Citation Nr: 20004113 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 18-07 800 DATE: January 16, 2020 ORDER The claim for entitlement to service connection for multiple sclerosis is reopened. REMANDED Entitlement to service connection for multiple sclerosis is remanded. FINDINGS OF FACT 1. A February 2010 rating decision denied the claim for service connection for multiple sclerosis. Although the Veteran submitted new and material evidence within the appeal period, it was readjudicated in the September 2011 Statement of the Case (SOC) but the SOC was not perfected and the rating decision became final. 2. Evidence added to the record since the February 2010 rating decision is not cumulative or redundant of the evidence of record at the time of that decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for multiple sclerosis. CONCLUSIONS OF LAW 1. The February 2010 decision denying service connection for multiple sclerosis is final. 38 U.S.C. § 7105 (c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). 2. New and material evidence having been received, the criteria for reopening the claim for service connection for multiple sclerosis have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1978 to January 1981, April 1981 to August 1983, and June 1986 to January 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office. Requests to Reopen Previously Denied Claim for Service Connection Generally, a claim that has been denied in an unappealed Department of Veterans Affairs (VA) Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Request to reopen the claim for service connection for multiple sclerosis The Veteran contends that his currently diagnosed multiple sclerosis was incurred during service. The Veteran’s claim for service connection for multiple sclerosis was initially denied in a February 2010 rating decision. The RO determined that the disability neither occurred in nor caused by service. More specifically, the RO stated the medical evidence failed to show a clinical diagnosis for multiple sclerosis in service or within 7 years of discharge. The evidence at that time consisted of a November 2009 letter submitted by the Veteran indicating a diagnosis of multiple sclerosis by his private doctor; the record also included a February 2010 private letter from Dr. J.P.A. addressing the onset of multiple sclerosis, as well as, confirmation from an August 2009 magnetic resonance imaging (MRI) suggesting the possibility of multiple sclerosis with an onset ranging from several months to years prior to the date of imaging. The Veteran timely appealed but did not perfect the rating decision; therefore, the decision became final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103 (2018); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In support of his claim to reopen the claim, the Veteran submitted a private letter from Dr. R.F. in April 2016 noting his current diagnosis for multiple sclerosis, with onset during active duty service. Dr. R.F. states that the Veteran is currently being treated for chronic secondary progressive multiple sclerosis and, based on the MRI, changes in his brain pattern likely date back at least 20 years ago. Dr. R.F.’s private opinion supports the Veteran’s contention that his multiple sclerosis had its onset during service. This constitutes new and material evidence presenting a reasonable possibility of substantiating the claims on the merits. Hence, reopening of the claims for service connection for multiple sclerosis is warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND Entitlement to service connection for multiple sclerosis is remanded. The Veteran seeks service connection for multiple sclerosis. The Veteran has a current diagnosis for multiple sclerosis. See January 2012 private treatment record. The Veteran contends that his multiple sclerosis had its onset in service and was not clinically treated until an August 2009 MRI brain scan revealed its existence. A February 2010 letter from Dr. J.P.A. noted that patients can have multiple sclerosis for many years and the disease could be clinically quiescent; he further noted the Veteran’s August 2009 MRI showed active plaque in the brain which would have developed several months if not years prior to the date of imaging. A November 2011 MRI showed numerous white enhancing lesions, but a definitive diagnosis could not be obtained. A September 2012 MRI of the brain, cervical spine, thoracic spine, and lumbosacral spine all showed enhancing lesions consistent with the diagnosis of multiple sclerosis. See December 2012 People’s Clinic private treatment record. An April 2016 letter from Dr. R.F., as discussed above, opined that changes to the Veteran’s brain pattern evidenced in the MRI likely date back at least 20 years ago, which would at least support the theory that the Veteran’s multiple sclerosis had its onset during service. A December 2017 VA examination confirmed the diagnosis for multiple sclerosis and mild dysarthria. The examiner opined that the Veteran’s service treatment records and post-service records offer no evidence of a nexus between the Veteran’s multiple sclerosis and service, nor within 7 years of his discharge from service. The examiner further acknowledged that multiple sclerosis can be quiescent for years prior to diagnosis but still noted no evidence of symptoms in the treatment records related to or caused by multiple sclerosis. The examiner also noted the Veteran’s claim file does not contain a separation examination due to the fact that he was stationed in Italy. The Board finds that a remand is necessary to attain an addendum opinion on the onset, nature, and etiology of the Veteran’s multiple sclerosis. Although the February 2010 and April 2016 private opinions provide the onset of the Veteran’s multiple sclerosis, there is insufficient rationale accompanying them. The December 2017’s negative opinion is inadequate because, although it acknowledges the possibility that multiple sclerosis can be dormant for many years prior to diagnosis, it relies on the lack of contemporaneous medical treatment records. Therefore, on remand, any outstanding service treatment records need to be obtained and the etiology of the Veteran’s multiple sclerosis must be determined. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding treatment records, including service, VA, and private treatment records. All efforts to obtain additional evidence must be documented in the claims file. 2. Schedule the Veteran for an examination to determine the onset, nature, and etiology of his multiple sclerosis. The clinician providing the opinions must be provided access to the electronic claims file and indicate review of the file in the examination report. Elicit a complete history of symptoms from the Veteran. The examiner must determine (i) whether it is at least as likely as not (50 percent probability or more) that the Veteran’s multiple sclerosis had its onset during service or is otherwise related to any disease or injury in service, or (ii) whether it is at least as likely as not (50 percent probability or more) that the Veteran manifested any symptoms of multiple sclerosis within 7 years of his separation in 1997. The examiner must address the private opinions offered by Dr. J.P.A. and Dr .R.F. regarding the August 2009 and November 2011 MRI results suggesting the Veteran’s multiple sclerosis had its onset at least 20 years ago. The examiner must consider the Veteran’s lay statements as to onset of symptoms. (Continued on the next page)   The examiner must provide a rationale in support of all opinions provided. If the examiner cannot provide the opinion without conducting an examination of the Veteran, then an examination must be scheduled. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. 3. Then, readjudicate the appeal. If the claims remain denied, issue a supplemental statement of the case and provide the Veteran and his representative adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.