Citation Nr: 1316853 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 05-21 377A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for multiple sclerosis (MS). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from September 1966 to June 1970. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating determination of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for MS. In an April 2008 decision, the Board indicated that the Veteran's claim had originally been denied in June 1987, and that the Board, in the first instance, had to address whether new and material had been received to reopen the claim of service connection. The Board remanded this matter at that time for further development. Subsequent to the requested development, the Board in a August 2009 decision, found that new and material evidence had been received and reopened the previously denied claim of service connection for MS. The Board also remanded the matter for further development at that time, to include a VA examination. The Board subsequently remanded this matter for further development in September 2010 and March 2012, to include obtaining opinions as to the onset of the Veteran's MS and its relationship, if any, to his period of service. The Board finds that the most recent VA examination complies with the directives in the March 2012 remand and that the matter is now ready for appellate review. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). FINDINGS OF FACT 1. Symptoms of MS not shown in service and were not chronic in service. 2. Symptoms of MS were not continuous since service. 3. MS did not manifest to a compensable degree within seven years of service separation. 4. The Veteran's MS causally or etiologically related to service, to include any injury or event therein. CONCLUSION OF LAW The criteria for service connection for MS have not been met. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the Veteran's status has been substantiated. The Board observes that in July 2004, May 2007, and September 2007 letters, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letters also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letters further told him to submit relevant evidence in his possession. The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). May 2007 and September 2007 letters also provided the Veteran with notice as to the disability rating and effective date elements of the claim. Although some of the notice letters were not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and been given ample time to respond, the RO has also readjudicated the case by way of a supplemental statement of the case issued after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Furthermore, the Veteran and his representative have presented detailed argument which shows they are aware of what is needed to substantiate the claim. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal because any error in the notice did not affect the essential fairness of the adjudication. See generally Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (explaining application of the rule of prejudicial error in the context of claims for VA benefits). VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records, service, VA, and private, have been obtained and associated with the claims folder insofar as possible. In this regard, the Board notes that this matter was remanded in April 2008 to attempt to obtain a May 1970 report of Medical History and to obtain a full report of a May 1997 VA examination. The May 1970 report was determined to be unavailable. In response to the RO's April 2008 request to the NRPC regarding the May 1970 report, it was indicated that no additional service treatment records were on file. The May 1997 report was obtained and associated with the claims folder. No other relevant records have been identified. The Board notes that this matter was remanded on several occasions to attempt to obtain opinions with regard to the etiology of the Veteran's MS and its relationship, if any, to his period of service. In conjunction with the most recent Board remand, the Veteran was afforded a VA examination in February 2013, which provided the requested opinions and detailed rationale to support those opinions and complied with the Board remand. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative and the opportunity to appear at a hearing if so desired. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran has MS which is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) applies in this case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as MS, become manifest to a degree of 10 percent or more within seven years after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran maintains that he had symptoms would could be attributed to MS while in service or in the alternative that he developed MS manifestations within the seven year period following service. A review of the Veteran's service treatment records reveals no findings or diagnoses of MS while the Veteran was in service. There were also no diagnoses of MS within the presumptive seven year period. The service treatment records do reveal that the Veteran was seen with flu symptoms in June 1968 and January 1969 and for abdominal pain from June 1969 through October 1969. While the Board notes that the Veteran reported that he was unable to walk well at the time of a September 1969 visit, this was related to his vomiting and severe abdominal pain. He was also seen with complaints of right shoulder pain in November 1969. At the time of the Veteran's September 1970 service separation examination, normal findings were reported for all systems, including the neurologic and musculoskeletal systems. The Veteran was also noted to have 20/20 vision at that time. Treatment records obtained from the Veteran's private physician, J. B., M.D., reveal that the Veteran was hospitalized in October 1981 because of a history of exquisite sensitivity to touch over the right upper extremity. Electroencephalogram and CT of the head testing were normal. The Veteran was diagnosed as having intermittent autonomic dysfunction of the right upper extremity associated with hyperalgesia, probably as a stress related response, and a psychoneurotic personality disorder, with evidence of conversion reaction and anxiety reaction. In a May 1984 report, H. N, D.O., indicated that he had been asked to reevaluate the Veteran for neurological purposes. Following examination, a diagnosis of rule out left hemispheric lesion or cerebellar tumor was rendered, it was also noted that a demyelinating disease also had to be considered. In an October 1986 medical report, prepared for disability determination purposes, it was noted that the Veteran had been referred for a disability evaluation in light of what was by his history "multiple sclerosis", symptomatic over the last four years, but really only diagnosed in the last two years, though unconfirmed by any report. It was noted that apparently the Veteran was examined by an ophthalmologist two years ago who made a handwritten note with the diagnosis of "retrobulbar neuritis" which would quite probably be the first definitive evidence of multifocal nervous system disorder. It was observed that the Veteran had described balance difficulties of the same duration, which were now quite significant. It was further noted that in 1981, he had undergone head CT and EMG and nerve conduction studies, without specific pathologic diagnosis and the suspicion of psychophysiology disorder. The examiner stated that the Veteran probably did evidence a clinical presentation consistent with a diagnosis of MS, evidenced by bilateral cerebellar and posterior column deficits, and also suspected by optic neuritis, at least by history. In a May 1997 VA eye examination report, the Veteran noted having a gradual loss of strength following his period of service, and that he began to develop intermittent diplopia in the mid 1970's. At the time of a May 1997 VA general medical examination, the Veteran reported that his MS started in the early 1970's. He noted that he began having trouble with his extremities. He stated that in 1974, he started getting double vision and his arms and legs began to have numbness and tingling. He reported that he was diagnosed as having a debilitating disease, early MS, either in the late 1970's or early 1980's. In a September 2003 VA hospitalization report, the Veteran reported having a history of a MS diagnosis of approximately 25 years. In his December 2004 notice of disagreement, the Veteran stated that while in service, he went to see physicians several times with vision and fatigue problems. In his July 2005 substantive appeal, the Veteran reported having had numbness in his upper arm and hands while in service. He also noted having had dizziness while in service. In conjunction with his claim, the Veteran was afforded a VA examination in February 2010. At the time of the examination, the Veteran reported having had visual symptoms and fatigue during his time in the service, although a formal diagnosis of MS was not made until after discharge. The examiner indicated that a review of the service treatment records showed no symptoms of MS during service. The examiner reported that the Veteran's claim folder was available and had been reviewed. The examiner stated that the Veteran's MS was not caused by or a result of disease or injury in service. She noted that the Veteran's service treatment records showed no evidence of symptoms of MS during service. The examiner indicated that this was a very unfortunate case of a Veteran who was subsequently diagnosed with MS after his time in service. As noted above, the Board found this opinion inadequate as it did not discuss the assertions made by the Veteran or discuss the inservice complaints of flu symptoms, abdominal pain, or right shoulder pain, and their relationship, if any, to his MS. In conjunction with the Board remand, an additional opinion was obtained from a VA medical examiner in October 2010. The examiner indicated that the claims folder was available and had been reviewed. The examiner stated that the Veteran's MS was less likely than not caused by or a result of an inservice event, to include the Veteran's period of service from June 1966 to June 1970. The examiner indicated that the Veteran indeed had severe and progressive MS. The examiner noted that the file indicated that he did seek medical care for intermittent unrelated sensory abnormalities initially in 1981, although there was one report that he had episodes of diplopia in the 1970's. The examiner stated that these certainly could have heralded the onset of MS. He noted that although the Veteran's contention that he had MS prodromal symptoms and episodes of prolonged remission was true, there was no supporting evidence in the military medical files to suggest that the Veteran suffered such prodromal symptoms. The Veteran's GI symptoms were all consistent with simple self-limiting viral disorders. In one case, there was documentation that his wife had the same illness. He observed that in the case of the September 29, 1969 GI illness, the Veteran was admitted to a local hospital and found to have acute appendicitis. The examiner further noted that at no time did the Veteran complain of visual disturbances typical of MS prodrome, nor did he complain of balance abnormality, paraesthesia, pain in multiple unconnected neurologic distributions, or other typical MS prodromal symptoms. He was in fact well at all other times and this was documented in his physicals. As to the single self-limited episode of pain in the right shoulder, the examiner indicated that one episode of joint pain without recurrence, self-limiting, brief, and requiring no treatment, cannot be presumed to be a MS prodrome. More typical would be disturbances, paresthesia, numbness, and balance abnormalities. The examiner stated that the Veteran did in fact have these but not until after service. In its March 2012 remand, the Board noted that the examiner did not provide a date of onset for the Veteran's MS. Therefore, the matter was once again remanded in order for an opinion to be obtained as to whether it was at least as likely as not that the Veteran's MS was present in service or was manifested to a compensable degree within seven years after discharge from service in June 1970. In conjunction with the Board remand, the Veteran was afforded an additional VA examination in February 2013. The examiner indicated that the claims folder was available and had been reviewed. Following examination of the Veteran, the examiner indicated that the Veteran's MS was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The examiner indicated that the Veteran had been interviewed and examined and all pertinent records had been reviewed. The examiner stated that the Veteran's severe MS with multiple residual effects was obvious and well documented and not contested by the examiner. He noted that the Veteran was unable to relate history due to his severe neuromuscular deficits, however, the claims folder was available, as was the Veteran's long time caregiver and the Veteran was able to indicate that the caregiver could relate the history on the Veteran's behalf. The examiner noted the Veteran's history that he had visual complaints and fatigue, however, the claims folder evidence was that there were no complaints of these issues in any service treatment records or other military or nonmilitary documents and that the medical records revealed no issues related to neurological complaints. He stated that the Veteran's first symptoms or signs that were manifestations of MS were documented by the communications of Dr. B., the Veteran's neurologist, written to G. L. of the Department of Rehabilitative Services, on November 26, 1986, where he described the events. He indicated that Dr. B. clearly described the Veteran's initial symptoms, as related by the Veteran himself, as starting on or about 1982. These were symptoms of autonomic dysfunction and sensory symptoms in the right upper extremity. The examiner observed that ultimately, the Veteran was diagnosed with