Citation Nr: 1610910 Decision Date: 03/17/16 Archive Date: 03/23/16 DOCKET NO. 09-41 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1971. This matter came to the Board of Veterans' Appeals (Board) from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO in Indianapolis, Indiana has jurisdiction over the appeal. In April 2014, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for additional development. FINDING OF FACT Multiple sclerosis manifested to a compensable degree within seven years after the Veteran's discharge from active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for multiple sclerosis are met. 38 U.S.C.A. §§ 1110, 1112 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination on the issue decided below, no further discussion of compliance with VA's duties to notify and assist is necessary. The Veteran contends that his current multiple sclerosis disability first manifested in the mid- to late-1970s. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for multiple sclerosis may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within seven years from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3); 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). While 38 C.F.R. § 3.307(a)(3) requires that the disease manifest to a degree of 10 percent or more, the minimum rating for multiple sclerosis is 30 percent. See 38 C.F.R. § 4.124a, Diagnostic Code 8018. Also, it is required for the minimum ratings for residuals under diagnostic codes 8000-8025, that there be ascertainable residuals. Determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as bases of evaluation be cited, in addition to the codes identifying the diagnoses. Id. at note following Diagnostic code 8025. Turning to the evidence, the Veteran's service treatment records were silent for complaints, diagnosis, or treatment for symptoms of multiple sclerosis. On separation examination in May 1971, his eyes, ears, upper and lower extremities, and neurologic and psychiatric function were normal on clinical evaluation. Distant vision was reported as 20/20 bilaterally. The Veteran was released from active duty in June 1971. During an April 1977 evaluation with a private neurologist, R. French, M.D., the Veteran reported that approximately one week earlier he had been bowling and awoke several times in the night with "sharp shooting paresthesia all over his body." He related that the next morning he felt as if his legs were asleep, also complaining of paresthesias on the bottoms of his feet with numbness ascending to his abdomen and to the lower thorax. He stated that his legs felt slightly weak, especially when he would climb a ladder at work. He denied any past history of visual loss or neurological symptoms or being exposed to any toxins. Reported examination findings included absent cremasteric reflexes and marked decrease in vibratory sensation in his toes, knees, and iliac crest bilaterally. Dr. French indicated that the Veteran "may have an ascending Guillain-Barre." Differential diagnoses included multiple sclerosis, cord tumor, or herniated disc. Dr. French arranged to schedule the Veteran as a dire admission to Methodist [Hospital] for a total myelogram. During a follow-up visit a few weeks later in April 1977, the Veteran stated that his numbness had almost disappeared, but he still had some paresthesias along the anterior thigh and knees. Dr. French suspected the Veteran had a mild Guillain-Barre syndrome, but indicated that multiple sclerosis "still is a possibility." In August 1982, personnel from [BCW] Medical Corporation listed a diagnosis of demyelinating disease - brain stem on a disability claim form filed with an insurance company. In September 1991, the Veteran presented for a consultation with C. Melin, M.D., with complaints of having had "fairly mild and subtle symptoms over the past two years," including some blurring of vision, forgetfulness, and some difficulty remembering letters and reading. Dr. Melin noted the Veteran's history of an episode of numbness from the waist down and subsequent evaluation at Methodist Hospital by Dr. French. The impression at that time was mild transverse myelitis or atypical Guillain-Barre syndrome. Dr. Melin remarked that another physician had also evaluated the Veteran and believed he "probably had multiple sclerosis." Finally, Dr. Melin noted the Veteran's history of an episode of numbness over the entire right side of the body with dragging of the right foot, which resolved, and periods of dysphagia, fatigue, and dysarthria. The impression was possible multiple sclerosis. The impression of a September 1991 MRI of the brain was "[m]ultiple abnormal foci of high signal intensity in the periventricular white matter bilaterally as described. These findings are most consistent with multiple sclerosis." Subsequent private treatment records document "relapsing and remitting multiple sclerosis." Having considered the medical and lay evidence of record, and resolving reasonable doubt in favor of the Veteran, the Board finds the evidence is at least in equipoise as to whether multiple sclerosis manifested to a compensable degree within seven years of separation from service. In this regard, while the August 2014 VA examiner opined to the contrary, he did not have access to Dr. French's records at that time, and specifically noted that the opinion could be revisited if any evidence of symptoms, diagnoses or treatment within seven years of service was furnished. The Board finds that an addendum is unnecessary, as the evidence documents multiple sclerosis included among differential diagnoses in 1977, with ascertainable residuals in the form of paresthesia, numbness, and weakness. The 1991 brain MRI with contemporaneous reports of blurred vision, memory impairment, dysphagia, fatigue, and dysarthria, further supported the diagnosis of multiple sclerosis. Because these symptoms demonstrated within the presumptive period have been identified as consistent with multiple sclerosis, and multiple sclerosis was eventually diagnosed definitively, service connection for multiple sclerosis is warranted. ORDER Entitlement to service connection for multiple sclerosis is granted. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs