Citation Nr: 21000697 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-25 599 DATE: January 6, 2021 ORDER Entitlement to service connection for multiple sclerosis (MS) is denied. FINDING OF FACT MS did not manifest in service or within the seven-year presumptive period and is otherwise unrelated to service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for MS have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Navy from July 1985 to April 1988. In July 2016, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript from that proceeding is associated with the claims file. The Veteran’s service connection claim for MS was initially denied by the Board in a July 2017 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2018 Order, the Court vacated the Board's decision and remanded the matter to the Board pursuant to a Joint Motion to Remand (JMR) agreed upon by the parties. In March 2019 and June 2020, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including MS, are presumed to have been incurred in service if they manifested to a compensable degree within a designated presumptive period. 38 U.S.C. §§ 1112, 1113; 38C.F.R. §§3.307, 3.309. The presumptive period for MS is seven years. 38 C.F.R. § 3.307. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease such as MS is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38C.F.R. §3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for MS is denied. The Veteran in this case primarily contends that, although service treatment records are negative for any treatment for MS, he first began to experience symptoms of MS in approximately July 1988, within the seven-year period following separation for presumptive service connection purposes. At the outset, with respect to a diagnosis, in an August 2013 disability benefits questionnaire (DBQ), the doctor noted a diagnosis of MS. Therefore, the first element of service connection, a diagnosis, has been met. Therefore, the only remaining issue is whether the Veteran’s MS manifested to a compensable degree within the seven-year presumptive period. In August 2013, the Veteran submitted a MS disability benefits questionnaire which had been filled out by his private doctor. The doctor there noted that the Veteran currently had a diagnosis of MS, that he had symptoms of MS since June 2011 “and very likely before.” In the March 2017 VHA opinion, a VA physician opined, following a review of the claims file, that it was less likely than not that the Veteran’s currently diagnosed MS had its onset in service or within seven years of separation from service. The examiner noted that the Veteran had reported experiencing “eye trouble” in July 1985, reported no eye trouble in March 1988, and reported “annoying” light sensitivity in April 2005 which he indicated began two years prior. The Veteran’s wife and sister had reported that he had “red and watery” eyes and had repeatedly normal vision testing. The examiner observed, however, that problems with vision that are commonly seen in MS include eye movement abnormalities (e.g., internuclear ophthalmoplegia, nystagmus) and vision loss that is typically one-sided and consistent with acute onset of blurred vision or graying of vision. While MS can affect the optic nerves, vision pathways, and parts of the brain that control eye movement, MS causes inflammation in the brain parenchyma. Recurrently red and watery eyes, consistent with ocular inflammation, are not eye symptoms that are readily ascribed to MS. The examiner further noted that although the Veteran’s family members reported seeing him as being fatigued after his discharge from the military, fatigue is not a symptom specific to MS. In the 2018 JMR, the parties asserted that the above opinion was inadequate in that it failed to address the Veteran’s complaints of tingling/numbness of the hands and that the examiner’s assertion that fatigue is not a symptom specific to MS contradicts other medial evidence. As a result, an additional opinion was sought. The October 2020 VA examiner opined that the Veteran’s MS is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that no chronic diagnosis was made for MS, and an objective examination revealed normal results. The examiner noted that the Veteran’s symptoms are subjective only. The examiner reasoned that there is no objective evidence of anything that represents the prodromal syndrome of MS in the Veteran that occurred prior to summer 2011, which is when definitive MS symptoms presented and a definitive diagnosis by any criteria was made. The examiner acknowledged the articles submitted by the Veteran, including articles from the Mayo Clinic and Cleveland Clinic. The examiner also noted that the Veteran reported symptoms of MS no later than 1990 and potentially earlier, including recurrent watery eyes, eye pain, photosensitivity, trouble closing his left eye, fatigue, coughing, and hand numbness. With respect to the Veteran’s reported ocular issues, including red, watery eyes and photosensitivity, the examiner reasoned that if these symptoms were indicative of MS, optic neuritis would not have “come and go” as was reported by the Veteran’s wife. Rather, the examiner noted that ocular issues related to MS are recurrent. With respect to the Veteran’s reported numbness, the examiner noted that statements of numbness may or may not fit with a diagnosis of MS. The examiner further addressed Dr. D.’s statements in the August 2013 DBQ that the Veteran’s MS started in June of 2011 and “very likely before.” However, the examiner concluded that, given the timelines, the history, and the medical record, there is nothing to substantiate anything consistent with an MS syndrome occurring in the Veteran prior to 1995. The examiner opined that it is less likely than not that MS has anything to do with any complaint the Veteran had prior to 1995. It is more likely than not that the alleged symptoms stated by the Veteran and family are due to other medical issues and not MS if they occurred prior to 1995 or even early into this century. The Board finds that the portion of the March 2017 opinion addressing the Veteran’s reported eye problems observed by he and his family within 7 years of his separation is adequate, and thus, finds this part of this opinion to have probative value. The Board further finds that the October 2020 opinion is adequate and addresses all the Veteran’s reported symptoms proximate to service, his submitted treatise evidence, and contains a rationale for the conclusions presented. Taking the probative portion of the March 2017 opinion and the October 2020 VA opinions together, the evidence establishes that the Veteran’s MS is not at least as likely as not related to an in-service injury, event, or disease, and did not have its onset within 7 years of his separation in 1988. The examiners’ combined opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also notes that the March 2017 and October 2020 VA opinions together address the Veteran’s reported symptoms, all lay statements in the evidence, and the articles the Veteran submitted for consideration with regard to his MS. Although the author of the August 2013 private opinion is similarly presumed to be competent to identify the initial onset of the Veteran’s MS, his statement that the Veteran has had symptoms of MS at least since June 2011 “and very likely before,” is insufficient to outweigh the March 2017 and October 2020 opinions. Since the Veteran separated from service in 1988, this statement does not clearly address when the author thought the onset of MS occurred prior to 2011, specifically whether MS had onset during service, within seven years of separation (by 1995), or more than seven years after service (in the period from 1996 to 2011). Moreover, he offered no supporting rationale for his conclusion, nor did he reference specific evidence in the claims file. See Nieves-Rodriguez, 22 Vet. App. at 304. While the Veteran has offered his opinion that his symptoms, including eye trouble, fatigue and numbness of the hands, which occurred within seven years of separation from service were evidence that MS manifested within that period, the Board finds his statements not competent for this purpose. He is competent to report his symptoms of eye trouble, fatigue, and hand numbness, but not to relate them to a diagnosis of MS. The issue of the prodromal onset of his MS is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA opinions. The most probative evidence of record does not show that the Veteran’s MS manifested to a compensable degree within the seven-year presumptive period. Therefore, entitlement to service connection for MS is not warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.