Citation Nr: 0943549 Decision Date: 11/16/09 Archive Date: 11/25/09 DOCKET NO. 05-03 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for multiple sclerosis, to include as a result of exposure to mustard gas. REPRESENTATION Appellant represented by: E. Audrey Glover Dichter, Esq. ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from February 1951 to February 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which declined to reopen a claim for entitlement to service connection for multiple sclerosis. In February 2006, the Board also declined to reopen the claim and the Veteran appealed. The Court of Appeals for Veterans Claims (Court) remanded the appeal in December 2007. In a May 2008 decision, the Board granted the claim to reopen and remanded the issue of entitlement to service connection for further development. The actions directed by the Board have been accomplished and the matter returned to the Board for appellate review. The Board notes, as it did in the May 2008 decision, that there were two claim streams being adjudicated in regards to whether the Veteran was entitled to service connection for multiple sclerosis. The claim currently before the Board stems from the claim filed in March 2003 and adjudicated in the July 2003 rating decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Board resolves reasonable doubt by finding that the Veteran's multiple sclerosis is presumed to have incurred in service. CONCLUSION OF LAW The criteria for service connection for multiple sclerosis have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION To establish service connection for a claimed disability, the evidence must demonstrate that a disease or injury resulting in current disability was incurred during active service or, if pre-existing, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection may also be granted for multiple sclerosis on a presumptive basis when manifested to a compensable degree within seven years of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). In this case, the medical evidence of record clearly establishes that the Veteran has been diagnosed with multiple sclerosis. Consequently, the question to be resolved is whether the disability was incurred during service or during the seven year presumptive period, which falls between February 1953 and February 1960. In this regard, the Veteran has pursued two legal theories to support his claim for entitlement to service connection for multiple sclerosis. The first theory is that his exposure to mustard gas during service caused multiple sclerosis. The second theory is that his multiple sclerosis was manifested within seven years after discharge from service, so it must be presumed that the disability was incurred during service. The Board notes that a voluminous amount of medical and lay evidence has been associated with the claims folder, much of it duplicative. As the crux of the claim for service connection for multiple sclerosis rests on whether or not the disability was incurred during service or during the seven year presumptive period, however, the Board will only discuss the evidence it finds relevant to these questions. In that regard, the evidence regarding symptomatology and the medical opinions regarding etiology will be the focus of the Board's discussion. The Board does note, however, as it did in its May 2008 opinion, that some of the lay statements do not provide a definite timeframe during which the individual witnessed the Veteran's symptoms. In addition, the opinion provided by Dr. Bash relied heavily on statements that did not relate the Veteran's symptoms to a period between February 1953 and February 1960. As such, the Board will not include discussion of lay testimony that does not delineate a timeframe during which symptomatology was observed, or any medical opinion that was based on such lay evidence. There are several statements from various individuals that do provide more pertinent information as to when the Veteran began to experience symptoms. In a February 1993 letter, Dr. W.S. reported that the Veteran indicated that as early as the late 1950s, he was aware of difficulties with progressive myelopathy. In a January 2007 letter, the Veteran's wife reports, in pertinent part, that soon after his return (discharge from active service in February 1953), she began to see symptoms that the Veteran had never had, to include violent headaches that made him feel very sick. She also indicated that the Veteran told her his fingers occasionally felt tingly and she reported that all of a sudden, after the Veteran came home from Korea, he would make excuses for not dancing, which was something they loved to do together before. In a November 2008 letter, the Veteran's wife reports, in pertinent part, that when he came home in 1953, the Veteran told her that among other things, he had had a lot of bouts with sudden fatigue and headaches while overseas. See statements from R.R. G.K. indicates that shortly after discharge, the Veteran told her husband that he was experiencing severe headaches. The next symptom she remembered the Veteran telling her husband about was tingling in his fingers. Then, in the 1950s or early 1960s, the Veteran's complaints of double vision and loss of hearing were rejected by doctors. See January 2007 statement. The Board notes that although G.K.'s recollections of the last two symptoms may extend a bit beyond the presumptive period, she did tie the headaches and tingling in his fingers to a time earlier than the early 1960s. In a February 2007 letter, F.G. reports that she has known the Veteran since 1949 and that after he returned home from Korea and was honorably discharged in 1953, the Veteran began complaining of severe headaches, tingling fingers and weakness, and later complained of double vision and loss of hearing. In a November 2008 letter, B.F. reports that he met the Veteran in the mid-1930s and that he gave the Veteran a job immediately after her returned from serving in the Korean War. B.F. reports that he noticed the Veteran would get extremely tired while working for him and that with prodding, the Veteran told him that he was having severe headaches, finger tingling and bouts of fatigue. B.F. reports that the Veteran left his job in 1957. The Board finds that R.R., G.K., F.G., and B.F. are competent to describe the symptoms exhibited by the Veteran after service. See 38 C.F.R. § 3.159(a)(2) (2009); Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992) (lay evidence is acceptable to prove the occurrence of symptomatology when such symptomatology is within the purview of, or may be readily recognized by, lay persons). Pursuant to the Board's May 2008 remand instructions, the Veteran underwent a VA compensation and pension (C&P) brain and spinal cord examination in July 2009, at which time his claims folder was reviewed. Following medical history and a physical examination, the Veteran was diagnosed with multiple sclerosis. In response to the question posed by the Board in its remand, the examiner reported that s/he could not resolve the issue of whether or not the Veteran's multiple sclerosis had its onset during service (February 1951 to February 1953) or was manifested within seven years following separation from service (that is, before February 1960) without resort to mere speculation. The examiner indicated that in the absence of medical records from 1953 or up to the early 1970s, it was not possible to definitely state, without speculation, whether or not the actual symptoms manifested within seven years following separation from service, that is before February 1960. The examiner went on to say that there are letters from friends who knew and saw the Veteran then, and on the basis of the information in the letters, and from the statements of the Veteran's wife, it is possible that it is at least as likely as not that his symptoms of multiple sclerosis started within seven years of his separation from service. The Board acknowledges the opinion provided by the July 2009 VA examiner (i.e., that it is possible that it is at least as likely as not that the symptoms of multiple sclerosis started within seven years of the Veteran's separation from service) is tenuous. In light of that opinion, however, coupled with the competent lay statements discussed above, the Board resolves all reasonable doubt in the Veteran's favor by finding that service connection for multiple sclerosis is warranted on a presumptive basis. 38 C.F.R. §§ 3.102, 3.303 (2009). In light of the foregoing, there is no need to discuss entitlement under the theory of exposure to mustard gas. VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). As the claim has been granted, the duty to notify and assist has been met to the extent necessary. ORDER Service connection for multiple sclerosis is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs