Citation Nr: 1330929 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 08-33 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for multiple sclerosis (MS), to include numbness of the lower extremities. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) from September 1982 to June 1983 followed by additional service in the United States Air Force Reserve. She later served on active duty from February 8, 1991, to April 6, 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In that decision, the RO denied service connection for chronic low back pain and numbness of the lower extremities. The Veteran filed a notice of disagreement to that decision in December 2006. In a January 2007 deferral, the RO acknowledged that the denial of the claim of entitlement to service connection for multiple sclerosis was part of the notice of disagreement. The RO continued to deny the claim for multiple sclerosis in an August 2007 rating decision, and the Veteran ultimately perfected an appeal as to the December 2005 rating decision. A Board hearing was held before the undersigned Veterans Law Judge at the RO in July 2013. A transcript of the hearing is of record. As a result of the pre-hearing discussion noted on the record, the issue on appeal has been recharacterized as stated above to more accurately reflect the nature of the claim. The Board notes that the RO issued a statement of the case (SOC) in September 2009 for the issues of entitlement to an increased evaluation for thoracolumbar spine scoliosis and service connection for lumbar spondylosis. However, the Veteran did not submit a substantive appeal through a properly completed VA Form 9 or a similar written submission containing the necessary information to complete her appeal as to these issues. 38 C.F.R. §§ 20.200, 20.202 (2012). Accordingly, the Board finds that the Veteran did not perfect an appeal as to these issues, and such, they are not currently before the Board. A review of the Virtual VA and VBMS electronic claims files does not reveal any additional documents pertinent to the present appeal. The Board notes that the Virtual VA file contains an August 2013 VA spine examination report that notes the multiple sclerosis diagnosis and some current symptoms; however, these notations are consistent with the remaining evidence of record. As this evidence does not affect the fully favorable outcome on the claim decided below, remand for initial RO consideration of this evidence is unnecessary. In a July 2013 written submission, the Veteran's representative challenged the accuracy of the 10 percent evaluation assigned for the service-connected thoracolumbar spine disability. Nonetheless, this issue has not been addressed by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issue, and it is referred to the AOJ for appropriate action. FINDING OF FACT Multiple sclerosis, to include numbness of the lower extremities, had its onset during a period of active duty for training from September 1982 to June 1983. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, multiple sclerosis, to include numbness of the lower extremities, was incurred during a period of active duty for training in the United States Air Force Reserve. 38 U.S.C.A. §§ 101, 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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). However, in the decision below, the Board has granted the Veteran's claim of service connection for multiple sclerosis, to include numbness of the lower extremities. Therefore, the benefit sought on appeal has been granted in full, and regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. In any event, the Board notes that the Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2013. The Veterans Law Judge clearly set forth the issue to be discussed, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information when appropriate. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony and questioning by her representative, demonstrated her actual knowledge of the elements necessary to substantiate the claim. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). Law and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may also be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. As multiple sclerosis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. §§ 3.6(a)-(d). As a preliminary matter, the claimant has "veteran" status as a result of her active duty service in 1991, and the Board accordingly acknowledges this fact by referring to her as a veteran in this decision. Nonetheless, the question of whether she is entitled to such status and presumptive service connection provisions for the purposes of this claim is a separate matter addressed below. Service connection for multiple sclerosis may be also be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within seven years from the date of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. However, the presumption of service connection is only applicable where the claimant had a minimum of 90 days of active, continuous service. 38 C.F.R. § 3.307; Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). In this case, the record reflects that the Veteran's period of qualifying active service from February 8, 1991, to April 6, 1991, (active duty) was less than 90 days in duration. Moreover, the advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of ACDUTRA or inactive duty for training (INACDUTRA). Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to Veteran's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001) (citing Paulson, 7 Vet. App. at 469-70, for the proposition that if a claim "relates to period of [ACDUTRA], disability must have manifested itself during that period; otherwise, period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim." (emphasis in McManaway)); see also Biggins, 1 Vet. App. at 479 (Steinberg, J., concurring). Thus, the evidentiary burden is on the claimant to show that he or she became disabled from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. In summary, while multiple sclerosis may also be established on a presumptive basis generally, this presumption does not apply to the Veteran's periods of ACDUTRA and INACDUTRA, and she does not have continuous active service of a minimum 90-day duration to allow for the application of the presumptive provisions for the period of active duty. Moreover, while she is service-connected for a thoracolumbar spine disease, this disability is associated with her period of active duty. In any event, she may still prove entitlement to service connection on a direct basis, as discussed in greater detail below. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that, although her multiple sclerosis was not officially diagnosed until years later, the onset of multiple sclerosis symptomatology occurred during her period of ACDUTRA from September 1982 to June 1983 with symptoms progressing thereafter. See, e.g., September and December 2006 written statements; October 2008 substantive appeal (VA Form 9); July 2013 Bd. Hrg. testimony. A review of the service treatment records shows no in-service complaints, treatment, or diagnosis of multiple sclerosis. However, a September 1982 service treatment record documents complaints of right leg pain, and an October 1982 service treatment record shows an assessment of bilateral leg/calf pain, which the Veteran attributed to her shoes being too big. During a July 1983 biennial fly examination shortly after the period of ACDUTRA, all of the Veteran's relevant body systems were indicated to be "normal," including her upper and lower extremities, neurologic system, and eyes. A review of the medical evidence outside of the periods of ACDUTRA and active duty reveals a history of treatment and complaints for symptoms, including lower extremity weakness and pain, paresthesia ("tingling") in the hands and lower extremities, and decreased strength. See, e.g., July 1990, January 1991, December 1998, September 2000, January 2001, and December 2005 treatment records. The first documented identification of multiple sclerosis of record followed an October 1998 MRI of the brain, where an impression of multiple sclerosis as the most likely diagnosis was noted, given the MRI findings and clinical presentation of new optic neuritis. In a January 2001 treatment record, the provider stated that there was doubt if the left lower extremity weakness was solely secondary to a lumbar spine issue, noting global weakness and that symptoms were more suspicious for CNS (central nervous system) involvement. A June 2005 MRI report shows positive findings for active disease of the spinal cord with an assessment of multiple sclerosis. In a September 2006 written statement, the Veteran's service mate reported that she worked closely with the Veteran from January 1983 to June 1983 at a military medical facility. During that time, she recalled the Veteran's frequent complaints of pain and numbness in her legs while working, which was observably severe in nature at times. In an April 2007 written statement, the Veteran's treating neurologist noted that the episode of optic neuritis in 1998 was the time when the Veteran's multiple sclerosis became clinically apparent. It was also the same time the disease became evident to the Veteran. The neurologist further noted that the specific time in which brain changes stated to take place was difficult to determine and commented that the Veteran's condition had gradually deteriorated over the years, to include current symptoms of numbness, tingling in various body parts, left leg weakness, difficulty walking, depression, generalized fatigue, and sensitivity to certain temperatures. In a May 2008 VA spine examination report, the examiner noted that the Veteran's bilateral leg pain and numbness was not a result of a spine disorder, but was instead a result of her multiple sclerosis. In a May 2008 neurological examination, a different VA examiner diagnosed bilateral leg numbness and low back pain secondary to multiple sclerosis and indicated that it was at least as likely as not that her present symptoms were related to multiple sclerosis. In an August 2008 clarifying opinion, the VA neurological examiner noted the Veteran's reported history of initial symptoms of leg numbness and tingling in her arms in about 1982 or 1983, as well as the relevant medical history thereafter, to include the 1998 diagnosis of multiple sclerosis and optic neuritis. The examiner determined that a definitive finding of multiple sclerosis during the period of ACDUTRA could not be made based on the record. However, he stated that these symptoms during that time period were most likely secondary to the initial symptoms of multiple sclerosis because the disease was diagnosed in 1998 and it sometimes takes years for such a diagnosis to be made,. During the July 2013 Board hearing, the Veteran testified that she started noticing symptoms, including "pins and needles" and "numbness" in her hands, fingers, and legs around 1982, to include while she was working at the hospital. The Veteran and her husband recalled symptoms developing over the years thereafter with the finding of optic neuritis in 1998 and the ultimate diagnosis of multiple sclerosis thereafter. Prior to the finding of optic neuritis and a discussion with her doctor at that time, the Veteran had never heard of multiple sclerosis, and she did not have a family history of the disease. The Veteran further testified that she managed her early symptoms on her own. When she later sought treatment for symptoms, such as tingling in her hands and fingers, the doctors routinely treated it with only pain medication. See Bd. Hrg. Tr. at 5-8, 11-16, 19. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for multiple sclerosis, to include numbness of the lower extremities, is warranted. The record clearly shows that the Veteran does have a current diagnosis of multiple sclerosis. The Board also finds that the Veteran's reports of the onset of symptoms during her period of ACDUTRA period are credible. Furthermore, the record raises a reasonable doubt as to whether the Veteran's multiple sclerosis had its onset during her period of ACDUTRA. As noted above, the Veteran's service treatment records do not show complaints, treatment, or a diagnosis of multiple sclerosis, and an examination of the relevant body systems yielded normal results during the July 1983 examination shortly after the period of ACDUTRA. However, the Veteran has alleged the onset of symptoms, such as leg numbness, during her first period of ACDUTRA, and she and her husband testified that she first experienced symptoms around 1982 or 1983, which progressed thereafter. Her service mate also confirmed witnessing such symptoms while they performed their duties from January 1983 to June 1983. Initially, she was able to generally manage her symptoms on her own and later sought treatment as the disease noticeably progressed with the first diagnosis of multiple sclerosis in 1998. The Veteran's treating neurologist confirmed that the 1998 diagnosis was indeed the time at which the disease became clinically apparent, but indicated that the Veteran's condition had gradually deteriorated over the years prior to the diagnosis. Laypersons are competent to report as to observable symptoms and experiences, such as an onset of symptoms such as pain and numbness, and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Similarly, the Veteran is also competent to report information conveyed to her by her doctor, such as a contemporaneous medical diagnosis or opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau and Buchanan). The Board finds that Veteran to be competent and credible in her statements regarding her in-service symptoms and the history of symptomatology, as there is no reason to doubt her other than the lack of contemporaneous medical evidence. See Buchanan, 451 F.3d at 1336-37. In this regard, her reported history has remained consistent throughout the course of the appeal, and there is no evidence of any intercurrent causes. Her testimony that she was first diagnosed with multiple sclerosis in 1998 is consistent with the record. Moreover, her husband's testimony during the hearing and her friend's written statement, both competent and credible, support her contentions of observable symptomatology as early as 1983. In addition, the VA examiner incorporated the Veteran's report of early symptoms into his opinion. A medical opinion formed on the basis of the Veteran's reported medical history cannot be rejected without the Board first finding that the Veteran's allegations are not credible. Coburn, 19 Vet. App. at 432-33. Here, the Board has found the Veteran's statements of symptomatology, to include during the period of ACDUTRA, to be competent and credible, and the opinion provides that these symptoms were early manifestations of the now-diagnosed multiple sclerosis. Moreover, the April 2007 written statement of the Veteran's neurologist, while not providing a definitive time period for the onset of the Veteran's MS, supports the Veteran's assertions that her condition gradually deteriorated prior to 1998. The neurologist also confirmed the Veteran's current symptoms due to multiple sclerosis, some of which are the same as the initial symptoms that have been reported as beginning during the period of ACDUTRA. The Board also notes that there is no medical evidence showing otherwise. The United States Court of Appeals for Veterans Claims (Court) has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Based on the foregoing, the Board finds that there is at least an approximate balance of positive and negative evidence related to the Veteran's claim. Specifically, as discussed above, the record raises a reasonable doubt as to whether the Veteran's multiple sclerosis began during her period of ACDUTRA from September 1982 to June 1983. Accordingly, resolving all reasonable doubt in the favor of the Veteran, the Board concludes that service connection for multiple sclerosis, to include numbness of the lower extremities, is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for multiple sclerosis, to include numbness of the lower extremities, is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs