Citation Nr: 1800742 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 12-30 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Veteran represented by: Lori Chism, Attorney at Law ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1984 to January 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. It is noted that in October 2014, the Veteran's claim was remanded by the Board for additional development. The requested actions were completed. Thus, the Board finds substantial compliance with the requirements articulated in the Board's prior remand decision. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board further notes that in July 2017, it requested a medical expert opinion from the Veterans Health Administration (VHA) regarding the Veteran's claim, and it received the requested opinion in September 2017. In general, a claimant is entitled to respond to a VHA opinion within 60 days of being furnished with a copy of the opinion. See 38 C.F.R. § 20.903(a). The Veteran was furnished with a copy of the VHA opinion in October 2017 but did not respond within the allotted 60 days. Therefore, the Board may proceed to adjudicate the Veteran's claim. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's multiple sclerosis was incurred in, caused by, or otherwise related to her military service. CONCLUSION OF LAW The criteria for service connection for multiple sclerosis have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Duty to Notify VA's duty to notify was satisfied by letter in March 2010. Neither the Veteran, nor her attorney, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service VA and private) treatment records, records from the Social Security Administration (SSA), and lay statements have been associated with the record, to the extent they are available. The Veteran's evidentiary record was provided to a VA examiner in January 2010; however, in the October 2014 Board remand, the Board found the medical opinion to be inadequate for adjudication purposes. Pursuant to the Board remand, the Veteran's evidentiary record was again sent to a VA examiner in July 2014 for a medical opinion regarding the etiology of her multiple sclerosis. As mentioned above, in July 2017, the Board requested a VHA medical opinion and in September 2017 a Board certified neurologist with the VA Healthcare System provided the opinion as requested by the Board. The Board finds that the September 2016 VHA opinion was thorough and adequate. The Board has carefully reviewed the VA medical opinion and VHA medical opinion and finds that they are adequate and provide sufficient detail so that the Board can perform a fully informed evaluation of the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not identified any outstanding evidence that could be obtained to substantiate her claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claim. II. Merits of the Service Connection Claim A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The United States Court of Appeals for the Federal Circuit (Federal Circuit), however, has clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Multiple Sclerosis is a disease specifically enumerated as a chronic disease under 38 C.F.R. § 3.309(a); thus, such a disability is subject to presumptive service connection. Accordingly, service connection may be granted on a presumptive basis for multiple sclerosis if it is shown to be manifest to a degree of 10 percent or more within seven years following the Veteran's separation from active military service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). III. Analysis The Veteran asserts that her current diagnosis of multiple sclerosis had its onset in service. She contends that she experienced manifestations of multiple sclerosis while in service and within the seven-year presumptive period. The evidence is clear that the Veteran has a current diagnosis of multiple sclerosis. See February 2004 VA Treatment Record. The issue that remains disputed is whether the Veteran's multiple sclerosis had its onset in service, was caused by service, or manifested to a compensable degree within seven years of separation from service. The Veteran's service treatment records are silent for any complaints of or diagnosis of multiple sclerosis. Service treatment records do indicate complaints of headaches, back and foot pain, dysuria, and bowel issues. The Veteran was evaluated as clinically normal on her July 1984 Report of Medical Examination. On her corresponding July 1984 Report of Medical History, she indicated that she had experienced swollen or painful joints and recurrent back pain and reported a 1984 incident of acute lumbar back strain while working in a factory which was treated and remedied with injections. In May 1985, the Veteran reported experiencing low back pain for two weeks with no history of trauma. She was diagnosed with muscle sprain. In June 1985, the Veteran presented with dysuria and muscle pain that felt like cramps. She complained of low back pain, bilateral across the kidneys. The clinician noted she had full range of motion with no significant spasm. She was diagnosed with mechanical back sprain, lower back. In a subsequent June 1985 service treatment record, the Veteran reported that she experienced low back pain that radiated into her legs. She denied a history of direct back trauma and denied experiencing dysuria or frequency of urination. In July 1985, the Veteran reported lower back pain for four days and frequency of urination and bowel movements for two to three months. She stated that she had bowel movements approximately 10 times a day with no associated nausea or vomiting. She was diagnosed with chronic diarrhea with an unknown etiology. In a September 1985 service treatment record, the Veteran presented with complaints of low back pain and frequent bowel movements. She denied radiating pain, dysuria, and frequency of urination. The clinician noted that the Veteran had been playing football and her back injury was a possible resulting injury. With regard to her bowel movements, the Veteran reported drinking one beer a day, with more on weekends, and keeping an unhealthy diet. The clinician noted that the Veteran began to cry for no reason during examination (when questioned, she stated nothing was bothering her) and postulated that her symptoms might be emotional. The Veteran returned for follow-up in October 1985 and reported that she had been following a regular diet since the last examination and had experienced no change. The frequency of her bowel movements continued and she noted that she had not had a menstrual cycle since August. In November 1985, further studies conducted in relation to her frequency of bowel movements revealed she was lactose intolerant. The Veteran had been drinking milk daily. A subsequent November 1985 service treatment record noted complaints of right foot pain, in the arch, with onset after playing football the night before. She denied trauma to the foot. She also reported that she had been taking medication and her bowel movements were improving. In September 1987, the Veteran reported severe headaches with blurred vision for two weeks. She was diagnosed with migraine headaches due to overstrain of the eyes because she had not been wearing her glasses for the past year. In a December 1987 service treatment record, the Veteran presented with complaints of chest pains, chills, and coughing for three days. She was assessed with viral syndrome and directed to decrease smoking and hydrate. In a December 1998 x-ray report, the Veteran was noted to have left-sided numbness, but no abnormality was seen in the cervical spine. In an October 2000 private treatment record, the Veteran presented with complaints of numbness. The numbness had started in her feet and was now affecting her stomach area and right arm. The physician noted that her symptoms could possibly be an unusual presentation of multiple sclerosis. An October 2000 neurological consultation noted numbness, dyspnea on exertion with walking, headaches, somewhat blurred vision, a somewhat unsteady gait, and absent vibration sensation of the lower extremities. Further work-up was ordered and a possible diagnosis of multiple sclerosis was noted. An August 2003 private treatment record noted a history of headaches and falls. Magnetic resonance imaging (MRI) revealed multiple oval to round focal areas of increased signal in the periventricular white matter. Given the Veteran's age group, primary differential diagnosis was a demyelinating process such as multiple sclerosis versus vasculitis. In a February 2004 VA treatment record, the Veteran presented with complaints of headaches, back pain, and left-sided pain and numbness for the last six years. The physician noted that her initial symptoms six years ago began with left leg pain and numbness of the feet and finger tips. Then she began to experience numbness on the right side of her body. Lesions noted on MRI were consistent with multiple sclerosis. In an April 2004 private treatment record, the Veteran was assessed with multiple sclerosis. In a June 2004 statement prepared by Dr. M. S., the Veteran was noted to have developed left sided weakness and numbness eight years ago. She had recently undergone extensive evaluation and was found to have multiple sclerosis. In an October 2004 SSA Disability Report, the Veteran indicated that her symptoms of multiple sclerosis first started bothering her in June 2001. In a July 2008 VA treatment record noted a final assessment of multiple sclerosis with acute exacerbation. A September 2008 statement noted that the Veteran carried the diagnosis of relapsing and remitting multiple sclerosis for the past 20 years. The statement was signed with an illegible signature only (without printed name or title) and with typed letterhead indicating it was from personnel with the Jackson, Mississippi, VAMC. In a November 2008 statement, the Veteran stated that she was misdiagnosed for many years. In a September 2009 statement, the Veteran noted that multiple sclerosis had wiped most of her memory. She stated that she relied on her VA physician, Dr. P., who told her she had multiple sclerosis for at least 20 years. In a January 2010 statement, Dr. J. R., the Veteran's private physician, noted that he had seen the Veteran in March 2003 and at that time, she had reported having symptoms for a long time. In a subsequent telephone call, the Veteran related her symptoms back to at least 1995. In January 2010, the Veteran was provided with a VA medical opinion regarding her multiple sclerosis. The VA examiner reviewed the evidentiary record and noted the Veteran's pre-service back injury. He also noted that service treatment records revealed repeated treatment for viral syndrome including headaches; a migraine, gynecological related issues; back and foot pain without trauma noted; frequent stools with negative work-ups; and urinary frequency and urgency, sometimes associated with back pain, with no evidence of urinary tract infection. The examiner noted that lower extremity motor examinations and sensory examinations conducted on several occasions revealed normal results and a funduscopic examination was normal on one occasion. Post-service treatment records began in 1998 with complaints of neck pain. The examiner determined that there were no convincing signs of multiple sclerosis in the Veteran's service treatment records. While he acknowledged that multiple sclerosis patients could have prominent pain complaints, he hesitated to make a diagnosis with that sole symptom. He stated there were other possible reasons for her pain, including her pre-service back injury and physical sports activity. The examiner indicated that there were no treatment records for intervening years until the late 1990's when her complaints ultimately led to a diagnosis of multiple sclerosis. He stated that while it was possible that her back and foot pain complaints in service might have been initial manifestations of multiple sclerosis, he would be speculating if that were the case. In a March 2010 statement, Dr. J. R. noted he had been treating the Veteran for multiple sclerosis and other ailments for the past seven years. He stated that during her first visit, she had told him that she had been having problems since 1995. These problems included tingling in the arms, visual impairment, lower extremity weakness, and memory issues. Dr. J. R. noted that the Veteran was ultimately diagnosed with multiple sclerosis in 2003. He stated that it was his medical opinion that he was treating the Veteran for early manifestations of multiple sclerosis in 2003. As mentioned above, in the October 2014 remand, the Board found the January 2010 medical opinion to be inadequate, as it failed to address the Veteran's bladder symptoms as possible early manifestations of multiple sclerosis. Pursuant to the Board remand, in July 2016, the Veteran was provided with a medical opinion regarding her multiple sclerosis. After review of the evidentiary record, a VA examiner opined that the Veteran's multiple sclerosis was less likely than not incurred in or caused by service. The examiner noted that the Veteran had a history of back injury prior to entering service. She had received injection treatment and the issue had resolved. The examiner noted that the Veteran had been treated repeatedly for viral syndrome including headaches. One incident of headache without viral symptoms was felt to be a migraine. The examiner indicated that the Veteran had been seen for foot and back pain after participating in sports, but without any precipitating injuries. She had been seen for frequent stools going on for months with negative work-ups. The examiner noted the Veteran had urinary frequency and urgency on repeated occasions with no evidence of a urinary tract infection. Sometimes this was associated with her back pain. The examiner also noted that lower extremity motor and sensory examinations were normal on several occasions and one funduscopic examination was normal. Reviewing her post-service treatment records, the examiner noted that records documented back pain beginning in 1998. Numbness in the feet migrating north to the hands was documented in 2000. The Veteran was seen by the neurology department at the VA medical center (VAMC) in 2003 and gave a history of numbness and paresthesias with neck pain, back pain, and headaches, that onset six years earlier, in 1997. The VA examiner determined that there were no convincing signs of multiple sclerosis in the Veteran's service treatment records. He stated that while a diagnosis of multiple sclerosis was made in 2013, many years beyond the expiration of the presumptive period, one could speculate that the Veteran showed symptoms of multiple sclerosis prior to diagnosis, at the earliest in 1997 and still beyond the presumptive period. In July 2017, the Board requested a VHA medical opinion regarding the Veteran's multiple sclerosis which considered the possible manifestations noted in the Veteran's service treatment records and in post-service treatment records within seven years of her separation from service, and medical literature submitted in support of the claim. In a VHA medical opinion dated in September 2017, a neurologist with the VA Healthcare System noted that he had reviewed medical records and medical literature submitted by the Veteran. The VHA neurologist opined that the Veteran's multiple sclerosis was less likely than not related to active duty service and that her multiple sclerosis had less likely than not manifested to a compensable degree within seven years from her separation from service, by January 30, 1996. The VHA neurologist explained that although the Veteran suffered from headaches, migraines, and back pain, these were common complaints in the general population and not specific for multiple sclerosis. Further, he noted that her bowel issues during service were reasonably diagnosed as gastroenteritis in October 1985 and October 1986 and that her headaches, runny nose, and body aches were reasonably diagnosed as a viral syndrome in August 1987 and April 1988. The VHA neurologist noted that left body sensory complaints were first documented in 1998, which was beyond the seven-year presumptive period for multiple sclerosis. The VHA neurologist summarized that the Veteran did not exhibit signs or symptoms of multiple sclerosis such as optic neuritis, diplopia, dysarthria, or ataxia during her active duty service or within seven years following her separation from service. Having carefully reviewed the evidence pertaining to this claim, the Board has determined that service connection for multiple sclerosis is not warranted. While the evidence reveals that the Veteran has a current diagnosis of multiple sclerosis, the most competent and probative evidence of record does not show that symptoms of multiple sclerosis manifested in service or during the seven-year presumptive period following service. Rather, while the July 2016 VA examiner and September 2017 VHA neurologist noted the Veteran's in-service symptoms, they both indicated there were etiologies other than multiple sclerosis that were indicated in the records. Further, both the VA examiner and VHA neurologist noted that symptoms of multiple sclerosis did not appear in the Veteran's post-service treatment records until 1998, which was beyond the seven-year presumptive period. They each opined that the Veteran's multiple sclerosis was less likely than not incurred in service and less likely than not to have manifested within the seven years following service. The January 2010 VA examiner also found that the Veteran's service treatment records contained no convincing signs of multiple sclerosis and that there were no treatment records noting symptoms of multiple sclerosis before the late 1990's. However, the Board acknowledges that the January 2010 VA examination was found inadequate for adjudication purposes and is of little probative value. The June 2004 statement from Dr. M. S. asserting that the Veteran had developed left-sided weakness and numbness eight years ago (in June 1996) and the September 2008 statement which asserted that the Veteran had suffered from relapsing and remitting multiple sclerosis for the last 20 years are not supported by the record. The Veteran's treatment records begin in 1998 and the medical evidence of record does not show that the Veteran suffered from symptoms of multiple sclerosis beginning prior to 1998. The September 2008 statement did not provide any detailed information as to the symptoms the Veteran displayed in 1988 to warrant the diagnosis of multiple sclerosis. Further, there was no clear author of the September 2008 statement and no title for the author with regard to what position he or she held at the VAMC. A statement submitted in January 2010 by Dr. J. R. noted a March 2003 appointment with the Veteran in which she reported having symptoms of multiple sclerosis for a long time. In a phone call at a later date, she elaborated that these symptoms had been present since 1995. In a March 2010 statement, Dr. J. R. contradictorily stated that the Veteran had told him during her first visit that she had been experiencing problems since 1995. Further, his opinion was that he believed that the symptoms he was treating the Veteran for in 2003 were early manifestations of multiple sclerosis. The Board affords more probative weight to the findings and opinions of the July 2016 VA examiner and September 2017 VHA neurologist, as they had the claims file for review, which contained both service and post-service treatment records, and specifically discussed evidence contained in the claims file. There is no indication that they were not fully aware of the Veteran's past history or that they misstated any relevant facts. The opinions considered an accurate history, were definitive, and supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has also considered the statements of record to include statements from the Veteran regarding the severity and continuity of her symptoms. The Board acknowledges that the Veteran believes she experienced manifestations of multiple sclerosis in service, was misdiagnosed for many years, and at the least, exhibited symptoms of multiple sclerosis within the seven-year presumptive period. However, while the Veteran is competent to provide testimony or statements related to symptoms or facts of events that are observed and within the realm of personal knowledge, she is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The matter of a diagnosis of multiple sclerosis is within the province of trained professionals and not that of lay person. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to have the appropriate training and expertise, she is not competent to diagnosis symptoms as manifestations of multiple sclerosis. Therefore, the Board finds the medical opinions from the VA examiner and the VHA neurologist more probative. In summary, the competent and probative evidence of record does not show that the Veteran's multiple sclerosis was incurred in or otherwise related to her active duty service. There is also no competent and probative evidence of record that suggests that symptoms of multiple sclerosis manifested during the seven years following her separation from service. For these reasons, the Board concludes that the claim of entitlement to service connection for multiple sclerosis must be denied as the preponderance of the evidence is against the claim. The doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for multiple sclerosis is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs