Citation Nr: 1609618 Decision Date: 03/09/16 Archive Date: 03/15/16 DOCKET NO. 10-11 136 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Nicholas Parr, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to May 1987, and had additional periods of duty in the Army National Guard. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2008 RO rating decision. As noted previously, the Veteran timely perfected an appeal. In February 2013, the Veteran and his wife testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In April 2013, the Board reopened the claim for service connection for multiple sclerosis and remanded the reopened claim for development and consideration on the merits. This appeal is now being processed utilizing the paperless, electronic Virtual Benefits Management System (VBMS) and Virtual VA claims processing systems. For reasons expressed below, the claim on appeal is being remanded to the RO. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that the claim remaining on appeal must again be remanded for further medical opinion. Briefly summarizing the pertinent evidence for consideration herein, the record includes a Defense Finance and Accounting Service Military Leave and Earnings Statement reflecting payment for inactive duty for training (INACDUTRA) on June 3 and June 4, 2000. Medical evidence of record indicates that the Veteran was seen on June, 3, 200, at Fort Riley for an incident involving perioral numbness, difficulty with speech, and headaches. The diagnosis following the physical examination was a transient ischemic attack (TIA) with secondary headache. It has been asserted on behalf of the Veteran that this incident that occurred while he was on INACDUTRA on June 3, 2000, represented a "cerebrovascular accident," and that the Veteran developed multiple sclerosis as a result of this asserted cerebrovascular accident, thus warranting service connection for this disability as being incurred during "active military service" pursuant to 38 U.S.C.A. §§ 101(24)(C)(ii) (West 2014); 38 C.F.R. §§ 3.6(a) (2015). In light of the above assertions and the evidence of record, in the April 2013 remand, the Board requested that the AOJ arrange to obtain a VA medical opinion as to whether it was at least as likely as not that symptoms of the Veteran's multiple sclerosis were first manifested as a result of a cerebrovascular accident that occurred on June 3, 2000. The medical opinion completed in April 2015 provided, as follows: [The] Veteran was diagnosed with a "probable TIA" as evidenced in the discharge summary dated 24 June 2000. This diagnosis was correctly made on the basis of the data available at the time, which did not include MRI scan results or CSF study results for multiple sclerosis. The diagnosis of MS was correctly made on 6 July 2000 once the additional data were considered. The diagnosis at this time appears to have been correctly made on 6 July 2000, as the Veteran continues to receive disease-modifying therapy for multiple sclerosis. Given that it is unlikely that the Veteran would have had a cerebrovascular accident on 3 June 2000 and then within just over a month, would have developed multiple sclerosis, and given that the Veteran's CSF studies at the time of the previously (incorrectly) diagnosed cerebrovascular accident were consistent with multiple sclerosis, it is at least as likely as not (i.e., there is a 50 percent or greater probability) that symptoms of the Veteran's multiple sclerosis were first manifested as a result of a cerebrovascular accident that occurred on June 3, 2000. The Board finds this opinion confusing, inasmuch as, as, despite being ultimately favorable to the Veteran (perhaps due to a typographical error), the provided rationale for the opinion appears to be one for a negative opinion. As such, the Board finds that the medical opinion evidence currently of record is inadequate, and that the AOJ must obtain a clarifying addendum opinion from the VA physician who rendered the April 2015 opinion or other appropriate physician. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); See also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"); Accordingly, this matter is hereby REMANDED for the following action: 1. Arrange to obtain an addendum opinion from the VA physician who completed the April 2015 opinion referenced above. If that physician is no longer employed by VA or is otherwise unavailable, document that fact in the claims file, and arrange to obtain an addendum opinion from another appropriate physician based on claims file review (if possible). Only arrange for the Veteran to undergo further examination if deemed necessary in the judgment of the physician designated to provide the addendum opinion. The contents of the entire electronic record (in Virtual VA and VBMS), to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should reflect consideration of the Veteran's documented history and assertions. Following review of the record, the physician should provide a clear opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a) A cerebrovascular accident occurred on June 3, 2000, and, if so, b) The Veteran's multiple sclerosis was first manifested as a result of such a cerebrovascular accident. In addressing the above, the physician must consider and discuss all pertinent medical and lay evidence-to include argument advanced by and on the Veteran's behalf. If further opinion is provided by the April 2015 opinion provider, the physician should clearly indicate whether the positive opinion previously provided was actually the result of a typographical error. Complete, clearly-stated rationale for the conclusions reached-to include citation to any medical authority considered-must be provided. 2. To help avoid another remand, ensure that the addendum opinion is rendered in in compliance with this REMAND, and appropriate corrective action should be undertaken if such is not the case. Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the claim for service connection for multiple sclerosis in light of the pertinent evidence and assertions of record-to include argument advanced on the Veteran's behalf, referenced above-and legal authority. 4. If the benefit sought on appeal remains denied, furnish to the Veteran and his attorney an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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 2014). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).