Citation Nr: 21002416 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-25 596 DATE: January 13, 2021 ORDER Service connection for multiple sclerosis is denied. FINDING OF FACT The Veteran’s multiple sclerosis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for multiple sclerosis have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 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 from February 1959 to March 1962. The case was previously before the Board in January 2019 and October 2020 when it was remanded for further development of the evidence. This has been accomplished, and the case has been returned for further appellate consideration. Entitlement to service connection for multiple sclerosis The Veteran contends that service connection should be established for multiple sclerosis, which he asserts had its onset during service or the seven-year presumptive period applicable to that disease. The Veteran asserts that he had blurred vision during service, which was an early manifestation of optic neuritis due to multiple sclerosis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, as identified in 38 C.F.R. § 3.309(a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of multiple sclerosis as evidenced by a July 1973 private physician statement. Multiple sclerosis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. It has a seven-year presumptive period. Review of the Veteran’s service treatment records (STRs) shows that, during service, he had no complaints or manifestations of a neurologic disorder that may be considered manifestations of multiple sclerosis. While the Veteran has stated that he had blurred vision during service, the only eye disorder demonstrated, including on separation from active duty, was refractive error, with his vision correctable to 20/20, bilaterally. Post-service medical evidence shows that the Veteran was noted to have symptoms of multiple sclerosis in July 1973. At that time the Veteran reported having a history of symptoms from 1962 to 1973. The examination report did not specify these symptoms. In a September 2014 private medical statement, a private physician indicated that the Veteran’s symptoms of “apparent drinking” in 1961 while in service was actually a symptom of multiple sclerosis. He opined that the Veteran’s multiple sclerosis had its onset during service and the symptoms for which he was treated on active duty were symptoms of the multiple sclerosis diagnosed many years later. A September 2015 private medical evaluation report included an opinion that the Veteran had symptoms of multiple sclerosis while in service. This opinion is based upon the Veteran’s reported history of having had optic neuritis while on active duty. In a March 2019 statement, another private physician indicated that the Veteran suffered a bout of optic neuritis while on active duty due to multiple sclerosis. An examination was conducted by VA in July 2019. After examination and review of the record, the examiner opined that the Veteran’s multiple sclerosis was less likely than not incurred in or caused by a claimed in-service injury, event or illness, was not manifested within seven years of service, and was not noted during service with continuity of symptoms since service. The rationale was that the Veteran was diagnosed with multiple sclerosis in 1973. After reviewing many of the potential symptoms of the disease, the examiner noted that the Veteran had worn glasses since the age of 12 and had been diagnosed with myopia during service. He had been treated for epigastric pain and was diagnosed with alcoholic gastritis in 1961. The Veteran stated that he had symptoms of decreased vision in the left eye during service, but did not seek treatment for this while in service. The examiner stated that there was no medical evidence in the STRs revealing that the Veteran had signs or symptoms of multiple sclerosis, nor was there evidence in the post-service medical records to indicate continuity of symptoms until 1973 when he was diagnosed with multiple sclerosis. Thus, “there is a lack of a nexus between the symptoms in service and the current condition.” As such, it was less likely than not that the multiple sclerosis was incurred in, manifested within seven years after separation from service or was noted during service with continuity of the same symptoms since service. In an October 2020 VA addendum opinion, the examiner reiterated the opinion that it was less likely than not that the Veteran’s multiple sclerosis was incurred in or caused by an in-service injury, event or illness. This opinion was based on the examiner’s review of the Veteran’s claims file, the Board’s October 2020 remand, and the Veteran’s VA treatment records. The examiner explained for rationale that multiple sclerosis was a demyelinating disease in which the insulating covers of the nerve cells in the brain and spinal cord were damaged. This damage disrupted the ability of parts of the nervous system to communicate, resulting in a range of signs and symptoms, including physical, mental, and sometimes psychiatric problems, with specific symptoms including double vision, blindness in one eye, muscle weakness, trouble with sensation, or trouble with coordination. The examiner noted that the Veteran’s multiple sclerosis was diagnosed in 1973, and that he started wearing glasses at the age of 12. The examiner also noted that during service, the Veteran was diagnosed with myopia (nearsightedness) and prescribed glasses. He was also seen in service in December 1961 after consuming alcohol and complaining of epigastric pain, and was diagnosed with alcoholic gastritis. The examiner further noted that the Veteran had reported having episodes of decreased vision in the left eye during service for which he did not seek treatment. After reviewing the foregoing, the examiner found that there was no medical evidence in the STRs to reveal that the Veteran had signs or symptoms of multiple sclerosis in service. There examiner also found that there was no evidence in the post-service medical records to indicate continuity of symptoms until 1973 when the condition was diagnosed. Regarding the private medical opinions providing favorable opinions, the examiner noted that the September 2014 letter stated the Veteran was eventually diagnosed with optic neuritis, a common sign of multiple sclerosis, and that the March 2019 letter stated that the Veteran suffered from bouts of optic neuritis while on active duty due to multiple sclerosis; however, the examiner pointed out that there was no medical evidence in the STRs or in the post-service medical records to show that the Veteran had been given a diagnosis of optic neuritis or multiple sclerosis during service or within the presumptive timeframe. The examiner further noted that medical notes from a neurology clinic, dated in February 2012, revealed that the Veteran had had an episode of optic neuritis in 1985. A letter dated from August 1973 also stated that the Veteran had a notation from July 1973, which indicated that the first symptoms of multiple sclerosis had been first noticed and marked at that time. The examiner stated that although the Veteran reported having had the condition from 1962 to 1973, there was no medical evidence of a multiple sclerosis finding or an optic neuritis condition shown during that timeframe. The examiner acknowledged that the Veteran was examined for multiple sclerosis on three separate dates in August 1973, but noted that this was not within the presumptive timeframe of seven years. The examiner concluded that as there was no objective medical evidence of treatment or diagnostic testing showing that the Veteran had a definitive diagnosis of multiple sclerosis within the presumptive timeframe, there was a lack of a nexus between the symptoms demonstrated in service and the current claimed condition. The examiner opined that it was less likely than not that the multiple sclerosis was incurred in, manifested within seven years after separation or was noted during service with continuity of symptoms since service. After reviewing the claims file, the Board finds that the claimed disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. As noted above, an August 1973 private treatment record shows the Veteran was not diagnosed with multiple sclerosis until July 1973, 11 years after his separation from service and several years outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of blurred vision since service and during the presumptive period and consistently since that time, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of multiple sclerosis or optic neuritis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Similarly, in a statement from the Veteran’s spouse, she reported that after meeting the Veteran in 1967, he would mention his visual problems to her. She also stated that she was with him when, in the mid-1960s, an ophthalmologist told him he had optical neuritis, a common symptom of multiple sclerosis. She stated this doctor referred the Veteran to a neurologist who told them that his symptoms were consistent with multiple sclerosis, which was then confirmed by a doctor at the University of Oregon, School of Medicine. The Veteran’s spouse further indicated they had searched for records, but were unable to locate any due to them being more than five decades in the past. The spouse’s account of the Veteran’s medical history is not, however, corroborated by the available treatment records. Specifically, the treatment records in the claims file show that in August 1973, the Veteran was seen on three occasions where it was reported that his multiple sclerosis symptoms first appeared in July 1973. In a statement dated July 2013, the Veteran’s physician, Dr. S.D.M., also stated that he had examined the Veteran on three occasions in August 1973, and “[a]t that time, [he] determined [the Veteran] had brain stem dysfunction due to demyelinating disease,” or, in other words, multiple sclerosis. The Board emphasize that these treatment records establish that the Veteran’s multiple sclerosis was diagnosed in 1973, with symptoms presenting just prior to the diagnosis, and not in the mid-1960s. Additionally, with regard to the various medical opinions of record, it is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. While the Board may not ignore a medical opinion, it is certainly free to discount the relevance of a physician’s statement, as it has done in this case. See Sanden v. Derwinski, 2 Vet. App. 97 (1992). In this case, several private physicians have opined that the Veteran did, in fact manifest symptoms of multiple sclerosis during service and thereafter. The bases for these opinions are the Veteran’s episode of intoxication and his own reports of having had incidents of blurred vision for which he did not seek treatment. The VA examiners have reviewed the record and these statements and do not find any manifestations of multiple sclerosis during service or within the seven-year presumptive period. Their rationale includes the fact that the Veteran was treated for alcoholic gastritis in service and that the symptoms described were attributable at that time to excess intake of alcohol and not to some misdiagnosis of multiple sclerosis symptoms. Additionally, the complaints of blurred vision were found to be more likely due to myopia, which the record shows that the Veteran experienced from approximately age 12. The Board finds the private opinions are not based on accurate medical findings, but on the Veteran’s unsubstantiated history. As such, they are not found to be as persuasive as the VA opinions in the record. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Given that the Veteran did not manifest symptoms of multiple sclerosis in service or within the seven-year presumptive period and that the more persuasive opinions are that service connection may not be established on a direct basis, the Board must deny the claim. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for multiple sclerosis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.