Citation Nr: 1801675	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  14-10 213	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for multiple sclerosis.  

2. Entitlement to service connection for optic neuritis. 

3.  Entitlement to service connection for chronic fatigue. 

4.  Entitlement to service connection for sleep apnea.

5.  Entitlement to service connection for joint and muscle pain. 

6.  Entitlement to service connection for bowel incontinence. 

7.  Entitlement to service connection for bladder incontinence.

8. Entitlement to service connection for chronic migraines. 

9.  Entitlement to service connection for bilateral lower extremity numbness.  

10.  Entitlement to an initial rating in excess of 40 percent for bilateral upper extremity radiculopathy, previously claimed as bilateral upper extremity numbness.  

11.  Entitlement to special monthly compensation (SMC) based on need for aid and attendance. 


REPRESENTATION

Appellant represented by:	Brett W. Buchanan, Agent 


ATTORNEY FOR THE BOARD

S. Kim, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1985 to December 1989. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2013 and April 2014 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  

In a March 2014 Decision Review Officer (DRO) decision, the AOJ awarded a total disability rating based upon individual unemployability (TDIU) and cervical arthritis, evaluated as 20 percent disabling, both effective May 29, 2012.  The Veteran did not initiate an appeal and as such, the decision represents a full grant of the benefits sought on appeal for both issues, and they are no longer before the Board for consideration.  See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1977). 

The Board notes that additional evidence, to include medical records received in November 2017, was added to the record after the issuance of March and July 2014 statements of the case addressing the present appeal.  Such evidence is duplicative of those that were previously considered by the AOJ. 

The issue of entitlement to service connection for multiple sclerosis is granted herein. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. 


FINDING OF FACT

The evidence is in relative equipoise as to whether the Veteran's multiple sclerosis had chronic manifestations during her active service. 


CONCLUSION OF LAW

Resolving all reasonable doubts in the Veteran's favor, the criteria for service connection for multiple sclerosis are met.  38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303(b) (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Pertinent Law and Regulations

Service connection will be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty.  38 U.S.C. §§ 1131; 38 C.F.R. § 3.303.  Service connection may be granted for a disability first diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d). 

Service connection requires evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including multiple sclerosis, to a compensable degree within an applicable presumptive period (within seven years for multiple sclerosis), from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 

Service connection may also be established under 38 C.F.R. § 3.303(b) by 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, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  If the fact of chronicity in service in not adequately supported, evidence of continuity of symptomatology may be applied.  However, the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

II.  Analysis 

The Board resolves all reasonable doubt in the Veteran's favor and finds that service connection for multiple sclerosis is warranted.  

Initially, the clinical evidence of record demonstrates that the Veteran is currently diagnosed with multiple sclerosis.  See October 2013 private treatment record from Dr. E.J.G.  

While the Veteran was not formally diagnosed with multiple sclerosis until 1997, she had presented a combination of symptoms during and post service which her private physician has later concluded were earlier manifestations of the current diagnosis of multiple sclerosis.  In an October 2013 private treatment record, Dr. E.J.G. found that the current diagnosis of multiple sclerosis ". . . dates back to her military service" given that multiple sclerosis symptomatology "presented as young adults more commonly."  Further, in support of her claim, the Veteran submitted a medical article from Mayo Clinic addressing multiple sclerosis in August 2013.  The article supports Dr. E.J.G.'s conclusion and points out that multiple sclerosis "can be difficult to diagnose early in the course of the disease because symptoms often come and go-sometimes often disappearing for months" and that "symptoms may vary widely."  The article also notes that symptoms include dizziness, fatigue, and numbness or weakness in limbs.  

Indeed, the Veteran's service treatment records containing various complaints suggesting multiple sclerosis symptomatology, to include a December 1985 complaint of "episodic LOC (loss of consciousness)" in addition to feeling fatigue, September 1986 complaint of headaches and having "passed out," and  November 1986 physical profile report noting that the Veteran had "questionable muscle sprain" in the shoulder.  Post service, in June 1995, the Veteran complained of "worsening fatigue" and insomnia.   In an October 1997 letter, Dr. F.R.J. assessed that the Veteran had possible multiple sclerosis based on MRI results. Subsequent medical records demonstrate that the Veteran has consistently sought treatments for multiple sclerosis since then.  The record does not show that such chronic disease was clearly attributable to intercurrent causes.  Accordingly, resolving all reasonable doubts in the Veteran's favor, the criteria for service connection for multiple sclerosis have been met, as the competent medical evidence establishes that a chronic disease was shown in service and was subsequently manifest as the same chronic disease.  38 C.F.R. § 3.303(b).  

In reaching this conclusion, the benefit of doubt doctrine has been applied where appropriate.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).


ORDER

Service connection for multiple sclerosis is granted. 


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration.  38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017).

Optic Neuritis 

The Veteran contends that she has optic neuritis due to service, to include as caused or aggravated by her now-service-connected multiple sclerosis.  See June 2012 Statement from the Veteran.  In this regard, a March 1989 service eye treatment record notes a diagnosis of "macular mottling."  Post-service clinical records include an October 2013 private treatment record noting the Veteran's complaint of "visual changes."  To this date, the Veteran has not undergone a VA examination for her claimed optic neuritis.  Given her competent reports as to the onset and continuity of optic neuritis symptomatology, a VA examination is necessary to determine whether there is a disability pertinent to optic neuritis underlying her complaints of visual changes and if so, whether such condition due to service, to include as secondary to service-connected multiple sclerosis.   McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Chronic Fatigue, Joint /Muscle Pain, and Chronic Migraines  

As for the chronic fatigue, joint/muscle pain, and chronic migraines claims, the Veteran contends that the claimed disabilities are due to service, to include as caused or aggravated by her now-service-connected multiple sclerosis.  See June 2012 Statement from the Veteran.  

Specific to the claimed chronic fatigue, available clinical evidence reflects her ongoing complaints of fatigue since service.  See December 1985 private treatment record (noting a report of feeling fatigue); June 1995 private treatment record (noting a complaint of "worsening fatigue"); May 2013 private treatment record (noting a report of fatigue).  

Specific to the muscle or joint pain claim, a November 1986 emergency treatment record notes that the Veteran was "hold[ing] her shoulder up" due to muscle sprain even though "there [was] no abnormality on X-ray."  Since separation from service, the Veteran has had ongoing reports of general muscle and joint pain, to include during a May 2013 private treatment session when she complained of general muscle weakness along with fatigue and migraines. 

With regard to the claimed chronic migraines, September and December 1986 service treatment records reflect the Veteran's reports of headaches. A May 2013 private chiropractic treatment note contains a diagnosis of cervicogenic headaches. 

To this date, the Veteran has not undergone a VA examination for her claimed chronic fatigue, joint/muscle pain, or chronic migraines.  Given her competent reports as to the onset and continuity of chronic fatigue, joint/muscle pain, and chronic migraines symptomatology, VA examinations are necessary to determine whether there are disabilities underlying her current symptoms and if so, whether such conditions are due to service, to include as secondary to service-connected multiple sclerosis.   McLendon, 20 Vet. App. 79.  Of note, given the Veteran's current diagnosis of cervicogenic headaches, the VA examiner should also address whether the claimed chronic migraines are secondary to service-connected cervical arthritis.  The VA examiner should additionally determine whether the claimed conditions are manifestation of and/or part and parcel of the Veteran's service-connected multiple sclerosis.  

Sleep Apnea 

The Veteran contends that she has sleep apnea, to include as caused or aggravated by her service-connected multiple sclerosis.  See June 2012 Statement from the Veteran.  Her post-service treatment records include a May 1999 private treatment record noting a diagnosis of possible obstructive sleep apnea and notes the Veteran's report of "past history of heavy snoring." An April 2007 private discharge summary includes a diagnosis of sleep apnea.  A May 2013 private treatment record notes the Veteran's complaint of sleep apnea.  Given her competent reports as to the onset and continuity of sleep apnea symptomatology, a VA examination is necessary to determine whether there is a disability underlying her complaints of sleep apnea and if so, whether such condition is due to service, to include as secondary to service-connected multiple sclerosis.   McLendon, 20 Vet. App. at 79.  


Bilateral Lower Extremity Numbness

The Veteran claims that she has bilateral lower extremity numbness, also claimed as neuralgia, as result of her service, to include as secondary to her service-connected multiple sclerosis.  Post-service treatment records include a July 2013 private treatment note indicating that the Veteran complained of "numbness "in her toes as well as "sharp stabbing" pain in the back of her left leg.  The Veteran has not undergone a VA examination for the claimed bilateral lower extremity condition.  Given her reports as to the onset and continuity of bilateral lower extremity numbness symptomatology, of which she is competent to assert, a VA examination is necessary to determine whether there is a disability underlying the Veteran's reported symptoms and if so, whether it was due to service, to include as secondary to service-connected multiple sclerosis.  McLendon, 20 Vet. App. at 79.  

Bilateral Upper Extremity Numbness 

During the pendency of the appeal, in a March 2014 DRO decision, the RO granted service connection for bilateral upper extremity radiculopathy as associated with service-connected cervical arthritis, evaluated as 40 percent disabling for each extremity, effective May 29, 2012.  The issue of entitlement to service connection for bilateral upper extremity numbness was subsequently listed in a March 2014 statement of the case.  In a June 2014 substantive appeal (via VA Form 9), the Veteran  indicated that she disagreed with the issue pertaining to the claimed bilateral upper extremity numbness, which the Board construes as her desire to initiate an appeal concerning the compensation level and/or the effective date of the award of service connection.  As yet, a statement of the case on this issue was not issued.  When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its decision, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26.  Thus, remand for issuance of a statement of the case on this issue is necessary.  Manlincon v. West, 12 Vet. App. 238 (1999).  However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal.  See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997).

SMC based on the need for aid and attendance 

In an October 2013 statement, the Veteran, through her representative, has averred that she was "having difficulty performing her activities of daily living to include dressing herself, preparing meals, falling, and confusion" and that her "spouse and family do not leave her unattended for more than 24 hours out of fear for her safety."  As yet, a VA examination has not been conducted to determine whether her service-connected disabilities, to include multiple sclerosis, render her in need of a regular aid and attendance from another person.  This matter is remanded to provide one. 

Outstanding Records 

The claims file does not currently contain a separation examination report.  Given the need to remand for additional development, the AOJ should attempt to obtain the Veteran's separation examination report and if it is not available, should make a formal finding of unavailability and notify the Veteran as to the steps that were taken to obtain it and an explanation as to the reason(s) it is unavailable.  

In addition, the most recent treatment records, VA or non-VA, are dated in October 2013.  VA treatment records in the claims file are limited to those dated in March 2012 (located in Virtual VA).  Given the need to remand for VA examinations, the AOJ should associate any updated VA treatment records with the Veteran's claims file and request that she identify any outstanding private treatment records referable to her claims.

With regard to the remaining claims for service connection for bowel and bladder incontinence, after undertaking efforts to obtain the separation examination report and any outstanding clinical records, the AOJ should undertake any other development deemed appropriate, to include obtaining a VA examination and/or medical opinions, to determine whether the claimed disabilities are related to the Veteran's service.   

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran with a statement of the case regarding the issue of an initial rating in excess of 40 percent for bilateral upper extremity radiculopathy, previously claimed as bilateral upper extremity numbness.  Advise the Veteran of the time period in which to perfect her appeal.  If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate.

2.  Provide the Veteran with an opportunity to identify any outstanding private or VA treatment records relevant to her claims.  After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained

3.  Contact any appropriate source to obtain the Veteran's separation examination report.  All reasonable attempts should be made to obtain such records.  If the records do not exist or further efforts to obtain them would be futile, issue a formal finding of unavailability and notify the Veteran and her representative in accordance with 38 C.F.R. § 3.159 (e).  

4.  After undertaking the foregoing actions, schedule the Veteran for a VA examination by an appropriate medical professional to address her claimed optic neuritis.  The contents of the entire claims file, to include a complete copy of thin s REMAND as well as any new evidence subsequently added to the claims file, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions.  Any indicated evaluations, studies, and tests should be conducted.

Following a review of the claims file, the reviewing examiner is requested to furnish an opinion with respect to the following questions:

(A) The examiner should identify all current diagnoses pertinent to the claimed optic neuritis other than refractive errors since the date of the claim (i.e. since May 2012).

(B) For each currently diagnosis, the examiner should render an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such disability had its onset or is otherwise medically related to service.  

(C) For each diagnosis, the examiner should also opine as to whether such was at least as likely as not (i.e. a 50 percent or greater probability) caused OR aggravated (beyond natural progression) by the Veteran's service-connected multiple sclerosis.  If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation (specifying the baseline level of disability and current level of severity, based on consideration of VA's rating schedule).

(D)	Notwithstanding the answer to question (C), the examiner should determine whether the claimed optic neuritis disability is manifestation of and/or part and parcel of her service-connected multiple sclerosis.  

In rendering his or her opinion, the examiner is asked to consider all pertinent medical evidence, to include but not limited to the above-referenced March 1989 service treatment record noting a diagnosis of "macular mottling."  

A complete rationale for all opinions offered should be provided. 

5.  Schedule the Veteran for VA examinations by appropriate physicians to address her claimed chronic fatigue, joint/muscle pain, and chronic migraines.  The contents of the entire claims file, to include a complete copy of this REMAND as well as any new evidence subsequently added to the claims file, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions.  Any indicated evaluations, studies, and tests should be conducted.

Following a review of the claims file, the reviewing examiner is requested to furnish an opinion with respect to the following questions:

(A) The examiner should identify all current diagnoses pertinent to the claimed chronic fatigue, joint/muscle pain, and chronic migraines since the date of the claim (i.e. since May 2012). 

(B) For each currently diagnosis, the examiner should render an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such disability had its onset or is otherwise medically related to service.  

(C) For each diagnosis, the examiner should also opine as to whether such was at least as likely as not (i.e. a 50 percent or greater probability) caused OR aggravated (beyond natural progression) by the Veteran's service-connected multiple sclerosis.  Specific to the claimed chronic migraines, the examiner should additionally opine whether such was caused or aggravated by service-connected cervical arthritis. 

If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation (specifying the baseline level of disability and current level of severity, based on consideration of VA's rating schedule).

(D)	 Notwithstanding the answer to question (C), the examiner should determine whether the claimed chronic fatigue disability, joint/muscle pain, and chronic migraines are manifestations of and/or part and parcel of her service-connected multiple sclerosis.  

In rendering his or her opinion, the examiner is asked to consider all pertinent medical evidence, to include but not limited to the following: (1) December 1985 private treatment record (noting a report of feeling fatigue); (2) June 1995 private treatment record (noting a complaint of "worsening fatigue"); (3) May 2013 private treatment record (noting a report of fatigue); (4) November 1986 in-service emergency treatment record noting the Veteran's complaint of muscle pain despite a normal X-ray finding at the time; (5) September and December 1986 service treatment records reflecting the Veteran's reports of headaches; and a May 2013 private chiropractic treatment note with a diagnosis of cervicogenic headaches.

A complete rationale for all opinions offered should be provided. 

6.  Schedule the Veteran for VA examinations by appropriate physicians to address her claimed sleep apnea and bilateral lower extremity numbness, claimed as neuralgia.  The contents of the entire claims file, to include a complete copy of this REMAND as well as any new evidence subsequently added to the claims file, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions.  Any indicated evaluations, studies, and tests should be conducted.

Following a review of the claims file, the reviewing examiner is requested to furnish an opinion with respect to the following questions:

(A) The examiner should identify all current diagnoses of sleep apnea and bilateral lower extremity numbness since the date of the claim (i.e. since May 2012). 

(B) For each currently diagnosis, the examiner should render an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such disability had its onset or is otherwise medically related to service.  

(C) For each diagnosis, the examiner should also opine as to whether such was at least as likely as not (i.e. a 50 percent or greater probability) caused OR aggravated (beyond natural progression) by the Veteran's service-connected multiple sclerosis.  If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation (specifying the baseline level of disability and current level of severity, based on consideration of VA's rating schedule).

In rendering his or her opinion, the examiner is asked to consider all pertinent medical evidence, to include but not limited to the above-referenced clinical records.  

A complete rationale for all opinions offered should be provided. 

7.  Arrange for the Veteran to undergo VA Aid and Attendance examination by an appropriate physician.  The claims file should be made available to and be reviewed by the examiner.  All indicated tests should be performed.  

In particular, considering the nature and level of impairment resulting from the Veteran's service-connected disabilities, the physician should render specific findings as to whether she is able to dress or undress himself, or to keep herself ordinarily clean and presentable; whether she is unable to attend to the wants of nature; and whether she suffers from physical or mental incapacity which requires care or assistance on a regular basis to protect her from hazards or dangers incident to his daily environment,

In providing the requested information, the physician examiner must consider and discuss all pertinent medical and lay evidence, to include statements from the Veteran regarding her need for aid and attendance. 
	
A complete rationale for all opinions offered should be provided.

8.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The Veteran has the right to submit additional evidence and argument on the 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).



______________________________________________
MARJORIE A. AUER 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs