Citation Nr: 21066040 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-38 383 DATE: October 28, 2021 ORDER Entitlement to service connection for multiple sclerosis is denied. INTRODUCTION The Veteran served on active duty from March 1988 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with claims file. In February 2021, the Board denied this claim. Thereafter, the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In March 2021, the parties filed a Joint Motion to Vacate and Remand (Joint Motion), asking the Court to vacate the Board's February 2020 decision. By a March 2021 Order, the Court granted the Joint Motion and remanded the matter to the Board for action consistent with the directives of the Joint Motion. In June 2021, the Board remanded the Veteran's claim for additional development. Specifically, the Board directed the RO to obtain supplemental opinions regarding (1) whether the Veteran contracted viruses or experienced viral infections during his active duty; and (2) whether it is at least as likely as not that any such viruses or viral infections are etiologically related to his current multiple sclerosis. In August 2021, the requested opinions were obtained, and the Board finds that they substantially comply with the June 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO confirmed and continued the denial of the Veteran's claim, issued an August 2021 supplemental statement of the case to the Veteran and his representative, and, after giving them the opportunity to respond, remitted the appeal to the Board for further appellate review. Based on the above, the Board finds that a remand for corrective action is not required and the merits of the Veteran's claim will be addressed herein. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has multiple sclerosis due to a disease or injury in service, or that his multiple sclerosis manifested to a compensable degree within seven years after his active service. CONCLUSION OF LAW The criteria for service connection for multiple sclerosis have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as multiple sclerosis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service or within seven years for multiple sclerosis. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In February 2012, VA received the Veteran's claim of entitlement to service connection for multiple sclerosis. Therein, the Veteran did not make any assertions as to the onset, course, or symptoms on his multiple sclerosis. In June 2012, the Veteran underwent a VA examination. Although the examiner ascertained the presence of multiple sclerosis, reviewed the Veteran's relevant medical history, and administered clinical testing, no etiological opinion was rendered. In an August 2012 rating decision, the RO denied the Veteran's claim, finding that his multipole sclerosis neither occurred in nor was caused by his active duty. Further, the RO determined that the evidence of record did not demonstrate a diagnosis of multiple sclerosis within 7 years of the Veteran's active duty. In May 2016, the Veteran submitted correspondence about the onset, course, and manifestations of his multiple sclerosis. Therein, the Veteran asserted that he experienced in-service headaches on a "regular basis," after about one year, but that he did not seek medical attention on each occasion due to military culture and because he did not wish to be medically discharged. He further asserted that other symptoms would "come and go," such as fatigue, numbness, and depression. However, he dismissed these symptoms. He claimed that the manifestation and abatement of these symptoms were "signs of relapsing-remitting multiple sclerosis." [capitalization omitted]. The Veteran further asserted that there was no family history of multiple sclerosis, which meant that genetics was not the cause. However, given that he travelled all over the world while serving in the Navy, the various environments, to include exposure to burning oil rigs, could be the cause of his multiple sclerosis. Alternatively, the Veteran asserted that he contracted a virus, possibly in the Philippines, that was not diagnosed or was misdiagnosed during his active duty. The Veteran alleged that, given his headaches and back pain, he was discharged from active service with undiagnosed multiple sclerosis. After his discharge, he claimed he continued to experience headaches "and pain." He stated that he was eventually diagnosed with "progressive multiple sclerosis," which he stated meant that the disease worsened over time. The Veteran further claimed that most people with this disability receive the diagnosis when they are around 40 years of age; he received his when he was 36 years old. He explained that, on December 17, 2003, he "became ill," fell, "hurting, and leaning to one side." After listing relevant evidence, the Veteran stated that his multiple sclerosis had progressively worsened and was manifested by the following: bladder and bowel problems, bad mood changes, fatigue, weakness and poor coordination, severe headaches, severe pain in legs, arms, and almost constant muscle stiffness, balance difficulties to include the need for an assistive walking device, memory and recall difficulties, depression, and sleeping difficulties. In October 2016, the Veteran testified at hearing with the undersigned Veterans Law Judge. The Veteran effectively reiterated past assertions that in-service lay observable symptoms were the prodromal manifestations of his multiple sclerosis. He stated that those symptoms were migraine headaches, stomach issues, vomiting, and irregular or "irritable" bowel movements. He stated that these symptoms began in 1990 while stationed aboard a Navy vessel and deployed overseas in the Gulf War theater, but that he did not seek regular treatment. Similarly, after this active service, the Veteran testified that he continued coping with his symptoms until 2009, at which time he was diagnosed with multiple sclerosis. The Veteran later testified that he experienced environmental exposures during deployments, which resulted in congestion and headaches, and that he experienced tingling, mood changes, and brain lesions after service. In November 2018, the Veteran underwent another VA examination that evaluated multiple sclerosis. However, the examiner did not render an etiological opinion. In December 2018, the Board remanded the Veteran's claim for additional development, including obtaining a supplemental opinion from a VA examination with regard to the etiological relationship between the Veteran's multiple sclerosis and his active duty. While in remand status, the RO obtained the Veteran's updated VA treatment records. Further, as will be discussed immediately below, the RO obtained the requested etiological opinion from a VA examiner. In October 2019, the RO obtained the requested etiological opinion from a VA examiner. After reviewing the evidence of record, and in conjunction with a review of medical research, the examiner opined that it was less likely than not (less than a 50 percent probability) that the Veteran's multiple sclerosis was incurred in or caused by the Veteran's active service. In support of this opinion, the examiner provided the following rationale: According to online UpToDate, 'the case of [multiple sclerosis] remains unknown. The most widely accepted theory is that [multiple sclerosis] begins as an inflammatory immune-mediated disorder. Alternative theories include: A possible immune (but nor autoimmune) etiology due to a chronic viral infection; A nonimmune noninflammatory etiology due to a genetically determined neuroglial [sic] degenerative process.' 'Environmental factors appear to play a major role in determining the risk of [multiple sclerosis]. These include viral infections, geographic latitude and place of birth, sunlight exposure and vitamin D levels, and others.' [Internet site omitted] According to DVA Neurological Diseases in Gulf War Veterans, updated in 2011, they reported 'Veterans who deployed to the Gulf War in 199-1991 may be at increased risk for amyotrophic lateral sclerosis, multiple sclerosis, Parkinson's disease, or brain cancer.' The key work is 'may' because the study was based upon brain autopsies of veteran who died and the neurogenic findings. Their update does not indicate Persian Gulf War exposures caused multiple sclerosis. [Internet site omitted] The examiner then opined that it was less likely as not that the Veteran's lay observable, in-service symptoms (headache, vomiting, irregular bowel movement, etc.) were the prodromal manifestations of his current multiple sclerosis. In support of this opinion, the examiner reasoned as follows: Review of the military medical records shows no complaints that could be interpreted as prodrome to multiple sclerosis. According to the Annals of Neurology 2018, prodrome [symptoms] are gastric, insomnia, fatigue, headache, and various types of pain. [Internet site omitted]. These were the documented ailments the Veteran experienced according to his military records: [list of service treatment record entries omitted]. ... On Neurological Clinic note dated [September 5, 2019], the Veteran stated: 'He reports symptoms onset in 1990s when he was in the military,' (this is clearly a contradiction to every military document we have)[.] Correspondence by Ms[.] Balka and Ms[.] Lewis below are conjecture not based upon medical documents. ... Letter by Pinkie Balka dated [February 5, 2012], 'I am sure his behavior was due to the [multiple sclerosis] that had not really been assessed by his doctors[.]" Letter by Patricia Lewis dated [February 6, 2012,] 'he argued with me and his spouse incessantly and had outrageous behaviors...I feel there [sic] behaviors were a precursor to his present illness, Muscular Dystrophy' (apparently the writer does not know the difference between [multiple sclerosis] and muscular dystrophy). Medical statement by his outside doctors, [October 21, 2009], '40 [year old] male who back in July 2009 started having problems walking, he was sleepy, disoriented and confused. He was hospitalized in Port Arthur and thought to have another stroke (first one in 2003). He was subsequently hospitalized in September 2009.' '[H]e was thought to have demyelinating disease.' Medical statement by outside doctor dated [October 15, 2009], 'complaining of dysarthria, inappropriate laughter and poor balance...his wife states his symptoms are definitely new.' [The] Veteran was hospitalized in 2009 and a diagnosis of multiple sclerosis was made. Finally, the examiner opined that it is less likely as not that the Veteran's multiple sclerosis manifested to a compensable degree within 7 years of his discharge from active duty. In support of this opinion, the examiner provided the following rationale: According to medical records, the Veteran was discharged from the military in 1992 at age 22. The diagnosis of Multiple Sclerosis was made at the Houston VA [Medical Center] in 2008 at age 38. If the Veteran did not show any prodrome while in the military (see above), during the seven year period after military discharge, till age 29 or [in] 1999, there were no medical documentation of neurologic or psychiatric complaints. In fact the Veteran did not manifest any neurological complaints till be had a hemiplegic stroke in 2003. This was not a manifestation of multiple sclerosis but rather of a cerebrovascular accident. According to Houston Neurology Clinic note date [February 4, 2012], '(in 2003) he was weak on the right side, worked on the railroad at the time, went into the hospital, the physicians thought he was having a stroke. He returned to about 65-75 [percent] of normal within around 6 months and he went back to work at that time. During the following 3 years he was fairly stable. As discussed in the Introduction, the Board remanded the Veteran's claim in June 2021, in order to obtain supplemental opinions. First, with respect to the Veteran's assertion that he contracted a virus or experienced a viral infection during his active duty, an August 2021 VA examiner opined as follows: The Veteran has a current diagnosis of multiple sclerosis established in 2008 at age 39. He had no history of neurologic symptoms prior to cardiovascular accident (stroke) in 2003. The medical record indicates that the Veteran contracted at least three mild, self-limited viral illnesses while in service. A review of the medical literature reveals that viruses are ubiquitous in the environment. It can be said with near certainty that the Veteran was exposed to, and likely contracted other subclinical viral infections while in service. Likewise, it can be said with near certainty that the Veteran was exposed to, and likely contracted numerous viral infections during his childhood and during his adult years after service. Therefore, based on the body of current medical knowledge and the evidence of record it is my medical opinion that it is at least as likely as not (a 50 percent probability or greater) that the Veteran contracted viruses or experienced viral infections during his active duty. Consequently, the evidence of record demonstrates that the Veteran contracted viruses and/or experienced viral infections during his active duty. Second, the August 2021 VA examiner addressed whether the Veteran's in-service viruses and/or viral infections are etiologically related to his current multiple sclerosis. The examiner opined as follows: The Veteran has a current diagnosis of multiple sclerosis established in 2008 at age 39. He has no history of neurologic symptoms prior to cardiovascular accident (stroke) in 2003. The medical record indicates that the Veteran contracted at least three mild, self-limited viral illnesses while in service. There is no evidence of an Epstein-Barr or infectious mononucleosis condition in service. A review of the medical literature reveals that certain viral infections are only one of a number of possible risk factors for multiple sclerosis, and that the science on the cause and effect of viral illness and multiple sclerosis is not settled. The medical literature also reveals that viruses are ubiquitous in the environment. It can be said with near certainty that the Veteran was exposed to, and likely contracted symptomatic and subclinical viral infections throughout his life, including while in service. Even if a viral illness [sic] were as likely as not the cause of the Veteran's [multiple sclerosis] which cannot be conceded, he was at risk of viral infections throughout his life. The amount of time the Veteran spent in service represents just over 10 [percent] of his lifetime prior to his diagnosis with [multiple sclerosis]. Therefore, based on the body of current medical knowledge and the evidence of record it is my medical opinion that it is less likely than not (less than 50 percent probability) that any viruses or viral infections contracted during service are etiological related to the Veteran's current multiple sclerosis. Despite the Veteran's statement to the contrary, the Board is unable to locate any positive etiological opinions of record, or an opinion or treatment records demonstrating that his multiple sclerosis manifested to a compensable degree within 7 years of his active service. In this, and in other cases, the Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The only probative diagnostic and etiological opinions of record are those of the October 2019 and August 2021 VA examiners, which are negative to the Veteran's claim. The Board finds that the VA examiners' opinions are highly probative. To the extent that the Veteran asserts his multiple sclerosis, or prodromal symptoms thereof, onset during active service or is otherwise related to his active duty, or manifested to a compensable degree within 7 years of his active service discharge, the Board finds that such a determination is more suited to the realm of medical, rather than lay expertise. The Veteran's statements are competent as to experiencing lay observable symptoms, such as pain; however, the diagnosis of, etiology, and/or determination of onset is too complex for a layperson to proffer a competent opinion, especially in regard to multiple sclerosis and when other etiologies for the Veteran's symptoms are possible. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent diagnostic or etiological opinions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Veteran's lay assertions do not constitute competent evidence of a disability in this case. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, service connection is not warranted for multiple sclerosis on a direct basis. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, the Board concludes that, while the Veteran has a current diagnosis of multiple sclerosis, which is a chronic disease under 38 C.F.R. § 3.309(a), the preponderance of the evidence is against finding that it manifested to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean G. Pflugner, 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.