Citation Nr: 0813608 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 03-30 019 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for multiple sclerosis. 2. Entitlement to service connection for a gynecological disability to include ovarian cysts and status post hysterectomy, including as secondary to multiple sclerosis. 3. Entitlement to service connection for a gastrointestinal disability to include duodenitis and irritable bowel syndrome, including as secondary to multiple sclerosis. 4. Entitlement to service connection for an acquired psychiatric disorder to include anxiety and depression, including as secondary to multiple sclerosis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD Amy R. Grasman, Associate Counsel INTRODUCTION The veteran served on active duty from May 1977 to May 1981. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2002 RO decision denying the veteran's claim to reopen a claim for service connection for multiple sclerosis for lack of new and material evidence. This appeal also comes before the Board from a June 2003 RO decision denying service connection for a gynecological disability, a gastrointestinal disability and an acquired psychiatric disorder. In December 2006, the Board reopened the veteran's claim for service connection for multiple sclerosis and remanded this appeal for additional development. The veteran's initial claim also included a claim for service connection for headaches and dizziness which was granted by the RO in September 2007. The issue of entitlement to service connection for a gastrointestinal disability and an acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Resolving all doubt, the competent medical evidence of record shows that the veteran's multiple sclerosis disorder manifested to a compensable degree within seven years of separation from service.. 2. The competent medical evidence does not show that ovarian cysts and status post hysterectomy are related to service or to a service connected disability. CONCLUSIONS OF LAW 1. Resolving all doubt, multiple sclerosis was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). 2. Gynecological disabilities, including ovarian cysts and status post hysterectomy, were not incurred in or aggravated by service and were not proximately due to or the result of a service connected disability. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of letters sent to the appellant in June 2001 and February 2003 that fully addressed all four notice elements and was sent prior to the respective initial AOJ decisions. Another letter was also sent in May 2005. The letters informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in her possession to the AOJ. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the appellant was provided this notice in December 2006. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records, DD Form 214, private medical records, and VA medical records; and the appellant was afforded VA medical examinations. The Board further finds that the RO complied with its December 2006 Remand. Stegall v. West, 11 Vet. App. 268 (1998). Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). SERVICE CONNECTION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions. Id. To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 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. See 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease such as multiple sclerosis manifests to a degree of 10 percent within seven 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. Service connection may 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 C.F.R. § 3.303(d). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disability, including the concept of aggravation, commonly referred to as secondary service connection. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation). The provisions of 38 C.F.R.§ 3.310(a) were recently amended to conform with Allen, but since VA has been complying with Allen since the decision was issued in 1995, the amendment is not a liberalizing change in the law and does not otherwise change the application of the 38 C.F.R. § 3.310. Multiple Sclerosis Private medical records show that the veteran was first diagnosed with multiple sclerosis in April 1992. However, there are conflicting medical opinions of record as to whether the veteran's multiple sclerosis had manifested to a compensable degree within the seven year presumptive period under 38 C.F.R. §§ 3.307 and 3.309. In this regard, the Board notes in passing that the service medical records do not show a diagnosis of multiple sclerosis. During service, the veteran had complaints of dizziness, blurred vision, nausea, weakness and tiredness. In May 1977, the veteran was diagnosed with dizziness of unknown etiology. In August 1998, the veteran underwent a VA Compensation and Pension Examination to clarify the etiology and date of onset of her disability. The examiner noted that her disease was first diagnosed in 1992 following a fairly acute onset of left-sided numbness and weakness. The veteran reported, however, that she had noticed other symptoms for years prior to that diagnosis, including a tendency to trip over her left leg, fatigue, increasing weakness in hot weather, occasional falls, and frequent bladder infections. She reported seeking medical attention, but that her symptoms were minimized and no diagnosis was made or diagnostic testing pursued. The examiner noted that no documentation had been provided to verify a disability prior to 1992. However, he also found that, if her subjective reports were accepted, her symptoms did predate the diagnosis by many years, making it probably that they began prior to May 1988. In December 1998, the examiner was provided the claims file to review, and he noted in an addendum that the claims file did not contain objective evidence of early symptoms of multiple sclerosis, either prior to May 8, 1988 or shortly thereafter. A letter from a private physician dated in January 2001 indicated that he reviewed the medical records and noted numbness in 1983 around the sciatic region where the veteran had a Celestone shot. The physician noted that at that time the veteran was known to have chronic sciatica and left leg weakness. The physician indicated that the veteran had significant left upper and lower extremity symptoms consistent with multiple sclerosis. In another VA Compensation and Pension Examination in October 2002, the examiner reviewed the claims file and found that there was no objective medical evidence of multiple sclerosis prior to May 1998. The examiner reviewed the in-service treatment records and concluded that he was not able to objectively determine with medical certainty when the multiple sclerosis began or when symptoms of multiple sclerosis manifested. The examiner reasoned that multiple sclerosis can present with vague, nonspecific and transitory symptoms and can begin with pathologic changes that are asymptomatic but might be detected on an MRI, which in this case, was not available in the late 1970s or early 1980s. The examiner further explained that the veteran's in-service symptoms were not inconsistent with multiple sclerosis, but were not suggestive of multiple sclerosis because they can be explained by other multiple diagnoses, including gastrointestinal virus. The examiner noted that although the veteran complained of dizziness, blurred vision, and nausea in service, there was no specific loss of vision in one eye, no diplopia, no spasticity or weakness documented or reported. The veteran also complained of fatigue, cold intolerance and headache. The examiner found that these were very nonspecific symptoms with multiple possible etiologies. The examiner also found that isolated limb weakness of the lower extremity could be caused by sciatica or other back or peripheral nerve injury, as well as by multiple sclerosis. The examiner found it unlikely that the nonspecific symptoms from 1977 were the initial presentation of multiple sclerosis, especially because the veteran would have been only 18 years old at that time. In a subsequent May 2007 VA Compensation and Pension Examination, the examiner noted that the veteran was diagnosed with multiple sclerosis 11 years after service. He was unable to opine if multiple sclerosis manifested to a degree of 10 percent or more prior to May 1988 without resorting to pure speculation. Having reviewed the medical opinions of record, the Board finds that there is at least an approximate balance of positive and negative evidence regarding whether the veteran's multiple sclerosis manifested within the seven-year presumptive period for that disability. As noted, a VA examiner in 1998 considered the veteran's reports of her history, and found that it was likely that her symptoms manifested within that seven year period. Although the examiner noted later that there was no documentation of her complaints at that time, the Board may not disregard a favorable medical opinion solely on the rationale it was based on a history given by the veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a veteran's statements renders a medical report not credible only if the Board rejects the statements of the veteran as lacking credibility. In this case, there is no reason to doubt the veteran's credibility with respect to the history of her symptoms. Furthermore, with respect to the negative opinion in October 2002, the Board notes that the examiner only considered whether the disability manifested during the initial period of active duty, and it does not appear that he considered whether it manifested during the seven year presumptive period. Thus, with respect to the question of whether it manifested within the seven year period, the Board must weigh the probative value of the 1998 VA examiner's opinion and January 2001 private physician's statement against the opinion of the VA examiner who concluded in May 2007 that he was unable to opine if the multiple sclerosis manifested to a compensable degree or more prior to May 1988. Having reviewed those opinions, the Board concludes that there is at least an approximate balance of positive and negative evidence regarding the question of whether the claimed multiple sclerosis manifested to a compensable degree during the presumptive period. When the evidence is relatively equally-balanced, doubt is resolved in the veteran's favor. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, service connection for multiple sclerosis is warranted. Gynecological Disabilities In August 1976, a vaginal examination did not show any abnormalities prior to service. The service medical records show that the veteran was treated for severe dysmenorrhea in June 1977. In August 1977, the veteran was diagnosed with an ovarian cyst. Medical records show that the veteran was also treated for cystitis, cervicitis and dysmenorrhea between 1982 and 1990. The veteran had a partial hysterectomy in October 1990. A registered nurse submitted a statement in September 2003 after a history provided by the veteran and a review of unspecified medical evidence. The nurse opined that the veteran's disabilities began with painful menstrual cramps and a cyst in service in 1977. The nurse opined that the veteran had no symptoms prior to service and her disabilities began in service. In a February 2004 VA Compensation and Pension Examination, the examiner reviewed the claims file, the veteran's medical history, a 1989 ultrasound and medical records pertaining to the veteran's hysterectomy in 1990. The examiner concluded that the hysterectomy, dysmenorrhea and pelvic pain were the indication for the veteran's surgery. The examiner opined that the surgery was not related to the ovarian cysts, and that none of the veteran's gynecological disabilities that led to the surgery were otherwise related to service. In a May 2007 VA Compensation and Pension Examination, the examiner diagnosed the veteran with status post salpingo- oophorectomy in 1977 due to symptomatic ovarian cyst with no residual problems and status post hysterectomy in 1990, uneventful with no residual problems. The examiner noted that the hysterectomy was due to leioma/fibroids. The examiner found that the ovarian cysts and hysterectomy were not caused by multiple sclerosis, which was diagnosed 11 years after discharge. Based on review of the objective medical evidence, the Board finds that although there were diagnoses of ovarian cysts and the veteran had a partial hysterectomy, the competent medical evidence does not show a relationship between the diagnoses and service. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). The Board may favor the opinion of one competent medical expert over that of another, if an adequate statement of reasons or bases is furnished. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this case, although the registered nurse opined that the veteran's disabilities began in service, the statement does not show what evidence was reviewed prior to the opinion and the statement does not provide reasons for the opinion. Based on the statement, it is unclear if the nurse reviewed the service medical records. There is also no indication that the nurse examined the veteran. In contrast, the VA examiners included a description of what medical evidence was reviewed prior to making an opinion. After reviewing the evidence, the February 2004 VA examiner concluded that the cyst did not cause the post-service surgery. The May 2007 VA medical opinion described what evidence was reviewed and provided that there were no residuals of the salpingo- oophorectomy in 1977. The Board affords the VA examiners' opinions more weight because of the specificity of the evidence reviewed and the explanation of the basis of the opinion. Therefore, the Board finds that service connection for gynecological disabilities is not warranted. Regarding the ovarian cysts, the competent medical evidence does not show that there were residuals from the diagnosis of an ovarian cyst in service. Likewise, there are no residuals of the hysterectomy in the medical evidence. Additionally, the VA opinions, which outweigh the nurse's opinion, do not show a link between the cyst in service and a disability after service. The VA opinions also do not show that the hysterectomy, or residuals, are related to service. Furthermore, the medical evidence does not show that the hysterectomy or ovarian cysts are related to a service connected disability. The VA opinion shows that they are not related to multiple sclerosis. Thus, even though the Board has awarded service connection for multiple sclerosis, the medical evidence does not show that the ovarian cysts, hysterectomy or residuals thereof, are caused or aggravated by a service connected disability. Therefore, service connection is not warranted on a secondary basis. Based on the foregoing, the Board finds that the preponderance of the medical evidence is against the claim. As such, the benefit-of-the-doubt rule does not apply and the veteran's claim for service connection for gynecological disabilities, including ovarian cysts and status post hysterectomy, must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, at 55. ORDER Service connection for multiple sclerosis is denied. Service connection for a gynecological disability to include ovarian cysts and status post hysterectomy, including as secondary to multiple sclerosis is denied. REMAND The Board notes that the veteran is also seeking service connection for a gastrointestinal disability, to include duodenitis and irritable bowel syndrome, and for an acquired psychiatric disorder, to include anxiety and depression, both claimed as secondary to multiple sclerosis is denied. As service connection for multiple sclerosis has been established, the Board finds that further development is warranted on these claims. Specifically, the Board finds that another VA psychiatric examination is necessary to clarify if her claimed psychiatric disability is related to the service-connected multiple sclerosis. Furthermore, the Board notes that VA gastrointestinal examinations conducted throughout the pendency of this appeal have yielded conflicting findings as to whether the veteran has a current disability. Therefore, the Board finds that another examination is warranted to clarify this issue. Accordingly, this case is REMANDED for the following: 1. Afford the veteran a VA psychiatric examination to determine if she has any psychiatric disability that is related to a service-connected disability, specifically multiple sclerosis. The claims folder must be made available to the examiner for review, and a notation to that effect should be indicated in the record. All appropriate testing should be undertaken in connection with the examination, and all psychiatric disabilities found to be present should be diagnosed. The examiner should offer an opinion as to whether it is at least as likely as not that any psychiatric disability found to be present is related to multiple sclerosis, or otherwise had its onset during service, or is related to service. The examiner should describe all findings in detail and provide a complete rationale for all opinions offered. If the examiner is unable to make any determination, she or he should so state and indicate the reasons. 2. Afford a complete VA gastrointestinal examination, in order to ascertain whether the veteran has any gastrointestinal disorders, to include duodenitis and irritable bowel syndrome. The claims folder must be made available to the examiner(s) to be reviewed in conjunction with the examination(s), and it must be noted in the examination report(s) that the claims folder was so reviewed. The examiner(s) must provide definitive diagnoses of any disorders present. If the veteran's complaints cannot be related to a diagnosed condition, it must be so stated, in writing, for the record. If a diagnosis is rendered, please offer an opinion as to whether it is at least as likely as not that the disability found to be present is related to multiple sclerosis, or otherwise had its onset during service, or is related to service. All indicated special studies deemed necessary must be conducted. A complete rationale for any opinions expressed must be provided. 3. Once such development is completed, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case, and the veteran and her representative should be afforded time in which to respond. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ MICHAEL LANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs