Citation Nr: 1511058 Decision Date: 03/16/15 Archive Date: 03/27/15 DOCKET NO. 04-10 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to December 1967, and served on active duty for training from July 1974 to August 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2007, the Veteran testified at a hearing at the RO before the undersigned. A transcript of the hearing is of record. In December 2007, March 2011, March 2013, November 2013, and May 2014, the Board remanded the case for further development. REMAND In the May 2014 remand, the Board requested that the Veteran's claims file be reviewed by an appropriate VA medical specialist, such as a neurologist or other individual with expertise in the diagnosis and treatment of multiple sclerosis (MS), to address whether her MS had its onset in service or within seven years of discharge. In June 2014, a VA psychiatrist reviewed the Veteran's claims file and opined that the Veteran's MS was not incurred in service or within seven years of discharge. The psychiatrist noted that the Veteran had been examined by a qualified advanced registered nurse practitioner on April 26, 2014. The psychiatrist noted thoroughly reviewing the Veteran's medical records and stated that the Veteran was initially diagnosed with systemic lupus erythematosus (SLE) following service evidently based on a history of polyarthritis but it was unclear where, when, and how as the medical records identifying those facts were not tabbed in her claims file. The psychiatrist noted that the Veteran was recognized by VA as having MS on October 9, 2001, and no records prior to 2001 lent any suggestion to the evolution of her having active signs and symptoms of MS. The psychiatrist observed that diagnostic tests for MS were available but were not medically necessary since the Veteran did not manifest signs and symptoms of MS. The psychiatrist commented that it would be speculative to assume that the Veteran's SLE was misdiagnosed prior to her MS diagnosis. The Veteran's representative asserts that a remand is warranted because the June 2014 VA opinion does not adequately address the questions posed by the Board in the remand. While the Board regrets the delay that will result from this action, the Board agrees that the opinion is incomplete and that a remand is required. The representative noted that there is no April 26, 2014, VA examination report as cited by the psychiatrist. The Board observes that the psychiatrist simply erred in reporting the correct year of the report, which is 2011, and that report is of record. The representative asserted that the June 2014 VA opinion is inadequate because it was provided by a psychiatrist and not an appropriate medical specialist such as a neurologist. While the Board observes that the psychiatrist may be qualified, considering the complexity of the questions in this case, the Board agrees that an opinion from a neurologist or other individual with expertise in the diagnosis and treatment of MS is needed. The representative also noted that the psychiatrist did not consider the Veteran's report of having symptoms typical of MS in service, including heat exhaustion and numbness. The Board must agree. The psychiatrist simply stated that no records prior to 2001 indicated any symptoms of MS and it would be speculative to assume that SLE was misdiagnosed prior to the MS diagnosis. There is no indication that the psychiatrist considered the Veteran's complaints of heat exhaustion and numbness in service. While not asserted by the representative, the Board observes a potentially greater underlying error in the opinion, that it does not appear to be based on a full review of the claims file. While the psychiatrist noted thoroughly reviewing the medical records, the psychiatrist also stated the circumstances of the diagnosis of SLE were unclear as the medical records identifying those facts were not tabbed in the claims file. The Board acknowledges that during the appeal the Veteran's claims file was scanned into the Veterans Benefits Management System paperless claims processing system and that tabs identifying important evidence in the paper claims file have been discarded. However, before the Board may rely on an opinion, the Board must ensure that the opinion obtained is based on a complete review of the Veteran's claims file. Therefore, the Veteran's claims file should be forwarded to a VA neurologist or other individual with expertise in the diagnosis of MS for another opinion. The Board will take this opportunity to highlight some of the relevant evidence in the claims file. The service medical records do not include findings of MS. However, in May 1967 the Veteran was seen for treatment of mild heat exhaustion. Also in May 1967, she was seen with reports of numbness in her fingertips. No diagnosis was made. After discharge in June 1972 the Veteran reported a two-year history of polyarthralgias of the knees and fingers. A treatment provider questioned whether she had a chronic tissue disease or SLE. In diagnosing SLE, the examiner noted that the proper tests had been ordered. Another June 1972 record described the diagnosis of SLE as questionable. The record noted a history of recurrent arthralgias, easy bruising, and pain in the knees and in the small joints of the hand. During treatment in November 1972, the Veteran reported aches all over her body, abdominal pain, and stiffness of the hands and knees. During hospital treatment in June 1973 for gastroenteritis, the Veteran was also assessed with arthralgias of unknown etiology. A record dated in November 1977 notes a history of lupus since 1971. That report notes that the Veteran's sister had MS. In May 1995 the Veteran was involved in a car accident. During VA treatment in June 1995, she reported a one-week history of headache, double vision, nausea, vomiting, slurred speech, altered gait, muscular contractions, and fasciculations in the arms and legs. MRI and lumbar punctures were both negative. During VA treatment in October 1996, the physician noted a history of lupus since age 18, with flare-ups in the past two years manifested by joint pain, migratory arthralgias, mouth and nose sores, malar rash, and late afternoon fevers. The Veteran was diagnosed with MS in 2001, then described as a relapsing-remitting type. In an August 2003 VA record, the Veteran reported that 20 years prior she had burning and tingling in the upper and lower extremities and visual problems that were diagnosed as SLE and treated with steroids. She reported stopping steroids in 1995 after a fracture to her cervical spine but that symptoms continued and she had difficulty speaking, decreased coordination, and left facial pain. However, a lumbar puncture was not consistent with MS, and MRI showed non-specific white matter changes. In a September 2003 VA hospital record, the Veteran noted a history of MS symptoms that began in late 2000, consisting of altered speech and gait and trigeminal neuralgia. The Veteran has submitted internet articles which suggest that diagnosing MS is difficult and often results in missed diagnoses. One article suggests that symptoms of SLE mimic MS. In statements received in May 2011, May 2012, and December 2012, the Veteran highlighted her argument that she always has had MS and was misdiagnosed with SLE. Accordingly, the case is REMANDED for the following actions: 1. Arrange for the Veteran's claims file to be reviewed by a VA neurologist or other medical doctor specialist with expertise in the diagnosis and treatment of MS for a supplemental opinion. The examiner should provide a complete rationale for all conclusions. The examiner must consider all medical evidence of record, to include that summarized by the Board. The examiner should also specifically consider the Veteran's complaints of heat exhaustion and numbness of the fingers during service. Specifically, the examiner should address the following. (a) What is the approximate date of onset of the Veteran's currently diagnosed MS? (b) Is it at least as likely as not (50 percent or greater probability) that SLE was misdiagnosed in service and was really MS? If so, what is the evidence that suggests that conclusion? (c) Is it is at least as likely as not (50 percent or greater probability) that the currently diagnosed MS had its initial onset during the Veteran's period of active duty or within seven years following active duty service discharge on December 15, 1967, and thus by December 15, 1974? 2. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then return the claim to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).