Citation Nr: 1312685 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 09-43 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for multiple sclerosis (MS). REPRESENTATION Veteran represented by: Colin E. Kemmerly, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1983 to June 1986 and from January 1991 to August 1991, and had additional service in the National Guard and Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, a video conference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In March 2012, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). In October 2012, the Board sought clarification of that advisory medical opinion from the VHA. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present, there are no additional documents pertinent to this appeal in Virtual VA. The appeal is REMANDED to the RO. VA will notify the Veteran if action on his part is required. REMAND The Veteran served in the Southwest Asia theatre of operations during the Persian Gulf War from January 1991 to March 1991. He seeks service connection for MS, which he claims had its onset either in service or within seven years following his separation from service in August 1991. Specifically, he alleges that he began exhibiting symptoms of MS in service (i.e., back and knee problems), and that after service he was treated continuously for such symptoms (including, but not limited to, numbness in his lower extremities) until MS was diagnosed in 2001. Under 38 C.F.R. §§ 3.307,. 3309, the chronic disease of MS may be service-connected on a presumptive basis if manifested to a compensable degree within seven years after discharge from service. The Veteran's service treatment records (STRs) from both periods of service, and from the National Guard and Reserves, show that he was treated on multiple occasions for complaints related to his knees and back. In March 1991, he was evacuated from Saudi Arabia because of an internal derangement in his left knee. (Notably, the Veteran has established service connection for an internal derangement of the left knee.) Postservice private treatment records document the following: In February 1994 the Veteran sought treatment for dizzy spells of a one-week duration; vertigo was diagnosed. In September 1995, he was treated for erectile dysfunction/impotence. In October 1998, he sought treatment for numbness in his legs, and it was noted that he had a history of similar problems with left knee problems; paresthesia and hypertension were assessed. In November 1998, he complained of numbness and weakness in his legs; it was noted that he might have a viral neuritis, or something similar, and that he would be watched. In January 2000, he again complained of leg numbness; polyneuropathy and bilateral paresthesia were assessed; the differential diagnosis included (but was not limited to) MS. In April 2000, he complained of "what sound[ed] like a neurogenic claudication and the fact that he [couldn't] walk" because his legs felt numb. In May 2000, he complained that he had been experiencing paresthesia of the left extremity from the waist down for four to six weeks; paresthesia and neuropathy were assessed. In August 2000, he indicated he had numbness in his hands and feet all the time; probable neuropathy was assessed. In April 2001, he was treated for a swollen tongue. In May 2001, he complained of slurred speech. An MRI was conducted in May 2001; it showed abnormal results indicative of either a cerebrovascular accident (stroke) or MS. In June 2001, he was evaluated to determine whether he had MS or had suffered a stroke; the examining neurologist indicated that he needed the lumbar puncture results to form an impression, but stated it was possible the Veteran had MS. In August 2001, MS was diagnosed. In a July 2007 letter, the Veteran's treating neurologist (Dr. J.L.H.) stated that the Veteran "had been having symptoms [of MS] for a number of years prior to his 2001 diagnosis, certainly having symptoms around 1996 or 1997." He noted that at the time of the 2001 diagnosis, the Veteran "had evidence of multiple lesions in his brain, some of which were obviously old." In August 2008, the Veteran was afforded a VA examination (by a physician's assistant) to determine the onset and etiology of his MS. After reviewing the claims file and conducting a physical examination of the Veteran, the examiner stated that she "[could not] give an opinion regarding [the Veteran's] current diagnosis [of MS with medication] with relationship to his military service and/or aggravation during his military service without resorting to mere speculation." She further stated that the time of onset and etiology of the disease were unknown. In an April 2009 letter, Dr. J.L.H. stated that although he had previously indicated that the Veteran first experienced symptoms of MS in 1996 or 1997, it was now his opinion that the Veteran's "multiple sclerosis breakdown" dated back to late 1993 or early 1994. Dr. J.L.H.'s amended opinion was based on additional information received from the Veteran which showed that he had been treated for dizzy spells in February 1994. In an October 2009 letter, Dr. J.L.H. noted his review of the rating criteria for MS (38 C.F.R. §4.124a), and stated, "Based on my treatment of [the Veteran] and a review of Diagnostic Code 8018 et al listed above, it is at least as likely as not that his multiple sclerosis is rated at the 30% level since August 1, 1998." Pursuant to the Board's March 2012 request, a VA neurologist provided an advisory medical opinion in June 2012. The VA neurologist opined, essentially, that the Veteran's MS did not have its onset in service or within seven years of his separation from service. She explained that his MS was diagnosed based on findings reported from an MRI conducted in 2001. Because the Veteran separated from service in 1991, the date of his MS diagnosis fell outside the seven-year presumptive period for MS. As for the symptoms/conditions for which the Veteran was treated prior to 2001 and now asserts are representative of undetected MS, the VA neurologist stated: (1) The Veteran's vertigo, treated in February 1994, "appears to be in isolation without any associated neurologic deficits. Patient was prescribed Antivert for this without any further followup until April 1994 when he was seen for a symptom consistent with urethritis, which is not related to multiple sclerosis." (2) The Veteran's numbness and paresthesia in the lower extremities is also consistent with the presence of diabetic neuropathy, which he has. (3) Low back pain is not associated with MS. (4) Symptoms of erectile dysfunction and impotence, in isolation, do not relate to MS. In an August 2012 letter, Dr. J.L.H. reviewed the VA neurologist's June 2012 opinion and noted that the Veteran's MS is of the "remitting, relapsing" type. He stated that this diagnosis "requires the patient to have symptoms that resolve and then the other symptoms that happen and resolve again. These must be separated in time and space." Therefore, he disagreed with the VA neurologist's observation that because the Veteran's complaints of numbness/paresthesia and vertigo could be related to his other diseases, including diabetic neuropathy, etc., or occurred in isolation, that meant they were not related to MS. Dr. J.L.H. stated further that vertigo and numbness/paresthesia are "common presenting complaint[s] of multiple sclerosis." Pursuant to the Board's October 2012 request for clarification in light of the new evidence received (specifically, Dr. J.L.H.'s August 2012 letter), the VA neurologist provided an addendum to her June 2012 opinion in November 2012. The VA neurologist stated the following: "An exhaustive review of the chart provided was performed. I stand by my earlier opinion. If this opinion is not found to be satisfactory, [I] would strongly recommend that this patient be re-evaluated at a different venue with a face to face examination and review of records and imaging studies." In a March 2013 letter, one of the Veteran's private physicians noted his review of the Veteran's pertinent records and opined that the Veteran's complaints of numbness and weakness prior to being diagnosed with MS are more likely than not related to his diagnosis of MS. Later in March 2013, the Veteran underwent a private examination for his MS. The examining physician stated his belief that the Veteran "started to have problems with his MS more likely than not around late 1994 due to [paresthesia] and numbness that he has experienced in his lower extremities, although he was diagnosed officially in 2001." The examining physician also opined that the Veteran's "initial vertigo may or may not be related to multiple sclerosis, although possibility still exists." In a follow-up statement in March 2013, the examining physician reiterated his belief that, based on the history that the Veteran provided, his MS began in late 1994 due to his symptoms of paresthesia and numbness in the lower extremities even though he was not officially diagnosed until 2001. In light of the above, a VA neurological examination is needed to determine whether the Veteran exhibited compensable symptoms of MS in service or within seven years following his separation from service, and if not, then the likely etiology of his current MS. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for the Veteran to be examined by a neurologist to determine the nature and etiology of his MS. The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA) must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: (a) Please provide an opinion as to the earliest date it is shown by the record that the Veteran exhibited compensable symptoms of MS. The examiner should consider and discuss specifically the Veteran's complaints and treatment for dizziness/vertigo, erectile dysfunction/impotence, low back pain, and numbness/paresthesia in the lower extremities. (b) If it is not found that the Veteran's MS was manifested in service or within seven years following his separation from service, please provide an opinion as to whether it is at least as likely as not (a 50% or better probability) that his MS is somehow otherwise etiologically related to his service, to include his service in the Southwest Asia theater of operations during the Persian Gulf War. The examiner must explain the rationale for all opinions, citing to supporting clinical data, as appropriate. 2. The RO should ensure that the development sought is completed, and then review the record and re-adjudicate the claim. If the benefit sought remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ GEORGE R. SENYK 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).