Citation Nr: 1756863 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-17 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for multiple sclerosis (MS). 2. Entitlement to special monthly compensation based upon the need for aid and attendance or housebound status. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in May 2013, and a transcript of the hearing is of record. In December 2013, the Board remanded the issues shown on the cover page for further development. The issue of special monthly compensation based upon the need for aid and attendance or housebound status is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's MS reasonably appears to have been manifest within 7 years of service separation. CONCLUSION OF LAW The criteria for service connection for multiple sclerosis are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for multiple sclerosis if it manifests to a degree of 10 percent within 7 years of service separation or during service and then again at a later date. 38 C.F.R. § § 3.303, 3.307; see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 496-97(1997)); see 38 C.F.R. § 3.303(b). Service treatment records do not mention multiple sclerosis, and on service discharge examination in October 1970, the Veteran was normal neurologically. A November 2001 private medical record from a neurologist states that the Veteran was referred for an assessment of multiple sclerosis. He stated that he was well until 1994 when he developed leg spasms and then fell. After evaluation at the time, including a negative spinal tap, he was thought to have MS. Then, in 1996, because of increasing difficulties with ambulation, he was again evaluated. A spinal tap was again normal. At the time of a May 2002 claim concerning multiple sclerosis, the Veteran reported that the first incident was in April 1994, and that the first diagnosis was in November 2001. He had used a cane from 1998, 2 canes in 1999, and then a wheelchair in the past year. Spinal fluid was nonconfirmatory, but MS was the most likely diagnosis. Primary progressive MS was mentioned. In May 2002, the Veteran claimed for VA pension benefits in light of MS, indicating that his first MS-related incident was in April 1994, and that the first diagnosis was in November 2001. In October 2002, the Veteran submitted a claim for acute peripheral neuropathy and indicated that it began in April 1994 and that he had been treated by Dr. LK from April 1994 to November 2001 and then at the VA Medical Center from July 2002. On VA examination in May 2005, the Veteran was wheelchair bound and needed help fastening his clothing and with bathing, shaving, and toileting. He had weakness secondary to MS. He reported that he was in good health in and after leaving the Navy. He reported he was officially diagnosed with MS in 1994. In October 2007, the Veteran stated that when he came home from Vietnam, he had continuing bouts of numbness throughout his left leg which was eventually misdiagnosed by Drs. Walker and Catalano. There were similar problems throughout the next 2 decades. He reported his initial full blown MS episode, a momentary spasm in his entire left side, was misdiagnosed as being the result of a mini-stroke. After being forced to use a motorized wheelchair, he was finally diagnosed with MS by Dr. Krupp. He mentioned that all of the previous problems from the early 1970s to that date were attributable to his MS. A March 2008 VA medical record states that the Veteran's first symptoms of MS were severe spasms of the left side in 1994. The Veteran provided a vague history of left medial and volar foot numbness intermittently in the 1970s. In May 2008, the Veteran stated that Drs. Walker and Dr. Catalano had retired many years ago and that he had attempted to locate their records to no avail. He also stated that he did not have any medical records to substantiate his claim that he had multiple sclerosis within the 7 year presumptive period. In May 2009, the Veteran stated that VA's denial of service connection for his MS was due to the inability to obtain medical records from the 1970s which no longer exist. He reported that in May 2003, he sent VA several personal statements supporting the symptoms of MS he experienced within the 7 year presumptive period. There are personal statements hand-dated in May 2003 now of record, reported below, but they have 2012 VBMS archive dates, with no VA date stamps evident. These records are not mentioned earlier than May 2009 and are not in the list of evidence reported in the May 2008 RO rating decision denying service connection for MS. A letter from the Veteran's father in law, with a June 2012 VBMS archive date and no VA date stamp, but hand dated in May 2003, and being the June 2000 version of the VA Form 21-4138, states that during the summer in which his daughter married the Veteran, the father in law noticed 2 things. His son-in-law occasionally had trouble walking, favoring his left leg, and also occasionally his heel would start tapping. He usually stopped it by pressing down on his knee. When he asked the Veteran what was wrong, the Veteran stated that his doctor had suggested that he had a problem with his clothes that was causing his leg to go numb. This lasted for a month or so and then happened again in the mid to late 1970s and in the mid to late 1980s. A letter from the Veteran's spouse, with a June 2012 VBMS archive date and no VA date stamp, but hand dated in May 2003, and being the June 2000 version of the VA Form 21-4138, states that in 1971, the Veteran suddenly found that his left leg and foot were numb. This sometimes caused him to stumble, as his foot would drag. He went to his doctor, who told him to switch from jockeys to boxers. This appeared to work, as within a month, the numbness went away. About every 5 or so years later, his left leg would again have difficulties and he would change again to boxers. It was not until April 1994 that his left leg all of a sudden spasmed severely, causing his whole body to lurch and causing him to realize that something else was wrong. A VA examination with a medical opinion in September 2012 concluded that the Veteran had been diagnosed with primary progressive multiple sclerosis, a subtype of multiple sclerosis that excludes the existence of prior transient multiple sclerosis symptoms. The examiner stated that prior to 2003, there is no documentation of any earlier symptoms that may be referable to initial manifestations of MS. She noted that the Veteran's wife and father in law had documented some recollections about events from shortly after service. Their recollections were somewhat nonspecific, and some were inconsistent with what would be found in MS. For example, heel tapping would not be a sign suggestive of MS. The examiner stated that it would be speculative to opine that the symptoms recollected by family members represent early manifestations of MS. The Veteran had not been severely impaired by the symptoms reported by his wife and father in law. By his own report, the symptoms were transient and did not require medical treatment, and he was able to exercise, work, and work out in a gym from the 1970s through the 1990s. In part, the September 2012 opinion provider relied on the 2008 finding of the Veteran's treating neurologist, Dr. J.E.F., that the Veteran "most likely" had primary progressive multiple sclerosis. Following the preparation of that opinion, the Veteran obtained another statement from his treating VA neurologist, Dr. J.E.F., in May 2013. Dr. J.E.F. reviewed her 2008 note and provided the following addendum in May 2013: "the patient's history of transient lower extremity sensory complaints in the 1970's could very well be consistent with a first demyelinating event followed by a remission. Thus, this history could be just as likely be making his current diagnosis secondary progressive MS." In December 2013, the Board remanded for a supplemental neurological medical opinion, indicating that the examiner was provide an opinion as to: Whether it is at least as likely as not that: the Veteran's current multiple sclerosis was manifested within seven years of his service separation (the seven year period ended in November 1977). On VA neurology examination in January 2015, the examiner noted that on multiple independent evaluations, including those conducted by neurologists, the Veteran stated that his first symptoms were in 1994. It was not until years later that family indicated recollections of subjective symptoms prior to 1994. Moreover, there are no dated medical assessments or documentation from within 7 years of discharge (or any from the 1970s) to support his retrospective recollections in 2013, and that of his family, that he had left leg problems in the 1970s. His self reports of neurologic problems dating back to the 1970s to Dr. J.R. (documented in her May 2013 addendum to her March 2008 note) have not been corroborated by any medical documentation from the 1970s. Thus, the impact of his self report to Dr. F. is limited. It is therefore not likely that his diagnosis of MS can be medically supported to date back to the 1970s. As for relationship to herbicide exposure, the examiner stated that the medical evidence had been reviewed. The Veteran had a normal service neurological examination in October 1970. There is no unequivocal scientific evidence of a direct causal relationship between service exposures and MS. The Board requested a VHA medical opinion in August 2017. The examining VA neurologist recited that the Veteran was born in 1947 and served from 1967 to November 1970. The neurologist noted that the Veteran had had multiple medical evaluations during which he had stated that he was well until 1994. The neurologist noted that the reports of neurologic problems dating back to 1970 have not been corroborated by any medical documentation from that time. Also, the VA examiner in 2012 stated that the Veteran had been diagnosed with primary progressive MS, a subtype that excludes the existence of prior transient MS symptoms. The neurologist also noted that that examiner in 2012 indicated that that diagnosis was supported in 2008 by a VA MS specialist who concluded that the Veteran most likely had primary progressive MS. The neurologist noted that the Veteran had had 2 spinal taps which were normal and did not support the diagnosis of MS, and that he has never had a definitive diagnosis of MS. Therefore, the neurologist concluded, it is unlikely that the Veteran had MS manifest within 7 years of his November 1970 service discharge. The evidence both supporting and working against the claim has been studied very closely. While the Veteran initially reported that MS symptoms did not begin until 1994 when he had severe spasms of the left leg, he (and his relatives) later recalled in retrospect more minor, intermittent symptoms involving the left extremity within the first 7 years after his service separation. While there is a suggestion of inconsistency in the Veteran's statements (initially reporting onset in 1994 and later putting onset 20 years earlier) it seems at least as likely as not that the Veteran could have been unaware of the significance of earlier, more minor, symptoms, attributed by medical providers to other etiologies when he initially filed his claim and thus he did not report them. Thus, the Board finds the statements of the Veteran and his relatives concerning intermittent symptoms reportedly suggestive of MS to be credible. Up to Date, Int J MS Care v 15(3), Fall 2013, from NIH Research Matters, indicates that there is great variability in the presentation and progression of MS, and that there is no single diagnostic test for it. There is furthermore no evidence of record that all of the symptoms which the Veteran is reported to have experienced within the first 7 years following his service discharge were not representative of MS. To the contrary, it has been recognized that some of them were consistent with MS. There is medical evidence both for and against the claim with respect to whether the symptoms reported by the Veteran and his relatives between 1970 and 1977 were an early manifestation of MS. The 2012 opinion provider found that it would be speculative to provide such an opinion, so that opinion weighs neither in favor of, nor against, the claim. The 2017 did not address this question; therefore, that opinion weighs neither in favor of, nor against, the claim in this regard. The 2015 opinion has little to no probative value as the examiner appeared to believe that medical corroboration of the Veteran's lay statements was needed to give his statements any significant probative value. Interpreting the wording of the opinion of VA neurologist, Dr. J.E.F., in May 2013 in the light most favorable to the Veteran leads to the conclusion that Dr. J.E.F. finds it at least as likely as not that "the patient's history of transient lower extremity sensory complaints in the 1970's" was the beginning of secondary progressive MS. Affording the Veteran the benefit of the doubt, his MS was manifest to a compensable degree within 7 years of service separation. The Board wishes the Veteran the best health possible, and thanks him for his Vietnam service. ORDER Service connection for MS is granted. REMAND The Veteran has appealed for special monthly compensation based on the need for aid and attendance or housebound status. Service connection has previously been granted for PTSD, 30 percent; diabetes mellitus, 20 percent; tinnitus, 10 percent; and hearing loss, noncompensable. During the Veteran's May 2013 hearing before the undersigned, he indicated that he is predicating his claim for special monthly compensation on the success of his MS claim, and now that claim has been granted in this decision. Additional action is needed at this point, as indicated below. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any additional relevant medical records of treatment which the Veteran has received. 2. After the development sought above is completed, the Veteran should be afforded a VA examination to determine whether he is entitled to special monthly compensation based on the need for aid and attendance or by reason of being housebound. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The Veteran is currently service-connected for MS, PTSD, diabetes mellitus, tinnitus, and hearing loss. The examiner should address the following: (a) Whether the Veteran is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less as a result of his service-connected disabilities; (b) Whether the Veteran is a patient in a nursing home on account of mental or physical incapacity as a result of his service-connected disabilities; (c) Whether the Veteran is so helpless or so nearly helpless as a result of his service-connected disabilities so as to require the regular aid and attendance of another person. In making this determination, the examiner should specifically comment on whether the Veteran, due to his service-connected disabilities, is unable to dress or undress himself, or to keep himself ordinarily clean and presentable; requires the frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; is unable to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; is unable to attend to the wants of nature; or has an incapacity, physical or mental, that requires care of assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment; or is bedridden. (d) Whether the Veteran is substantially confined to his dwelling and the immediate premises as a result of his service-connected disabilities, or, if institutionalized, to the ward or clinical area and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Thereafter, readjudicate the Veteran's pending claim in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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.A. §§ 5109B, 7112 (West 2014). ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs