Citation Nr: 0821826 Decision Date: 07/02/08 Archive Date: 07/14/08 DOCKET NO. 00-00 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Sorisio, Associate Counsel INTRODUCTION The veteran had active service from August 1979 to May 1980. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 1999 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Detroit, Michigan. This matter was previously before the Board in September 2004. In that determination, the Board found that new and material evidence had been submitted to reopen a claim for service connection for multiple sclerosis. At that time, the Board remanded the reopened claim for further development. This matter was also before the Board in April 2006 and July 2007 and was remanded on both occasions for further development. The issue of entitlement to service connection for multiple sclerosis has now returned to the Board for further appellate consideration. The record reflects that the Board received new evidence from the veteran that was associated with the claims folder after the issuance of the January 2008 supplemental statement of the case. As such, the RO has not considered such evidence in compliance with Bernard v. Brown, 4 Vet. App. 384, 394 (1993). However, the Board observes that the record contains a waiver of RO jurisdiction located in the representative's March 2008 informal brief. In light of this waiver, the Board will consider the aforementioned evidence and proceed to adjudicate the claim. In May 2004, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. FINDING OF FACT Multiple sclerosis was initially demonstrated more than seven years after service, and has not been shown by the probative medical evidence of record to be etiologically related to service. CONCLUSION OF LAW Multiple sclerosis was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or 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) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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 or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, VA is required 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. This includes notice that a disability rating and/or an effective date will be assigned in the event of award of benefits sought. VA satisfied its duty to notify as to the claim by means of October 2004, January 2005, May 2006, November 2006, and August 2007 letters from VA to the appellant. These letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The veteran was also asked to submit pertinent evidence and/or information in his possession to the AOJ. Additionally, the May 2006, November 2006, and August 2007 letters informed the veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess/Hartman. Regarding the timing of notice, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of AOJ decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was already decided and appealed prior to VCAA enactment. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. Duty to assist With regard to the duty to assist, the claims file contains the veteran's service medical records and reports of post- service private and VA treatment and examination. The veteran's records from the Social Security Administration (SSA) are also associated with the claims file. Additionally, the claims file contains the veteran's statements in support of his claim, to include testimony at Travel Board and RO hearings. Lay statements in support of the veteran's claim have also been associated with the claims file. The Board has carefully reviewed his statements and testimony and concludes that there has been no identification of further available evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. The Board also notes that VA medical opinions have been obtained and sufficient competent medical evidence is of record to make a decision on this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal criteria According to the law, service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Where a veteran served continuously for ninety days or more during a period of war, or after December 31, 1946, multiple sclerosis shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service, if manifest to a degree of 10 percent or more within seven years of service, unless there is 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). Analysis The veteran contends that service connection is warranted for multiple sclerosis. He asserts that his vision problems in service and rapidly regressing visual acuity approximately four years after discharge from service were symptoms of multiple sclerosis. The veteran also contends that he had uncontrollable muscle and arm twitches since 1982 that are related symptoms of multiple sclerosis. See, e.g., VA Form 646, dated in April 2004. The Board has thoroughly reviewed the record and has determined that service-connection is not warranted for multiple sclerosis, as will be discussed below. The Board finds that the appellant has not shown by competent medical evidence that his currently manifested multiple sclerosis is causally or etiologically related to his period of active duty service from August 1979 to May 1980, and it is not presumed to have had its onset during active service, or within seven years following active service. Regarding medical evidence of current disability, the record reflects that the veteran was diagnosed with probable multiple sclerosis after a stay at a VA hospital in December 1991 to January 1992. See VA Discharge Summary, dated in January 1992. After a June 1992 stay at a VA hospital, the diagnosis was multiple sclerosis. See June 1992 VA Discharge Summary. As such, the Board finds that the first element of the veteran's service connection claim is satisfied. Turning to the veteran's service medical records and an in service incurrence, the Board notes a report of medical history at the time of the enlistment examination in August 1979 discloses that the veteran was myopic. On the enlistment examination in August 1979, visual acuity in the right eye was 20/200, correctable to 20/30, and 20/200 correctable to 20/20 in the left eye. The eyes, pupils, ocular motility and an ophthalmoscopic examination were normal. One week later, visual acuity was correctable to 20/20 in each eye. In October 1979, uncorrected visual acuity was 20/200 in the right eye, and 20/100 in the left eye. The visual acuity in each eye was correctable to 20/20. The eyes were clinically normal. It is notable that the veteran's service medical records are absent any findings of multiple sclerosis during his period of active duty service from August 1979 to May 1980. Regarding medical evidence of a nexus between the current disability and military service, a private physician, M.L.S., M.D., reported in February 1993 that the veteran had been diagnosed with multiple sclerosis in December 1991 following an extensive neurological evaluation prompted by a sudden loss of vision. The physician commented that the symptoms present as early as February 1988 might have been early manifestations of multiple sclerosis that were unrecognized at the time. He noted that the veteran had problems with atypical chest pains and muscle spasms, and that he later developed problems that were thought to be gastroesophageal reflux and esophageal spasms. The examiner concluded that since multiple sclerosis is a disease that can affect any nerve, it was not unreasonable to consider some of the veteran's gastrointestinal problems and the atypical painful symptoms as being related to his underlying nervous disorder. In a statement dated in November 2000, C.N.B., M.D., related that he reviewed the veteran's claims folder, including the service medical records, post-service medical records and the veteran's statements. He added that he also conducted a review of medical literature. It was his opinion that it was very likely that the veteran had his first symptom of multiple sclerosis in 1979, based on the fact that he had waxing and waning visual acuity during service, and that this was consistent with optic neuritis. In November 2002, a VA neurologist reviewed the claims folder, to include the statement from Dr. C.B. He asserted that the veteran's service medical records from 1979 showed only visual acuity readings and diagnosed myopia. He indicated that there was no pertinent history or other neurological or ophthalmological findings to suggest multiple sclerosis. The VA physician opined that there was not enough information in the service medical records suggesting a diagnosis of multiple sclerosis at that time. A report of a VA neurological disorders examination conducted in February 2005 indicates a VA physician reviewed the veteran's claims file and performed a physical examination of the veteran. The VA examiner diagnosed the veteran with multiple sclerosis with an onset of December 1991, per history. An addendum, dated in September 2005, reiterated that the onset of the veteran's multiple sclerosis was in December 1991, approximately eleven years after service. In January 2007, a VA physician reviewed the veteran's claims file, to include previous VA examinations and private opinions and letters of record. The VA physician noted that the veteran's service medical records revealed only visual acuity findings related to myopia, but it was noted that there were no other clinical features related to multiple sclerosis. The VA physician opined that the veteran's multiple sclerosis is not causally related to his active service. It was also noted in the examination report that multiple sclerosis usually starts with a subacute or acute onset of focal neurologic symptoms and signs most often reflecting disease in optic nerves, pyramidal tracts, posterior colums, cerebellum, or the vestibular system. After stating that multiple sclerosis does not usually manifest with atypical chest pains and gastrointestinal symptoms, the VA physician also opined that the veteran's gastrointestinal symptoms and atypical chest pains are not likely related to his multiple sclerosis (diagnosed in 1991). In September 2007, the same VA physician again reviewed the claims file and opined that the veteran's decrease in visual acuity and myopia as documented in his service medical records was not adequate to diagnose optic neuritis. In light of this, the VA physician once more opined that the veteran's multiple sclerosis was not related to service. The Board also notes another private opinion of record by Dr. C.B., dated in March 2008. Dr. C.B. noted that after a review of the veteran's claims file his impression was that the veteran's multiple sclerosis presented symptoms during service and shortly thereafter. Dr. C.B. stated that the veteran's service medical records show both decrease and improvement in visual acuity and that he favors a conclusion that the presentation of early waxing-waning as more consistent with multiple sclerosis than with the veteran's myopia. Dr. C.B. also noted that the symptoms described by the veteran and relatives of muscles spasm, gait disturbance, numbness, and incoordination are consistent with the presentation of waxing-waning symptoms of multiple sclerosis during the years of 1983 to 1987. In weighing the probative value of the medical opinions noted above, the Board initially finds the opinion of the private physician, dated in February 1993, to lack any probative weight as it was not indicated that the veteran's claims folder was reviewed in formulating the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that a factor for assessing the probative value of a medical opinion includes the physician's access to the claims folder). Turning to other competent clinical evidence of record, the Board finds the cumulative opinions of a VA physician, dated in January 2007 and September 2007, to be more probative than the private opinions of Dr. C.B., dated in November 2000 and March 2008. The Board notes that the reports from the VA and private physicians all indicated the veteran's claims file was reviewed. However, the Board finds the basis or rationale of the VA physician to be stronger and more consistent with the clinical evidence of record. See Prejean, 13 Vet. App. at 448-49 (stating that another factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). The Board notes that Dr. C.B., in November 2000 and March 2008, stated that waxing and waning of the veteran's visual acuity in service was consistent with early symptoms of multiple sclerosis. In this regard, in November 2002, a VA neurologist indicated that there was no pertinent history or other neurological or ophthalmological findings to suggest multiple sclerosis. Additionally, the September 2007 VA opinion indicates that the service medical records were not adequate to diagnosis optic neuritis. Consistent with the VA examiner's opinions, the service medical records do not reflect any evidence of contemporaneous clinical pondering if such visual problems noted in service could be an early manifestation of multiple sclerosis. Additionally, no diagnosis of multiple sclerosis was made in service. The Board also acknowledges that Dr. C.B. cited medical literature concerning the etiology of disease. However, the Board notes that the literature cited by Dr. C.B. in March 2008 concerning the etiology of diseases was of a general medical nature. As it was not specific to the etiology of multiple sclerosis, the Board finds that citation to this literature does not bolster the probative value of Dr. C.B.'s opinion. See generally Mattern v. West, 12 Vet. App. 222, 228 (1999) (noting that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion). Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for multiple sclerosis on a nonpresumptive direct incurrence basis. In order to establish service connection on a presumptive basis, the veteran's multiple sclerosis must have become manifest to a degree of 10 percent or more within seven years from the date of termination of his service. In this case, the presumptive period would have expired in May 1987. Multiple sclerosis was not diagnosed until, at the earliest, 1991, which is 11 years following the veteran's discharge from service. Although a private physician reported in February 1993 that early manifestations of multiple sclerosis might have been present as early as 1988, this is still beyond the 7-year presumptive period. The record also does not reflect clinically documented manifestations of multiple sclerosis to a degree of 10 percent of more during the seven year presumptive period. During the presumptive period, the record reflects that the veteran sought treatment for various aliments, to include right knee pain, gastrointestinal problems, and an injury to his left forearm while at work. However, the record does not reflect clinical documentation of muscle twitching/trembling or cramping as noted below by the veteran and several laypersons. Further, regarding the veteran's visual acuity, a private optometrist reported in February 1993 that the veteran had first been seen at that facility in 1982 and that he had a prescription filled at that time. His first examination was in 1988 and it was stated that he was nearsighted. His eye health, both internally and externally, was normal, with no apparent pathology. It was reported that his visual acuity was correctable to 20/20 in each eye. The Board also finds that the statement of the private physician in February 1993 noting that is "not unreasonable" to consider some of the gastrointestinal problems and atypical chest pain as being related to the veteran's underlying nervous disorder since multiple sclerosis can affect any nerve to lack probative weight because private physician did not review the claims folder. The Board notes also notes the speculative nature of private physician's opinion further diminishes its probative value. The private physician offered an idea not an opinion. Moreover, the Board notes that a VA physician, after a review of the claims file in January 2007, opined that the veteran's gastrointestinal symptoms and atypical chest pains are not likely related to his multiple sclerosis (diagnosed in 1991). Based on the claims file review and the definitive nature of the January 2007 VA opinion, the Board affords it more probative value. As previously noted, the Board acknowledges the lay testimony and statements submitted by the veteran and others on his behalf. The Board finds the testimony provided by the veteran and his brother at the 1994 RO hearing to be credible. At this hearing, the veteran testified that he had decreased visual acuity in his right eye in 1984, left side and left arm tingling and numbness, and twitching and trembling in his legs in 1982. The veteran's brother testified that he saw the veteran shaking when he sat down and saw him drop things. The Board further finds the lay statements of the veteran's mother and former wife, dated in February 1993, stating that they saw the veteran shaking and trembling during the presumptive period to be credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that the veteran and other persons can attest to factual matters of which they had first-hand knowledge, e.g., experiencing pain in service and witnessing events). However, the record does not demonstrate that these aforementioned lay persons have the training, skills, or knowledge to provide competent medical evidence as to whether the symptoms exhibited by the veteran during the seven year presumptive are early manifestations of multiple sclerosis. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Thus, their statements do not constitute competent medical evidence of early manifestations of multiple sclerosis and lack probative value. In conclusion, the probative competent clinical evidence of record does not relate the veteran's current multiple sclerosis to service. Additionally, there are also no clinical findings of symptomatology associated with multiple sclerosis medically documented within the seven-year presumption period. As such, the Board finds that service connection for multiple sclerosis is not warranted on either a direct or presumptive basis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for multiple sclerosis is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs