Citation Nr: 1328224 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 06-24 054 ) 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 Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served in the Alabama Army National Guard from March 1983 to April 2004. He had active duty service from June 1983 to November 1983. He had additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), including periods of ACDUTRA in 1995 and 1998. His claims of overseas service in the Dominican Republic and in Panama is unverified. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned at a February 2010 Travel Board hearing. The hearing transcript is of record. In May 2012, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. FINDING OF FACT The persuasive evidence shows that multiple sclerosis was not manifest during a period of active service, was not manifest within the seven year presumptive period following a period of active service, was not incurred in or aggravated by a disease or injury during a period of ACDUTRA, was not incurred in or aggravated by an injury during a period of INACDUTRA, and is not otherwise related to service. CONCLUSION OF LAW Multiple sclerosis was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate her claims by correspondence dated in April 2005, prior to the issuance of the September 2005 rating decision. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, and the Veteran's statements and testimony in support of his claim. The development requested on remand has been substantially completed. There is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Legal Criteria Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2012); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2012). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that regulations concerning presumptive service connection, the presumption of soundness, and the presumption of aggravation were inapplicable to claims based upon ACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the service record, the official history of each organization in which he served, the medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Service connection can be granted for certain chronic diseases, including arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). A Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) Lay evidence presented by a Veteran concerning his continuity of symptoms after service may be considered credible, and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probative value of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate reason for doing so is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). Analysis The Veteran claims that his MS was first manifested during a period of active service in the Army National Guard. He also claims that this disorder was either caused or aggravated by a service-connected right ankle disability. A review of the Veteran's service treatment and personnel records reveals that he incurred a twisted right ankle on May 7, 2000, during a period of ACDUTRA. See DD Form 261. In this same month, the Veteran sought private treatment for a sprained right ankle, at which time an ankle brace was prescribed. See May 2000 treatment note from Dr. A. A September 2000 note from Dr. A. reported that the Veteran was then five weeks status-post right lateral ankle reconstruction. Subsequent records document a secondary staph infection, which apparently resolved, as well as complaints of instability in the right ankle and right knee. In August 2001, the Veteran was provided a diagnosis of MS by L.W.E., M.D. At the time of this diagnosis, the Veteran was noted as having right hemiparesis and specifically, right leg weakness for the past year or so. It was also noted that since his right ankle surgery, the Veteran had "never quite been the same with the right leg weakness." Subsequent records from this provider document worse symptomatology on the right side of the Veteran's body compared to the left. In December 2004, the Veteran was afforded a VA examination of the joints, in response to his claim for service connection of a right ankle disability. Although this examination pertained only to the right ankle, the VA examiner commented that "[m]ultiple sclerosis is a systemic demyelinating disease that would cause involvement [of the] limbs bilaterally, more so than unilateral[ly]." Also of record is a private medical opinion from Dr. L.W.E. dated in February 2005 reporting that he had followed the Veteran for MS since 2001, i.e. the initial diagnosis. It was noted that prior to the Veteran's diagnosis of MS, he had ankle surgery and thereafter "had a decline" with a subsequent diagnosis of MS. Dr. L.W.E. also noted that it had "been reported that after surgery or other overwhelming infections and illnesses, patients can have an exacerbation or even unmasking" of MS. He stated that "[t]his may have been the case with [the Veteran]," but that he could not say with 100 percent certainty that this was "the culprit that unmasked his multiple sclerosis." The Veteran was afforded another VA examination in August 2010, specifically related to his MS claim. The examiner opined that the Veteran's MS was initially diagnosed in 2001, but that his symptoms may have started about 4 years before that. The RO found that the August 2010 examiner's opinion was inadequate, apparently because the claims file was not reviewed, and another VA opinion was submitted in November 2011. The November 2011 examiner opined that it was less likely as not that the Veteran's right ankle condition sustained in service represented the early stages of MS. Her rationale was that it was not know if the Veteran had sprained his ankle as a result of loss of balance, and additionally, one would expect to see more than just one symptom of MS initially. The examiner did not offer an opinion as to whether the Veteran's MS was aggravated by the Veteran's service-connected right ankle disability, and accordingly, this opinion was also found to be inadequate. An addendum to the opinion was submitted in December 2011. The examiner opined that it was less likely as not that the Veteran's ankle condition aggravated his MS beyond the normal progression. Her rationale was that the Veteran's ankle condition had nothing to do with his MS and that they were two separate entities. In a January 2012 statement, the Veteran's private physician, Dr. L.W.E. noted that a review of the Veteran's medical records showed that as early as February 1996, he had numbness of his right hand, a band around his chest and some tightness, and his right leg had paresthesias at that time. He also noted that the Veteran complained of numbness of his hand, wrist, and waist in February 1996. He noted further that the Veteran had a five pound weight loss after he had been overseas in February 1999. Based on this information, he opined that the Veteran had MS symptoms dating back to at least February 1996, and that was when his MS began. In a February 2012 remand, the Board found that the December 2011 VA opinion did not adequately address all of the relevant private medical findings of record, including the aforementioned February 2005 statement from Dr. L.W.E., a medical article submitted by the Veteran entitled "The Demyelinating Diseases," and the January 2012 statement from Dr. L.W.E. As such; the Veteran was afforded another VA examination in March 2013. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner's rationale was that according to neurological medical literature, most likely MS occurs as a result of some combination of genetic, environmental and infectious factors, and possibly other factors like vascular problems. He also noted that epidemiological studies of MS have provided hints on possible causes for the disease, and that theories try to combine the known data into plausible explanations, but none has proved definitive. He specifically noted that in reference to Dr. L.W.E. and the Neurological Consultants of Montgomery, and the neurological medical literature report in terms of "exacerbations" "viral infections such as the common cold, influenza, or gastroenteritis increase the risk of relapse." However, he noted that there was no evidence that the Veteran suffered a "viral" infection of the ankle. He also noted that according to neurological studies, there was no evidence that vaccination, breast feeding, physical trauma, or Uhthoff's phenomenon were relapse triggers. Finally, he noted that according to medical literature, many microbes have been proposed as potential infectious triggers of MS, but none have been substantiated. Based upon the evidence of record, the Board finds that the persuasive evidence shows that multiple sclerosis was not manifest during a period of active service, was not manifest within the seven year presumptive period following a period of active service, was not incurred in or aggravated by a disease or injury during a period of ACDUTRA, was not incurred in or aggravated by an injury during a period of INACDUTRA, and is not otherwise related to service. The evidence shows that the Veteran had neurological symptoms, including numbness of the right hand, wrist and waist and right leg parestehsias in February 1996 and February 1999. Although service records show he had periods of ACDUTRA service, including in 1995 and 1998, there is no evidence of a diagnosis of MS within seven years of a period of active duty service. It is significant to note that VA regulations concerning presumptive service connection, the presumption of soundness, and the presumption of aggravation are inapplicable to claims based upon ACDUTRA service. See Smith, 24 Vet. App. 40. Therefore, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Board also finds that the persuasive medical evidence of record shows that the Veteran's MS was neither incurred nor aggravated during active duty nor during a period of ACDUTRA and was neither incurred nor aggravated as a result of an injury during a period of INACDUTRA. The Board finds that the March 2013 VA opinion is persuasive regarding the issue of the etiology of the Veteran's MS. in March 2013. The examiner opined that the Veteran's MS clearly and unmistakably existed prior to a period of ACDUTRA or INACDUTRA and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In this regard, the opinion is definitive, based upon a complete review of the Veteran's entire claims file and/or clinical examinations of the Veteran, and supported by a detailed rationale. The claims file which included service treatment records, post-service treatment records, and statements and testimony from the Veteran, and statements from his private physician, was reviewed by the March 2013 VA examiner and the VA examiner discussed the medical literature relevant to the causes and development of MS. The Board notes that the Veteran is competent to provide evidence as to observations and some medical matters, but that his statements are, at most, conclusory assertions of a nexus between his MS and service. He does not have the medical training to provide etiology opinions as to this disability. Jandreau, 492 F. 3d 1372; Buchanan, 451 F.3d 1331. As questions of medical diagnosis and a relationship to service are complex etiological questions akin to the type of medical matters which laypersons are not competent to provide, his statements are insufficient to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether claimed disability is type of disability for which lay person is competent to provide etiology or nexus evidence). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim. ORDER Service connection for multiple sclerosis is denied. ____________________________________________ T. L. DOUGLAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs