Citation Nr: 18157605 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 13-30 246 DATE: December 13, 2018 ORDER Service connection for multiple sclerosis is granted. FINDINGS OF FACT The Veteran has been diagnosed with multiple sclerosis; it is at least as likely as not that symptoms of the disease first manifested in service and/or to a compensable degree within seven years of her discharge from active duty. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for multiple sclerosis have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1979 to October 1983 and from August 1990 to June 1991, to include service in Southwest Asia. She also served in the Army National Guard, to include a period of annual training from January to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. At the outset, the Board notes that the RO initially denied service connection for multiple sclerosis in a September 2011 rating decision. However, new and material evidence in the form of a letter from the Veteran’s physician, Dr. J.A., was submitted in September 2012. As new and material evidence was submitted within a year of the September 2011 decision, that decision did not become final. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). As such, the original 2010 claim for multiple sclerosis remains pending and must be considered de novo. Service connection for multiple sclerosis The Veteran contends that symptoms of multiple sclerosis first manifested in service and/or to a compensable degree within seven years of her discharge from active duty. She says that she started having symptoms as early as 1990-1992. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection for multiple sclerosis may be established on a presumptive basis by showing that such disease was manifested to a degree of 10 percent or more within seven years from the date of separation from active service. 38 U.S.C. § 1101, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.307, 3.309. The record reflects that the Veteran has a current diagnosis of multiple sclerosis. Therefore, the current diagnosis requirement is met. The issue here is whether the multiple sclerosis manifested either in service or to a compensable degree within seven years of service such that an award of benefits may be made. Dr. J.A., the Chief of Spinal Cord Injury/Disorders System of Care at the VA Medical Center in San Juan, opined in a February 2009 letter that it was at least as likely as not that the Veteran’s symptoms in service may have been related to multiple sclerosis. He noted that even though the Veteran was diagnosed in 2007, there was extensive documentation of symptoms suggestive of multiple sclerosis dating back to 1991/1992, such as fatigue. Other symptoms of dizziness and depression were also noted. Dr. J.A. noted that the Veteran’s condition progressively deteriorated throughout the years, referencing a computed tomography (CT) scan of the head in 1998 which revealed periventricular white matter changes that could be suggestive of multiple sclerosis. He explained that fatigue is probably the most common symptom of multiple sclerosis and that the majority of people with the disease experience it at some point. He further explained that the onset of multiple sclerosis could be abrupt or insidious and that a patient may not seek medical attention for months or years because symptoms can present as trivial, such as in the Veteran’s case. The record also contains an unfavorable opinion. A September 2011 VA examiner reviewed the Veteran’s service treatment records and indicated that he did not find significant evidence of multiple sclerosis. In so doing, he recognized that the Veteran had been seen in 1992 with a complaint of greater than one month of fatigue. The examiner opined, however, that fatigue was a very non-specific symptom and that he did not see that alone as evidence that multiple sclerosis originated during active service. Thus, he opined that it was less likely as not that it had onset in service. Dr. J.A. prepared another opinion in September 2012, this time providing more specific references to symptoms suggestive of the disease during service and the progression and manifestations of the Veteran’s symptoms after separation. Dr. J.A. noted documented symptoms of fatigue, blurred vision, dizziness, back pain, and depressed mood. He mentioned that the Veteran suffered from a viral infection and was dehydrated during her Persian Gulf deployment. He also noted several instances where the Veteran complained of fatigue, light-headedness, blurred vision, and anxiety, explaining that early in the disease process, demyelination usually results in intermittent attacks of neurological deficits followed by periods during which symptoms lessen or disappear. He further noted that, as in the Veteran’s case, diagnosis is a considerable challenge because of the potential for a wide range of signs and symptoms. Based on his review of the records, he opined again that it was at least as likely as not that the initial symptoms since 1992 may have been related to multiple sclerosis. The Board finds the opinions from Dr. J.A. persuasive. They are at least as probative as the opinion from the VA examiner. As noted previously, multiple sclerosis is a chronic disease subject to presumptive service connection if manifested to a degree of ten percent or more within seven years after the date of the veteran’s separation from service. See 38 U.S.C. § 1112; 38 C.F.R. § 3.307(a)(3); 3.309(a). Neurological conditions such as multiple sclerosis is normally rated in proportion to the impairment of motor, sensory, or mental function. The note associated with Diagnostic Codes 8000 through 8025 indicates that any ascertainable residuals of the condition described (here, multiple sclerosis) warrant the minimum rating, which, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8018, is thirty percent. As such, any ascertainable symptom of multiple sclerosis necessarily meets the ten percent manifestation threshold to trigger the service-connection presumption provided in 38 C.F.R. § 3.307(a)(3); see Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). On balance, and taking into account the totality of the evidence, the Board is persuaded that the criteria for service connection for multiple sclerosis have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nichols, Counsel