Citation Nr: 1756636 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-01 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for multiple sclerosis. 2. Entitlement to service connection for depression, including as secondary to multiple sclerosis. 3. Entitlement to a total rating for compensation for individual unemployability (TDIU) based on service-connected disability. REPRESENTATION Veteran represented by: Daniel Francis Smith, Esq. ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1988 to August 1992. The matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated January 2011 and December 2011 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the Veteran requested a hearing before the Board in her substantive appeal. However, in April 2014, the Veteran withdrew her hearing request. Therefore, the Board will consider the request withdrawn, and proceed with its review on the present record. See 38 C.F.R. § 20.704(d), (e). The issues of entitlement to service connection for depression, including as secondary to multiple sclerosis, and entitlement to a total rating for compensation on the basis of individual unemployability (TDIU), are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Multiple sclerosis is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for multiple sclerosis have been met. 38 U.S.C. § 1010, 1110, 1112 (West 2012); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to service connection for multiple sclerosis. The Veteran contends that her symptoms of multiple sclerosis manifested to a compensable degree within seven years of her discharge. For the reasons fully discussed below, the claim for entitlement to service connection for multiple sclerosis is granted. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease; or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Service connection for multiple sclerosis may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within seven years from the date of separation from active service. 38 U.S.C. § 1101, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.307, 3.309. Here, the Board finds that the Veteran has a current diagnosis of multiple sclerosis. See, e.g., December 2011 VA examination report, page 8. Therefore, the current diagnosis requirement is met. Thus, the issue here is whether the multiple sclerosis manifested either in service or to a compensable degree within seven years of service such that an award of benefits may be made under 38 C.F.R. § 3.307(a)(3) and 3.309(a) (2007). For the following reasons, the Board finds that the Veteran's multiple sclerosis was 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). First, the Board acknowledges that the record contains an unfavorable March 2017 VA nexus opinion, which provides that it is less likely than not that the Veteran's multiple sclerosis manifested within seven years from her service discharge. However, the Board finds this opinion inadequate, in as much as it was rendered without consideration of the Veteran's and her spouse's lay statements regarding the onset of observable multiple sclerosis symptomatology occurring within the seven years from the Veteran's service discharge. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate). Because the Veteran's service medical records from March 1988 to September 1992 and immediate post-service treatment records show no symptoms, complaints, investigation, diagnosis, assessment or treatment for either multiple sclerosis or its symptoms, the examiner did not meaningfully consider the lay statements on record and instead, improperly relied on the lack of contemporaneous medical records to base his negative opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the lack of contemporaneous medical records does not, in and of itself, render lay evidence incredible or serve as an "absolute bar" to service connection); see also 38°U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Therefore, the Board finds this opinion entitled to minimum probative weight. On the other hand, the Board finds persuasive the March 2014 medical opinion from Registered Nurse, A. C., who opined that it is at least as likely as not that the Veteran's neurological symptoms manifested to a compensable degree within seven years of her military discharge. Unlike the March 2017 VA examiner, Registered Nurse, A. C. properly considered the Veteran's and her husband's lay statements regarding the onset of observable multiple sclerosis symptomatology occurring within seven years from the Veteran's service discharge. Registered Nurse, A. C. also specifically considered the Veteran's service records, post-service treatment records, and current medical literature, which she also cited to in her opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds the opinion to be sufficient and entitled to probative weight. Moreover, in multiple lay statements, the Veteran and her spouse reported that the Veteran's observable multiple sclerosis symptomatology began within the seven years from her service discharge in 1992, including symptoms of fatigue and numbness of the extremities that manifested in the 1990's. The Board finds the Veteran and her spouse to be competent and credible in statements regarding the onset of the Veteran's observable symptoms, as there is no reason to doubt them other than the lack of contemporaneous medical evidence. In this regard, private examiners have affirmed the likelihood that the Veteran's multiple sclerosis symptoms manifested in 1995, which is within the seven year presumptive period. See, e.g., Private medical treatment records from Florida Neurology dated February 2015, October 2014, September 2014, August 2014, January 2014, and August 2013. As such, the lay statements, in conjunction, with the medical evidence of record, at least place the evidence in equipoise. Hence, after resolving reasonable doubt in the Veteran's favor, the Board finds that the combined previously discussed medical evidence of record, and in particular the March 2014 medical opinion from Registered Nurse, A. C., overall supports the finding that the Veteran's multiple sclerosis manifested to a compensable degree within seven years from her service discharge, at least to an evidentiary position of equipoise. See 38 C.F.R. § 3.307, 4.124a, Diagnostic Code 8018; see also 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As stated above, multiple sclerosis is a chronic disease subject to presumptive service connection. Thus, service connection for multiple sclerosis will be granted if manifested to a degree of ten percent or more within seven years after the date of the veteran's separation from service. See 38 U.S.C. § 1112; 38 C.F.R. § 3.307(a)(3); 3.309(a). Neurological conditions such as multiple sclerosis are normally rated in proportion to the impairment of motor, sensory, or mental function. The note associated with Diagnostic Codes 8000 through 8025 indicates that any ascertainable residuals of the condition described (here, multiple sclerosis) warrant the minimum rating, which, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8010, is thirty percent. Id. Therefore, and in other words, any ascertainable symptom of multiple sclerosis necessarily meets the ten percent manifestation threshold to trigger the service-connection presumption provided in 38 C.F.R. § 3.307(a)(3). See Traut v. Brown, 6 Vet. App. 495, 499-500 (1994). Here, in the March 2014 medical opinion of record, Registered Nurse, A. C. found that the Veteran's subjective and objective residuals of fatigue, numbness and tingling in the extremities, muscle cramps, gait imbalance, urinary incontinence, changes in cognition, and a positive Lhermettes's sign, which were all ascertainable by the veteran, her spouse, and during clinical exams, are "consistent with the eventual diagnosis of multiple sclerosis, and [were] no more likely attributable to any other disease." Furthermore, these symptoms were all present within seven years from the Veteran's service discharge. Id. Based on the foregoing, service connection for multiple sclerosis is granted. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' . . ., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."). ORDER Entitlement to service connection for multiple sclerosis is granted. (CONTINUED ON NEXT PAGE) REMAND 2. Entitlement to service connection for depression, including as secondary to multiple sclerosis. The Veteran claims entitlement to service connection for depression, including as secondary to multiple sclerosis. The record contains an indication that her diagnosed depression is related to her multiple sclerosis. See August 2013 private medical record ("Depressed and on antidepressant since dx with MS"). There is no competent evidence of record addressing whether the Veteran's depression was caused by or aggravated by her now service-connected multiple sclerosis. Because the evidence of record raises the issue of secondary service connection and no competent opinion on that issue has been obtained, the Veteran is entitled to a VA examination and opinion with respect to her acquired psychiatric disability. See 38 U.S.C. § 5103A (d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006). Any opinion obtained regarding secondary service connection must address both causation and aggravation of the nonservice-connected condition. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995); 38 C.F.R. § 3.310. 3. Entitlement to TDIU. The claim for entitlement to TDIU should also be remanded. A determination on the service connection for depression issue could have a significant impact on the outcome of the TDIU issue, and therefore, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new examination to determine whether she has a current depression diagnosis that is at least as likely as not (a 50 percent or greater probability) the result of disease or injury in service; or proximately due to, or aggravated by, her multiple sclerosis. The examiner is advised aggravation means the service-connected disability caused an increase in the severity of an existing nonservice-connected disability beyond the natural progression of the disease. If aggravation is found, the examiner must attempt to establish the baseline level of severity of the back disability and/or neurological impairment of the right lower extremity prior to aggravation by the service-connected disability. The examiner is advised the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for all opinions provided. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and explain why an opinion cannot be provided without resorting to speculation. Any missing evidence that would enable the examiner to provide the opinion should also be identified. 2. After completion of the above development, readjudicate the issues on appeal, including the Veteran's claim for TDIU. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the entire appeal must be returned to the Board for appellate review. 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 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. §§ 5109B, 7112 (West 2012). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs