Citation Nr: 21064953 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 12-19 929 DATE: October 22, 2021 ORDER Entitlement to service connection for multiple sclerosis is granted. FINDING OF FACT The Veteran's multiple sclerosis manifested to a compensable degree within the seven-year presumptive period. CONCLUSION OF LAW The criteria for service connection for multiple sclerosis have been met. 38 U.S.C. §§ 1110, 1131, 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 in the United States Army from May 1988 to September 1988, December 1990 to June 1991, and January 2003 to August 2004, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO). In February 2015, the Board remanded entitlement to service connection for multiple sclerosis and malignant melanoma for additional development, and in April 2020, the Board denied both claims. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2021 Order, the Court granted the parties' Joint Motion for Partial Remand remanding the Veteran's service connection claim for multiple sclerosis to the Board. Specifically, the parties agreed that the Board erred when it failed to ensure compliance with its prior February 2015 remand instructions. The Veteran did not challenge the Board's denial of service connection for malignant melanoma. This matter was previously before the Board in June 2021 and was remanded for further development. Service Connection Entitlement to service connection for multiple sclerosis. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). Multiple sclerosis is a chronic disease for which service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within seven years following service discharge. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, for chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Significantly, establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease. 38 C.F.R. § 3.307(c); Traut v. Brown, 6 Vet. App. 495 (1994). The Veteran contends that multiple sclerosis is the result of exposure to chemical agents while in service. She stated her symptoms first manifested during her December 1990 deployment to Saudi Arabia where she experienced chronic fatigue and extreme constipation. Specifically, the Veteran asserted she went to a field hospital in the desert of Saudi Arabia after being unable to void for 11 days. She recalled receiving three enemas with no change and was finally able to void two hours after administration of the fourth enema. The Veteran further stated her symptoms of chronic fatigue and constipation have been continuous since discharge from service in 1990 and were present when she was diagnosed with multiple sclerosis in 2001. See February 2011, Notice of disagreement; August 2009, Correspondence; July 2009, VA Form 21-526. The record contains a 2001 diagnosis of multiple sclerosis, which was later characterized as relapsing and remitting in 2007. See Private treatment records dated February 2005 and April 2007. Post-service treatment records indicate the Veteran is a very good historian and note her complaints of fatigue, gait disturbance, difficulty sleeping, trouble initiating and remaining asleep, numbness in torso and lower extremities, bilateral lower extremity weakness, dizziness, balance and coordination problems, and urgency of urination. During a 2005 annual examination, a VA doctor found the Veteran has some degree of depression due to multiple sclerosis. See VA treatment records dated December 2002, June 2007, and August 2008; Private treatment records dated December 2004, April 2007, and May 2007. In a July 2021 multiple sclerosis VA examination, the examiner found the Veteran's symptoms of chronic fatigue and constipation were manifestations of multiple sclerosis. In responding to whether the Veteran's assertions of suffering from chronic fatigue and constipation since her 1990 active service deployment are credible, the examiner, in part, stated, "If an individual claims to have suffered from symptoms suggestive of [multiple sclerosis,] I cannot argue with that." In light of the medical and lay evidence of record, the Board finds the Veteran had symptoms of multiple sclerosis in and within seven years after service. The Board notes the Veteran's competent and credible lay evidence that chronic fatigue and extreme constipation began during service in 1990 and her symptoms have been recurrent since discharge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the Board finds the July 2021 VA examiner's opinion that chronic fatigue and constipation are manifestations of multiple sclerosis to be highly probative and supports finding the Veteran's symptoms in 1990 were early manifestations of her subsequently diagnosed multiple sclerosis. Here, the Veteran as multiple sclerosis was not diagnosis until 2001. Resolving reasonable doubt in the Veteran's favor, the Board finds multiple sclerosis manifested within the applicable presumptive period. 38 C.F.R. § 3.102. The Board further finds the Veteran's multiple sclerosis manifested within a compensable degree within the seven years from the date of separation from service. Under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8018, multiple sclerosis has a minimum rating of 30 percent. The note associated with DC 8018 states ascertainable residuals are required for minimum ratings and determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. Here, the above evidence reflects that the Veteran had at least one ascertainable residual within the meaning of 38 C.F.R. § 4.124a, DC 8018 during the seven years following her separation from service. Thus, under the regulation, the Veteran met the physical requirements for the minimum rating of 30 percent for multiple sclerosis. It follows that the Veteran's multiple sclerosis manifested to a compensable degree during the seven-year presumption period following service. Traut, 6 Vet. App. at 499-500. For the foregoing reasons, the Veteran's multiple sclerosis manifested to a compensable degree within the seven-year presumptive period. Therefore, service connection for multiple sclerosis is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, 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.