MS in 1986. No symptoms were related to have existed in the 7 years after the Veteran's discharge from service, which would have been as late as June 17, 1977. The examiner noted that the statements in the examination reports of May 2007 (1997), October 2010, and September 2003, all related the same history, this history of symptoms initially starting at the same approximate time of between 1974 and 1976. The examiner stated that these unfortunately were simply history taken without record review. They were in fact not supported by the facts of the record reviewed in detail by the examiner. The examiner indicated that after interviewing and examining the Veteran and reviewing all the pertinent records, it was his opinion that the Veteran's MS was less likely as not present in service or was manifested to a compensable degree within seven years after discharge from service in June 1970. After a full review of the medical and lay evidence, the Board finds that the weight of the evidence is against the claim of service connection for MS. There were no definitive diagnoses of MS rendered within the 7 year presumptive period. The first definitive diagnosis of MS did not occur until the 1980's. The Veteran has reported in various statements and in various treatment records that he began to have manifestations of MS within the presumptive period. However, the medical examiners have thoroughly reviewed the record and have stated that the Veteran did not have symptoms/signs of MS during his period of service, with the February 2013 examiner providing specific detail as to why the Veteran did not have manifestations of MS in service or within the seven year period following service. Therefore, the weight of the evidence reflects no chronic symptoms of MS during service or continuity of symptomatology of MS since service. As such, the 38 C.F.R. § 3.303(b) presumptions have not been met. The weight of the evidence does not demonstrate that symptoms of MS were chronic in service or continuous since service. The Board finds that the Veteran's denials of musculoskeletal, neurological, or visual problems at separation along with the lack of any treatment for symptoms possibly related to MS prior to 1981, with no notations in the initial treatment records relating any problems to the Veteran's period of service or the seven year presumptive period following service, are more probative than are his assertions voiced years later and in connection with a claim for disability benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). As noted above, the October 1986 report noted a history of symptomatic MS over the last four years, which indicated by the Veteran's own reported history at that time that symptoms were first noted in approximately 1980. It is not consistent that the Veteran would have been experiencing MS and/or MS-like symptoms but would at the same time deny and/or not report these symptoms for numerous years following service. The above evidence is more probative than are his assertions, voiced well beyond the seven year presumptive period, that any claimed MS is related to his period of service. Moreover, the Veteran initially did not claim service connection for MS until 1987, more than 16 years following his release from service. The Board has considered the lay evidence of record in determining whether there is continuity of symptoms. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept a veteran's uncorroborated account of his/her active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). For the above reasons, the Board finds that the weight of the lay and medical evidence does not demonstrate that symptoms of MS were chronic in service or that symptoms have been continuous since service. As to the Veteran's belief that his current MS is related to his period of service, the Board acknowledges the holding of the U.S. Court of Appeals for the Federal Circuit in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. Likewise, the statements received from the Veteran's caregiver also do not provide a competent nexus between any currently diagnosed MS and the Veteran's period of service. Neither the Veteran nor the caregiver have been shown to possess the required expertise to render such an opinion. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. When evaluating the weight of medical evidence, the Board is guided by the principle that the probative value of a medical opinion largely rests upon the extent to which such opinion is based upon a thorough evaluation of the Veteran's medical history, including but not limited to the medical evidence contained in the claims file. See, e.g. Miller v. West, 11 Vet. App. 345, 348. The Board may examine the factual foundation of a medical opinion, including whether the physician had access to relevant information of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In the current case, the Veteran has not submitted competent or probative medical evidence specifically indicating that his current MS is related to his period of service. The Board notes that the appellant has submitted medical literature in support of his claim. Treatise evidence must discuss generic relationships with a degree of certainty such that under the facts of this particular case there is at least a plausible causality based on objective facts rather than on unsubstantiated lay opinion. See, e.g., Wallin v. West, 11 Vet. App. 509, 514 (1998); Timberlake v. Gober, 14 Vet. App. 122, 130 (2000) (citing Hensley v. West, 212 F.3d 1255, 1265 (Fed. Cir. 2000)). The articles/medical treatises submitted by the appellant are general in nature as opposed to specifically addressing the Veteran's case and are of little probative value. In contrast, the Board has obtained an adequate and probative VA examination opinion in conjunction with the Veteran's claim. The February 2013 VA examiner's opinion, which, as noted above is complaint with the Board remand and provides sufficient information to properly address the issue on appeal, specifically stated that the Veteran's MS did not manifest in service or to a compensable degree within the seven year period following service. The Board is giving this opinion the most probative weight. The Veteran's entire claims file, which at the time included his service treatment records, private and VA treatment records, and statements from the Veteran, was reviewed. Based on all of the evidence, the examiner rendered an opinion that was supported by a detailed and complete rationale. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. In fact, the examiner specifically referenced the treatment records identified in the Board remand. Thus, the Board finds this opinion to be the most probative evidence of record. In sum, the preponderance of the evidence weighs against a finding that any current MS developed in service or to a compensable degree within seven years following service, or is otherwise related to the Veteran's period of service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for MS is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs