Citation Nr: 1307620 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-40 641A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In that decision, the RO denied the Veteran's petition to reopen a claim for service connection for multiple sclerosis as new and material evidence had not been submitted. A Travel Board hearing was held at the RO in June 2011, with the Veteran providing testimony before the undersigned Veterans law Judge. A transcript of the testimony is in the claims file. While acknowledging that the RO in September 2010, reopened and adjudicated the Veteran's claim on a de novo basis (see Statement of the Case), the Board is nevertheless required to address whether the Veteran has submitted new and material evidence to reopen his claim for entitlement to service connection for multiple sclerosis. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Therefore, regardless of the manner in which the RO characterized the issue, the initial question before the Board is whether new and material evidence has been presented. FINDINGS OF FACT 1. An August 1999 RO rating decision last finally denied the Veteran's claim for service connection for multiple sclerosis. 2. The evidence submitted since the August 1999 RO rating decision, when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim of service connection. 3. The Veteran's currently demonstrated multiple sclerosis manifested to a compensable degree within seven years of his discharge from active service. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the previously denied claim of service connection for multiple sclerosis. 38 U.S.C.A. §§ 5103, 5103A(d)(2)(f), 5108, 7105 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.156(a), 3.159 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, multiple sclerosis was incurred during the applicable presumptive period. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was enacted. VCAA has since been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. This change in the law is applicable to all claims filed on or after the date of enactment of VCAA, or filed before the date of enactment and not yet final as of that date. The Board has considered this legislation. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). However, given the favorable action taken hereinbelow, the Board finds that further discussion of VCAA is not required at this point. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105. An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications filed after August 29, 2001, as was the application to reopen the claim in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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 (West 2002); 38 C.F.R. § 3.303(a) (2012). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, multiple sclerosis is presumed to have been incurred in service if such manifested to a compensable degree within seven years of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b) (West 2002); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. In Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). In adjudicating a claim, including as to continuity of symptomatology, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Although the Veteran asserts that his currently-manifested multiple sclerosis is related to service, he is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). He is competent to give evidence about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); 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 Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. Factual Basis The evidence associated with the claims folder since the August 1999 RO rating decision includes private and VA medical records and the testimony proffered by the Veteran in support of the claim. The claim of service connection for multiple sclerosis was last finally denied in an August 1999 RO rating decision. The RO found that the multiple sclerosis was first diagnosed in August 1996, which was after the expiration of the seven-year presumptive period. The RO added that while other medical reports, dated in 1978 and 1981, indicated the presence of symptoms which may or may not be related to multiple sclerosis, these reports did not contain a diagnosis of multiple sclerosis. In essence, the RO found that the record was absent of medical evidence which made a correlation between the Veteran's currently-diagnosed multiple sclerosis disability and his military service, or supported a diagnosis of multiple sclerosis within the seven year presumptive period. The Veteran did not perfect his appeal by the submission of a timely substantive appeal. As such, the August 1999 RO decision is final. 38 U.S.C.A. § 7105. The claim may not be reopened unless new and material evidence is received. 38 U.S.C.A. § 5108. The Veteran sought to reopen his claim in April 2010. His claim included a January 2010 private medical record, as part of which Dr. K-H L., in supplying a diagnosis of multiple sclerosis, opined that it was "possible" that when the Veteran had chest pain in 1978 and 1981 with burning pain radiating to his left arm with left arm weakness, this was related to multiple sclerosis, even though he did not undergo a work up for multiple sclerosis at that time. The Board observes that R.L.O., MD, in an August 1978 letter to Dr. K-H L., stated that he saw the Veteran in August 1978 for complaints of chest pain. He added that the Veteran had his first attack of severe chest pain approximately two years ago [August 1976]. A June 1981 private medical discharge summary shows final primary diagnoses of possible migraine headaches, possible transient ischemic episode of undetermined etiology or even possibility of multiple sclerosis. Also, and of significant note, a letter from K-H L., dated in April 2011, shows that the physician, in commenting that he had reviewed "all pertinent medical records" relative to the Veteran, opined that, given the insidious nature of multiple sclerosis, it was "as likely as not" that the Veteran manifested the symptoms of multiple sclerosis as early as 1976 or 1977. The Board finds that this new evidence, when considered in conjunction with the evidence previously of record, relates to previously unestablished facts that tend to substantiate the Veteran's claim. As noted, the RO in August 1999 found that the multiple sclerosis was first diagnosed in August 1996, which was after the expiration of the seven-year presumptive period. The RO added that while other medical reports, dated in 1978 and 1981, indicated the presence of symptoms which may or may not be related to multiple sclerosis, these did not include a diagnosis of multiple sclerosis. In essence, the RO found that the record was absent of medical evidence which made a correlation between the Veteran's currently-diagnosed multiple sclerosis disability and his military service, or supported a diagnosis of multiple sclerosis within the seven year presumptive period. The Board also finds that this evidence is neither cumulative nor redundant of the evidence of record at the time of the August 1999 decision and, when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the Veteran's claim and raises a reasonable possibility of substantiating the claim. Hence, the Board finds that new and material evidence has been received to reopen the Veteran's claim. 38 C.F.R. § 3.156. Given the fully favorable action taken hereinbelow, the Board's proceeding with its review of the merits of the claim results in no prejudice to the Veteran. As mentioned, the most recent evidence includes a private medical opinion which essentially found that the Veteran's multiple sclerosis was manifested to a compensable degree within seven years of separation from service. The Veteran also testified before the undersigned in June 2011 that it was his belief that he had symptoms of multiple sclerosis as early as 1976 or 1977. He also expressed his opinion that the medical opinion supplied by Dr. K-H L. in April 2011 was both credible and probative in establishing that he, essentially, had multiple sclerosis during the seven-year presumptive period. The Board again notes that this private physician provided this opinion after reviewing pertinent medical documents. Thus, in resolving all doubt in the Veteran's favor, this opinion demonstrates that multiple sclerosis was manifested to a compensable degree with seven years from the date of the Veteran's service separation. See 38 C.F.R. §§ 3.307, 3.309. Although Dr. K-H L.'s April 2011 letter is not accompanied by a specific explanation, it at least supports a conclusion that the Veteran's reported symptoms in 1976-77 were related to multiple sclerosis. This physician is shown to have treated the Veteran since 1978. His knowledge of the health of the Veteran over this lengthy period of time is without rival. The Veteran is competent to report neurological symptoms, such as chest pain. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337. Further, there is nothing to explicitly contradict his reports, and his reports are otherwise generally consistent with the evidence of record. Therefore, the Board concludes that the Veteran's reports of severe chest pain beginning approximately two years before August 1978 are credible. The Veteran has testified that his multiple sclerosis was present within the applicable seven year presumptive period. The Board finds this testimony credible. There is a current medical diagnosis of multiple sclerosis. In light of the finding of a presumptive relationship between the multiple sclerosis and the Veteran's active service, the Veteran's competent credible testimony, a positive nexus opinion, and a current diagnosis, the Board concludes that the evidence supports a finding that the Veteran's current multiple sclerosis was first manifested to a compensable degree within the applicable seven year period. The minimum rating for multiple sclerosis is 30 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8018. The symptoms of multiple sclerosis within the seven year presumptive period were; therefore, compensable. In light of the Veteran's symptoms in 1976-77, and in acknowledging the multiple positive medical opinions, discussed above, as well as in light of the absence of a negative medical opinion, the Board finds that multiple sclerosis manifested to a compensable degree within seven years of his separation from service. Service connection is, therefore, granted. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303 , 3.307(a), 3.309(a), 4.124a, Diagnostic Code 8018. ORDER As new and material evidence has been submitted to reopen the claim of service connection for multiple sclerosis, the appeal to this extent is allowed. Service connection for multiple sclerosis is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs