Citation Nr: 1332557 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-29 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL The Veteran and C.A. ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran had active service from August 1980 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 statement of the case de novo adjudication by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, pursuant to the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7(b) (2000); VAOPGCPREC 03-2001. The Board acknowledges that a September 2000 rating decision denied the Veteran's claim (received on July 19, 2000) of entitlement to service connection for multiple sclerosis, on the basis that the claim was not well-grounded. Notice of the determination, and the Veteran's appellate rights, were issued later that same month. Shortly after the September 2000 rating decision was issued, the Veterans Claims Assistance Act of 2000 (VCAA) was passed by Congress, effective from November 9, 2000, and instructed that decisions which became final between July 14, 1999 and November 9, 2000, that were denied on the grounds of being not well-grounded, must be addressed on a de novo basis, if a request to readjudicate was received within two years of the enactment of the VCAA. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 § 7(b) (2000); VAOPGCPREC 03-2001. In a statement received in September 2001, within one year of issuance of the September 2000 RO denial of service connection for multiple sclerosis on the basis that the claim was not well-grounded, the Veteran expressed disagreement with that determination. Thereafter in September 2001, the Veteran was sent a VA letter notifying him of the passage of the VCAA, and that his claim would be readjudicated. The claim for service connection was readjudicated in the February 2003 Statement of the Case following de novo review. Thus, the Veteran's claim was readjudicated in the February 2003 Statement of the Case on a de novo basis. A statement received in February 2004 may reasonably be construed as a timely notice of disagreement with the February 2003 Statement of the Case determination. Here, the original NOD, received in September 2001, related to the September 2000 rating decision on the issue of service connection that must be treated for purposes of the readjudication under section 7(b) as if it "had not been made," that is, as if it never existed. When the RO readjudicates a claim under section 7(b) of the VCAA, it is acting as the Agency of Original Jurisdiction (AOJ), and there can be no preexisting jurisdiction-conferring NOD relating to its decision. This result comports with, rather than offends, the rule stated in Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), that there can be only one jurisdiction-conferring NOD for each issue raised by a claim. See, also, Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997); Hamilton v. Brown, 39 F.3d 1574 (Fed. Cir. 1994). While section 7(b) of the VCAA gave the claimant the opportunity to have the July 2000 claim readjudicated following the September 2000 RO denial, nothing in the VCAA operates to permit the Board to retain or assume jurisdiction over the final September 2000 RO denial. See 38 C.F.R. § 3.104 (2013). The original (September 2001) NOD was rendered a nullity by operation of statute, and the additional (February 2004) NOD filed to express disagreement with the February 2003 statement of the case (SOC) decision readjudication under section 7(b) is the only, rather than the second, jurisdiction-conferring NOD on the issue in the case. VAOPGCPREC 03-2001. While a June 2009 SOC purportedly "reopened" the claim for service connection for the disability at issue, nevertheless, it reflected de novo adjudication of the issue on appeal. A timely substantive appeal was received in August 2009 which conferred jurisdiction of the issue on the Board. Hence, this appeal stems from an appeal of the February 2003 SOC readjudication of the July 19, 2000 claim for service connection. In July 2013, the Veteran testified during a Central Office hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's multiple sclerosis is related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for multiple sclerosis have been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). In this decision, the Board grants the Veteran's July 19, 2000 claim for entitlement to service connection for multiple sclerosis. As this constitutes a complete grant of the Veteran's claim, no discussion of VA's compliance with its duties to notify and assist is necessary, as any defect in this regard is rendered moot. Duty to Comply with 38 C.F.R. § 3.103(c)(2) (2013) As noted above, the Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in July 2013. The provisions of 38 C.F.R. § 3.103(c)(2) require that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. No discussion of the undersigned Veterans Law Judge's compliance with the provisions of 38 C.F.R. § 3.103(c)(2), pursuant to Bryant v. Shinseki, 23 Vet. App. 488 (2010), is necessary as any defect in this regard is rendered moot by the Board's complete grant of the Veteran's claim below. Service Connection for Multiple Sclerosis Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred, or a disease contracted, in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition, the law provides that, where a veteran served ninety days or more of active military service, and multiple sclerosis becomes 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 or aggravated by service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 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. Dorland's Illustrated Medical Dictionary defines multiple sclerosis as: "a disease in which there are foci of demyelination throughout the white matter of the central nervous system, sometimes extending into the gray matter; symptoms usually include weakness, incoordination, paresthesias, speech disturbances, and visual complaints. The course of the disease is usually prolonged, so that the term multiple also refers to remissions and relapses that occur over a period of many years. Four types are recognized, based on the course of the disease: relapsing remitting, secondary progressive, primary progressive, and progressive relapsing. The etiology is unknown." See Dorland's Illustrated Medical Dictionary (31st ed. 2007), page 1706. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The medical evidence reflects that the Veteran has a current disability. An August 24, 1999 VA neurology admission note indicates that a brain MRI revealed findings "strongly indicative of multiple sclerosis." A diagnosis of multiple sclerosis was confirmed by a VA neurologist in a medical report dated May 23, 2001. It was noted as medical history in the report of an August 2005 VA neurologic examination that a diagnosis of multiple sclerosis had been made by MRI in 1999. The report of the August 2005 VA neurological examination contained a diagnosis of multiple sclerosis. With respect to evidence of an in-service injury, disease, or event, the Board notes that the service treatment records are absent for any findings or documentation of multiple sclerosis. However, the Veteran contends that she experienced early signs or symptoms of her later diagnosed multiple sclerosis during her period of active service. During her July 2013 hearing, she testified that she experienced recurrent leg cramps that resolved and felt weakness in her lower extremities that worsened over time. The service treatment records show that the Veteran sought treatment for leg cramps in September 1981. A September 1981 consultation sheet reflects that the Veteran complained of leg cramps for two months. The provisional diagnosis was listed as anemia. A September 1981 hematology report shows a finding of iron deficiency anemia. A physical profile was issued for the Veteran due to her diagnosis of anemia. An April 1982 service treatment record shows that the Veteran reported pain in her right leg (thigh) and the diagnosis was listed as "strain." In an April 1986 report of medical history completed prior to discharge from active service, the Veteran checked the box "yes" as to whether she experienced cramps in her legs. In the section entitled "Physician's summary and elaboration of all pertinent data," the examining physician indicated that the Veteran had "exertional leg cramps." The accompanying report of medical examination shows that the Veteran's neurologic condition was clinically evaluated as normal and her lower extremities were clinically evaluated as normal. The Veteran testified during the July 2013 hearing that she experienced weakness in her lower extremities, and, falls following separation from active service. The Veteran stated that she sought treatment in 1986, but the private records were destroyed and unavailable. The Veteran's mother, C.A., testified during the hearing that she noticed that the Veteran stumbled and was "wobbly" after her return from active service. The Board notes that the Veteran and her mother are competent to testify as to symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 274 (2002) (finding that a veteran is competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). An August 1999 VA neurology admission note indicated that the Veteran presented with intermittent and worsening left lower extremity weakness, blurred vision, and was unbalanced. She stated that she started to have on and off left lower extremity weaknesses since July 4, 1998. The worsening unbalance had been going on for three months. A May 2001 VA progress note indicated that the Veteran had been diagnosed with multiple sclerosis since October 1998 and her symptoms mostly included lower extremity spastic weakness and bladder spasticity. In a November 2001 statement, the Veteran expressed her belief that her symptoms of multiple sclerosis existed since her period of active service. She stated that her symptoms existed for a long time; however, her physical capabilities worsened in the last ten years. She stated that her falls became more frequent. In 1996, she knocked out her front teeth, in 1997, she hit her forehead on concrete, and in 1998, she fell down the stairs. In a February 2004 VA progress note, the Veteran's VA neurologist, Dr. F., noted that the Veteran had a diagnosis of multiple sclerosis 1998-99 with symptoms of gait disorder. When on active duty in 1981-82, she experienced bilateral leg cramping and numbness over a period of three to six months. They began and resolved spontaneously and affected both legs with cramping, weakness, and numbness. The Veteran's next symptoms occurred in 1996, after her military discharge, and consisted of falls. This too resolved spontaneously. Symptoms of abnormal gait in 1998-1999 led to evaluation establishing the diagnosis of multiple sclerosis. Dr. F. stated that he first saw the Veteran in August 2000 and continued to follow her for multiple sclerosis. Dr. F. stated: "It is my opinion, based on this history, that it is more likely than not that the symptoms described as occurring in 1981-82 and in 1985, while the patient was on active duty, were the first symptoms of multiple sclerosis and consistent with her later presentation and diagnosis." The Veteran was provided a VA examination in August 2005. The claims file was reviewed. The summary of the problem was "bilateral leg cramps." The Veteran reported that while running in physical training, she got charlie horses (cramps) in both of her legs. These became more frequent with strenuous activity. They eventually resolved after hospitalization and treatment for anemia. She stated that again in 1987 (after service), she was seen for the same symptoms. Again, the symptoms resolved. She did not report recurrence of muscle cramps since 1987. The Veteran stated that she began to have problems with falling and tripping in 1992. This recurred in 1996 and continued to get worse, causing some injuries (teeth knocked out, hematoma). On examination after a fall in 1998-1999, she had hyperactive reflexes and her balance was off. She was admitted for work-up in 1999 and a magnetic resonance imaging (MRI) study of the head revealed white matter changes and she was diagnosed with multiple sclerosis. The diagnoses were listed as: "bilateral leg cramps, resolved; multiple sclerosis; and spasticity of lower extremities due to multiple sclerosis." The examiner opined: "I cannot resolve this issue without resorting to mere speculation." The rationale for the opinion was noted as "several notes and hospital summary document the complaints of leg cramps and fatigue in 1981." The examiner explained that the leg cramps and fatigue "resolved after 20 days rest and correction of her anemia." The examiner stated that review of literature on multiple sclerosis revealed onset usually around 15-50, most common presently symptoms were sensory, visual, and motor. Pain as a presenting symptom was "0.3%." The examiner stated that typically there were two or more clinically distinct episodes of central nervous system dysfunction with at least partial resolution. However, multiple sclerosis was difficult to diagnose because of multiple diverse symptoms that can come and go in early stages. The examiner listed the pertinent evidence as "documentation of leg cramps, fatigue, and anemia in 1981." Again, in a March 2005 VA progress note, Dr. F. provided a medical opinion. Dr. F. stated that the Veteran reported lower extremity cramping muscle pains beginning in 1981, while on active duty and she sometimes woke up with leg cramps. She began falling in 1994 and more severely in 1996, leading to the diagnosis of multiple sclerosis in 1998. Dr. F. opined: "Based on the patient's report it is more likely than not that the spontaneous leg cramps beginning in 1981 were the 1st symptoms of multiple sclerosis." With respect to the evidence in this case, the Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In evaluating the probative value of competent medical evidence, the Court has stated in pertinent part: "The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. ... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator..."Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board finds that the evidence of record is at least in relative balance as to whether the Veteran's multiple sclerosis is related to active service. First, the record contains conflicting evidence regarding the onset of the Veteran's symptoms of multiple sclerosis. As explained by the August 2005 VA examiner, multiple sclerosis is a difficult disease to diagnose as the course of symptoms of multiple sclerosis can involve "multiple diverse symptoms that can come and go in early stages." The August 2005 VA examiner could not resolve the issue of etiology without resorting to mere speculation. In the rationale for the opinion, the examiner based the opinion, in part, due to the Veteran's leg cramps resolving after in-service treatment for anemia in 1981. The examiner did not note that the Veteran complained of cramps in 1986 prior to discharge from active service and instead of being related to anemia, the examining physician listed a finding of "exertional leg cramps." The August 2005 VA examiner's rationale for the opinion is thereby flawed and of lesser probative value as the examiner explained that the leg cramps resolved after treatment for anemia during active service. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative); Evans v. West, 12 Vet. App. 22, 30 (1998) (the Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim). In contrast, the Board finds Dr. F.'s opinions to be probative. Although it is unclear as to whether Dr. F. reviewed the claims file or the pertinent service treatment records, Dr. F. provided well reasoned opinions based on an accurate account of the Veteran's medical history. Dr. F., as indicated by VA progress notes, is an attending doctor in Neurology, which gives him specialized knowledge regarding a neurological disease such as multiple sclerosis. In addition, Dr. F. provided an opinion that it was "more likely than not" the Veteran's muscle cramps (as documented in the service treatment records), were the first symptoms of the Veteran's multiple sclerosis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion). Although Dr. F. noted that the Veteran reported cramps in 1985, the Board observes that the service treatment records do not reveal treatment or notations regarding cramps in 1985. However, the Board finds the Veteran to be competent and credible regarding her statements regarding leg cramps during active service as the service treatment records did reflect notations in 1981 and 1986-bolstering her credibility. See Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) (citations omitted) (noting that "definitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness. It has been termed as the quality or power of inspiring belief. . . . Credibility . . . apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence."). In addition, Dr. F.'s February 2004 opinion explained the course of the Veteran's multiple sclerosis by stating that her cramps eventually resolved, she then experienced falls, and then developed a gait abnormality which resulted in a diagnosis of multiple sclerosis in 1998/1999. In light of the above and resolving any doubt in favor of the Veteran, service connection is warranted for multiple sclerosis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The claim is granted. ORDER Entitlement to service connection for multiple sclerosis is granted. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs