Citation Nr: 21065725 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-44 946 DATE: October 27, 2021 ORDER Entitlement to service connection for multiple sclerosis (MS), to include claimed as due to exposure to herbicide agents, is denied. FINDING OF FACT The Veteran's MS was not manifested in service or within 7 year following his discharge from active duty, is not listed in 38 C.F.R. § 3.309(e) as a disease associated with exposure to herbicide agents, and is not otherwise shown by competent evidence to be etiologically related to his service or any injury, disease, or event (to include an environmental exposure) therein. CONCLUSION OF LAW Service connection for MS is not warranted. 38 U.S.C. §§ 1110, 1112, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309(a)(e). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1969 to November 1970, including service in the Republic of Vietnam. This matter is before the Board on appeal from an August 2012 Department of Veterans Affairs (VA) rating decision. In November 2018 and June 2021, the matter was remanded for additional development. Entitlement to service connection for MS is denied. At the outset some discussion of the procedural history in this matter is necessary. An unappealed (and thus final) 2002 rating decision had denied service connection for MS. Without addressing the significance of the finality of that decision or whether new and material evidence was received, a November 2018 Board remand ordered further development in the matter, to include scheduling a hearing and arranging for a VA examination. The undersigned assumes, from inference, that the Board had implicitly reopened the claim (having found unidentified new and material evidence), and determined that further development was required for de novo consideration of the claim. The undersigned defers to that Board judgement finding, as it is favorable to the Veteran. In the June 2021 remand the Board acknowledged that the prior instruction to arrange for a hearing in the matter was in error, as the Veteran had not requested a hearing. The Board ordered another medical opinion in the matter, finding that the 2019 opinion in response to the 2018 Board remand did not include "a supporting rationale". Finally, the Board notes that in the latest written argument in this matter in October 2021, the Veteran's representative, inter alia., "directs the Board's attention" to a "hearing transcript". Although it was previously established that the Veteran had not requested a hearing in connection with this appeal, considering the argument, the Board closely reviewed the record for a hearing transcript, but did not find one therein (and assumes upon such review that there is no such transcript). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, to include MS, may be presumed to be service-connected if manifested to a compensable degree within a specified period postservice (7 years for MS). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Nexus of a chronic disease listed in § 3.309(a) to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Certain chronic diseases (listed in 38 C.F.R. § 3.309(e)) may be presumed to be service connected as due to exposure to herbicide agents/Agent Orange if manifested in a Veteran who served in the Republic of Vietnam during the Vietnam Era. 38 U.S.C. § 1116. Those diseases are listed in 38 C.F.R. § 3.309(e); MS is not listed. Additionally, the Health and Medicine Division (HMD) (previously the Institute of Medicine (IOM)) of the National Academy of Sciences (NAS)) has not included MS in its reports as no studies have provided enough substance to justify developing a section for this health outcome. See Veterans and Agent Orange: Update 2014 (March 10, 2016). The Veteran contends that his MS is due to his exposure to herbicide agents in Vietnam. His DD Form 214 confirms that he served in Vietnam during the Vietnam Era; he is presumed to have been exposed to herbicides/Agent Orange in the course of such service. His STRs are silent for complaints, findings, treatment, or diagnosis of multiple sclerosis or other neurological disability. On November 1970 service separation examination, neurologic findings were normal on clinical evaluation. The Veteran's postservice treatment records are silent for complaints, findings, treatment, or diagnosis of MS until August 1999, when he was referred for a consultation regarding suspected multiple sclerosis. He reported that in September 1998, he experienced severe pain in his back and into his buttock that occurred while golfing. He sought treatment from his primary care doctor; a muscle relaxant was prescribed; and the pain improved gradually over time. He began noticing additional symptoms in the left leg and foot during the winter and spring of 1999. On August 1999 consultation, myelopathy, etiology uncertain, was diagnosed. After additional testing in September 1999, the assessment was primary progressive multiple sclerosis. In November 2000 and January 2001, the Veteran's treating neurologist completed a "Certification of Health Care Provider" indicating that the Veteran has a chronic condition diagnosed as multiple sclerosis, which commenced in August 1999. In his July 2002 service connection claim, the Veteran stated that his multiple sclerosis began in August 1999. In an August 2002 statement, he stated that for approximately the past 10 to 15 years he had experienced weakness and pain in his back but assumed it was normal aging, and was "shocked" when the condition was diagnosed as multiple sclerosis in 1999. On February 2012 VA treatment, it was noted that the Veteran has primary progressive multiple sclerosis, diagnosed in 1999; had presented in 1998 with severe back pain and then slowly developed weakness; had EMG/CT/MRI testing and imaging and received a diagnosis of multiple sclerosis shortly thereafter. On October 2019 VA examination, the Veteran reported that he began to notice slowing of his walking in the 1970s, and saw a neurologist in the 1990s regarding left leg weakness and low back pain. The examiner noted that the STRs are silent for any history of neurological symptoms or diagnoses, MS gait difficulties, leg weakness, or neurological inability to meet physical requirements of active service; and the November 1970 separation exam is negative for any neurological symptoms, signs, diagnoses, or conditions. The examiner cited the August 1999 and September 1999 treatment records cited above, and noted that MS was [first] diagnosed in 1999. The examiner opined that it is less likely than not that the Veteran's MS had its onset during service, became manifest within seven years of separation from service, or is otherwise related to service, including his presumed exposure to herbicide agents such as Agent Orange. The examiner explained that there is no medical documentation of any gait difficulties, lower extremity weakness, or other neurological signs/symptoms during the Veteran's active service or within seven years of separation from service; and that there is no medically established causal connection between herbicide agent exposure, such as Agent Orange, and MS. On July 2021 VA examination, the Veteran reported the onset of MS in the late 1970s; he reported that he developed "foot slapping" which persisted, later had tingling sensations in the legs intermittently, and at that time he was diagnosed with back problems. He reported that later, in 1999, MRI revealed white matter lesions in the brain, and MS was diagnosed. The examiner opined, based on review of the medical record, that the Veteran's initial symptoms of MS of back pain and tingling of the leg began in 1998, as he reported to the VA spinal cord injury center in 2012. The examiner noted that, on current examination, the Veteran reported that he began to experience back pain and leg tingling in the late 1970s, but noted that there are no records available to corroborate this. The examiner noted that, while the Veteran reports Agent Orange exposure, MS has not been found to be related to Agent Orange. The examiner opined, based on these facts and the available evidence, that the Veteran's MS is less likely than not incurred by in-service injury. Extensive scientific studies have produced a limited list of disabilities related to Agent Orange exposure (see 38 C.F.R. § 3.309(e)). Inasmuch as MS is not listed in 38 C.F.R. § 3.309(e) as associated with exposure to Agent Orange/herbicide agents, the presumptive provisions of 38 U.S.C. § 1116 do not apply, and service connection for MS on a presumptive basis, as due to exposure to Agent Orange, is not warranted. MS was not manifested in service (or found by competent evidence to have been manifested within 7 years following discharge from service). Accordingly, service connection for MS on the basis that it became manifest in service and persisted, or on a chronic disease presumptive basis under 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a), is not warranted. Postservice evaluation/treatment records do not support or suggest that the Veteran's MS was or may be related to his service, to include as due to exposure to Agent Orange. Regarding the dispositive factor of a nexus between a claimed disability and service, to include exposure to herbicide agents therein, the Board finds the VA examination reports and medical opinions (cumulatively) merit substantial probative weight. They reflect review of the Veteran's claims file, familiarity with his medical history, and consideration of lay accounts, and include rationale that cites to historically accurate supporting factual data and medical principles. The Board notes that the October 2019 VA examiner did provide explanation of rationale in support of the opinion offered: that there is no medical documentation of any gait difficulties, lower extremity weakness, or other neurological signs/symptoms during the Veteran's active service or within seven years of separation from service; and that there is no medically established causal connection between herbicide agent exposure, such as Agent Orange, and MS. The examiner's statement noting that a review of medical literature found no support for the proposition is, in fact, citing to medical principles (the current state of medical knowledge). The Board notes that the July 2021 VA examiner added some more detail to the 2019 examiner's rationale. The Board finds the two VA examination reports and medical opinions to be probative evidence in the matter, and cumulatively persuasive. The Veteran asserts that his MS should be treated similarly to Parkinson's disease, which is on the presumptive list for service connection due to herbicide exposure, because each is a neurological disease and a degenerative brain disorder that leads to stiffness, difficulty with walking, balance, and coordination, and he suffers from all of these symptoms. While the Veteran is competent to report his symptoms, he is not shown to have the medical training or knowledge for his opinion to be considered competent medical evidence (as the etiology of MS is a medical question) , nor has he presented any medical opinion or text or treatise evidence supporting that MS is a Parkinson's type disease. Thus, his own assertions arguments that the MS should be treated as Parkinson's have no probative value. As there is no competent evidence that the Veteran's MS is etiologically related to his service, the Board concludes that the preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.