Citation Nr: 20004490 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 16-47 271 DATE: January 21, 2020 ORDER Service connection for multiple sclerosis (MS) is granted. FINDING OF FACT The weight of the most probative evidence is at least in equipoise that the Veteran’s MS was incurred during a period of active duty for training (ACDUTRA). CONCLUSION OF LAW The criteria for entitlement to service connection for MS are met. 32 U.S.C. §§ 316, 502–505; 38 U.S.C. §§ 101(21), (22), (24)(A)(B), 1110, 1112, 1113, 1116, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307(b), 3.309(a), 3.6(a), (c)–(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from October 1984 to April 1993. He also had over two decades of service in the Navy Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified before the undersigned at a videoconference hearing and a transcript of that proceeding is of record. The Board recognizes the Veteran’s statement during the August 2019 VA exam which implicitly expressed interest in filing a total disability based on individual unemployability (TDIU) claim. See 08/09/2016 C&P Exam, at 11 (noting that Veteran is “[c]ompletely unable to work”). The Agency of Original Jurisdiction (AOJ) should invite the Veteran to file a TDIU claim and provide him with VA Form 21-8940. As the present appeal arises from a service connection claim as opposed to an increased rating claim, Rice v. Shinseki, 22 Vet. App. 447 (2009) does not apply. The Veteran is advised that (his/her) statements do not meet the standards of an intent to file (3.155(b)) or those of a complete claim under 38 C.F.R. § 3.160(a). The AOJ should notify the Veteran as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA compensation benefits. *** The Veteran seeks service connection for MS. The Veteran separated from service in April 1993 and was first diagnosed with MS in June 2012. See 04/30/1993 Form DD 214; 12/17/2013 Navy Medical Treatment Note at 3. He namely contends that he had symptoms of MS in-service and on ACDUTRA in the Reserves. See 12/09/2013 Statement in Support of Claim; 01/28/2015 Notice of Disagreement. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). “Active military service” includes active service and any period of ACDUTRA during which the veteran was disabled from a disease incurred in the line of duty. See 38 U.S.C. § 101(21), (24)(A)(B); 38 C.F.R. § 3.6(a). Accordingly, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during a period of ACDUTRA. Reserves service generally means ACDUTRA and inactive duty for training (INACDUTRA). ACDUTRA is full time duty for training purposes performed by Reservists pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Essentially, this refers to the two weeks of annual training that each Reservist must perform each year as well as the Reservist’s initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(d). The Board notes that the Veteran had active duty service from October 1984 to April 1993 as well as numerous periods of ACDUTRA from June 1993 through January 2012. See 04/16/2014 and 06/21/2014 DPRIS Responses. Service treatment records (STRs) show that since at least 1989 the Veteran complained of characteristic MS symptoms while on active service, including lack of coordination, leg movement issues, leg and back pain, and tingling in the upper and lower extremities. See 11/04/1992 and 03/11/1997 STR Medical. The Veteran is competent to report the above symptoms, as they require only personal knowledge that comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Likewise, in a July 2003 VA examination, the Veteran reported persistent problems with respect to his cervical and lumbar spine and knees as well as tingling in his hands since 1989, with flareups occurring about once a month. See 07/24/2003 VA Examination. The Veteran’s Reserves treatment records show that the Veteran was diagnosed with MS in June 2012, and therefore has a current disability for purposes of establishing service connection. See 03/13/2014 Medical Treatment Record at 7. Reserves treatment records also contain a Navy physician’s August 2012 consultation note, which retrospectively documented the Veteran’s August 2010 report of MS symptoms. Id. at 65. In the consultation note, the Navy physician recounted a “curbside discussion” where the Veteran complained of back, foot, and radicular pain while on orders from July to August 2010. Id. at 66–68. The Navy physician went on to opine that, despite the formal MS diagnosis in June 2012, the Veteran’s reported symptoms in 2010 “represented early manifestations of [MS]” which were “exacerbated and drawn out” as a result of his work while on ACDUTRA. Id. at 66. Reserves records confirm that the Veteran was on annual training in July, August, and September 2010. See 04/16/2014 DPRIS Response at 166-99. In March 2015, the Veteran obtained a private medical opinion from Dr. D.S., a neurologist. Dr. D.S. competently, credibly, and persuasively opined that the Veteran reported characteristic manifestations of MS while in service, and that the Veteran had MS prior to his June 2012 diagnosis. See 04/02/2015 Medical Treatment Report at 2. Dr. D.S. also opined that a review of the Veteran’s MRI results indicated that it was more likely than not that the onset of the Veteran’s MS occurred no later than 2010. See id. Specifically, Dr. D.S. opined that the Veteran “had MS while he was on active duty and he had symptoms that were present when he was on active duty.” Id. In contrast, a VA examiner opined in August 2016 that the Veteran’s MS was less likely than not incurred in or caused by an in-service injury, event, or illness. The VA examiner’s rationale was that a complete review of the Veteran’s medical records did not document that his MS was related to active service prior to April 2000. See 08/09/2016 C&P Exam at 2. The Board has reviewed both nexus opinions and concludes that the weight of the evidence is at least in equipoise that the Veteran’s MS had its onset during a period of ACDUTRA from July to August 2010. On balance, the Board finds that Dr. D.S.’s favorable opinion is more probative and persuasive, as it shows greater consideration of the relevant lay and medical evidence and provides a much more thorough rationale. See Guerrieri v. Brown, 4 Vet. App. 467, 470–71 (1993) (holding that the credibility and weight of opinions are within the province of the adjudicator). Here, Dr. D.S.’ opinion is supported by a detailed discussion of the Veteran’s medical history as well as MRI and spinal tap results. See 04/02/2015 Medical Treatment Report at 2. Dr. D.S. is clearly a clinical subject matter expert on the presentation, diagnosis, and treatment of MS. See 12/17/2013 Medical Treatment Record at 35–36 (Dr. D.S.’ review of recent research on MS biomarkers and treatment) and at 37–42 (Dr. D.S.’ detailed discussion on MS’ epidemiology, signs and symptoms, pathophysiology, and treatment format). Further, Dr. D.S. opined that the onset of the Veteran’s MS likely occurred in 2010, which is consistent with the onset date in the August 2012 Navy physician’s opinion. In contrast, the VA examiner’s opinion is very conclusory and lacks an adequate rationale. Specifically, the VA examiner did not consider whether the Veteran’s demonstrated symptomatology in-service and on ACDUTRA represented the initial onset of MS. Instead, the VA examiner’s nexus opinion appears to be limited to entitlement for service connection for MS on a presumptive basis under 38 C.F.R. § 3.307(a)(3), which requires that MS manifest to a compensable degree within seven years from separation from service. Consequently, the VA examiner failed to consider all the relevant evidence of record, including evidence relevant to entitlement to service connection for MS on a direct basis. The VA examiner’s opinion made no mention of the Veteran’s Reserves records, nor the Veteran’s reports of characteristic MS symptoms documented in STRs and Reserves treatment records. In sum, the Board finds that the VA examiner’s opinion lacks the thorough rationale and consideration of relevant evidence of Dr. D.S.’ opinion, and therefore affords less weight to the VA examiner’s opinion. (CONTINUED ON THE NEXT PAGE)   After a full review of the record, the Board finds that the weight of the most probative evidence is at least in equipoise that the onset of the Veteran’s MS was incurred during a period of ACDUTRA. The benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for MS is thus warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont, Law Clerk 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.