Citation Nr: 1300271 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 09-28 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from August 1966 to June 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran and his spouse testified before the undersigned Veterans Law Judge at an August 2012 hearing conducted at the RO. A transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he suffers from multiple sclerosis as a result of his period of active service. Specifically, he believes his currently diagnosed disability is due to in-service herbicide exposure. Service connection may be granted for multiple sclerosis when it is manifested to a compensable degree within seven years of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The record reflects the Veteran has reported an inconsistent timeline regarding his initial diagnosis of multiple sclerosis. He has reported a diagnosis by MRI as early as 1977 (see August 2012 hearing transcript), and as late as 2006. At no time, however, has the Veteran asserted, nor does the record reflect, that he was diagnosed with multiple sclerosis within seven years following separating from active service in June 1968. However, at the August 2012 hearing, the Veteran contended that he first began experiencing symptoms of temperature sensitivity in service, and urinary incontinence in approximately 1973. He asserts both symptoms were early signs of multiple sclerosis. The Veteran has not been provided a VA examination in conjunction with his service connection claim. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given the Veteran's assertions of symptomatology both in-service and shortly following separation and in light of his current diagnosis of multiple sclerosis, the Veteran must be provided a VA examination to determine whether his current multiple sclerosis is etiologically related to his active service, to include exposure to herbicides. Accordingly, the case is REMANDED for the following action: 1. Advise the Veteran that he may submit additional evidence in support of his claim. In particular, request the Veteran provide sufficient information and authorization to enable VA to obtain medical records of his treatment at CIGNA for symptoms related to multiple sclerosis. All attempts to obtain this evidence must be documented in the claims file, and any records received, including negative responses, should be associated with the file. 2. Schedule the Veteran for a neurological examination to assess the current nature and likely etiology of his multiple sclerosis. The entire claims file (i.e. the paper and virtual claims file) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Any appropriate testing should be conducted, and the results reviewed, prior to the final opinion. After eliciting a full history from the Veteran, and reviewing the entire claims file, the examiner should offer an opinion regarding the following: Is it at least as likely as not (probability of at least 50 percent) that the Veteran's multiple sclerosis is etiologically related to a disease or injury in service? Is it at least as likely as not (probability of at least 50 percent) that multiple sclerosis manifested to a compensable degree within seven years of service separation in June 1968? In rendering this opinion, the examiner must address the Veteran's assertions of urinary incontinence and temperature sensitivity and the presumed exposure to herbicides. A complete rationale must be given for any opinion expressed, and the foundation for all conclusions should be clearly set forth. If the examiner is unable to form an opinion without resorting to speculation, the examiner should so state and provide the reasons why an opinion would require speculation. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).