Citation Nr: 1316579 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 10-48 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for left foot drop, including due to exposure to ionizing radiation. 2. Entitlement to service connection for a disability characterized by brain scarring, to include multiple sclerosis, including due to exposure to ionizing radiation. ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from October 1966 to September 1970 The appeal comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. While the Veteran in the course of appeal characterized one of the appealed claims as brain scarring, the Veteran also characterized this claim as one for multiple sclerosis, and the clinical record points to the possibility of multiple sclerosis being present. Hence, while the Veteran in his December 2010 VA Form 9 only characterized the claimed disorder as brain scarring, a broader characterization is more appropriate, as potentially affording the greater benefit to the Veteran. When addressing the scope of the Veteran's claims, the Veteran cannot be held to a medical level of understanding of disabilities beyond the ambit of lay comprehension; claims should be characterized more broadly to encompass implicated disabilities, as appropriate. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam order) (requiring broader characterization of claimed psychiatric disorders based on facts found). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Private treatment records from the mid-1990s have reflected findings of incomplete left foot drop and brain scans showing scarring which examiners have noted should be watched as potentially implicating the presence of multiple sclerosis. Thorough evaluations of the peripheral nerves and the left lower extremity have failed to identify a cause of the left incomplete foot drop. The Veteran now contends that these may be due to his exposure to ionizing radiation in the course of duties over multiple years in service working around nuclear weapons with exposure to ionizing radiation. However, neither brain scarring/multiple sclerosis nor left foot drop is among the diseases recognized within VA regulations as a radiogenic diseases, and presumptive service connection accordingly may not be established for the claimed diseases on the basis of ionizing radiation exposure. 3 8 C.F.R. § 3.311(i) (2012). The Veteran has also not cited or submitted competent scientific or medical literature supportive of any link between ionizing radiation exposure and his claimed left foot drop or brain scarring/multiple sclerosis. 38 C.F.R. § 3.311(i)(4) (2012). The Veteran has also not submitted medical opinion evidence to support a causal link between service (to include ionizing radiation exposure in service) and the claimed conditions, to potentially support service connection on that basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). However, the Veteran did submit medical literature addressing multiple sclerosis which indicated that immune response to viral exposure was a possible cause or trigger of multiple sclerosis. The Veteran's service treatment records reveal that he was treated for active Rubella infection in service. Medical literature suggests a correlation between exposure to Rubella and subsequent development of multiple sclerosis. See J Djelilovic-Vranic, Role of Early Viral Infection in Development of Multiple Sclerosis, 66 Med. Arh. (3 Suppl 1) 37-40 (2012). On the basis of this evidence, the Board believes that a medical examination is in order to address the nature of the current claimed disabilities and questions of etiology including as related to viral infection in service. As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when the Veteran presents a claim for service connection and meets the low threshold requirements that there is an event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the Veteran indicates that the claimed disability or symptoms may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). All of these low threshold requirements are met. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded a VA examination by a physician with expertise in autoimmune disorders, particularly multiple sclerosis, to address the nature and etiology of the Veteran's claimed disability characterized by brain scarring, to include multiple sclerosis, and his claimed left foot drop. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary studies, tests, and evaluations must be performed and the results noted in the examination report. The examiner must address the following: a. The examiner must carefully review the evidence of record, the Veteran's statements, and the clinical evidence, and conduct a thorough examination. The Veteran's statements may serve to support any medical determination to the extent the statements may be reasonably made by a layperson. As, for example, the Veteran, as a layperson, may address what a physician previously told him, and may address current or past symptoms. The examiner must not accept lay statements beyond the ambit of lay knowledge or comprehension, such as a statement by the Veteran that he currently suffers from a detached retina, microhematuria, or an 80-percent occlusion of the right internal carotid artery. The examiner may accept that a physician told him these things, for purposes of establishing etiology or a diagnosis, but the examiner may not accept the Veteran's personal knowledge of such matters. The examiner must also address whether any statements or evidence are contradicted or reasonably questioned based on other evidence of record. b. The examiner must separately address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's claimed left foot drop and his claimed disability characterized by brain scarring, to include multiple sclerosis, is causally related to service, including causally related to his contracting active Rubella infection in service. The service treatment records document active Rubella infection in 1967. The examiner must specifically address the research findings of any association between prior Rubella infection and contracting multiple sclerosis, as presented in the published article, J. Djelilovic-Vranic, Role of Early Viral Infection in Development of Multiple Sclerosis, 66 Med. Arh. (3 Suppl 1) 37-40 (2012). The examiner must also address any other relevant medical evidence or information obtained by the examiner in the course of researching the medical questions presented. c. All opinions provided must include discussion of specific evidence of record. The examiner must provide a complete rationale for any conclusions drawn or opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The examination report must be typed. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated. If any issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).