Citation Nr: 18150391 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 14-29 150 DATE: November 15, 2018 ORDER Entitlement to service connection for a demyelinating disease, to include multiple sclerosis, is denied. FINDING OF FACT 1. The Appellant’s demyelinating disease, to include multiple sclerosis, clearly and unmistakably existed prior to her periods of active duty for training (ACDUTRA) and active duty. 2. The Appellant’s pre-existing demyelinating disease, to include multiple sclerosis, clearly and unmistakably was not aggravated beyond its natural progression by her periods of ACDUTRA and active duty. CONCLUSION OF LAW The criteria for service connection for a demyelinating disease, to include multiple sclerosis, have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1137, 1153 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on ACDUTRA from November 1998 to May 1999, and on active duty from February 2003 to June 2004. This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2013 rating decision issued by the Department of Veterans Affairs (VA). See March 2013 Notice of Disagreement; June 2014 Statement of the Case; and August 2014 Substantive Appeal (VA Form 9). The Appellant testified before the undersigned Veterans Law Judge in a May 2015 hearing. A transcript of the hearing is associated with the claims file. The Board notes that additional evidence has been received since the June 2014 Statement of the Case. The Appellant has waived Agency of Original Jurisdiction (AOJ) review of the September 2015 private medical opinion from J.H.F., M.D., and VA treatment records dated June 2004 to June 2018 are either duplicative or cumulative evidence of a current multiple sclerosis disability. The Board also acknowledges that the Appellant discharged her representative in June 2018 and is currently unrepresented. See June 2018 Statement in Support of Claim. Entitlement to service connection for a demyelinating disease, to include multiple sclerosis. The Appellant contends that she is entitled to service connection for a demyelinating disease, to include multiple sclerosis. Service connection may be established for a disability resulting from a disease or injury incurred in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). For purposes of this appeal, the term “veteran” is defined, in relevant part, as “a person who served in the active military, naval, or air service . . . .” 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). “Active military, naval, or air service” includes, in relevant part, active duty, and active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty. 38 U.S.C. § 101(21)-(24); 38 C.F.R. § 3.6(a), (c), (d). Here, the first question for the Board is whether the Appellant’s demyelinating disease, to include multiple sclerosis, pre-existed her periods of ACDUTRA and active duty. A veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service, or when clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The burden is on the Government to rebut the presumption of sound condition upon induction by clear and unmistakable evidence showing that the disorder existed prior to service and was not aggravated by service. See VAOPGCPREC 3-2003. If a condition is not noted upon entrance into service, then to rebut the presumption of sound condition at service entrance VA must show by clear and unmistakable evidence that (1) there was a pre-existing condition, and (2) the condition was not aggravated during or by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Temporary of intermittent flare ups of a pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994). As an initial matter, the Board recognizes that the Appellant’s complete service treatment records were not available for review, including the Reports of Medical Examination during her enlistments. The February 2005 Formal Finding of Unavailability of Service Records memorandum reflects that all procedures to locate these records were followed. 38 C.F.R. § 3.159(c)(2), (3). Accordingly, the claim will be evaluated based on the available evidence of record. In this case, the Appellant is given the benefit of the doubt that a demyelinating disease, to include multiple sclerosis, was not noted as a defect, infirmity, or disorder on entrance for either her ACDUTRA from November 1998 to May 1999, or her active duty from February 2003 to June 2004. However, the Board finds that while the presumption of soundness does not apply for the Appellant’s period of ACDUTRA, there is clear and unmistakable evidence the Appellant’s demyelinating disease, to include multiple sclerosis, pre-existed both her periods of ACDUTRA and active duty. The advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection for a period of ACDUTRA without having already established a service connected disability for that period. See Paulson v. Brown, 7 Vet. App. 466, 469-71 (1995). Only “veterans” are entitled to those evidentiary presumptions, and a claimant must establish that he or she was disabled due to an injury or disease incurred or aggravated in the line of duty to establish status as a “veteran” during a period of ACDUTRA. 38 U.S.C. §§ 101(2), (24); 38 C.F.R. §§ 3.1(d), 3.6(a); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Here, the Appellant has service connected disabilities, but none that were incurred or are otherwise related to her period of ACDUTRA from November 1998 to May 1999. See November 2005, July 2012, and July 2018 rating decisions. Thus, the Appellant may not be considered having the status of a “veteran” as defined under 38 U.S.C. §§ 101(2) during her period of ACDUTRA. Accordingly, the Appellant is not entitled to the evidentiary presumptions of sound condition at entrance, of aggravation where evidence shows an increase in severity of a pre-existing disease, nor a presumptive service incurrence for chronic diseases, for her period of ACDUTRA from November 1998 to May 1999. 38 U.S.C. § 1111; 38 C.F.R. §§ 3.306, 3.307, 3.309. While the presumption of soundness does attach to the Appellant’s period of active duty from February 2003 to June 2004, the Board finds that there is clear and unmistakable evidence showing the Appellant’s demyelinating disease, to include multiple sclerosis, pre-existed her period of ACDUTRA and active duty. The Appellant testified during the April 2014 hearing with a Decision Review Officer that she was first diagnosed with optic neuritis in December 1999, seven months after she completed her basic training in May 1999, and that she was first diagnosed with multiple sclerosis in February 2008. In a July 2014 statement, the Appellant related experiencing symptoms of multiple sclerosis during her military career, such as numbness, weakness, and tingling in the legs and feet, and indicated she would not have enlisted if she knew she had a health condition that could endanger herself or fellow soldiers. The Board finds the Appellant is competent state when she was diagnosed with optic neuritis and multiple sclerosis, as well as to experiencing symptoms of numbness, weakness, and tingling in the legs during service. However, the evidence shows the Appellant related that her private treatment provider in December 1999 to having a past history of sensory abnormality with her left leg in the prior year. The Appellant also related to VA treatment providers in October 2008 and March 2009, that she experienced loss of sensation in her left arm, leg, and trunk during high school, around 1997, which is prior to her period of ACDUTRA. In addition, in determining the initial onset of a demyelinating disease, to include multiple sclerosis, this is a complex medical question that requires medical expertise. As such, the Board relies on the probative medical opinion evidence to show the onset of a demyelinating disease, to include multiple sclerosis. In March 2017, Dr. D.A.B., a VA neurologist, opined that it is more likely than not the Appellant developed multiple sclerosis in late 1997 or early 1998, prior to her period of ACDUTRA. Dr. D.A.B. also opined that the onset of multiple sclerosis occurred prior to her entry into active duty. Dr. D.A.B. comments that the Appellant’s treatment records reflect sensory loss in her left leg with a brain MRI revealing abnormal findings in late 1997 or early 1998. Dr. D.A.B. opines that the Appellant’s bout of optic neuritis in December 1999, abnormal MRI findings consistent with a demyelinating disease, and abnormal spinal fluid findings, are attributed to multiple sclerosis with a reasonable degree of medical certainty. Dr. D.A.B. added that one in every five individuals who developed optic neuritis will go on to be affected by multiple sclerosis, and 56 percent of individuals with one or more lesions on an MRI will go to develop multiple sclerosis within a 10-year period. The Board finds that, while Dr. D.A.B. did not explicitly state that there was clear and unmistakable evidence of pre-existing demyelinating disease, the Board may reasonably find that she essentially found the Appellant's demyelinating disease, to include multiple sclerosis, pre existed both her ACDUTRA and active duty periods from a review of her entire opinion. See Emenaker v. Peake, 551 F.3d 1332, 1335-1339 (Fed. Cir. 2008). The Board finds that, even though Dr. D.A.B. used rubric language of “more likely than not” for the Appellant’s period of ACDUTRA and did not specifically state “clear and unmistakable evidence” for the period of active duty, Dr. D.A.B,’s unequivocal statements about the likelihood of the Appellant’s symptoms being consistent with a demyelinating disease, to include multiple sclerosis, and the VA neurologist’s citations to symptoms, MRIs, and lumbar puncture findings rise to the level of clear and unmistakable evidence. The opinion by Dr. D.A.B. is consistent with the Appellant’s private treatment in December 1999 for optic neuritis with noted suspicion for demyelinating disease and reference to an MRI taken a year prior showing a white dot. An October 2002 private treatment record shows the Veteran had another episode of optic neuritis and a demyelinating etiology was suggested again. A February 2008 private treatment consultation report reflects the Appellant’s bouts of optic neuritis appear to be isolated events, but the report does not address the Appellant’s history of other symptoms. As noted by Dr. D.A.B., the Appellant sought VA treatment in October 2008 for multiple sclerosis, related to having her first symptoms in high school, and was assessed by the VA neurologist with multiple sclerosis of probably 11 years duration. The Board recognizes that the claims file contains other medical opinions as to the onset of the Veteran’s demyelinating disease, to include multiple sclerosis. The Board finds those opinions are either insufficient or do not contradict the opinion by Dr. D.A.B. The January 2013 VA examiner found it was “at least as likely as not” that Appellant’s multiple sclerosis developed prior to her service, which provides neither a positive or negative opinion as to whether the Appellant’s condition pre existed service. The December 2012 VA examiner functionally assessed the Appellant’s current multiple sclerosis symptoms, then submitted an addendum opinion in May 2014 that contains contradictory findings whether the earliest established diagnosis of multiple sclerosis is December 2009 or December 1999. That VA examiner submitted another addendum opinion in May 2014, indicating that the first legitimate diagnosis of multiple sclerosis was in 2009 and that, in the VA examiner’s opinion, to say whether the Appellant’s optic neuritis in 1999 and 2002 were symptoms of multiple sclerosis is speculative. The Board finds that this later May 2014 VA examiner’s opinion equivocates as to whether the Appellant had a demyelinating disease prior to her ACDUTRA and active duty periods. The VA examiner also discussed only the optic neuritis symptoms and does not mention the evidence showing the Appellant experienced loss of sensation in her left arm, leg, and trunk, and MRI evidence around 1997. The September 2015 opinion by private treatment provider J.F., M.D., indicates that the Appellant first began experiencing neurological symptoms consistent with multiple sclerosis during service in 2003. Dr. J.F. did not indicate what specific symptoms were considered consistent with multiple sclerosis nor does he provide a discussion of the Appellant’s history of sensory loss in 1997 and the bouts of optic neuritis in 1999 and 2002. For those reasons, the Board finds the opinion is of diminished probative value as to whether the Appellant had a demyelinating disease prior to her ACDUTRA and active duty periods. The totality of the most probative evidence, which includes the March 2017 opinion from Dr. D.A.B., the statements the Appellant made to her private and VA treatment providers, and the medical treatment evidence, clearly and unmistakably shows that the Appellant had a pre-existing demyelinating disease, to include multiple sclerosis, prior to both her ACDUTRA and active duty periods. The Board turns to the next question of whether there is clear and unmistakable evidence that the Appellant’s pre existing demyelinating disease, to include multiple sclerosis, was not aggravated by service. To satisfy this second prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). In this case, all the medical opinions that addressed the issue of aggravation found any increase in the Appellant’s demyelinating disease, to include multiple sclerosis, was due to a natural progression of the disease. The January 2013 VA examiner opined that it is less likely there was aggravation of the Appellant’s condition, and that multiple sclerosis followed its natural progression. The May 2014 VA examiner opined that he is not aware of any documented factors that establish a state of aggravation of multiple sclerosis by any particular factor and that active military service did not aggravate the Appellant’s condition. The September 2015 opinion by Dr. J.F. indicates only that extreme heat exposure in 2003 may have intensified the Appellant’s symptoms and caused an exacerbation, which is insufficient to show aggravation. See Crowe, 7 Vet. App. at 247-48. The March 2017 opinion by Dr. D.A.B. indicates there is no evidence of a worsening during her period of ACDUTRA. Dr. D.A.B. opined that there is no definitive evidence of a multiple sclerosis flare up during the Appellant’s active duty period, but that exposure to heat causing weakness is not unexpected in the disease process and that even the worsening that occurred after her separation from active duty can be secondary to natural progression of the disease. In addition, the Appellant testified to experience tingling or mild blurred vision that were thought to be heat related and were treated by doing light duty, drinking fluids, or using eye drops as needed. The Appellant testified during the May 2015 hearing that she was not medically released from service, but separated at the end of her tour, and did not notice issues related to multiple sclerosis again until around four years later, in 2008. The Board finds that there may have been temporary or intermittent flare ups of symptoms of Appellant’s demyelinating disease, but the evidence shows clearly and unmistakably that there was no increase in the Appellant’s demyelinating disease, to include multiple sclerosis, during either her ACDUTRA or active duty periods. The Board notes, as discussed above, that the Appellant was not entitled to a presumption of soundness for the period of ACDUTRA, but that the clear and unmistakable evidence finding exceeds the evidentiary standard needed to show a pre existing condition and no aggravation for her period of ACDUTRA. The Appellant’s representative contended in a June 2018 brief that there is no clear and unmistakable evidence showing the Appellant’s demyelinating disease, to include multiple sclerosis, pre existed service because no opinion contained the definite language to support the evidentiary standard. As discussed above, the Board may reasonably find that the unequivocal evidentiary finding based on a review of the entirety of each medical opinion, even if the opinions do not contain the specific language, rises to the level of clear and unmistakable evidence. See Emenaker, 551 F.3d at 1335-1339. In conclusion, the Board determines that the record evidence clearly and unmistakably establishes that the Appellant’s demyelinating disease, to include multiple sclerosis, existed prior to her periods of ACDUTA and active duty and was not aggravated beyond the natural progression of the condition by either of her periods of service. The appeal is denied. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel