Citation Nr: 0812696 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 02-10 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Rebecca N. Poulson, Associate Counsel INTRODUCTION The veteran served on active duty from November 1968 to November 1972. This matter is before the Board of Veterans' Appeals (Board) from a March 2002 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied service connection for multiple sclerosis. The veteran timely filed a Notice of Disagreement (NOD) in March 2002. The RO provided a Statement of the Case (SOC) in May 2002 and thereafter, in July 2002, the veteran timely filed a substantive appeal. The veteran did not request a Board hearing on this matter. On appeal in August 2003, the Board remanded the claim for further development, to include obtaining VA and private treatment records. The RO subsequently provided a Supplemental Statement of the Case (SSOC) in January 2004. On appeal again in March 2004, the Board denied the claim, determining that there was no medical evidence of record to substantiate a nexus between the veteran's service and his multiple sclerosis. The veteran timely appealed the Board's adverse decision to the United States Court of Appeals for Veterans Claims (Court). In November 2006, the Court vacated the Board's decision and remanded the case for readjudication, specifically directing the Board to provide the veteran with a medical examination. The Court did not address the veteran's argument alleging a failure to obtain medical records. In June 2007, the Board remanded the claim for further development, to include (1) providing proper VCAA notice; (2) obtaining VA treatment records; and (3) obtaining a neurological examination. The RO subsequently provided a SSOC in December 2007. In the instant case, the Board finds that the Appeals Management Center (AMC) has complied with the June 2007 Remand Order, and that neither the veteran, nor his representative, has contended otherwise, and therefore it may proceed with its review of this appeal. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). FINDING OF FACT The veteran's multiple sclerosis began more than seven years after his discharge from active service and the medical evidence does not link it to any incident of service. CONCLUSION OF LAW The criteria for entitlement to service connection for multiple sclerosis have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with the claim. a. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the November 2001 letter from the RO and the July 2007 letter from the AMC adequately apprised him of the information and evidence needed to substantiate the claim. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, during the pendency of this appeal, on March 3, 2006, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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. The Court held that upon receipt of an application for a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The November 2001 letter from the RO and the July 2007 letter from the AMC satisfy these mandates. They clearly disclosed VA's duty to obtain certain evidence for the veteran, such as medical records, employment records and records held by any Federal agency, provided the veteran supplied enough information to enable their attainment. This correspondence made clear that although VA could assist the veteran in obtaining these records, he carried the ultimate burden of ensuring that VA received all such records. The letters additionally apprised the veteran that VA would schedule a medical examination or obtain a medical opinion for him if the RO determined such to be necessary to make a decision on the claims. The July 2007 letter also asked the veteran to provide VA with any medical reports in his possession. Both letters informed the veteran about the type of evidence needed to support a direct service connection claim, namely, proof of: (a) an injury in military service or disease that began in or was made worse during military service, or an event in service causing injury or disease; (b) a current physical or mental disability; and (c) a relationship between the current disability and an injury, disease or event in service. The Board thus finds that the veteran was effectively informed to submit all relevant evidence in his possession, and that he received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 403; see also Mayfield, 19 Vet. App. at 109-12. With respect to the Dingess requirements, the veteran was not provided with notice of the type of evidence necessary to establish a rating or effective date for the rating in the November 2001 letter. However, the RO did supply notice of these elements the July 2007 letter. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." The veteran did not receive the "fourth element" of the notice requirement prior to the March 2002 rating decision. Subsequent to the RO's rating action, however, the veteran did receive notice compliant with 38 U.S.C. § 5103(a). As to timing of notice, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that timing-of- notice errors can be "cured" by notification followed by readjudication. Mayfield v. Nicholson, 444 F.3d 1328, 133-34 (Fed. Cir. 2006) (Mayfield II); see Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) ("The Federal Circuit specifically mentioned two remedial measures: (1) The issuance of a fully compliant [section 5103(a)] notification, followed by (2) readjudication of the claim."); Pelegrini v. Principi, 18 Vet. App. 112, 122-24 (2004) ("proper subsequent VA process" can cure error in timing of notice). The most recent notice was given to the veteran in July 2007, and the RO thereafter readjudicated the veteran's claim and issued a SSOC in December 2007. As the SSOC complied with the applicable due process and notification requirements for a decision, it constitutes a readjudication of the claim. As a matter of law, the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Mayfield III, citing Mayfield II, 444 F.3d at 1333-34; Prickett, supra. With respect to the Dingess requirements, the veteran was notified of the evidence necessary to establish an increase in disability rating and the effective date of award should an increase be granted for his claims. See Dingess, supra. This notice was temporally after the RO's initial decision. The Board is cognizant of recent Federal Circuit decisions pertaining to prejudicial error. Specifically, in Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16, 2007), the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial and that once an error is identified by the Veterans Court (Court of Appeals for Veterans Claims), the burden shifts to VA to demonstrate that the error was not prejudicial. The Federal Circuit reversed the Court of Appeals for Veterans Claims' holding that an appellant before the Court has the initial burden of demonstrating prejudice due to VA error involving: (1) providing notice of the parties' respective obligations to obtain the information and evidence necessary to substantiate the claim: (2) requesting that the claimant provide ant pertinent evidence in the claimant's possession; and (3) failing to provide notice before a decision on the claim by the agency of original jurisdiction. (Emphasis added.) See also Simmons v. Nicholson, No. 06-7092 (Fed. Cir. May 16, 2007). The presumption of prejudice raised by the untimely notice of the Dingess requirements is rebutted in this case. The overwhelming preponderance of the evidence is against service connection for multiple sclerosis; thus, this issue is moot. There has been no showing that the essential fairness of the adjudication of the veteran's claim has been altered by the untimely notice of Dingess. b. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). The veteran has alleged that he was diagnosed with multiple sclerosis in 1989 at Saint Vincent's Hospital. On appeal to the Court, the veteran argued that the Board erred by failing to obtain treatment records from Saint Vincent's Hospital. The claims file contains private medical records, Social Security Administration (SSA) records, and VA medical records. In a November 2003 letter, the Tiger Team at the Cleveland, Ohio RO indicated that the veteran's April 2003 Form 21-4142 for Saint Vincent's Hospital had expired and requested that he complete a new form. The record indicates that this delay was due to a change in the law. The veteran did not respond. In the July 2007 letter, the AMC requested that the veteran provide the street address, city, and state, as well as the approximate dates of treatment received at Saint Vincent's Hospital during the 1970's and 1980's. The AMC again included a Form 21-4142. The veteran did not respond. He was offered the opportunity to testify in support of his claim at a Board hearing, but declined to do so. Furthermore, the veteran was provided a separation examination in July 1972 and a review of the report of that evaluation, which included a thorough medical history filled out by the veteran, revealed no symptoms indicative of multiple sclerosis. He was discharged from active duty in 1979, and the post-service medical evidence of record, dated from 1994, indicate that the veteran's symptoms of multiple sclerosis began in 1984 at the earliest. Under these and the above circumstances, there is no further duty to notify or assist. As to the duty to provide an examination or medical opinion, the Board notes that the veteran was provided with a November 2007 VA examination, which was thorough in nature and adequate for the purposes of deciding this claim. Specifically, the examiner provided an opinion with respect to the causal relationship, if any, between (1) the veteran's service and his multiple sclerosis, and (2) the veteran's multiple sclerosis and his back pain. The Board finds that the medical evidence of record is sufficient to resolve this appeal, and the VA has no further duty to provide an examination or opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the veteran, and thus, no additional assistance or notification was required. The veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, 4 Vet. App. at 392-94. II. Law and Regulations The Court has held that "[f]or service connection to be awarded, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of an 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." Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006); accord Disabled Am. Veterans v. Sec'y of Veterans Affairs, 419 F.3d 1317, 1318 (Fed. Cir. 2005); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). If the veteran fails to demonstrate any one element, denial of service connection will result. Disabled Am. Veterans, supra; Coburn, supra. With respect to the "current disability" prong, the Court has recognized that, "[i]n the absence of proof of a present disability there can be no valid claim" of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that "[a] service-connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability"); see also Chelte v. Brown, 10 Vet. App. 268, 271, 272 (1997) (holding that the veteran's claim was not well grounded when the evidence "establishe[d] only that the veteran had a [disability] in the past, not that he has a current disability"). Turning to the second, "incurrence in or aggravation by service" prong, the Court has expressed that "[s]ervice connection for VA disability compensation . . . will be awarded to a veteran who served on active duty during a period of war . . . for any disease or injury that was incurred in or aggravated by" such service. Caluza, 7 Vet. App. at 505. VA may grant service connection, despite a diagnosis after discharge, when all the evidence, including that pertinent to service, establishes that the veteran incurred the disease during service. See 38 C.F.R. § 3.303(d); accord Caluza, supra ("When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact 'incurred' during the veteran's service, or by evidence that a presumption period applied"). With respect to the third, "nexus" prong, the veteran must demonstrate through medical evidence that "a causal relationship" exists between the present disability and an in-service event. Shedden, 381 F.3d at 1167. Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence must demonstrate that the claim is plausible. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Mere lay assertions of medical status do not constitute competent medical evidence. Moray v. Brown, 5 Vet. App. 211, 214 (1993) ("lay persons are not competent to offer medical opinions"). Alternatively, a veteran can establish a nexus between service and the current disability by offering medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117, 120 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). 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 7 years from 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8018 (2007), a minimum rating of 30 percent is assignable for multiple sclerosis. b. Standard of Proof 38 U.S.C.A. § 5107 (West 2002) sets forth the standard of proof applied in decisions on claims for veterans' benefits. A veteran will receive the benefit of the doubt when an approximate balance of positive and negative evidence exists. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, when a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Wells v. Principi, 18 Vet. App. 33, 36 (2004); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A claim will be denied only if a preponderance of the evidence is against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). III. Analysis a. Factual Background Service Medical Records A September 1968 Report of Physical Examination for Enlistment discloses a normal clinical assessment of all systems. In the accompanying Report of Medical History, the veteran stated that he was in good health. A July 1972 Report of Physical Examination for Discharge also discloses a normal clinical assessment of all systems, except for left ear hearing loss and intermittent episodes of nervous trouble, indigestion, and stomach problems. The clinician noted the presence of "intermittent low back pain - muscular." In the Report of Medical History, the veteran stated that he had recurrent back pain. In-service treatment records reveal that the veteran complained of back pain in September 1969. The clinician noted that the veteran was sore over the right side. There was no radiation. The assessment was muscle strain. The clinician prescribed APC. The veteran complained of back strain in August 1972. There is no indication that a physical examination was conducted at that time. Private Treatment Records A December 1994 letter from R.V.W. (initials used to protect privacy), MD, indicates that the veteran was diagnosed with multiple sclerosis in 1989 following an episode of right- sided weakness for which he was hospitalized at Saint Vincent's. The doctor noted the veteran's complaint of low back pain, and commented that a June 1994 MRI revealed disc degeneration. As to the etiology of the veteran's low back pain, the doctor opined that there were "at least a couple of etiologies." He explained: Not infrequently there is muscular low back pain from muscle spasm and cramping as a result of mechanical changes of Multiple Sclerosis. In addition, he has degenerative disc at the L4 and L5 levels. An October 2001 letter from J.A.D., MD, states that the veteran was diagnosed with multiple sclerosis "approximately 10-15 years ago" and that his initial symptoms were right hemiparesis, gait dysfunction, and blurred vision in 1990. SSA Records A July 1995 letter from M.S., PhD, indicates that the veteran reported a diagnosis of multiple sclerosis in 1989. A July 1995 disability application indicates that the veteran "began having problems in 1987 with right sided weakness, blurred vision and a limp" and that "since diagnosis [the veteran] has had difficulty with . . . back pain due to degenerative disc disease." An October 1995 examination report from R.V.K., DO, includes a history of multiple sclerosis for eight years. A June 1996 letter from A.C.S., DO, states that a June 1994 MRI of the lumbar spine revealed degenerative disc disease. An August 1996 SSA decision awarded the veteran disability benefits due to multiple sclerosis and an affective disorder. A September 1999 treatment note indicates that the veteran reported being diagnosed with multiple sclerosis ten years previously. A June 2000 examination report from G.M., DO, indicates that the veteran reported being diagnosed with multiple sclerosis in 1974 or 1975. He complained of occasional chronic back pain, which was relieved by non-steroid anti-inflammatory medication. VA Treatment Records A February 1999 treatment record indicates that the veteran reported being diagnosed with multiple sclerosis ten years previously. November 2007 C&P Examination The veteran reported that he was initially diagnosed with multiple sclerosis in 1989. The doctor noted that the veteran's SSA disability application described symptoms including right-sided weakness, blurred vision, and limping in 1987. However, the veteran's wife indicated that he "may have experienced weakness two or three years prior to his initial diagnosis." The examiner noted that the claims file indicated that the veteran served from November 1968 to November 1972. He also noted that the RO's examination request referenced service dates of June 1974 to June 1978, however, he stated that "[t]here was no further document regarding this period of service." The doctor reviewed the service medical records, particularly the September 1969 complaint of back pain, and determined that "[t]here was no further complaint and evaluation for back pain since until his discharge from the Air Force." The veteran did not remember having back pain during service, however, the doctor stated that "[the veteran] is known to have memory difficulty." As to the approximate onset date or etiology of the veteran's multiple sclerosis, the doctor stated: [T]here was no evidence to suggest [the veteran] had symptoms to suggest multiple sclerosis during his military service or a seven year period immediately following his discharge from service in November 1972. If I can speculate about onset of his symptoms, it would be 1984 as the earliest time since the patient states two or three years prior to his diagnosis of MS he has experienced weakness and cognitive problem. The earliest date I can find of any symptom related to his MS diagnosis was in 1987 where he put down in his disability application and there was no medical record to document his complaint at that time. Addressing the relationship between the veteran's multiple sclerosis and his back pain, the doctor stated: I would agree [with Dr. R.V.W.] in 1994 when [the veteran] developed extensive multiple sclerosis, it could contribute to his back pain problem in 1994. However, in 1969 [the veteran] had only one occasion of low back pain documented as back strain given his history as a machinist prior to enlisting in service and also as a military personnel he is physically active, low back pain is common due to straining or physical activity. This is not likely the presenting symptom of multiple sclerosis. [The veteran's] episode of low back pain while in active duty was not a chronic problem as [his] record revealed. Therefore, [the veteran's] episode of low back pain in 1969 is not representing onset of multiple sclerosis or as a cause of multiple sclerosis [] in late 1980s. b. Discussion The Board finds that the medical evidence of record does not support the veteran's claim for service connection for multiple sclerosis. As to whether his multiple sclerosis is related to active service, the service medical records are negative for any symptomatology associated with multiple sclerosis. The separation examination in 1972 included a very thorough medical history filled out by the veteran and he did not indicate at that time that he had any symptoms suggestive of multiple sclerosis. The service medical records do show that he complained of back pain/strain on two separate occasions. According to the veteran, this symptom could have been an indication of multiple sclerosis. The veteran relies on the opinion of Dr. R.V.W., who noted that the veteran's muscular low back pain from muscle spasm and cramping may have been the result of mechanical changes of multiple sclerosis. (Emphasis added.) 38 C.F.R. § 3.102 (2007) provides that service connection may not be based on a resort to speculation or even remote possibility, and a number of Court cases have provided additional guidance as to this aspect of weighing medical opinion evidence. See, e.g., Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). Furthermore, there is no indication that Dr. R.V.W. reviewed the claims file. See Prejean v. West, 13 Vet. App. 444, 448- 449 (2000) (holding that a physician's access to the claims file is an important factor in assessing the probative value of a medical opinion). Thus, this opinion is entitled to little probative value. In contrast, the VA examiner unequivocally concluded that the veteran's multiple sclerosis did not begin during service. He thoroughly reviewed the claims file and determined that there was no evidence of any multiple sclerosis symptoms in the service medical records. He opined that the veteran's low back pain was not a symptom of multiple sclerosis. The VA examiner explained that the episode of low back pain during service was not a chronic problem. He also noted that the veteran's pre-service employment and service-related duties required physical activity, and that low back pain commonly results from straining or physical activity. The VA examiner provided a more thorough opinion regarding the etiology of the veteran's back pain. The fact that the veteran's separation examination was negative for any findings attributable to a back disability tends to support this physician's conclusion that the veteran's in-service back pain did not represent the onset of a chronic back disability. Nor is there any indication that multiple sclerosis had its onset within seven years of the veteran's discharge in 1972. In fact, there are no treatment records dated prior to 1994 and, in reviewing that documentation, it becomes apparent that multiple sclerosis was not diagnosed until 1989. The earliest date of any documented multiple sclerosis symptom is 1987. The VA examiner opined that there is no evidence illustrating symptomatology of the veteran's disability prior to 1984, at the earliest, which is still 12 years after service. Accordingly, the statutory presumption contained in 38 C.F.R. §§ 3.307 and 3.309 is not for application. The Board has considered a June 2000 examination report wherein it was recorded that the veteran gave a history of being diagnosed with multiple sclerosis in 1974 or 1975. However, aside from the fact that this was history obtained many years later, the history is inconsistent with the other medical evidence of record summarized above, to include the veteran's own statements regarding initial diagnosis of his multiple sclerosis given on multiple occasions when evaluated over the years. The Board is cognizant of Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005), wherein the Court of Appeals for Veterans Claims (Court) held that the VA and Board may not simply disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran. See also Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006). However, in Kowalski, the Court also cited its decisions in Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Reonal v. Brown, 5 Vet. App. 458, 461 (1993) in reaffirming that in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion. Here, all of the other medical evidence of record, to include an opinion based upon a review of the record, reflects the initial diagnosis of multiple sclerosis was not made until at least several years after the 7 year presumptive period that applies for the disease at issue and the earliest dated medical evidence of multiple sclerosis in the claims file is several years after that or well beyond the 7 year presumptive period. Under these circumstances, the Board finds that the June 2000 notation of a history of multiple sclerosis in 1974 or 1975 is entitled to no probative value as it is based upon an inaccurate factual background. The veteran's representative notes that the claims file contains a single reference to period of active duty from June 1974 to June 1978 and that "[i]f this date can be determined to be the appropriate date of service, confirmed through a thorough review of the case file," then it would entitle the veteran to the seven year presumptive period. Specifically, the veteran's representative claims that the earliest symptoms of multiple sclerosis occurred in 1984, which is six years after 1978. However, neither the veteran nor his representative contend that he served on active duty from June 1974 to June 1978, and a careful review of the claims file reveals no evidence to support this additional service period. With respect to the lay evidence of record, to include the veteran's statement in April 2003 asserting that he could have had multiple sclerosis before it was found, the Board notes that, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. In the Board's judgment, the disability in question, which was diagnosed in large part on the basis of MRIs, is not the type of disability that can be diagnosed by a layman. Jandreau, supra. Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise to diagnose multiple sclerosis. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). It is undisputed that a lay person is competent to offer evidence as to facts within his personal knowledge, such as the occurrence of an in-service injury, or symptoms. However, without the appropriate medical training or expertise, a lay person is not competent to render an opinion on a medical matter, such as, in this case, the onset or etiology of multiple sclerosis. See Espiritu v. Derwinski, 2 Vet. App. 292, 294- 95 (1991). Hence, any lay assertions in this regard have no probative value. The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). IV. Conclusion For the reasons stated above, the Board finds that service connection is not warranted for multiple sclerosis. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine does not apply to the instant case. Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert, 1 Vet. App. at 56. ORDER Service connection for multiple sclerosis is denied. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs