Citation Nr: 21002594 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 15-43 687 DATE: January 14, 2021 ORDER As new and material evidence was received, the request to reopen the claim for service connection for a right eye disability is granted. Service connection for multiple sclerosis (MS) is granted. Service connection for a right eye disability is granted. Service connection for right foot drop is granted. REMANDED Service connection for low back pain is remanded. Service connection for microscopic hematuria is remanded. A total disability rating for individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for right eye blindness was denied in a June 1997 Board decision. Evidence received since then raises a reasonable possibility of substantiating the claim for service connection. 2. The evidence is at least in relative equipoise as to whether the Veteran’s MS is related to his active service. 3. The Veteran’s right eye disability is at least as likely as not related to his MS. 4. The Veteran’s right foot drop is at least as likely as not related to his MS. CONCLUSIONS OF LAW 1. The June 1997 Board decision denying service connection for right eye blindness is final; new and material evidence has been received to reopen the claim. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1100. 2. The criteria for service connection for MS are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a right eye disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for right foot drop are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from February 1984 to May 1991 in the U.S. Army. He had additional active duty service from May 1991 to July 1992 that is considered dishonorable for VA purposes. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. This matter was previously before the Board in September 2019, at which time the issues on appeal were remanded for further development. This case has now been returned to the Board for appellate consideration. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). In March 2019, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is of record. In November 2020, he was notified that the VLJ who conducted the March 2019 Board hearing is no longer employed by the Board and that he had a right to another Board hearing. He was given 30 days to respond. As no response was received, the Board assumes that the Veteran does not desire another hearing. The Veteran has claimed service connection for iritis and vision loss of the right eye. His medical records show that he has been diagnosed with several right eye disabilities throughout the period on appeal. Accordingly, the Veteran’s claim has been recharacterized as service connection for a right eye disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In the January 2015 rating decision, the RO characterized the issue of service connection for low back pain as whether new and material evidence had been received to reopen the claim. However, there is no prior final decision regarding the claim for service connection for low back pain. Thus, the issue is properly characterized as shown above. New and Material Evidence Right Eye Disability The Veteran’s claim for service connection for blindness of the right eye was denied in a June 1997 Board decision. The decision is final as of the date stamped on the face of the decision. 38 C.F.R. § 20.1100. To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by the VA with respect to that claim since the last final denial, regardless of the basis for that denial. “New evidence” means evidence not previously submitted to agency decision makers, and “material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). The credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board previously denied the Veteran’s claim for service connection for right eye blindness because refractive error is not a disability for VA purposes and the Veteran had a pale, temporal nerve head of the right eye that was first shown in service in November 1991, during a period that is dishonorable for VA purposes. Medical evidence of record since the June 1997 Board decision supports a finding that the Veteran has a right eye disability related to his MS. See February 2020 VA Examination. Moreover, the Veteran has also been diagnosed with additional conditions of the right eye since the June 1997 Board decision. See January 2020 VA Examination. This evidence is new because it was not previously before agency decision makers and it is material because it relates to the issue of whether the Veteran has a current disability, the first element required to establish service connection, and raises a reasonable possibility of substantiating the claim. As such, the claim is reopened. 38 C.F.R. § 3.156(c). Service Connection MS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including MS, will be presumed related to service if they were shown as chronic (reliably diagnosed) 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, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. For MS that presumptive period is seven years following separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005).  Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet).  VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The Veteran contends that his MS is related to active service. Specifically, the Veteran asserts that he experienced loss of vision in his right eye during service and vision loss was one of the first symptoms of his MS. See June 2019 Correspondence; see also November 2015 VA Form 9. In June 2019, the Veteran submitted a medical article stating that symptoms of MS include fatigue, trouble walking and loss of balance, problems with vision, including blurred vision, poor contrast, and trouble seeing colors, numbness and tingling, worsening of memory, difficulty concentrating, challenges with planning, and trouble thinking of the right word. In August 1992, the Veteran stated that the left side of his body loses control. See August 1992 Veterans Application for Compensation or Pension. He also stated that he has had vision problems and dizziness since service. See July 1996 and May 1997 Correspondence. The Board finds that these statements are competent and credible because they are consistent with the medical evidence of record. See Medical Treatment Record Received January 1996 showing treatment for loss of vision in the right eye and blurry vision in the left eye; see also Service Treatment Records (STRs) showing treatment for vision loss, left side paresthesia, numbness, weakness, and dizziness. In March 2013 the Veteran’s physician stated that MS was probable. See VA Treatment Records Received December 2014. The physician noted that the Veteran had foot drop, spastic ataxia, chronic history of visual problems including iritis, atrophied right optic nerve, numbness of the extremities since at least 2011, urgencies of the bladder, and being unable to urinate. Id. The physician stated that his MS likely started with vision loss in 1992. Id. The Veteran was afforded VA examinations for MS in November 2015 and January 2020. In November 2015, the examiner opined that the Veteran’s MS is less likely than not caused by, a result of, or aggravated by his right eye blindness. The examiner’s rationale stated that symptoms associated with MS include visual problems such as blurred or double vision, red-green color distortion, or loss of vision in one eye, however medical literature does not show or report that blindness is a cause of MS. The examiner further stated that the exact cause of the Veteran’s MS is not apparent and there are no objective findings in the medical record indicating that MS was caused by blindness. The examiner also stated that MS is generally apparent in people with a genetic predisposition and certain conditions such as viral infections or environmental exposure. In January 2020, the examiner opined that the Veteran’s MS was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale stated that while the Veteran’s medical records include evidence of a MS diagnosis, there is no evidence that he was diagnosed or suffered with symptoms related to MS in the military. The examiner further stated that the diagnosis for MS was established in 2014, over 20 years after the Veteran separated from the military. The examiner also stated that the cause of MS is not well established, but research points to a genetic susceptibility, environmental factors, and viral infections as major risk factors. Regarding the question as to whether the Veteran’s right eye vision loss is a symptom of his MS, the examiner recommended an examination with an eye specialist for further evaluation. Regarding the Veteran’s eye disability, a November 2015 VA examiner opined that the Veteran’s decrease in vision in the right eye is at least as likely as not due to or aggravated by MS. The examiner also noted that the Veteran has right pale optic nerve possibly due to MS. In February 2020, a VA examiner noted that the Veteran has optic atrophy, chronic iritis, and nuclear sclerosis cataract, and stated that based on records reviewed, the Veteran’s optic atrophy was eventually thought to be due to MS. After affording the Veteran the benefit of the doubt, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s right eye disability is a symptom of his MS. Accordingly, the Board concludes that the Veteran’s MS manifested to a compensable degree within seven years of his separation from service. Therefore, service connection is warranted on a presumptive basis. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Right Eye Disability and Right Foot Drop The Veteran contends that his right eye blindness and right foot drop are related to his MS. Service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. The Veteran was afforded a VA examination for his MS in January 2020. The examiner noted that the Veteran has optic neuritis and is legally blind in his right eye due to his MS. The examiner also noted that the Veteran has an abnormal gait, including right foot drop, caused by his MS. As the Board has found that the Veteran is entitled to service connection for MS, the Board also finds that service connection is warranted on a secondary basis for a right eye disability and right foot drop. REASONS FOR REMAND Service Connection for Low Back Pain and Microscopic Hematuria The Veteran contends that his low back pain is related to service. The Veteran also contends that his low back pain and microscopic hematuria are related to his MS. He has not been afforded VA examinations. As such, remand is necessary to obtain VA examinations to determine the nature and etiology of his low back pain and microscopic hematuria. TDIU This issue is inextricably intertwined with the service connection issues being remanded as well as with the issues granted above. As such, a remand of the claim for a TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate physician to determine the nature and etiology of his claimed low back pain. The claims file must be made available to the examiner for review. All indicated tests and studies must be undertaken. The examiner should identify all diagnoses related to the Veteran’s claimed low back pain. For each diagnosis, the examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back disability began in service or is otherwise related to active service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back disability was (1) caused or (2) aggravated by this service-connected multiple sclerosis. The examiner must consider the lay statements of record. A complete rationale must be provided for all opinions offered. 2. Obtain an opinion from an appropriate physician to determine the nature and etiology of the Veteran’s diagnosed microscopic hematuria. The claims file must be made available to the physician and review should be noted. The physician should opine, with a complete rationale, as to whether it is at least as likely as not that the Veteran’s microscopic hematuria was (1) caused or (2) aggravated by his service-connected multiple sclerosis. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, 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.