Citation Nr: 1304396 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-05 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for multiple sclerosis. 2. Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from December 1982 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The RO denied service connection for multiple sclerosis initially in an October 1997 rating decision. Subsequent RO and Board decisions have found that new and material evidence has not been submitted to reopen the claim of entitlement to service connection for multiple sclerosis, with the last final decision being made by the Court of Appeals for Veterans Claims (Court) in June 2007. 2. New and material evidence has been received, and the Veteran's claim for service connection for multiple sclerosis is reopened. 3. Multiple sclerosis is not a radiogenic disease, the Chernobyl disaster has not been recognized as a radiation-risk activity and the Veteran is not a radiation-exposed veteran. 4. The Veteran's multiple sclerosis did not have its onset in service nor did it manifest to a compensable degree within seven years after his discharge from service. CONCLUSIONS OF LAW 1. The October 1997 RO rating decision denying the Veteran's claim for service connection for multiple sclerosis is final. 38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. § 3.104, 3.156(b), 20.302 (2012). 2. The June 2007 Court decision affirming the October 2005 Board's decision finding that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for multiple sclerosis is final. 38 U.S.C.A. §§ 7103, 7252 (West 2002); 38 C.F.R. § 20.1100 (2012). 3. New and material evidence has been received and the Veteran's claim for service connection for multiple sclerosis is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 4. Multiple sclerosis was not incurred in or aggravated by service, and may not be presumed to be related thereto. 38 U.S.C.A. §§ 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.11 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Requirements VA's duties to notify and assist claimants in substantiating a claim for VA benefits is set forth in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In claims to reopen, as in this case, VA must both notify the claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Id. VA's Office of General Counsel issued informal guidance interpreting the decision in Kent as requiring that the notice provided specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial. VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006). In the present case, notice was provided to the Veteran in March 2009, prior to the initial adjudication of his claim to reopen. In this decision, the Board grants reopening of the Veteran's claim for service connection for multiple sclerosis. Thus, the Board finds that no discussion of VA's duty to notify and assist is necessary as to this part of his claim. As to his underlying claim, the Board finds that the March 2009 notice letter is compliant with VA's duty to notify and, thus, there is no prejudice to the Veteran. Likewise, the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. He was told it was his responsibility to support the claim with appropriate evidence and has been given the regulations applicable to VA's duty to notify and assist. Indeed, the Veteran submitted information and evidence in connection with his claim, which indicates he knew of the need to support his claim. Thus the Board finds that the purposes behind VA's notice requirement have been satisfied, and VA has satisfied its "duty to notify" the Veteran, and any error in this regard is harmless. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the Veteran of any evidence that could not be obtained. The Board notes that the Veteran has asserted that he became sick after the Chernobyl disaster while he was serving in Germany and that he was treated at two hospitals in Germany (Frankfurt and either Wiesbaden or Landstuhl). In a letter dated in November 2011, the RO requested more information from the Veteran regarding his claimed treatment at these facilities in Germany; however, the Veteran's reply letter was nonresponsive to the RO's inquiry. Consequently, the RO did not have enough information to conduct a search for these claimed service treatment records. The duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA, therefore, has made every reasonable effort to obtain all records relevant to the Veteran's claim. Generally the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. When a claim is one to reopen a finally decided claim, however, VA is not obligated to provide a medical examination or obtain a medical opinion until new and material evidence has been received. See 38 C.F.R. § 3.159(c)(4)(iii). Since the RO determined that the Veteran had failed to submit new and material evidence to reopen his claim for service connection for multiple sclerosis, it appropriately did not provide him with a medical examination. As will be discussed below, however, the Board determined that the new evidence received triggered VA's duty to assist and obtained a VHA medical opinion in November 2012. The Board finds this opinion to be adequate for rating purposes as the VHA medical expert clearly reviewed the record and provided medical opinions consistent therewith. The Veteran was given an opportunity to review the VHA medical opinion and provide argument or evidence against it. By letter received in December 2012, the Veteran indicated he had no more evidence and no further argument to submit. Consequently, the Board may proceed to adjudicate the Veteran's claim without prejudice to the Veteran. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Claim to Reopen In an October 1997 rating decision, the RO initially denied service connection for multiple sclerosis. Rating actions are final and binding based on evidence on file at the time the veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a Notice of Disagreement with the decision or to submit new and material evidence in support of the claim. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.156(b), 20.302. The decision becomes final if an appeal is not perfected within the allowed time period. Id. The Veteran neither indicated disagreement with this rating decision nor submitted new and material in support of the claim within one year of the issuance of the October 1997 rating decision. Therefore, it is final. Since the October 1997 rating decision, the Veteran has attempted to reopen his claim of entitlement to service connection for multiple sclerosis. By decision issued by the Board in October 2005, the Veteran's claim to reopen was denied finding that the Veteran had not submitted new and material evidence to reopen his claim of entitlement to service connection for multiple sclerosis, which decision was upheld by the Court in June 2007. The Veteran has not appealed the Court decision and, as such, it became final, as did all of VA's decisions prior to it (i.e., the April 2003 rating decision and the October 2005 Board decision). See 38 U.S.C.A. § 7103, 7252; 38 C.F.R. § 20.1100. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). With claims to reopen filed on or after August 29, 2001, such as this one, "new" evidence is defined as evidence not previously submitted to agency decision makers and "material" evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claims sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. Furthermore, the Court has held that, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The evidence received subsequent to the last final decision, June 2007 in the present case, is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Warren v. Brown, 6 Vet. App. 4 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case, the Board notes that the RO denied reopening the Veteran's claim for service connection for multiple sclerosis on the basis that the new evidence submitted by the Veteran that merely consisted of his statements was cumulative and redundant of evidence previously considered. Regardless of the RO's actions, the Board must itself determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). In September 2012, the Board requested a VHA medical opinion. In doing so, it stated in the opinion request that the Veteran had provided written and oral testimony that he initially experienced symptoms of multiple sclerosis, including stroke-like symptoms such as muscle spasms, nausea, vomiting, headaches, and dizziness, during his military service; and the Board has considered the Veteran's statements and has no reason to disbelieve his contentions of the in-service, observable symptomatology. Because of this, the Board found that it required an expert medical opinion as to whether it is at least as likely as not that the Veteran's currently diagnosed multiple sclerosis first became manifest during his active duty service; or alternatively, became manifest within seven years following his discharge from active service. Hence, essentially in requesting the VHA medical opinion, the Board found that the new evidence received from the Veteran, when considered in conjunction with the record as a whole, was sufficient to trigger VA's duty to obtain a medical opinion. Therefore, the Board finds that the evidence received since June 2007 is new and material, and is sufficient enough to reopen the Veteran's claim for service connection for multiple sclerosis. Where the RO has denied reopening the claim but the Board finds that new and material evidence sufficient to reopen the claim has been submitted, the Board must first consider whether the claimant has been given an opportunity to present argument and/or additional evidence on this matter, and whether adjudication will violate the prejudice safeguard set forth in Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that, in the present case, there is no prejudice to the Veteran in proceeding to the merits of his claim. The Veteran was advised in the March 2009 notice of what evidence was needed to substantiate the underlying claim for service connection. Furthermore, the relevant regulations were provided to the Veteran in the December 2009 Statement of the Case. The Veteran was given ample time to respond and present argument and evidence in support of his claim, which he did. His testimony at the April 2012 RO hearing was clearly related to the merits of his claim. Thus he has been provided with adequate notice and opportunity to present argument and/or additional evidence on this matter. Furthermore, to return the case to the RO to cure a deficiency in the statement of the case would not result in a determination favorable to the Veteran, nor change the current analysis as provided by the Board. See Winters v. West, 12 Vet. App. 203 (1999); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92); 57 Fed. Reg. 49,747 (1992). III. Merits of Service Connection Claim Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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 established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1133 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Multiple sclerosis is such a disease and must have manifested within seven years of discharge from active service in order for presumptive service connection to be warranted. Id. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). The Veteran's main contention is that his multiple sclerosis had its onset in service and is the result of exposure to radiation from fallout from the Chernobyl disaster while he was stationed in Germany. The Veteran's service personnel records demonstrate he was stationed in Germany from October 1984 to November 1987. The Board takes judicial notice that the Chernobyl disaster occurred on April 26, 1986. Service connection for a condition, which is claimed to be attributable to ionizing radiation exposure during service, may be established in one of three different ways. Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). First, there are 15 types of cancer that are presumptively service connected. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). Under 38 C.F.R. § 3.309(d), service connection is presumed for certain diseases if they become manifest in a "radiation-exposed veteran," as defined in 38 C.F.R. § 3.309(d)(3)(i). Initially, the Board notes that multiple sclerosis is not an enumerated disease set forth in 38 C.F.R. § 3.309(d). Furthermore, the Board notes that the Chernobyl disaster has not been listed as a "radiation-risk activity" and, therefore, the Veteran is not a "radiation-exposed veteran" for purposes of presumptive service connection based upon exposure to ionizing radiation. See 38 C.F.R. § 3.309(d)(3). Consequently, the Board finds that consideration of the Veteran's claim under the presumption of service connection for diseases due to exposure to ionizing radiation as set forth in 38 C.F.R. § 3.309(d) is not warranted. The second way to establish service connection is under 38 C.F.R. § 3.311. 38 C.F.R. § 3.311(b) provides a list of "radiogenic diseases" that will be service connected provided that certain conditions specified in that regulation are met. For the purposes of 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; cancer of the thyroid, breast, lung, bone, liver, skin, esophagus, stomach, colon, pancreas, kidney, urinary bladder, salivary gland, and ovary; multiple myeloma; posterior subcapsular cataracts; non-malignant thyroid nodular disease; parathyroid adenoma; tumors of the brain and central nervous system; cancer of the rectum; lymphomas other than Hodgkin's disease; prostate cancer; and any other cancer. 38 C.F.R. § 3.311(b)(2). Consequently, multiple sclerosis is not an enumerated disease that has been recognized as a "radiogenic disease" by VA. If a claim is based on a disease other than one of those listed in § 3.311, VA shall nevertheless consider the claim under the preceding provisions provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(b)(4). In the present case, the Veteran has not submitted any or cited any competent scientific or medical evidence that multiple sclerosis is a radiogenic disease. Since multiple sclerosis is not a radiogenic disease as enumerated in the regulation or shown by competent scientific or medical evidence, consideration of service connection under 38 C.F.R. § 3.311 is not warranted. The Board notes that, at his RO hearing in April 2012, the Veteran's representative essentially conceded that the Veteran's claim as it relates to exposure to radiation is not pertinent and the Veteran agreed with him. The Veteran also agreed that he does not have any evidence to show that his multiple sclerosis is due to exposure to radiation. The Board also notes that there is no evidence of record to demonstrate that the Veteran was actually exposed to radiation as a result of the Chernobyl disaster that occurred when he was serving in Germany. Consequently, the Board finds further that the preponderance of the evidence is against finding that service connection is warranted for the Veteran's multiple sclerosis on the basis of exposure to ionizing radiation because multiple sclerosis is not a radiogenic disease and there is no evidence establishing actual exposure to ionizing radiation. The Board must, however, consider the Veteran's claim on the basis of direct service connection in that he claims an onset of symptoms in service, as well as on a presumptive basis as multiple sclerosis is an enumerated chronic disease. After considering the evidence, the Board finds that it fails to demonstrate that the Veteran's multiple sclerosis had its onset during service or manifested within seven years after his discharge from active service. Initially, the Board notes that it is undisputed that the Veteran is currently diagnosed with multiple sclerosis, as noted in VA treatment records since February 1997 and an August 1997 VA examination report. A review of the service treatment records reveals no diagnosis of multiple sclerosis. They do, however, reveal multiple instances of treatment for complaints of back spasms, back and neck cramps, and back pain throughout his service. Also, on a medical health questionnaire, dated in February 1986, the Veteran indicated that he previously had "epilepsy." In August 1986 he was treated for headaches and related nausea, vomiting and diarrhea. In September 1987 he was treated for dizziness after having a fainting spell. On various Reports of Medical History, he indicated that he had "dizziness or fainting spells." He also, however, reported that he has these spells usually when he sees blood or needles. Post service medical evidence demonstrates that on October 26, 1995, the Veteran presented to the emergency room at St. Anthony Hospital with complaints of a two day history of positional "dizziness" that precipitated nausea and vomiting and was associated with generalized headache. Questionable fever as the Veteran had not taken his temperature. He denied having any recent upper respiratory infection or other infection symptoms. He also denied chest pain, abdominal pain, urinary or bowel symptoms and no motor/sensory symptoms. Physical examination was mostly normal except for the Veteran keeping his eyes closed. It was noted that there was no nystagmus. It was also noted that his neck was supple but that he complained of soreness with full flexion. His symptoms improved within a short time, and it was discussed with him the possibility of meningitis. He was advised to proceed with a lumbar puncture, but he refused. The tentative clinical diagnosis was disequilibrium syndrome/possible meningitis. The Veteran was prescribed an antibiotic, Compazine and Tylenol, and advised to return if his symptoms worsened. On October 28, 1995, the Veteran was transferred from the John Cochran VA Medical Center to St. Louis University Hospital for evaluation and treatment because of sudden onset of multiple sensory and neurological signs. The discharge summary from St. Louis University Hospital indicates the Veteran did not have any significant medical problems until October 26, 1995, when he suddenly developed a severe headache all over and nausea and vomiting and increased truncal and limb ataxia and unsteady gait, which worsened during the next few days prior to admission. The Veteran went to the VA emergency room on the 27th of October and on the morning of the 28th was transferred to St. Louis University neurology for evaluation. The Veteran had a CT of the head done at VA which was negative, and was sent over to have an MRI (magnetic resonance imaging) of the brain to rule out possible brain stem and cerebellar abnormality. Past medical history was noted to be not significant except for a history of right ear ache that started about a week before, and also cerumen and infection in both auditory canals. Physical examination demonstrated that although the Veteran still complained of severe headache and also mild neck stiffness, there were no meningeal signs present. The neck was supple but tender and mild stiffness was noted during neck movement. The Veteran was alert, awake and oriented to person, place and time. His speech was fluent, clear and coherent. He was able to sit up with help, but had mild truncal ataxia. He was also able to stand up, but was very unsteady and was ataxic and able to walk only a few steps with help but had significant instability and tendency to fall. Romberg test with open and closed eyes was about the same. He had significant unsteadiness and tendency to fall to the right. He had both limb ataxia bilaterally and truncal ataxia. On finger-nose-finger test, bilateral dysmetria and intention tremor were noted, more in the right upper extremity than the left, although the heel-to-shin test was positive for limb ataxia, both sides about the same. Motor examination showed normal muscle tone, bulk and strength all over. Deep tendon reflexes right and left side were same, symmetrical, but brisk all over. Fine finger movement was awkward. He was unable to do rapid alternating movement. Disdiadochokinesia was noted on both sides, more in the right upper extremity. He had upgoing toes bilaterally. Examination of the cranial nerves was normal except for nystagmus, diplopia, right ptosis, and possible left inferior rectus paresis. Although on admission, the Veteran complained of right facial sensation impairment, no facial nerve involvement was found. Finally, sensory examination demonstrated mildly decreased vibration sense in both lower extremities. Also decreased fine touch and pinprick sensation of the left side below the umbilicus level and down the left lower extremity all over. The assessment and plan was acute central demyelinating disease with unknown etiology, which caused brain stem and cerebral signs. Possible underlying viral infection and autoimmune process. Rule out first episode of new onset multiple sclerosis. Right ear infection, possible otitis media secondary to possible viral infection and also with the sudden onset of central neurological signs. CT of the head was done which was negative. Also the MRI of the brain was negative for bleeding or any demyelinating signs or infarction. Lumbar puncture was also done and was essentially negative. During the course of his hospitalization, the Veteran gradually improved. He had significantly decreased nystagmus and improved eye movement, also significantly decreased truncal and limb ataxia. He was able to mobilize and walk with assistance. No more headaches were noted. He was transferred back to the VA hospital for further treatment on October 31, 1995. Working diagnosis at time of transfer was possible viral infection versus acute central demyelinating disease. A VA discharge note from February 25, 1997, stated that the Veteran had a history of lower extremity weakness, diplopia, and lower extremity sensory deficits for one year and had been worked up numerous times over that period of time for probable multiple sclerosis. It is noted that the Veteran's symptoms resolved almost entirely between episodes before this admission. Furthermore, all studies - CT, MRI, PET scans, evoked potential studies - had been normal. On this admission, the Veteran presented to the VA emergency room with intractable hiccups, diplopia, and right upper and lower extremity weakness. He was noted to have decreased thermal sensation in the left lower extremity. The Veteran was admitted to neurology. He had a head MRI which showed severe subcortical white matter lesions consistent with multiple sclerosis. He was advised of his diagnosis and follow up. He underwent inpatient rehabilitation at VA from April 1997 to May 1997. Subsequent treatment notes demonstrate that the diagnosis of multiple sclerosis was made in February 1997. The Board finds that the medical evidence alone is not sufficient to establish that the onset of the Veteran's multiple sclerosis was during his active service or that it manifested to a compensable degree within seven years of discharge. The service treatment records fail to demonstrate a diagnosis of multiple sclerosis. Furthermore, there is no evidence of a continuity of symptomatology since service. The Veteran has contended, however, that certain symptoms noted in his service treatment records represent an onset of his multiple sclerosis. Consequently, the Board obtained a VHA medical expert opinion to answer the questions of whether the Veteran's multiple sclerosis had its onset during service or manifested within seven years after his discharge from service. In November 2012, the Chief of Neurology at a VA Medical Center provided an expert medical opinion. In response to the question of whether it is at least as likely as not that the currently diagnosed multiple sclerosis first manifested during the Veteran's active service, the medical expert opined that it is less likely than not that the Veteran's eventual diagnosis of multiple sclerosis first manifested during his period of active service. In explaining the reasoning for this medical opinion, the medical expert discussed each relevant treatment record in service and explained why this record is not consistent with the presentation of symptoms of multiple sclerosis. For example, with regard to the service treatment notes showing complaints of back and/or neck pain, the medical expert stated that the physical examinations on these visits document focal muscle spasm and that, on at least one occasion, document that his neurologic exam was otherwise normal. She stated that the nature of demyelinating lesions of the central nervous system is to initially cause a deficit such as weakness, numbness, etc. Muscle spasticity can develop in patients with multiple sclerosis, however, this is usually a secondary symptom which evolves over several months or years in a limb which was initially weak. The symptom of spasticity is then lastingly present. She stated that the Veteran's symptoms are more likely a primary muscle injury due to the fact that spasm and pain were the only presenting symptoms and that the symptoms resolved with treatment. As for the August 1986 episode of headache, nausea, vomiting and diarrhea, the medical expert stated that this is felt to be consistent with the diagnosis of gastroenteritis which was made during his visit for the reason that the Veteran's symptoms involved diarrhea, which is a symptom more referable to a gastrointestinal source as opposed to a central nervous system etiology. Additionally, she noted that no focal neurologic deficits were documented. Furthermore, she noted that there is no documentation that the Veteran returned for ongoing problems after he received an anti-emetic. She stated that rapid improvement in symptoms is less consistent with multiple sclerosis. This is in contrast to the episode in 1995 during which the Veteran similarly presented with complaints of headache, nausea, vomiting and ataxia. On this occasion though, he was also found to have focal neurologic deficits of limb and truncal ataxia, nystagmus, diplopia, right facial sensory deficits and right eyelid ptosis which suggested a neurologic etiology for the presentation of his symptoms. Many of his symptoms persisted for several days although they did improve somewhat with the steroid treatment he received, but he was still having obvious neurologic abnormalities on examination upon the time of his transfer to VA after four days of inpatient evaluation and treatment. With regard to the Veteran's syncopal episodes, the medical expert stated that these appear to always have been associated with administered or pending injections and/or the sight of blood. She noted that the Veteran indicated this on three separate reports of medical history as well as directly to caregivers during multiple visits. She stated that this symptom is most consistent with vasovagal syncope (and the Board notes that the service treatment records also note that these appeared to be vasovagal episodes). She further noted that these appear to pre-date his service time. She stated that this would not be secondary to multiple sclerosis as it is situational, very brief, and does not represent a focal deficit referable to a single lesion within the central nervous system. As to the two reports of "epilepsy," both indicate difficulties with injections and appear to refer to his past history of vasovagal syncope. As for his report of "seizures," she noted that there is no documentation in the Veteran's medical charts, either during active duty or afterward, which indicate that he ever suffered from or was treated for true epileptic seizures. In summary, she stated that close review of the Veteran's active duty records indicate that he suffered from muscle spasms, gastroenteritis, and vasovagal syncope on various occasions, but there is no clinical evidence to suggest that any of these problems were referable to the central nervous system or were the initial presentation of his eventual diagnosis of multiple sclerosis. With regard to the question as to whether it is at least as likely as not that the Veteran's multiple sclerosis manifested within seven years after his discharge from active service, the medical expert opined that it is less likely than not that the currently diagnosed multiple sclerosis became manifest within seven years following the Veteran's discharge from active service. She noted that the Veteran separated from active duty in November 1987. After a thorough review of his records, she stated it appears that the first time he sought medical treatment for neurologic impairment and related symptoms was October 28, 1995, almost eight years following discharge. He was very thoroughly evaluated while at St. Louis University. The main abnormality on his testing was the presence of oligoclonal bands in his CSF (cerebrospinal fluid). Though this finding is not specific to multiple sclerosis alone, when taken with his physical examination findings, clinical improvement with intravenous steroid treatment and eventual appearance of demyelinating lesions on imaging studies in 1997, she felt that this event was mostly likely the initial presentation of the Veteran's multiple sclerosis. She pointed out that there are no medical records between November 1987 and October 1995 to indicate that the Veteran may have had interval events or sought care for other neurologic complaints. Furthermore, the admitting notes from October 28, 1995, do not indicate that there was a known history of previous neurologic abnormalities other than the presenting symptoms having been present for a few days prior to hospitalization. In addition, she stated that the absence of demyelinating lesions on the Veteran's first MRIs in 1995 is further evidence against his previous symptoms having a multiple sclerosis etiology. The Board notes that the Veteran has not provided any medical opinion supporting his own lay statements relating his current multiple sclerosis to any complaints he had while in service. The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge (i.e., experiencing back/neck pain and other symptoms during or after service). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The presence of multiple sclerosis, however, is a determination "medical in nature" and not capable of lay observation. A layperson is generally not deemed competent to opine on a matter that requires medical knowledge, such as the question of whether a chronic disability is currently present or a determination of etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, the Board finds that the Veteran's lay opinion that his current multiple sclerosis is related to certain symptoms he had in service (as shown in the service treatment records) is not probative. Consequently, the only competent, credible and probative evidence as to whether the Veteran's multiple sclerosis had its onset in service or manifested within seven years of his discharge from service is the VHA medical expert's opinion from November 2012. That medical opinion is against finding that the Veteran's multiple sclerosis either had its onset in service or manifested to a compensable degree within seven years after his discharge from service. Rather, the VHA medical expert's opinions supported by the medical evidence of record demonstrates that the symptoms seen in the service treatment records that the Veteran's relates to his multiple sclerosis were not the first manifestations of multiple sclerosis but that the first manifestation of his multiple sclerosis was in October 1995, which is clearly more than seven years after his discharge from service in November 1987. Consequently, the Board finds the evidence of record fails to demonstrate the Veteran's multiple sclerosis had its onset in service or manifested within seven years after his discharge from service. Although VA's system is not adversarial and VA has a duty to assist veterans in establishing their claims, "[i]t is the veteran's 'general evidentiary burden' to establish all elements of his claim, including the nexus requirement." Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed.Cir.2009). In addition, although VA is to afford the veteran the benefit of the doubt when the evidence is in relative equipoise, the benefit of the doubt doctrine is not concerned with the quantity of evidence arrayed on both sides of a material matter, but the relative quality and persuasive effect of that contrary evidence. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In the present case, after considering all the evidence, the Board finds that the preponderance of the evidence is against finding that service connection for multiple sclerosis is warranted on any theory of entitlement proposed by the Veteran as discussed above. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for multiple sclerosis is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs