Citation Nr: 1335377 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-24 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for multiple sclerosis (MS). REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney At Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from December 1977 to May 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for multiple sclerosis. The Veteran testified before the undersigned at a February 2013 Travel Board hearing. The hearing transcript is of record. FINDING OF FACT The Veteran's multiple sclerosis is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for multiple sclerosis are met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for service connection for multiple sclerosis. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). 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). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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 opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including multiple sclerosis. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). Service connection for multiple sclerosis may be established based on a legal "presumption" by showing that it manifested to a degree of 10 percent or more within seven years from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a) (2013). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Analysis The Veteran contends that his currently diagnosed MS is related to his active military service. He has reported that he experienced numerous symptoms of the disease during active duty, such as blurred vision, balance problems, swelling of the hands and shoulders, and weakness in the legs, which he believes were reflective of his later diagnosed MS. It is undisputed that the Veteran is currently diagnosed with MS. See treatment records from the VA Outpatient Clinic in Sanford Florida, outpatient treatment records from the VA Medical Center in Orlando, Florida, private treatment records from H.D., MD, addendum to the September 2006 VA examination, and April 2009 VA examination report. Service treatment records are negative for any evidence of complaints, treatment or diagnosis related to MS. The post-service medical evidence of record shows that the Veteran sustained an injury to his lower back during a motor vehicle accident (MVA) in 1992, and underwent surgery for a spur and subsequent lumbar laminectomy in 1999. As discussed further below, the Veteran has reported that after his MVA, he had no feeling in his lower extremities. The Veteran subsequently had multiple MRIs due to complaints of chronic low back pain. A thoracic MRI scan conducted in 2004 showed areas of possible demyelinating disease. An MRI of the cervical spine performed in March 2004 showed focal signal abnormalities, suspicious for MS. The Veteran was diagnosed with MS in July 2004 by his private neurologist, Dr. H.D., after a spinal tap that was conducted in June 2004. The cited VA treatment records also show that the Veteran was diagnosed with MS as early as 2004. Private treatment records and a January 2009 statement from H.D., MD indicate that he had been treating the Veteran since approximately 2004, and that he was diagnosed with degenerative disc disease, failed back syndrome, and MS. Dr. H.D. opined that the Veteran developed MS while he was in the military, and that his MS was likely the cause of his back issues. An April 2009 VA examiner diagnosed the Veteran with MS, but opined that the disability was less likely as not caused by or a result of military service (in the form of the spine complaints). His rationale was that the fact that the Veteran was asymptomatic for MS in early 2004, and his MS was worked up because of an incidental finding via MRI for chronic back pain, means that the Veteran's MS could not have been around too long. He also concluded that it was not possible for the Veteran to have MS with only spine complaints in service, and that the Veteran was discharged in 1987, but his MS was not discovered until 2004, 17 years after his discharge. In a March 2010 statement, the Veteran's mother reported that when the Veteran went into the service he was healthy, but when he was discharged in 1987 and came to live with her, he complained of swelling in his hands, pins and needles type pain in his legs, frequent headaches, and numbness in his feet. She also reported that she observed him having balance problems. In a March 2010 statement, private neurologist H.D., MD noted that the Veteran reported that during his post-service MVA, he sustained a whiplash-type injury, but afterwards, he had no feeling in his lower extremities. Dr. H.D. concluded that it was unlikely for the type of injury sustained by the Veteran to cause complete loss of sensation in the lower extremities, and opined that the Veteran likely had MS at the time of the MVA (around 1990), which was not diagnosed for another 14 years. He opined further that he cannot state that many of the Veteran's paresthesias and sensory complaints, which were thought to be related to a peripheral nerve injury and to his back injury, were not actually related to MS. In this regard, he noted that many of his patients with MS had back pain. Finally, he opined that as the Veteran was discharged from the service in 1987, he likely had MS within 7 years of his discharge. In a July 2010 statement, Dr. H.D. disagreed with the findings of the April 2009 VA examiner that because the Veteran's MS was worked up because of an incidental finding via MRI for chronic back pain, his MS could not have been around for too long. Contrary to the VA examiner's opinion, Dr. H.D. noted that patients with MS can have symptoms that lie dormant for years. However, he also noted that the Veteran did have symptoms prior to his post-service MVA and back injury. In fact, he noted that the Veteran had reported experiencing balance problems and vision problems in the Army, which may have been related to his MS. He also noted that after his post-service MVA, the Veteran lost feeling in the lower extremities, however, the symptoms were never completely worked up, and as he noted in his previous March 2010 statement, in his opinion, the MVA was not sufficient to have caused a loss of feeling in the lower extremities. He concluded in fact, that the loss of feeling in the Veteran's lower extremities was likely related to spinal cord involvement by MS and that the MVA was incidental. In summary, he noted that patients can go for many years with nonspecific symptoms before being diagnosed with MS, only to realize in retrospect that the previously noted symptoms were in fact due to the MS, which he concluded was the case with the Veteran. The Veteran is competent to report that he experienced symptoms of neurological dysfunction, such as balance problems, blurred vision, swelling in the arms and shoulders, numbness in the legs and feet, and weakness in the legs during active duty and immediately following his discharge in 1987. See Barr v. Nicholson, 21 Vet. App. 303 (2007), citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), (lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge). The Board also finds that the history reported by the Veteran to his treating physicians as early as 2004 is significantly credible, in that the Veteran had no reason to embellish the report of his history, which was necessary for an accurate treatment of his symptomatology. The Board also notes that the fact that the Veteran had not even filed a claim for service connection for MS at the time of his 2004 treatment makes it more unlikely that his reports were embellished. The Veteran's reports are also supported by the statement from his mother, who reported that following his discharge in 1987, she observed the Veteran experiencing neurological problems, such as swelling in his hands, pins and needles type pain in his legs, frequent headaches, numbness in his feet, and balance problems. Furthermore, the Board notes that his reports regarding the onset and history of his symptoms have been consistent throughout the pendency of the appeal, including during private treatment and on VA examination. Accordingly, the Board finds that the Veteran's reports are credible. Additionally, the Board finds the multiple medical opinions submitted by neurologist, H.D. that indicate that the Veteran's reported symptoms in-service and/or within the 7 years following service are consistent with MS, are competent and highly probative. The Board notes that there is no indication that the opinions were provided after a review of the entire record. However, such a review is not required, and the mere absence of a review of the record does not strip an opinion of its probative value. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 303 (2008) (the claims file is not a magical or talismanic set of documents, but is an assistive tool for medical examiners). Moreover, the Board notes that the fact that Dr. H.D. specializes in neurology and reviewed the pertinent service treatment records lends even more probative value to his opinions. There is evidence against the claim, in that the April 2009 VA examiner opined that the Veteran's MS is not related to his active military service. The examiner's rationale for his negative opinion was that the Veteran was not diagnosed with MS until 2004, at least 17 years after his discharge from service, which meant that the disease could not have been around for too long. However, as Dr. H.D. pointed out, patients with MS can have symptoms that lie dormant for years, and can go for many years with nonspecific symptoms before being diagnosed with MS, only to realize in retrospect that the previously noted symptoms were in fact due to the MS. Internet research supports these findings. The Board also notes that the April 2009 VA examiner entirely failed to address the Veteran's reported in-service neurological symptoms, and further provided no opinion as to whether those symptoms were representative of an early onset of MS. Accordingly, the Board finds that the April 2009 VA examiner's opinion lacks probative value. Resolving all doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise as to whether the Veteran's MS is related to active service, and service connection is granted. 38 U.S.C.A. § 5107(b) (2013). ORDER Service connection for multiple sclerosis is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs