Citation Nr: 1316481 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 08-07 198 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for multiple sclerosis. 2. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to multiple sclerosis. REPRESENTATION Appellant (the Veteran) is represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from September 1968 to September 1970. This appeal comes now before the Board of Veterans' Appeals (Board) from an August 2012 memorandum decision of the United States Court of Appeals for Veterans Claims (CAVC). The appeal originates from a February 2006 rating decision of the RO in Columbia, South Carolina. The Board previously decided this appeal in April 2011. In that decision, the Board reopened and denied a claim for service connection for multiple sclerosis and denied a claim for service connection for an acquired psychiatric disability. The Veteran appealed the April 2011 decision to the CAVC. In the August 2012 memorandum decision, the CAVC vacated the Board's April 2011 decision and remanded both issues back to the Board for development as specified in the memorandum decision. In November 2010, the Veteran presented testimony at a Board hearing, which was chaired by the undersigned Veterans Law Judge, seated at the RO in Atlanta. A transcript of the hearing is associated with the claims file. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. To address the Order of the CAVC and the specifics of the August 2012 memorandum decision, this 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 In the August 2012 memorandum decision, the CAVC found that pertinent evidence was not considered by the Board in its April 2011 decision. Specifically, on his March 2001 application for benefits, the Veteran reported that he had lost 30 days of work while employed at the City of Savannah as a result of multiple sclerosis; however, there was no indication in the record that VA attempted to obtain these employment records. The CAVC also noted that, in 2005, and again during a 2010 Board hearing, the Veteran reported that approximately five years after service (around 1975, more than 30 years ago), the Department of Defense terminated him from his job at Fort Stewart because he was medically unfit; however, there was no indication in the record that VA attempted to obtain records related to that job. The CAVC emphasized that the above records pertain to the Veteran's medical condition during the seven-year period following his release from service, making them relevant to the pivotal issue of the claim, citing Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). The CAVC found that VA made no effort to obtain these records, despite the fact that they were identified as employment records with the Department of Defense and the City of Savannah, and the Veteran identified the approximate periods he was employed at each. The CAVC therefore concluded that VA did not satisfy its duty to assist the Veteran in obtaining records relevant to the Veteran's claims, and a remand was necessary for the Board to do so. In this regard, the Board must note that the Veteran and his attorney are under an obligation to assist the VA in obtaining evidence in support of this claim, including private records. The records in question are from many years ago, making locating them very difficult. The Veteran and his attorney are asked to make significant efforts to obtain the records in question themselves in order to expedite his case. If they cannot locate these records, or they find that they are not available, they should notify the VA immediately in order to avoid further delays in this case. The RO/AMC will make an effort to obtain these records, as required by the CAVC, however, the best chance for success in obtaining these records (and reducing delay in the adjudication of this case) lies in the hands of the Veteran and his attorney as the Veteran has first-hand familiarity of the records CAVC wishes the Board to obtain. Regarding a medical examination, the CAVC noted that there is no dispute that the Veteran currently suffers from multiple sclerosis, and that the instructions set out above might result in obtaining relevant records regarding whether his symptoms manifested during the seven years following his discharge. The CAVC also noted that the Board failed to consider whether the fact that the Veteran's vision deteriorated during service may have been an early symptom of his multiple sclerosis, noting that the diagnostic code for multiple sclerosis directs VA to consider impairment of vision in rating multiple sclerosis, citing 38 C.F.R. § 4.124a (2012). The CAVC noted that the service separation examination found myopia, while the induction examination reflected perfect vision The CAVC cited the Board's finding that, "[h]is visual deficit was attributed to an objectively demonstrated refractive error of the eye," but noted that there is no medical report that contains this conclusion. The CAVC concluded that the Board's finding is a medical opinion that the Board is prohibited from making, citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The CAVC noted that, because it was remanding the claim for further development, the Board must re-evaluate, based on any information obtained on remand, whether a medical examination is necessary. The order of the CAVC is the law of the case. See Chisem v. Gober, 10 Vet. App. 526 (1997). In April 2013, the Veteran's attorney submitted an opinion by a private neurologist, as well as a lay statement by a former co-worker of the Veteran, who reports having witnessed physical and speech impairments of the Veteran in the mid-1970's. The private neurologist opined that these impairments were likely early signs of multiple sclerosis. However, the opinion of the private neurologist is inadequate to decide the claim as it does not discuss or acknowledge significant evidence that conflicts with the observations of the Veteran's co-worker, which are acknowledged by the private neurologist as "the clearest evidence showing [the Veteran] had neurological symptoms prior to 1977." In particular, a 1984 clinical history notes a 2-year history of progressive gait ataxia with insidious onset, first noted on a company physical examination in 1982. Moreover, the Veteran described to a VA examiner in May 1990 that his general health was good up until around 1981, at which time, he applied for a job and was turned down because of muscle weakness and weight loss. Simply stated, at these point in the medical history the Veteran himself provides highly probative factual evidence against the lay statement by a former co-worker of having witnessed physical and speech impairments of the Veteran in the mid-1970's. Because these contemporaneous accounts directly conflict with the factual basis of the private neurologist's opinion, and were not acknowledged by him, the Board finds that additional development is necessary to comply with the CAVC's Order. Regarding the claim for service connection for a psychiatric disability, the CAVC noted in the memorandum decision that the Board also denied service connection for a psychiatric disorder as caused or aggravated by his multiple sclerosis; and, because the claim for multiple sclerosis was being remanded, the claim for a psychiatric disability secondary to multiple sclerosis would also be remanded. Thus, the separate issue of entitlement to service connection for an acquired psychiatric disability, to include as secondary to multiple sclerosis, is inextricably intertwined and the proposed development will encompass that issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Chisem, supra. Accordingly, the appeal is REMANDED for the following action: 1. After securing necessary authorization and release from the Veteran, make reasonable efforts to obtain employment records from the Department of Defense and the City of Savannah regarding the Veteran's employment with those organizations. Such reasonable efforts should include an initial request for the records and, if the records are not received, at least one follow-up request. The Veteran should be notified of any negative responses and be afforded an opportunity to obtain the records himself. In this regard, it would be of great help if the Veteran himself attempted to obtain these records himself (or indicate, in writing, that they were not available in order to expedite his own case). 2. Following the success or failure of the above, schedule the Veteran for an examination by an appropriate VA clinician to determine the etiology of his multiple sclerosis. The relevant documents in the claims file should be made available to the VA clinician. The VA clinician is asked to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that multiple sclerosis is causally or etiologically related to the Veteran's service from September 1968 to September 1970. The examiner should specifically comment on whether the evidence demonstrates that multiple sclerosis was manifest within seven years of service separation, and if so, describe the specific manifestations. The examiner should also comment on the finding in the separation examination that the Veteran had myopia at service separation, as compared to the normal findings at induction, and provide an opinion as to whether this represents a manifestation of multiple sclerosis in service. The examiner is asked to review the private neurologist's April 9, 2013 opinion. A review of the Court's decision in this case may assist the evaluator in understanding the Board's question in this case. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. 3. Readjudicate the issue of entitlement to service connection for multiple sclerosis. If and only if service connection is granted for multiple sclerosis, schedule the Veteran for an appropriate VA examination to determine the etiology of his acquired psychiatric disability. The relevant documents in the claims file should be made available to the VA examiner. If and only if service connection is granted for multiple sclerosis, the VA examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any acquired psychiatric disability is causally or etiologically related to the Veteran's multiple sclerosis. If the examiner finds no causal relationship, the examiner should offer an opinion as to whether the Veteran's multiple sclerosis has resulted in a worsening of the psychiatric disability beyond the natural progress of the disease. Again, this opinion is to be obtained if and only if service connection is granted for multiple sclerosis All opinions are to be accompanied by a rationale consistent with the evidence of record. 4. Readjudicate the issue of entitlement to service connection for an acquired psychiatric disability. If either benefit sought on appeal is not granted, the Veteran and his attorney should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examinations, as failure to do so may result in denial of the claims. See 38 C.F.R. § 3.655 (2012). These claims 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). _________________________________________________ JOHN J. CROWLEY 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).