Citation Nr: 1332109 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 10-17 307 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to August 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions in October 2008 and in July 2009 that denied service connection for multiple sclerosis. The Veteran timely appealed. In August 2013, the Veteran testified during a hearing before the undersigned at the RO. During the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. In addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran and his representative when further action is required. REMAND Records The Veteran contends that his symptoms of multiple sclerosis developed in active service. Specifically, he indicates that his legs started burning in June or July 1980, while he laid wire (36 kilo); and that he could not move his leg and could not see well, and that he was in extreme pain at the time. The Veteran indicated that he was medivaced (medically evacuated) from Fort Campbell, Kentucky, to a military hospital in the area. Given the importance of these records to the Veteran's claim, a specific request for records, including Emergency Room records, of outpatient treatment rendered to the Veteran at a military hospital near Fort Campbell, Kentucky, should be made to ensure that all available records have been obtained. The Veteran also testified that he separated from active service in 1982 because he "couldn't run no more." His personnel records, particularly those concerning his separation from active service in 1982, are relevant to the Veteran's claim for service connection. VA is obliged to assist a Veteran to obtain evidence pertinent to his claim. See 38 U.S.C.A. § 5103A (West 2002). Multiple Sclerosis VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran contends that service connection for multiple sclerosis is warranted on the basis that his symptoms first developed in active service, though remained undiagnosed. He testified that "the tingling was the first thing" that started in his hands and feet, and that he felt the tingling whenever he ran. He testified that there were times when he could run in the evening, and there were days where he "couldn't run." The Veteran also testified that he started having numbness permanently in three fingers while stationed at Fort Campbell, Kentucky; and that he went to the dispensary and was given creams to put on his arms. He is competent to describe his symptoms. The Board notes that service treatment records do not reflect any findings or complaints of tingling or numbness, or of multiple sclerosis. Private treatment records first include a diagnosis of multiple sclerosis in 2006. Under these circumstances, the Board finds that an examination is needed to determine whether the Veteran has multiple sclerosis that either had its onset during service or is related to his active service. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2012). While further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send a request for outpatient treatment records, including Emergency Room records, to any military hospital in the vicinity of Fort Campbell, Kentucky, for records pertaining to treatment rendered to the Veteran in or about June or July 1980. Send a copy of the Veteran's Form DD 214 with the request; and associate records received, if any, with the Veteran's claims file (physical or electronic). If, after making reasonable efforts to obtain records from any military hospital in the vicinity of Fort Campbell, Kentucky, the RO or AMC is unable to secure such records; or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the RO or AMC must notify the Veteran and (a) identify the specific records the RO or AMC is unable to obtain; (b) briefly explain the efforts that the RO or AMC made to obtain those records; (c) describe any further action to be taken by the RO or AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Undertake appropriate action to obtain the Veteran's service personnel records, especially those pertaining to his separation from active service in 1982. Send a copy of the Veteran's Form DD 214 with the request; and associate records received, if any, with the Veteran's claims file (physical or electronic). 3. Afford the Veteran a VA examination to identify all current disability underlying the Veteran's current complaints of multiple sclerosis; and the likely etiology of the disease or injury. The examiner is requested to determine whether it is at least as likely as not (50 percent probability or more) that multiple sclerosis is the result of disease or injury incurred or aggravated during active service-specifically, to include subjective complaints of tingling in the legs while running and permanent numbness in three fingers, as reported by the Veteran; and the Veteran's credible account of continuing symptoms since then. The examiner is asked to explain the reasons behind any opinions offered. The examiner is also reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the examination report should note review of the file. 4. After ensuring that the requested actions are completed, re-adjudicate the claim on appeal. If the benefits sought are not fully granted, furnish a supplemental statement of the case (SSOC) and then return the claims file to the Board, if otherwise in order. No action is required of the Veteran and his representative until they are notified by the RO or AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). _________________________________________________ MICHAEL A. PAPPAS 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).