sclerosis (MS). After the case was remanded to the RO for additional development in October 2001, the RO continued to deny the claim and the case was returned to the Board for appellate review. The Board thereafter, in a January 2005 decision, denied the appellant's claim. The appellant then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (hereinafter Court). In September 2006, the parties filed a Joint Motion for Remand. The basis for the Motion for Remand was that the medical opinion generated pursuant to the October 2001 Board remand had provided inadequate responses to the questions asked by the Board. A September 2006 Order of the Court granted the Joint Motion and vacated the Board's decision. The issue on appeal was remanded for readjudication pursuant to the provisions of 38 U.S.C.A. § 7252(a). After the issuance of the September 2006 Court Order, the Board received additional medical evidence relating to the issue on appeal. This March 2008 evidence was accompanied by a written waiver of review of that evidence by the agency of original jurisdiction. Therefore referral to the RO of evidence received directly by the Board is not required. 38 C.F.R. § 20.1304. FINDING OF FACT It is at least as likely as not that the appellant's MS had its onset during service or within seven years of the appellant's discharge from service in February 1977. CONCLUSION OF LAW Resolving doubt in favor of the appellant, the appellant's MS is presumed to have been incurred during active service. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1131, 1133, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The Merits of the Claim In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection suggests many factors, but basically it means that the facts, as 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 therein. 38 C.F.R. § 3.303. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). There must be medical evidence of a nexus relating an inservice event, disease, or injury and any current disability. Caluza v. Brown, 7 Vet. App. 498 (1995), Grottveit v. Brown, 5 Vet. App. 91 (1993). More particularly, service connection for MS requires medical evidence diagnosing the condition in accordance with regulatory provisions. If MS is manifest to a compensable degree within seven years after separation from active service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under the rating schedule, multiple sclerosis may be rated from 30 percent to 100 percent, based on impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. The regulations provide the following additional guidance: Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. Id. Review of the appellant's service medical records reveals that they contain no findings, complaints, or diagnosis of multiple sclerosis. The appellant underwent a separation examination in December 1976; the neurological evaluation conducted as part of that examination was normal. Review of the appellant's post-service medical records reveals that he underwent MRI testing in a private facility in September 1993. That MRI scan of the appellant's brain indicated the presence of a focal area of high signal intensity in the right temporal lobe and left periventricular white matter that was suggestive of focal areas of demyelination or lacunar infarcts of undetermined age. A September 1993 letter to the appellant's private treating neurologist from a neurologist at the Miami School of Medicine indicated a diagnosis of multiple sclerosis. The neurologist noted that the appellant had developed numbness in his left leg some time in 1990, followed within a couple of days by weakness in that limb. He also noted that the appellant had been prescribed physical therapy and recovered, although he had been left with some residual stiffness in that leg. In a letter dated in November 1993, the appellant's private treating neurologist reported that the appellant had presented in his office in September 1993 with a progressive quadriparesis and ascending sensory level. He stated that a diagnosis was not apparent until the above MRI was obtained and that this "was the test that clinched the diagnosis of multiple sclerosis and made us able to proceed with alpha interferon and ACTH therapy." In a letter dated in April 1997, a neurologist at the University of Pennsylvania Medical Center noted that the appellant had been well until approximately 1988, when he developed polyuria and polydipsia, with weight loss and was diagnosed with diabetes. The doctor added that, from a neurological standpoint, the appellant was fine until two years later when he experienced numbness and weakness of his left leg. Then, in the spring of 1993, the appellant once again developed numbness and paresthesia from the waist down on the left side, including the leg and he had incontinence of urine and feces. It was noted that the appellant was subsequently diagnosed with multiple sclerosis. The appellant's private treating neurologist, in a memorandum dated in July 1999, stated that he first saw the appellant in his office in September 1993, and that the appellant complained of numbness and clumsiness in his left leg "many years ago". The appellant also indicated that he had thereafter, in the spring of 1993, also developed weakness of his left leg. The neurologist further stated that the appellant had a diagnosis of multiple sclerosis, specifically of the relapsing-remitting type. In a written statement dated in May 2001, a private internist stated that the appellant had been under his care on and off since 1982 for routine physical examinations and for continuous complaints of bone and joint pains with numbness and mildly diffuse tinglings of the lower extremities, as well as for urinary incontinence that was suspicious of diabetes and neuropathy. In a subsequent written statement dated in September 2001, this internist related that the appellant had been under his care since March 1982 due to the aforementioned complaints, as well as other complaints that included frequent urination, excess thirst and weight loss. In addition the appellant had experienced problems with fatigue, coordination and balance. The internist stated that the diabetes with neuropathy had been diagnosed in January 1983. This doctor also noted that the appellant had consistently been complaining about the consistent sensation of numbness, weakness in the left leg, fatigue, bone and joints pains, coordination, balance, and tingling sensations that relapsed and remitted for years thereafter. He observed that the appellant had been diagnosed with MS in September 1993. The private internist opined that he believed that the appellant's symptomatology noted from March 1982 onward constituted the initial manifestations of multiple sclerosis, adding that clearly the appellant did present a history of early undiagnosed multiple sclerosis symptoms consistent with the disease. In a statement dated in September 2001, a private physician at SetonHealth reported that the appellant had been his patient since 1982, and that he had several systemic illnesses which the doctor identified as diabetes mellitus, high blood pressure, and multiple sclerosis. The evidence of record also includes medical records from the Hospital Damas showing evaluation and treatment provided to the veteran from October 1993 to April 2001 for multiple sclerosis and diabetes mellitus. Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. 38 C.F.R. § 3.102; see also Bloom v. West, 12 Vet. App. 185, 187 (1999); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). In the Joint Motion for Remand, the parties agreed that the February 2003 VA examination report did not constitute an opinion that addressed the question of whether the appellant's MS was manifested to a compensable degree within seven years after his discharge from service. Thus, this opinion cannot be used to deny his claim. The claims file now includes a medical opinion date that was received in March 2008. The appellant's attorney identified this physician as a Board-certified internist. The physician stated that he had reviewed the evidence of record and also provided a summary of the evidence cited above. The internist noted that MS is a disease with a highly variable pace and many atypical forms and that the typical patient presents as a young adult with two or more clinically distinct episodes of central nervous system (CNS) dysfunction with at least partial resolution. The physician noted that diagnostic difficulties arise in patients who have atypical presentations, monophasic episodes or progressive illness. Taking all of this into consideration, the doctor opined that it seemed likely that the appellant's first symptoms had first appeared by March 1982. Based on the evidence of record, the physician stated that it was more likely than not that the appellant had manifested the signs and symptoms of MS prior to February 1984. Thus, the evidence of record contains a probative medical opinion in support of the appellant's contention; evidence that indicates that the appellant was first diagnosed with MS in 1993; evidence that the first symptoms of MS occurred in 1982, or in approximately 1990; and a less probative medical opinion that does not support the appellant's contention. Having carefully considered the appellant's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is at least in approximate balance and the claim will be granted on this basis. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (Observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). In determining whether service connection is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Based on the above, the Board finds that the evidence is in equipoise as to whether the appellant currently has MS that had its onset to a compensable degree within seven years of his discharge from service. Consequently, reasonable doubt should be resolved in favor of the appellant and service connection for MS is granted. ORDER Service connection for MS is granted. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs