Citation Nr: 1802369 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-11 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for multiple sclerosis (MS). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Harner, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to April 1969. This matter is before the Board of Veterans' Appeals (Board) from an August 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2015 the Board remanded this case for additional development. The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. FINDING OF FACT The Veteran has a current diagnosis of MS, but the weight of competent lay and medical evidence is that the disease did not first manifest during active service or to a degree of 10 percent disabling within seven years of discharge from active service. CONCLUSION OF LAW The criteria for service connection for multiple sclerosis (MS) are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). A letter sent to the Veteran in February 2011 provided compliant notice. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(d). The duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In the September 2015 remand the Board noted that the VA failed to make reasonable attempts to obtain certain private medical records and required the VA to do so on remand. The VA did request, and did receive, copies for both private records and VA examinations. Regarding records of medical care by a physician and at a private hospital, the Veteran reported that the care occurred in the 1970s and that he was informed that the records were destroyed. In response to a VA request, the hospital reported that no record was held for a patient with the Veteran's name, date of birth, and social security number. Additionally, the Veteran underwent a VA examination in February 2016 to determine whether his MS was caused or aggravated by his military service or manifested within seven years of active service. Therefore, there has been substantial compliance with the remand instructions. At this time neither the Veteran nor his representative identified any other shortcomings in fulfilling VA's duty to notify and assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced because of the Board's adjudication of the claims below. I. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For MS, Generally, the disease must have manifested to a degree of 10 percent or more within seven years of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service: When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (emphasis added). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). II. Analysis Private medical treatment records show that the Veteran was diagnosed with MS in 2009. The RO received the Veteran's claim for service connection for MS in January 2011. Therefore, the Veteran has a current disability during the period of the appeal, and the first element of service connection is met. In his January 2011 claim for service connection, the Veteran reported that symptoms first manifested in 1967 when he first noticed that his fingers and hands went numb and tingled. He noted that he received a spinal tap from Dr. F. sometime between 1971 and 1973, and that he was diagnosed with MS in this time period. He then noted because MS was a relatively unknown disease he did not go for follow ups or seek treatment, but continued to experience symptoms. The Veteran submitted letters from several acquaintances and a dentist dated in February 2011 and January 2016 who reported that they were aware of the Veteran's MS in the early 1970s. The records from Dr. F. are no longer available; the hospital where Dr. F. practiced did not have the records as they were either destroyed manually or by a flood in the 1980s. The Veteran noted that a dentist friend of his began researching MS and gave him Veteran B-12 shots in hopes that they would help offset his symptoms. In December 2009 the Veteran told a private rheumatologist, Dr. V., that his symptoms began in the 1980s. In an August 2010 VA examination the Veteran again reported that his symptoms began in the 1980s. In neither of these examinations does he mention that he sought treatment and was diagnosed with MS in the early 1970s, nor did he mention symptoms during service. He stated that he began noticing tingling and numbness in the 1980s, and saw Dr. F. at this time. In a February 2016 VA examination, a physician reviewed the Veteran's records and noted the Veteran's diagnosis of MS in 2009 by a private neurologist, Dr. P. At this February 2016 exam, the Veteran reported to the examiner about a spinal tap in 1972/73 and was told by Dr. F. that he had MS. The examiner concluded that the Veteran's MS did not arise in the 1970s because in his 2009 exam and diagnosis he reported to Dr. P. that he began experiencing symptoms in the 1980s which is beyond the seven year threshold for manifestation under 38 C.F.R. § 3.307. The Veteran's service treatment records (STR) contain no evidence of treatment for or complaints of MS; and, in his February 1969 separation exam, he denied any history of neuritis, arthritis, or rheumatism and highlighted his good health. Furthermore, the medical opinions submitted do not link his MS to his service. While the Veteran is competent to report symptoms from service his reporting of symptoms are contradictory to years of private and VA medical records, as well as his STRS. The Board may evaluate evidence for inconsistencies, Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007), and given that the Veteran has only recently mentioned a 1972 diagnosis of MS; previously he told doctors his symptoms began in the 1980s and does not mention a previous diagnosis at the 2009 examination which remains the only competent medical diagnosis. In any event, the Board places greater probative weight to the Veteran's reports to his attending physicians as they were made in the context of seeking appropriate medical treatment rather than the later context of seeking VA compensation. See Lilly's An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). See generally Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). The Board finds that direct service connection is not warranted because the weight competent and credible lay evidence and service record evidence is that the manifestations of MS did not begin in service. The Veteran is competent to report experiencing some numbness of his left hand and arm during service, but he is not competent to determine that any numbness represented an early onset of MS and his reports conflict with his denial of any current or history of neuritis in his discharge medical history questionnaire. Additionally, for the following reasons, entitlement to service connection under 38 C.F.R. §§ 3.307 and 3.309 is also denied. The Veteran did not have a competent diagnosis or manifestations of MS until 2009- forty years after he left service. In his January 2011 claim for service connection, the Veteran contended that he was diagnosed around 1972, he stated this again in his C&P exam from February 2016. However, prior to his original claim the Veteran made statements that he did not notice any symptoms of MS until the early 1980s, and that is when he sought treatment from Dr. F. Since the records from a 1972 diagnosis have been lost or destroyed, the Veteran's lay statements are particularly significant. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). It is also the duty of the Board to address internal inconsistencies in statements with other submitted evidence, which will be addressed below. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The Veteran has reported that he was given a spinal tap and positive diagnosis for MS around 1972, this is contradictory to his statements in 2009 and 2010 where he said he was not seen for any neurological issues until the early 1980s- when he first went to see Dr. F. Not mentioning a previous diagnosis in 2009 when an additional spinal tap was administered is peculiar and gives the Board reason to believe the statements made by the Veteran in 2009 and 2010-- those being that he never sought any treatment until the 1980s, which is over ten years from his separation date. Additionally, Dr. V. sent a correspondence in December 2009 stating that he observed symptoms ten years prior which is the earliest competent medical evidence of MS that has been submitted. The correspondence from Dr. V. was uploaded twice into the electronic file; the first time in September 2011, and the second in January 2016. In the first letter, Dr. V. wrote that "the patient has had symptoms which could be disabling dating back at least ten years." In the second letter "least ten" has been blacked out. Based on the inconsistent lay statements, and the medical evidence documenting symptoms in the 1980s and a diagnosis in 2009, the Board will deny entitlement to service connection. The Board notes that there is no competent evidence linking the Veteran's MS to service, and no consistent, credible lay evidence suggesting an association to service. The Board places low probative weight on the Veteran's and his acquaintances' reports of an onset in the 1970s as they are not consistent with the Veteran's own reports to his attending clinicians in the context of seeking medical care. None of the medical evidence submitted by the Veteran, nor the VA examination, connects the Veteran's MS to service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim for service connection, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for multiple sclerosis (MS) is denied. ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs