Citation Nr: 1332716	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  06-06 050	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to service connection for multiple sclerosis.  


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney


ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel


INTRODUCTION

The Veteran had active service from August 1970 to March 1972.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 decision of the Oakland, California, Regional Office (RO).

In a January 2009 decision, the Board initially reopened the service connection claim for multiple sclerosis (MS) and remanded the claim for additional development.  A September 2009 Board decision subsequently denied the merits of the MS service connection claim, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  

In an October 2010 order, the Court granted the parties' Joint Motion for Remand, vacating and remanding the Board's September 2009 adjudication of the service connection claim for MS.  The Board again denied the merits of the Veteran's MS service connection claim in an August 2011 decision and the Veteran appealed the determination to the Court.  

In an October 2012 memorandum decision, the Court set aside and remanded the August 2011 Board decision.  The matter is again before the Board.  


FINDING OF FACT

Multiple sclerosis is of service origin.


CONCLUSION OF LAW

The criteria for service connection for multiple sclerosis have been met.  38 U.S.C.A. §§ 1110, 1131, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).





REASONS AND BASES FOR FINDING AND CONCLUSION

This decision grants service connection for MS, which constitutes a complete grant of the benefit sought on appeal; therefore, no discussion of VA's duty to notify or assist is necessary.

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.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  

A layperson is competent to report on the onset and continuity of symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, or (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.  Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra.  

The medical evidence, including VA and private treatment records, sufficiently confirm the Veteran's diagnosis of MS.  

The Veteran's December 1969 service induction examination does not note any diagnoses of MS or similar condition; moreover, the evidence does not clearly and unmistakably establish that diagnosed MS both pre-existed and was not aggravated by service.  38 U.S.C.A. § 1111; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  Thus, the Veteran was sound at the time of entry, and any medical opinion not based on this premise is not probative.   

There are multiple VA and private conflicting medical opinions of record indicating the claimed disability is not related to military service; had its onset during military service; and is related to military service.  The respective opinions reflect cogent well reasoned medical assessments, based on service treatment records, relevant examination findings, the Veteran's competent account of symptomatology, and the provider's appropriate medical expertise.  There is no legitimate basis to assign greater weight to one opinion over another.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The evidence is in equipoise.

Resolving all doubt in the Veteran's favor, service connection for MS is warranted.  


ORDER

Service connection for multiple sclerosis is granted.



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs