Citation Nr: 0841970 Decision Date: 12/05/08 Archive Date: 12/17/08 DOCKET NO. 98-19 358A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether there is clear and unmistakable error (CUE) in the July 26, 1995, rating decision that denied service connection for multiple sclerosis (MS). 2. Entitlement to service connection for MS. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The veteran served on active duty from December 1974 to December 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal of January 1998 and February 2003 rating decisions of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2003, the Board reopened the previously denied claim for service connection for MS, and remanded the reopened claim for further evidentiary development. In a July 2005 decision, the Board (1) denied service connection for MS; and (2) remanded the claim of CUE in the July 1995 rating decision denying service connection for MS for the issuance of a Statement of the Case (SOC) consistent with Manlincon v. West, 12 Vet. App. 238 (1999). On January 9, 2007, the RO sent the veteran an SOC on the CUE claim. The veteran sought further appellate review of the Board's July 2005 decision denying service connection for MS. By a February 2007 Order, the U.S. Court of Appeals for Veterans Claims (Court) vacated the Board's July 2005 decision denying service connection for MS and remanded that matter for further evidentiary development consistent with the parties' Joint Motion for Remand. In February 2007, a VA Form 9 (Appeal to the Board) concerning the CUE issue was received from the veteran. It contained a request for a hearing before the Board at the RO. Because the requested hearing had not been scheduled, the Board remanded the case in May 2007 for the RO to schedule a Board hearing at the RO. The hearing was scheduled in December 2007, but in November 2007 the veteran's representative indicated that the veteran wanted to cancel the scheduled hearing. Accordingly, the hearing request was canceled and the file was subsequently returned to the Board for final appellate consideration of both issues. FINDINGS OF FACT 1. A July 26, 1995, rating decision denied service connection for MS on the basis that the claim was not well grounded. The veteran filed a notice of disagreement (NOD) and the RO furnished the veteran and his representative a statement of the case (SOC) in June 1996. He did not perfect his appeal within one year of the mailing of notice of the July 1995 rating decision or within 60 days of the mailing of the SOC. 2. The statutory and regulatory provisions extant at the time were correctly applied in the July 26, 1995, rating decision that denied service connection for MS. 3. The July 26, 1995, rating decision did not consider a discharge summary of VA hospitalization in March 1995, which was received by the RO on July 17, 1995. 4. It is not undebatable that the RO would have reached a different conclusion and would have granted service connection for MS in July 1995, had it considered the discharge summary of the veteran's March 1995 VA hospitalization. 5. It is at least as likely as not that the veteran's MS was manifest to a compensable degree within seven years after his separation from service. CONCLUSIONS OF LAW 1. The July 26, 1995, rating decision was not clearly and unmistakably erroneous in denying service connection for MS; that decision is final. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5109A (West 2002); 38 C.F.R. §§ 3.105(a), 3.303, 3.307 (2008). 2. The criteria are met for service connection for MS. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. CUE Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). There is a presumption of validity to otherwise final decisions, and, in the face of a claim of error, the presumption is even stronger. Martin v. Gray, 142 U.S. 236 (1891); Sullivan v. Blackburn, 804 F.2d 885 (5th Cir. 1986). "Clear and unmistakable error" (CUE) is a very specific and rare kind of error, of fact or law, that is undebatable, and when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different, but for the error. Fugo v. Derwinski, 6 Vet. App. 40, 43 (1993). In order to find CUE it must be determined (1) that either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. Grover v. West, 12 Vet. App. 109, 112 (1999) (citing Damrel v. Brown, 6 Vet. App. 242, 246 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). In a CUE claim, "[t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated." Crippen v. Brown, 9 Vet. App. 412, 418 (1996). Also, for a claim of CUE to be reasonably raised, the claimant must provide some degree of specificity as to what the error is, and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why the error would have manifestly changed the outcome at the time it was made. Bustos v. West, 179 F.3d 1378, 1380 (1999) (citing Russell, 3 Vet. App. at 313 (1992), cert. denied, 528 U.S. 967 (1999)); see also Fugo, 6 Vet. App. at 44 (1993). Additionally, "even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable." Fugo, 6 Vet. App. at 43-44. Moreover, VA's breach of a duty to assist cannot form the basis for a claim of CUE. Baldwin v. West, 13 Vet. App. 1, 5 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). The record shows that a rating decision on July 26, 1995, denied service connection for MS on the basis that the claim was not well grounded; the veteran was notified of that decision in August 1995. The Board notes that on July 17, 1995, the RO had received a discharge summary of the veteran's hospitalization at a VA facility from March 20 to 24, 1995 for treatment of a primary diagnosis of MS. A rating decision in January 1996 considered this evidence and continued to deny the veteran's claim. He was so notified in June 1996; the February 1996 notification of the January 1996 decision had been returned and had been remailed with a better address. Meanwhile, in May 1996, the veteran filed an NOD that specifically disagreed with the August 1995 notice of the denial of his claim. The RO provided him an SOC in June 1996. He did not file a substantive appeal within one year of the July 1995 rating decision or within 60 days following the SOC; accordingly, the July 1995 rating decision became final. The veteran and his representative have expressed specific contentions of error only in the July 1995 rating decision. Therefore, only the evidence of record at the time of that decision may be now be considered in relation to the law then in effect. As noted above, the veteran's initial service connection claim was originally denied as being not well grounded. The law in effect in 1995 provided that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991). In addition, "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a). Establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the disability had its onset in service or is service-connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Franko v. Brown, 4 Vet. App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The three elements of a "well grounded" claim were: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (1995). Generally, competent medical evidence is required to meet each of the three elements. However, for the second element the kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a claim. Grottveit v. Derwinski, 5 Vet. App. 91, 92-93 (1993). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. In addition, MS will be presumed to have been incurred in service even though there is no evidence of such disease during the veteran's period of service if the disease was manifest to a degree of 10 percent or more within 7 years from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1993); 38 C.F.R. § 3.307 (1995). The evidence considered by the July 1995 rating decision primarily included the veteran's service medical records, the report of a January 1978 VA compensation examination, private treatment records for the period from December 1988 to April 1992, and a letter from a private physician dated in April 1995. The veteran's service medical records note a few vague, non- specific neurological symptoms, but MS was not diagnosed, nor was a diagnosis of MS considered. In his August 2001 letter, the veteran's representative pointed to the following notations in the veteran's service medical records: a February 1975 notation of complaints of headache, vertigo, general malaise, and low back and abdominal pain; a June 1976 notation of the veteran's complaint that he was getting insufficient sleep due to long hours at work, feelings of tiredness and as if he would run out of energy, and fainting due to exhaustion; a July 1976 notation of back pain for one week; and a July 1977 notation of the veteran's complaint of low back pain, at which time the examiner noted slight scoliosis. Further, the report of a 1978 VA compensation examination report did not list a diagnosis of MS, nor did the examiner indicate that such a diagnosis was even suspected. Private treatment records from Dr. C. show that, in August 1989, the veteran reported a vague numb feeling in his left thigh, leg, and foot for the previous 10-12 days; the examiner stated that there was no evidence of decreased sensation, pulses were palpable and strong, and deep tendon reflexes were equal and reactive. Although there is a notation that suggests a neurological consult was to be obtained, no results of that consult were of record. A letter from another private physician, Dr. R., in April 1995 stated that he had treated the veteran from 1978 to 1988, during which time the veteran complained intermittently of chronic fatigue. The physician indicated that all his records had been destroyed in a hurricane, but that he recalled that an MRI and x-rays were conducted of the veteran's lumbosacral spine for complaints of paresthesias of his lower back and lower extremities. He stated that the results of all the tests were negative. The above evidence was specifically considered by the July 26, 1995 rating decision. However, the record shows that the discharge summary of the veteran's VA hospitalization from March 20 to 24, 1995 was received by the RO on July 17, 1995. The summary notes a diagnosis of MS and discusses the disorder at some length. Clearly, the RO had actual receipt of the hospital summary at the time of the July 26, 1995 rating decision, but the rating decision does not mention this document. In this regard, the Board notes the discussions and holdings in Bell v. Derwinski, 2 Vet. App. 611 (1992); Damrel v. Brown, 6 Vet. App. 242, 246 (1994); Dinsay v. Brown, 9 Vet. App. 79, 88 (1996); and Lynch v. Gober, 11 Vet. App. 22, 29-30 (1997). Those decisions do not distinguish between the "adjudicator" and the "adjudicating body," meaning that, because the summary was physically present at the RO, even though not in the claims file, it should have been considered in the rating decision. The RO's failure to do so was error. That finding, however, does not end the analysis. The Board must determine whether, if the RO had considered the March 1995 summary along with the other evidence available at that time, it would have been undebatable that a different conclusion would have been reached, i.e., whether consideration of the summary would have manifestly changed the outcome. First, the Board observes that the July 1995 rating decision applied the correct law concerning service connection, including that pertinent to presumptive service connection for MS, as was then in effect. Further, Dr. C's treatment records reflect the veteran's report of left thigh, leg, and foot numbness in August 1989, although no abnormal clinical findings, including any decreased sensation, were noted at that time. Dr. R. recalled treating the veteran from 1978 to 1988, during which time the veteran complained intermittently of chronic fatigue. He also remembered the veteran's complaints of paresthesias of his lower back and lower extremities, but he didn't indicate just when during that period the veteran might have expressed those complaints. Moreover, neither physician stated that the veteran's reported symptoms might have suggested a diagnosis of MS. The March 1995 hospital summary, on the other hand, does list a diagnosis of MS. The summary describes the History of Present Illness by noting the veteran's "numbness of below or above the wrist" beginning approximately 15-17 years previously. The summary also states that the veteran had severe episodes of upper extremity numbness, clumsiness, and loss of dexterity and position sense, and some feelings of chest tightness in 1993 and 1994. The veteran reported that, a few days prior to the hospital admission, he noted numbness in the lower extremities and a feeling of a tight band below his rib cage, as well as blurred vision in his right eye. Further, the veteran also reported a change in his bowel habits and extreme fatigue with his daily activities. Finally, he indicated that he had experienced erectile dysfunction for about a year. Although the hospital summary diagnosed MS, the examiner did not specifically state that the symptoms of numbness around the wrist were the initial manifestation of the veteran's MS. Further, the summary's notation of those symptoms was based on the veteran's own report, many years after the fact, as there were no medical records to verify the presence of pertinent neurological findings during that time period. Moreover, the reference to "approximately 15-17 years" is very vague. In contrast, the history of episodes in 1993 and 1994 in the summary is more precise and detailed. In short, the summary does not establish the date of onset of the initial symptoms of MS within the 7-year presumptive period after the veteran's separation from service. In addition, the fact that the veteran complained of different symptoms to Dr. C. and to Dr. R. and the fact that neither of those physicians diagnosed MS or described any abnormal clinical findings provide little if any support for a conclusion that they were manifestations of MS. Accordingly, the Board finds that it is not undebatable that the RO would have reached a different conclusion and would have granted service connection for MS, had it considered the hospital summary in July 1995 rather than in January 1996. Therefore, the Board finds that the RO's error in failing to consider the March 1995 VA hospital summary did not constitute clear and unmistakable error. The Board concludes that the July 26, 1995, rating decision was not clearly and unmistakably erroneous in denying service connection for MS. II. Reopened claim for service connection for MS Because the Board has determined that the July 1995 rating decision was not clearly and unmistakably erroneous, and because the veteran did not file a substantive appeal within 60 days after the June 1996 SOC, that decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2008). In October 2003, the Board determined that new and material evidence had been presented to reopen the veteran's claim and remanded the case for further development and adjudication. The Board denied service connection for MS in a July 2005 decision, which the veteran appealed to the Court. Pursuant to the Court's remand in February 2007, the Board again remanded the case to schedule the veteran for another examination. That examination was completed and, subsequently, the veteran's representative also provided the report of a May 2008 opinion by a private physician. The evidence currently of record in this case includes the evidence that was of record at the time of the July 1995 rating decision, as well as subsequent treatment records, examination reports, and medical opinions. A VA compensation examination was conducted by a nurse practitioner in May 2004. The examiner referred to some clinical findings that were noted in service, but indicated that the symptoms exhibited by the veteran were clearly related to specific illness, such as recurrent pharyngitis, bronchiectasis, lack of sleep, and scoliosis of the back. It was also noted that the veteran and his parents had stated that he had symptoms of numbness and tingling as early as 1978, but the examiner stated that documentation in the record could not clearly establish that fact, as Dr. R's records had been destroyed. Further, there were no records from another hospital, where the veteran had indicated he had been worked up for his symptoms. The examiner stated that, because the diagnosis of MS was definitely established in 1994 - 17 years after the veteran's separation from service - it was not likely that he had identifiable symptoms of MS while in service. She also stated that there was no documentation in the record that substantiated that the veteran had "manifestation of disability" from MS within seven years after separation from service. Another VA compensation examination was obtained in December 2007. The veteran reported to that examiner that he a lot of fatigue and some occasional numbness in both of his thighs in high school, and would often times take naps during the day. He also stated that he would have blurry vision and at times would swell, although he never sought medical attention for any of those symptoms. The veteran also reported that he had mild, fluctuating symptoms, including numbness in his thighs, a band-like sensation around his waist, intermittent blurry vision, fatigue - all during service - although he did not complain of dysarthria or weakness or urinary symptoms. He stated that, after service, his fatigue worsened and that, in 1994, he noticed the acute onset of problems with weakness and coordination. The examiner indicated that the veteran was evaluated with an MRI and what sounded to the examiner like a somatosensory evoked potential test, and was diagnosed with MS, although no reports of those tests are of record. The examiner commented that it was not absolutely clear whether the veteran's MS started in high school or sometime after discharge from service. He noted that the first clear acute exacerbation of his problem occurred in 1994. The examiner also stated that there was no clear inciting event to any of his problems, including during service. He concluded that it was his opinion that the veteran's symptoms were not related to service. However, the December 2007 examiner also did not specifically address whether the veteran's reported fatigue and paresthesias of the lower spine and extremities between 1978 and 1988 noted by Drs. R. and C. may have represented manifestations of MS that occurred during the first seven years after the veteran's separation from service. At the veteran's representative's request, Dr. C.N.B. reviewed the veteran's claims file in May 2008, including the treatment records and statements by examiners and the veteran and his parents referred to above, as well as the reports of the two VA compensation examinations. The physician described the veteran's medical history in some detail, including statements and opinions by prior examiners, and discussed that evidence in relation to the question of the date of onset of the veteran's MS, concluding that the disorder was present both during his active service and within seven years after his discharge in 1977. Finally, in September 2008, the Board obtained an opinion by a VA specialist in order to resolve the conflicting medical opinions that were of record. The specialist noted that the evidence that MS was present prior to 1984 (the end of the presumptive period) was scant, as had been previously described. He stated that the diagnostic criteria and technology that assist with the diagnosis of MS had improved over the past 20 years, and that the diagnosis was very difficult to make during the 1970's. The specialist indicated that it is quite common that, after diagnosis, patients are able to recount episodes of weakness, numbness, vision loss, or vertigo that seem consistent with MS symptoms, but were not recognized as MS at the time that they manifested. Finally, he stated that neurologists generally consider these portions of the history to be relevant to understanding the individual's disease course. The specialist concluded that there was a 50 percent chance that the veteran's MS manifested prior to 1984 and resulted in some of the vague symptoms the veteran had described. Weighing all of the above evidence and resolving all reasonable doubt in favor of the veteran, the Board finds that it is at least as likely as not that the veteran's MS was manifested during the 7-year presumptive period following his separation from service. 38 U.S.C.A. § 5107. One last point: service connection for MS under the provisions of 38 C.F.R. § 3.307(a)(3) requires that the disorder have been manifested to a degree of at least 10 percent within the 7-year period. VA's rating schedule provides that a minimum 30 percent rating is to be assigned for MS. See 38 C.F.R. § 4.124a, Code 8018 (2008). Therefore, the Board concludes that the criteria for service connection for MS have been met. III. Duties to notify and to assist Generally, VA has a statutory duty to notify the claimant of any information or evidence that is necessary to substantiate the claim and to assist the claimant in the development of an appeal. 38 S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, the United States Court of Appeals for Veterans Claims (Court) has held that such duty is not applicable to CUE claims. Livesay v. Principi, 15 Vet. App. 165 (2001). Further, in light of the favorable action taken herein regarding the issue of service connection, a detailed discussion of VA's compliance with the duties to notify and to assist the veteran is not necessary, as no prejudice to the veteran has resulted from any possible defect in notice or assistance to the claimant. ORDER The July 26, 1995, rating decision that denied service connection for MS is not clearly and unmistakably erroneous. Service connection for MS is granted. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs