Citation Nr: 1339257 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-17 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for multiple sclerosis (MS). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from June 1984 to September 1991. He served in Southwest Asia from January to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In December 2011, the Veteran testified before the undersigned Veterans Law Judge via videoconference; a transcript of the hearing is of record. The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that has not been considered by the RO in the most recent supplemental statement of the case (SSOC). The Veteran has not waived RO consideration of this evidence; however, as the claim is being remanded, the AOJ will have the opportunity to consider this evidence. See 38 C.F.R. § 20.1304 (2013). The claims file includes an April 2009 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, naming Disabled American Veterans (DAV) as the Veteran's representative. A March 2007 VA Form 21-22 had previously appointed the American Legion as the Veteran's representative. A power of attorney, executed on either VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, or VA Form 21-22a, Appointment of Attorney or Agent as Claimant's Representative, is required to represent a claimant before VA. 38 C.F.R. § 14.631(a) (2013). Only one organization, representative, agent, or attorney will be recognized at one time in the prosecution of a particular claim. 38 C.F.R. § 14.631(e)(1). Unless a claimant specifically indicates otherwise, the receipt of a new power of attorney executed by the claimant and the organization or individual providing representation shall constitute a revocation of an existing power of attorney. 38 C.F.R. § 14.631(f)(1). A June 2012 VA treatment record indicates that the Veteran was working with Veterans of Foreign Wars of the United States (VFW). July 2012 and October 2012 rating decisions in the Virtual VA e-folder list the American Legion as the Veteran's representative. However, the April 2009 VA Form 21-22 names DAV as the Veteran's representative. There is no indication that this power of attorney has been revoked. Accordingly, DAV is recognized as the Veteran's representative, as reflected on the title page. In an October 2012 rating decision, the RO found that the Veteran was not competent to handle disbursement of VA funds. In a November 2013 statement, the Veteran requested review of the issue of competency and submitted medical evidence attesting to his competency. This matter is referred to the RO for appropriate action. During the December 2011 hearing, the Veteran reported that he was not working and the undersigned indicated that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) would be referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. However, the Veteran was granted a 100 percent rating for PTSD, effective January 13, 2012. He was also awarded Special Monthly Compensation (SMC), effective January 13, 2012, based on the 100 percent rating for PTSD and additional service-connected disabilities independently ratable at 60 percent or more. See 38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. § 3.350(i) (2013). The RO advised the Veteran that because the effective date of the assignment of the 100 percent rating corresponded with the date of receipt of the claim for a TDIU, the TDIU claim was moot and would not be addressed. While the claim for a TDIU, after January 13, 2012, is moot in light of the July 2012 rating decision, it is unclear whether the Veteran was substantially gainfully employed prior to this date. The issue of entitlement to a TDIU, prior to January 13, 2012, is also referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Remand is required to obtain outstanding treatment records and to afford the Veteran a VA examination regarding his claimed MS. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC), Records Management Center (RMC), and any other appropriate entity to request in-patient clinical records regarding the Veteran's December 1990 hospitalization at the U.S. Army Hospital in Bremerhaven, Germany. If no records are available, the Veteran and his representative must be notified and the record clearly documented. 2. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for MS. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request must be made for: (1) treatment records from the Mountain Home VA Medical Center (VAMC) (to include the Knoxville Community Based Outpatient Clinic (CBOC)), dated between June 1994 and November 2003, between February 2007 and December 2008, and since June 2012; (2) reports of brain MRIs as referenced in November 2007 and May 2008 records from Cumberland Neurology Group and a November 2009 VA treatment record; (3) treatment records from Cumberland Neurology Group, dated since September 2008; (4) treatment records from the Patricia Neal Rehabilitation Center (as identified during VA treatment in November 2009); and (5) treatment records from Dr. B.C. (as identified in correspondence received in February 2013), dated since October 2001. If any identified records are not obtainable (or none exist), the Veteran and his representative must be notified and the record clearly documented. 3. Associate with the paper claims file or Virtual VA e-folder all pieces of evidence relied on in the July 2012 rating decision that are not currently associated with the claims file or Virtual VA e-folder, to include: (1) a January 2012 VA Form 21-8940; (2) the reports of VA examinations dated in February and April 2012; (3) a May 2012 VA Form 21-0820; and (4) Vet Center treatment records, dated from September 2008 through January 2012. 4. Obtain from the Social Security Administration (SSA) a copy of any decision regarding the Veteran's claim for disability benefits pertinent to the claim on appeal, as well as copies of all medical records underlying those determinations. If no records are available, the Veteran and his representative must be notified and the record clearly documented. 5. Contact the United States Postal Service and/or the Office of Personnel Management and attempt to obtain any records regarding the Veteran's claim for disability retirement, pertinent to the claim on appeal. If no records are available, the Veteran and his representative must be notified and the record clearly documented. 6. After all available records have been associated with the claims file and/or Virtual VA e-folder, afford the Veteran a VA examination, by an appropriate physician, to evaluate his claimed MS. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place must be included in the report of the examiner. The examiner must indicate whether the Veteran has had MS at any time since approximately September 2008 (when he filed his claim for service connection). If the examiner determines that the Veteran has had MS at any time since approximately September 2008, he or she must provide an opinion as to whether the Veteran's MS began during service, OR began within seven years after separation from service, OR is related to any incident of service. As indicated above, the examiner must review the record in conjunction with rendering the requested opinion; however, his or her attention is drawn to the following: * In an October 2008 statement, the Veteran reported being treated in a military hospital in Germany after blacking out. He recalled being fatigued for several days following this incident, and stated his doctors were unable to determine why he blacked out. He described incidents of blacking out since service and noted that "there was an outbreak of multiple sclerosis amongst the general population" while he was stationed in Germany. He reported being seen at the Knoxville VA outpatient clinic (OPC) in early 1991, where he was told that his right arm numbness had nothing to do with his neck. * During the December 2011 hearing, the Veteran testified that he had numbness in his right leg and hip around July 1984. He described a blackout spell in Germany, for which he was taken to the hospital, and another blackout spell in his room, which he did not report, around late 1990. He alleged that the in-service numbness in the right leg and hip and blackout spells were the early stages of MS. * The Veteran testified in December 2011 that he first had an episode which he believed to be related to MS after service around 1994 or 1995, when he lost his vision in the right eye, with symptoms going into his right shoulder and arm. He also reported severe bouts of fatigue, off and on. * A June 1984 service treatment record documents that the Veteran complained of bilateral hip burning pain, right more than left, secondary to an insidious onset. The assessment was rule out right proximal iliotibial band tendinitis. * In a May 1986 Report of Medical History, the Veteran denied neuritis, dizziness or fainting spells, epilepsy or fits, and periods of unconsciousness. Clinical evaluation of the neurologic system was normal. * In April 1987, the Veteran suffered a C7 fracture. He was noted to be neurologically intact when admitted to Brooke Army Medical Center in May 1987. He underwent C5-C7 cervical fusion. * A January 1988 Medical Evaluation Board report reflects that there was a subjective slight decrease in pinprick sensation of the right upper extremity diffusely. * In his August 1991 Report of Medical History at separation, the Veteran reported that he had passed out in his room and been admitted to the hospital in Germany. He stated that he broke his front teeth out. He denied neuritis, dizziness or fainting spells, epilepsy or fits, and periods of unconsciousness. On separation examination, clinical evaluation of the neurologic system was normal. * A December 1990 dental record documents that the Veteran fractured tooth number 8. * A December 1990 treatment record documents that the Veteran was seen for follow-up after hospitalization for gastroenteritis. He reported feeling fine and denied any more fainting spells. * In May 1994, the Veteran complained of back and hip pain for approximately six months. X-ray of the lumbosacral spine revealed a post surgical defect of the right iliac bone, but was otherwise negative. Right and left hip X-rays revealed minimal narrowing of the hip joints. * In November 2000, the Veteran complained of right leg numbness and tingling. The assessment was low back pain, muscle spasms, and numbness of the right leg. Lumbar spine X-ray and MRI were normal. The claims file reflects that the Veteran was involved in a four-wheeler accident in 2001, suffering a lumbar fracture. * On VA examination in March 2002, the Veteran reported some paresthesias down his bilateral arms. On examination, there were no gross neurologic deficits in the arms or legs. * In November 2003, the Veteran complained of stiffness in the back of his knees and backaches. The impression was arthralgia, diffuse and migratory. * During VA treatment in August 2004, the Veteran reported occasional joint pain in his knees and hands for years. * In July 2006, the Veteran complained of morning stiffness/arthralgias in his hips, shoulders, elbows, and knees. He described knee problems for 10 to 15 years, neck and shoulder problems on and off for three years (worsening after a motor vehicle accident about three years earlier), stiffness and achiness in the hips for about three years, and elbow problems for about two years. The rheumatologist opined that, given the Veteran's history of strenuous physical activity in service, he likely had degenerative joint disease (DJD) of the involved joints, which was likely wear and tear over the years; however, a systemic process could not be ruled out. * A follow-up note from August 2006 indicates that X-rays of the pelvis and hips were normal, except for a lucent defect in the right iliac bone due to a previous bone graft. X-rays of the right foot and hands were normal, with a deformity in the fifth metacarpal due to old fracture. The rheumatologist opined that the etiology of the Veteran's widespread arthralgias was uncertain, as no definite active synovitis or degenerative process was ascertained. His knee discomfort, however, was attributed to DJD. * In November 2007, the Veteran was evaluated for "passing out spells" by Dr. P.M.M. at Cumberland Neurology Group. He recalled having a few spells in service, with no further spells until 2006, when he had three or four. EEG was normal. Brain MRI revealed a left deep white matter, frontal, subtly enhancing lesion and, possibly, another very small enhancing lesion just anterior to the frontal horn of the lateral ventricle on the right. This second lesion was described as "more questionable." Dr. P.M.M. stated that, although he did not have a clinical history suggestive of MS, this had to be considered within the differential diagnosis of the abnormal scan. * A January 2008 record from Dr. P.M.M. documents that the Veteran's spinal fluid work-up revealed unremarkable cell counts and negative cytology for malignancy, but IgG index was borderline positive and oligoclonal bands were significantly abnormal at seven. Myelin basic protein was negative. Dr. P.M.M. stated that the two lesions in the deep white matter, in conjunction with the spinal fluid abnormalities, suggested a diagnosis of preclinical MS. An MRI of the spine performed later that month did not reveal MS lesions. * The Veteran had a follow-up brain MRI to evaluate for any progression of the presumed MS lesions. A May 2008 record from Dr. P.M.M. reports that this MRI revealed a new lesion present in the left thalamus that was not present on the previous study and the contrast enhancement from the previous study had begun to fade. Dr. P.M.M. stated that the Veteran had clinically definite MS "based on separate of his intracranial lesions in time and space and the appearance of a new clinical exacerbation as well." * In June 2009, Dr. P.M.M. wrote that the Veteran was under his care for demyelinating disease presumed to represent MS. The Veteran reported that his problems developed subsequent to his tours in the first Gulf War, where he experienced many exposures. He expressed concern that his central nervous system disease was related. Dr. P.M.M. opined that it was as likely as not that there was a relationship between the two. * A June 2009 VA speech pathology consultation reports that the Veteran had been diagnosed with MS approximately 14 months earlier by a private neurologist, and his diagnosis had been re-confirmed by a VA neurologist approximately 6 to 8 months earlier. * A June 2009 VA neurology note reports that the Veteran had "a quite unusual story of recurrent syncopal episodes over many years and recurrent episodes of right hand and arm numbness over many years." The VA neurologist discussed the abnormal brain MRIs and spinal fluid study and stated, "I think all in all this probably does represent multiple sclerosis though I would not say hundred percent definite." The impression was possible MS and the neurologist commented that the MRI changes were mild but the changes over time were suggestive. * In November 2009, the VA neurologist commented that an October 2009 brain MRI was normal, with no demyelinating lesions. The impression was "possible MS." He commented that the normal MRI two years after the condition started was a bit unusual, though the Veteran did initially have very elevated oligoclonal bands. He added that the Veteran did not have an "MS story"; his spells were fairly short lived; and "recurrent spells all in same location argues against MS." * A February 2010 VA neurology clinic record reflects an impression of possible MS. The neurologist stated that the abnormalities on the initial brain MRI were fairly subtle and, alone, were not sufficient for a definite diagnosis, though, combined with the elevated oligoclonal bands, the diagnosis was raised to possible versus probable MS. * During VA treatment in August 2010, the Veteran complained of pain in his elbows, knees, and hips, with trouble getting up and down, with symptoms starting soon after service. He reported having been evaluated and diagnosed with lupus. The assessment was MS, mild cognitive impairment, and fatigue related to MS. * An October 2010 VA examination includes a diagnosis of radiculopathy status post C7 fracture and C5-7 spinal fusion. The examiner opined that it was at least as likely as not that this was related to the service-connected cervical spine disability. * The impression following April 2011 VA neurology clinic treatment was possible MS - stable, diagnosed by outside neurologist who is managing care. * A July 2011 VA treatment record documents that the Veteran was diagnosed with MS in 2007. He reported that his right leg and hip went numb for several days during basic training. The assessment was MS. * An April 2012 VA neurology clinic note includes an impression of multiple sclerosis, remitting and relapsing. * A June 2012 VA spinal cord injury note includes an assessment of MS, with the diagnosis made four to five year earlier by the non-VA physician. In rendering the requested opinion, the examiner must specifically consider the several diagnoses of MS of record, for example, as included in the records from Dr. P.M.M. and the August 2010, July 2011, April 2012, and June 2012 VA treatment records, as well as the documented reports of blacking out and burning hip pain during service. He or she must also consider and address Dr. P.M.M.'s June 2009 opinion. The examiner is advised that the Veteran is competent to describe symptoms of fatigue, blacking out, numbness, and vision problems. All examination findings, along with a complete explanation for all opinions expressed, must be set forth in the examination report. 7. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claim, considering all evidence of record. If the benefit sought remains denied the Veteran and his representative must be provided an SSOC. An appropriate period of time must be allowed for a response. The appellant 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. 2013). _________________________________________________ Vito A. Clementi 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) (2013).