Citation Nr: 1311909 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 07-05 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for multiple sclerosis, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified at a July 2007 hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims file. In a December 2011 decision, the Board reopened the Veteran's claim for service connection for multiple sclerosis (MS) and denied service connection on the merits. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order in July 2012, the Court granted a Joint Motion for Remand and vacated the Board's decision for compliance with the instructions in the Joint Motion. The Board notes that the December 2011 decision also reopened the Veteran's claim for service connection for MS. The Joint Motion did not discuss the issue of new and material evidence and, therefore, the Board will proceed and finds that part of the December 2011 decision undisturbed as it was a grant of the petition to reopen. The Board notes that additional evidence has been associated with the claims file following the Board's December 2011 decision consisting of VA treatment records. However, the VA treatment records are cumulative and redundant of the VA treatment records already associated with the claims file, reflecting diagnoses of MS. Therefore, a waiver of agency of original jurisdiction consideration of this evidence is unnecessary. See 38 C.F.R. § 20.1304 (2012) 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 As noted above, the Veteran appealed the Board's December 2011 decision to the Court, which in a July 2012 order, endorsed the Joint Motion for Remand. The Joint Motion indicated that the November 2010 VA examination report was inadequate. The parties agreed that the examination was inadequate because the examiner failed to address whether the Veteran's MS was related to his active military service on a direct basis or whether his MS developed within the seven year presumptive period. The parties indicated that the examiner only opined upon the relationship between the Veteran's MS and herbicide exposure. In addition, the Joint Motion also indicated that the Board dismissed the lay statements submitted in connection with the Veteran's case. The Veteran's mother and ex-wife submitted statements that cumulatively addressed the Veteran's multiple incidents of fevers and chills since active service. The parties explained that the Board must consider whether these statements can be used to support the Veteran's alleged date of onset of MS. As found by the Joint Motion, the record is insufficient to make a determination as to whether the Veteran's MS had its onset in active service, within seven years of active service, or is otherwise causally or etiologically related to active service. In reviewing the November 2010 VA examination report, the Board observes that the examiner opined that the Veteran's multiple sclerosis was not caused by or related to his active service to include herbicide exposure when he was in Vietnam. However, in the rationale for the expressed opinion, the examiner discussed that there was no mention for multiple sclerosis associated with Agent Orange exposure and there were not enough studies to support a cause and effect relationship between multiple sclerosis and Agent Orange exposure. The examiner did not discuss whether multiple sclerosis was otherwise associated with service or manifested within seven years after separation from active service. Therefore, the opinion is not adequate. See 38 U.S.C.A. § 5103A(d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, the Board finds that a VA medical examination with opinion is necessary prior to adjudication of the Veteran's claim for service connection for MS. As the Veteran appears to receive ongoing treatment from the Salem, Virginia VA Medical Center (VAMC), Beckley, West Virginia VAMC, and the Richmond, Virginia, VAMC, updated VA treatment records should be obtained and associated with the record. See 38 U.S.C.A. § 5103A(b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain and associate with the claims file the Veteran's VA treatment records from the Salem, Virginia VAMC, the Beckley, West Virginia VAMC, and the Richmond, Virginia, VAMC dated from August 2012 to the present. All actions to obtain the requested records should be documented fully in the claims file and the Veteran notified of any negative response. 2. Schedule the Veteran for a VA examination for purposes of determining the nature and etiology of his MS. The claims folder must be made available to and reviewed by the examiner. Any indicated tests, if any, should be performed. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's MS arose during service or is otherwise causally or etiologically related to the Veteran's military service. In providing this opinion, the examiner should address the Veteran's statements regarding his multiple falls during active service, his reported lack of coordination, and his assertion that he was treated for a high fever and chills during service and after service. If not, the examiner should indicate whether it is at least as likely as not that the evidence reflects compensable symptoms of multiple sclerosis manifested within 7 years following the Veteran's discharge from service in July 1970. See 38 C.F.R. §§ 3.307, 3.309. In rendering the opinion, the examiner should discuss the Veteran's statements, the lay statements from his mother and ex-wife indicating that the Veteran had high fever and chills upon return from active service, and the medical evidence dated in the 1970s regarding weakness of the lower extremity (diagnosed as neuropathy). The examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran's MS is related to his exposure to herbicides. The examiner should note that a rationale based solely on the fact that MS is not among the list of diseases associated with Agent Orange exposure, under 38 C.F.R. § 3.309(e), is not adequate. The VA examiner is requested to provide a thorough rationale for any opinion provided. 3. Thereafter, readjudicate the issue of entitlement to service connection for MS. If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).