Citation Nr: 18157953 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 10-17 307 DATE: Entitlement to service connection for multiple sclerosis. December 13, 2018 ORDER Entitlement to service connection for multiple sclerosis is granted. FINDING OF FACT 1. The Veteran is competent to report symptoms of numbness, tingling, foot dragging and clumsiness that started in service and continued to the present. 2. The evidence is at least in equipoise as to whether the Veteran’s multiple sclerosis is related to his active duty service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for multiple sclerosis have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 4.12a (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States army from September 1979 to August 1982. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an August 2013 Travel Board Hearing. A transcript of that hearing has been associated with the claims file. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, as to the claim of service connection for multiple sclerosis, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Entitlement to service connection for multiple sclerosis 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). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include multiple sclerosis, 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 organic multiple sclerosis, 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 seven years of service, service connection for multiple sclerosis can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means 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. Id. 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 for an extended period. See, Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran contends that his currently diagnosed multiple sclerosis had its onset while he was on active duty. The Board concludes that while the Veteran’s multiple sclerosis was not diagnosed during service and did not manifest to a compensable degree within the applicable presumptive period, there has been continuity of symptomatology since first manifesting during the Veteran’s service. At the outset, the Board notes that the service treatment records do not show any complaints, treatments or diagnoses of multiple sclerosis or neurological symptoms, nor do any treatment records prior to May 2005. However, the Board notes that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See, Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). A May 2005 treatment record from Dr. N. M. L. notes the Veteran reported experiencing abdominal pain and cramping that went up to the right shoulder for 15 seconds before going away several times over the last day. The Veteran reported experiencing a spell like this about a year prior. In an August 2006 treatment record, Dr. N. M. L. notes the Veteran reported bilateral shoulder pains "for about a month." "No numbness, tingling or decreased grip" was noted. An October 2006 treatment record from Dr. N. M. L. notes the Veteran continued having some bilateral soreness in the shoulders and neck, as well as some numbness of the fingers. An MRI was ordered. A November 2006 cervical spine MRI report from Caldwell Memorial Hospital notes extensive cord signal abnormality with nodular enhancement in the cervical cord, with the pattern suggesting multiple sclerosis. A November 2006 treatment record from Wake Forest University notes the Veteran had a "four month history of symptoms" and reported that he noted a gradual onset of tingling in his bilateral hands in the first and second digits that was persistent and actually improved over a few weeks. The Veteran also reported pain in his neck and left shoulder that worsened if he tilted his head back. He denied any lower extremity symptoms, headache, cognitive difficulties or vertigo, though did report having a "slight difficulty with his balance for a few days". He further reported "recent fatigue and heat intolerance.” A November 2006 cerebral MRI report from Caldwell Memorial Hospital notes scattered areas of altered signal deep white matter compatible with diagnosis of MS. A December 2006 treatment record from Caldwell Family Care Center notes the Veteran was diagnosed with multiple sclerosis. The Veteran reported weakness down the back and extremities, as well as numbness in the left fingers. In a January 2007 treatment record from Wake Forest University, it was noted that due to MS, the Veteran "is certainly currently suffering from some weakness and difficulty with balance and would be expected to also have issues with fatigue which are certainly common in this patient population." A June 2007 treatment record form Wake Forest University Medical Center with “recent worsening” notes the Veteran has relapsing-remitting multiple sclerosis. It was further noted that the Veteran has a “significant disease burden” and returning to manual labor “would be impossible”. In March 2008, the Veteran submitted a statement in support of claim in which he states that in 1980, while laying wire at Fort Campbell, Kentucky, his legs “started burning” and he was unable to move one of them. Additionally, his vision was compromised and he was in extreme pain. The Veteran then stated that he was medevacked to a military hospital in Kentucky where, after a series of tests, no diagnosis could be determined. The Veteran stated that this right leg has experienced the severe burning since his discharge. The Veteran stated that in November 2006, he was diagnosed with multiple sclerosis. The Veteran stated that he had experienced flashes of light while on active duty. In April 2008, the Veteran submitted a lay statement from K. T. D., who stated that the Veteran had a problem with bleeding from the nose at an early age. In an April 2008 statement, T. D. stated the Veteran has had problems walking without a cane, problems with his memory and daily pain. In an April 2008 statement, E. P., the Veteran's cousin, stated that the Veteran has had lifelong nose bleeds. In April 2008, VA received a letter from C. T. that was originally submitted to the Social Security Administration (SSA). In that letter, C. T. stated that had worked with the Veteran for the prior 3 years and witnessed "his health go down more and more." In April 2008, VA received a letter from T. L. that was originally submitted to SSA. In that letter, T. L. stated they worked with the Veteran for two years and that he "had to put pain patches on all the time." In April 2008, VA received a letter from D. R. that was originally submitted to SSA. In that letter, D. R. states they worked with the Veteran for two-and-one-half years and that he always talked about how he had back and neck pain. In June 2008, VA received a letter from P. F., who stated that she had witnessed a gradual decline in the Veteran’s health over the prior 2 years. She further stated that the veteran had been a hard worker for 20 years and “never complained of the work conditions or the heat” during that period until this decline in his health. In June 2008, the Veteran submitted a statement in support of claim in which he states that he has had nose bleeds and migraine headaches since he was fifteen, and a “leg problem” since he was seventeen. An October 2008 VA treatment record notes that the Veteran’s “multiple sclerosis symptoms began fairly insidiously at least 12 to 15 years ago”. In a November 2008 letter, R. D. statement he has known the Veteran almost all his life and that after he returned from the military his health had been declining with nose bleeds, shaking of the legs, stomach pains and blurred vision. A January 2009 letter from Dr. L. T., a neurologist, states that though the Veteran was not diagnosed with multiple sclerosis until 2006, “he did have several MS lesions on his MRI of the brain already present at diagnosis that indicate he could have had the disease for years prior to his diagnosis.” The doctor reviewed the letters from the Veteran’s family and noted that the Veteran “has had complaints of chronic pain, fatigue, and clumsiness which could indicate he suffered from undiagnosed multiple sclerosis as early as his 20’s.” The doctor further noted that a hospital record from 1987 regarding a fall and a wrist injury may be related to clumsiness or mild weakness from demyelinating disease. The notation that the Veteran "has had complaints of chronic pain, fatigue, and clumsiness which could indicate he suffered from undiagnosed multiple sclerosis as early as his 20’s" is of no probative value, as the use of terms like "possibly" and "maybe" is too indefinite and speculative to be probative in nature. See, Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship); see also, Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). In an April 2009 letter, H. B. D., the Veteran’s brother, stated the Veteran had nose bleeds when he was very young and experienced migraine headaches. In an April 2009 letter, T. D., the Veteran's wife, stated that she met the Veteran in 1983 and that he had nose bleeds, headaches and leg cramps several times a week. She stated that doctors and nurses would prescribe vitamin C, calcium, club soda, vinegar and salt, orange juice and bananas but the symptoms would persist. A May 2009 treatment record from Dr. J. A., a neurophysiologist, notes the doctor reviewed the Veteran’s medical records from Wake Forest University and “other notes…all the way back to 1979.” The doctor notes that one particular symptom the Veteran had while in the military was dragging his foot when he was fatigued. The doctor stated that such an occurrence is “not an uncommon story.” The doctor then stated that the Veteran has a “long history of relapsing and remitting symptoms that appear most consistent with his prior diagnosis of MS.” While not a definitive statement that the Veteran had MS since his military service, the Board finds that this statement, as for demonstrating symptomatology consistent with a diagnosis of MS, is probative. A May 2009 letter from Dr. R. Y., a neurologist, notes that the Veteran reported having symptoms of headaches and diffuse tingling “as far back as his childhood.” The doctor stated that “the duration of his symptoms may have suggested the presence of this disease prior to [2006]; possibly into “his 20’s”. The doctor then stated that “[l]etters from multiple family members indicate chronic problems with headaches, nose bleeds, dizziness, stomach pains, etc…for close to 25 years.” The Board finds that the use of the words “may have” and “possibly” render this opinion too speculative to be probative. Bostain. A July 2013 letter from a neurologist at the W.G. (Bill) Hefner VAMC in Salisbury, North Carolina, states an opinion that the Veteran had symptoms of multiple sclerosis for many years before his diagnosis in 2006. The doctor stated that while in the army, the Veteran had tingling sensations in his arms, legs, and feet, as well as fatigue. The doctor concluded that the symptoms experienced by the Veteran in the army were symptoms of multiple sclerosis. While not a diagnosis of MS, as for demonstrating symptomatology consistent with a diagnosis of MS, the Board finds this statement to be probative. The Veteran testified at the August 2013 hearing that he did seek treatment for numbness, tingling, excessive fatigue, dizziness, and weakness in one or more of his limbs while he was in the service. The Veteran stated he sought treatment for these symptoms less than a year after he was discharged through Dr. C., but is unable to obtain the records as the doctor has retired and the records are no longer available. The Veteran stated that the tingling in his hands and feet came first and he would feel it when he ran, and then there were days where he couldn’t run. The Veteran stated that he went to the doctor who would “just work on what was hurting [him]”. The Veteran then stated that three of his fingers became permanently numb while he was in Fort Campbell, Kentucky. The Veteran stated that he went to the infirmary, but they only gave him creams for his arms. The Veteran stated that the service treatment record for a sprained ankle was never twisted and it was actually for a spasm. The Veteran then stated that he did not go to the dispensary about his tingling, but then testified that he “did speak of it but if they don’t write it down…[he] can’t make them write it down”. In an October 2013 statement in support of claim, the Veteran states that he had tingling and numbness while on active duty but never saw a neurologist. The Veteran was afforded a VA examination in February 2014. The examiner noted that it was less likely than not incurred in or caused by the Veteran’s service. The examiner noted the lack of any complaint, diagnosis, or treatment for tingling or numbness of the extremities in either the service treatment records or private records within 7 years of discharge form service. The examiner acknowledged the Veteran’s contentions regarding numbness and tingling in his extremities during service, as well as his contention of a body spasm that required him to be medevacked and the continuation of his symptoms after service. However, the examiner did not include the Veteran’s contentions in his rationale and relied solely on the lack of evidence in the service treatment records. Additionally, none of the opinions regarding prodromal symptoms of MS while in service were addressed. As such, the Board finds this opinion to be of no probative value. In an April 2014 medical opinion from Dr. N. L. of Lenoir Family Medicine, it is noted that the Veteran reported having numbness and tingling in the late 1970’s and early 1980’s and that he had symptoms consistent with multiple sclerosis at that point. The doctor opined that the Veteran’s multiple sclerosis was at least as likely as not “present since his early adulthood and at the time he was in the military.” The doctor then stated he “believe[s] that his symptoms of MS are at least as likely as not due to his documented and long-term progressive nature of his MS.” Here, the doctor provided a medical opinion with a well-reasoned rationale. As such, the Board finds this opinion to be probative. In a January 2016 opinion, a doctor at the W. G. Hefner VAMC Neurology Clinic notes the Veteran had been his patient since January 2013 and stated that the testing at the time of diagnosis "revealed significant MRI abnormalities in the brain and spinal cord, indicating that he had multiple sclerosis for some time before diagnosis, more likely than not for several years." The doctor then stated the Veteran had symptoms of multiple sclerosis for many years before being diagnosed, noting that while in the Army he had tingling sensations in the arms, legs and feet, had difficulty lifting his feet and fatigue. The doctor then stated that these symptoms began during his military service, have persisted and were symptoms of MS. The doctor then opined that it is more likely than not that the Veteran's MS began during military service. Here, the doctor provided a medical opinion with a well-reasoned rationale based not only on the Veteran’s reports of symptoms, but also on documented MRI findings. As such, the Board considers this opinion to be of significant probative value. In a February 2016 VA neurology Note, a VA Medical Service Chief noted the Veteran reported that in 1981 while on an exercise in Kentucky, he was medivacked to a VA facility when he had profuse sweating and difficulty with walking. The Veteran reported that no diagnosis was made. The Veteran then reported that two months prior to this note he had an episode of sweating with his legs becoming weak. He further reported that at times after a hot bath or shower, his symptoms will increase. The doctor opined that the documentation provided by the Veteran, to include statements from his friends and family, and “episodic difficulty unexplained at the time are consistent with the diagnosis of multiple sclerosis. It is as likely as not that he had this diagnosis while in service and it was not clinically diagnosed until many years later (2006).” Here, the doctor provided an opinion with a well-reasoned rationale. As such, the Board finds the opinion to be probative. In an October 2016 VA Addendum, a VA Medical Director at the Hickory CBOC stated that it “is [his] professional opinion that [the Veteran’s] first symptoms of multiple sclerosis were in the service, and that it is more likely than not that his current disabling multiple sclerosis began in the service and has continued to this day.” The doctor noted that the Veteran twice developed leg weakness requiring medivacking due to heat and that, after he was discharged, he was nicknamed “Fall Guy” as he repeatedly fell due to leg weakness. Here, the doctor provided an opinion with a well-reasoned rationale. As such, the Board finds the opinion to be probative. The Veteran submitted an October 2016 buddy statement from D. D. D. D. stated that they played basketball with the Veteran from 7th to 12th grade, during which time the Veteran never had any problem with his balance or legs. D. D. then stated that after the Veteran returned from the service he began falling and was nicknamed “the Fall Guy”. In a September 2017 letter, the Veteran stated before the military he had no problems playing basketball but that, upon his return from active duty, he was given the nickname of “fall guy” because he fell so much. In an April 2018 Veterans Health Administration (VHA) medical opinion, Dr. E. K. U. stated that he reviewed the record and didn't see any evidence of neurological complaints, aside from headaches, while in service. It was noted that there was no discharge examination and that the Veteran was diagnosed with MS in 2006 with no intervening medical records. The doctor acknowledged that this is a "[d]ifficult case" and stated that while there is no evidence of any neurological problem while in service, further stated that MS "can be elusive in its diagnosis, particularly early on." The doctor then noted the presumptive period of 7 years following discharge and again noted the lack of medical records indicating neurologic issues between discharge and 2006. The doctor described the lay statements regarding leg problems as "vague" and concluded they were "likely cramps" and "not convincing for MS, while falling down might be consistent with MS. " The doctor noted the statement made by the Veteran's wife regarding weak wrists and ankles, but further noted that a diagnosis was never made and that the reported treatments (vitamins, club soda, vinegar and salt, orange juice) "appear directed at muscle cramps which tends to infer a lack of neurologic findings or symptoms." The doctor then stated that the weight of the evidence does not support the presence of MS symptoms in service, though noted that a variety of symptoms predate service, and concluded that the "[m]edical records indicate onset of neurologic symptoms leading the diagnosis of MS in 2006 and well beyond the presumptive period." The Board notes that the doctor’s description of this matter as a “[d]ifficult case” indicates that the facts do not lend themselves to any easy conclusion one way or the other. Here, the doctor dismissed some of the Veteran’s reported symptoms as “likely cramps”, while acknowledging that the reports of falling down “might be consistent with MS.” Ultimately, the doctor noted the lack of documented symptoms of MS, both in service and before 2006, and concluded that the medical records show an onset of symptoms in 2006. The Board notes that the doctor did not address any of the medical opinions proffered by other doctors and, as such, finds this opinion to be of limited probative value. In a November 2018 letter, J. A. K., a nurse practitioner, stated that she reviewed the Veteran's medical records, lay statements and prior medical opinions and opined that it is at least as likely as not that the symptoms experienced by the Veteran during his Army service were the beginnings of previously undiagnosed multiple sclerosis. The nurse summarized the Veteran's service treatment records and lay statements and noted that MS is a diagnosis that is frequently formed by process of exclusion, sometimes taking months or years to rule out other, more common diagnoses before ordering an MRI which then provides a conclusive diagnosis. The nurse then noted that a review of the Veteran's medical records from Wake Forest University show that multiple neurologists concluded that the lesions revealed in the Veteran's 2006 MRI were already present at the time of diagnosis and more likely than not had been there for years. The nurse then stated that based on this and the lay statements of record, the Veteran exhibited MS symptoms which began during his time in service, including tingling in his arms, feet and legs, headaches and severe upper and lower extremity pain. Here, the nurse provided a very thorough summary of the evidence and came to an opinion based on both lay and medical evidence, including the opinions of neurologists. As such, the Board places considerable weight in this opinion. The Board acknowledges the conflicting nature of some of the numerous lay statements that have been received throughout the course of the claim, with some indicating that the Veteran’s health had been declining only for the 2 to 6 years prior to his formal diagnosis, while other lay statements indicate varying medical symptoms suffered by the Veteran from before service and starting while in service. In as much as the various lay statements were describing observable symptoms, the Board finds them to be competent. See, Layno v. Brown, 6 Vet. App., 465 (1994). However, although lay persons are competent to provide opinions on some medical issues, see, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology and onset of multiple sclerosis, falls outside the realm of common knowledge of a lay person. Jandreau. The Board again notes the description of this matter by the April 2018 VHA examiner as a “[d]ifficult case.” While the Board acknowledges that the majority of the positive medical opinions are based on the Veteran’s reporting of undocumented symptoms, the January 2016 opinion by a neurologist at the VAMC neurology clinic did base his positive opinion not only on the Veteran’s reports of undocumented symptoms, but also pointed out that the MRIs performed in 2006 "revealed significant MRI abnormalities in the brain and spinal cord, indicating that he had multiple sclerosis for some time before diagnosis, more likely than not for several years." Based on this opinion, the Board finds the evidence of record to be at least in relative equipoise, and resolves all reasonable doubt as to nexus in the Veteran’s favor. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. Therefore, recognizing that continuity of symptomatology requires the chronic disease to have manifested in service, and resolving reasonable doubt in the Veteran's favor, the Board finds a nexus between the Veteran's multiple sclerosis and his active duty service. See 38 C.F.R. §§ 3.303 (b), 3.309; see also 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2107). Accordingly, the Board recognizes the Veteran's current multiple sclerosis and resolves reasonable doubt in the Veteran's favor to find that the evidence supports a grant of entitlement to service connection for multiple sclerosis. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel