Citation Nr: 21068115 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-26 871 DATE: November 9, 2021 ORDER Entitlement to 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 service connection for multiple sclerosis have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 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 from December 1973 to July 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran appeared at a hearing before a Veterans Law Judge, who has since retired from the Board. Pursuant to 38 C.F.R. § 20.707, the Veteran was advised in a letter dated in November 2020, of his right to a second Board hearing before another Veterans Law Judge and to let VA know whether he wanted a second hearing within thirty days of the date of the letter. In November 2020, the Veteran waived his right to another hearing and the Chairman has now reassigned the matter to the undersigned Veterans Law Judge. A transcript of the hearing before the prior Veterans Law Judge is in the record. In September 2019 January 2021, and June 2021, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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, most chronic diseases listed in VA regulations are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Multiple sclerosis, however, is presumed to have been incurred in service if it manifests to a compensable degree within seven years of separation from service. Id. The Veteran has multiple sclerosis (MS). Starting in October 2003, when an MRI demonstrated nearly two dozen lesions in his brain, the Veteran has been treated and followed by medical professionals for MS. Thus, the remaining question is whether the current MS disability is related to service. As discussed below, the Veteran reported noticing symptoms starting three years after separation from service. The Veteran also attributes the multiple vaccinations in service as the cause for his MS. Service treatment records show no complaints, diagnosis, or treatment related to MS or symptoms related to a neurological disability. As the Veteran reported other ailments during service, such as a sore throat, and neurological problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing such problems during service the Board would expect that he would have reported these problems to medical professionals. During the July 1975 separation examination, evaluation of the neurological system was normal. In a corresponding report of medical history, the Veteran specifically denied having had neurological symptoms or any other problems generally. If neurological symptoms such as weakness, dizziness, or paralysis were present during service, the Board would expect the Veteran would have responded "yes" when asked about dizziness or paralysis at separation because a reasonable person would have interpreted the question to include neurological symptoms of MS. MS is not shown by medical evidence until approximately 2003, 28 years after the Veteran's separation from service. Regarding onset of symptoms related to MS, post-service the Veteran and his wife testified that approximately three years after separation (or 1978), he began to have trouble with his gait and balance. At the time, the problems were intermittent, and they attributed the problem to general clumsiness. The Veteran testified that before diagnosis, he never sought treatment and had no problems with his employment as a heavy machine operator. He testified that in the 1980s, he developed leg cramps which he now attributes to MS although at the time, clinicians could not determine the cause of the cramps. The Board notes that VA unsuccessfully attempted to obtain the 1980 treatment records. As MS is not shown to have been present during service or in the first seven years after separation, and continuity of symptomatology leading to a diagnosis of MS is not shown, in-service incurrence of MS cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's report of medical history at separation from service where he denied any neurological symptoms. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. The Veteran presented for VA examinations in December 2019, August 2020, March 2021, and August 2021, at which time the examiners interviewed the Veteran, reviewed the pertinent medical history, and performed an examination. The December 2019 VA examiner concluded the Veteran's MS is less likely than not related to service. As a rationale, the examiner stated the separation examination record does not indicate any neurological symptoms or weakness. The August 2020 VA examiner found no evidence of a neurological condition, including MS, during service, at separation or post-active duty or annual certification exams through 1979. The first indication of a possible demyelinating disease is not documented until May 2004. The other post-service records cited above confirm the initial diagnosis and treatment of MS. Even if symptoms predated the 2004 diagnosis, which by history they did not, there is still a span of 20 plus years after service before any manifestations are noted. Therefore, the August 2020 VA examiner also concluded it is less likely than not that the veteran's MS had its nexus in service, or one year post-service or seven years post service. The March 2021 examiner noted no evidence of symptomatology consistent with MS while in service. The separation exam was negative for signs or symptoms suggestive of MS and includes the separation examination history which the veteran specifically answered negatively for any and all complaints suggestive of MS. The March 2021 VA examiner stated it highly unlikely a significant neurologic condition such as MS would have gone unnoted or unreported during service. He further explained that MS is a demyelinating condition thought to be autoimmune in nature. The response to therapies modifying the immune system is strong evidence to support that theory. The Veteran was not diagnosed until 2003/2004, 28 years post-service. The natural history of MS makes it highly unlikely that more than 25 years would pass before presentation for medical care. Thus, it is highly unlikely that the Veteran could have gone this length of time without requiring intervention or evaluation had the onset occurred in service. The expert also cited a respected professional medical resource which did not show any medical literature linking nonspecific environmental exposures or particular exposure that has been identified in the literature as a catalyst or a cause of MS. Therefore, the examiner concluded it is less likely than not that the Veteran's MS had its nexus in service or is due to events in service, including non-specified environmental exposures. The examiner also concluded there is no evidence to support a claim of onset in service of chronicity of symptoms since service. The August 2021 VA examiner reported that the medical literature currently does not support a link between vaccines and MS. Vaccinations are often the most effective tool against some disease known to mankind. The examiner cited and discussed one medical study that made a systematic literature review from a medical database on the role of vaccines regarding the risk of developing multiple sclerosis (MS) and MS relapse. The study found no change in the risk of developing multiple sclerosis (MS) after vaccination against various diseases including hepatitis B virus, human papillomavirus, seasonal influenza, measles-mumps-rubella, variola, tetanus, Bacillus Calmette-Guérin (BCG), polio, or diphtheria. The Board notes that the in- service vaccines administered to the Veteran included polio, influenza, tetanus, and diptheria. The Board finds March 2021 and August 2021 opinions highly probative as they were made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinions are also supported by other evidence of record. For example, as noted, the service treatment records did not show any complaints such as weakness, diagnosis, or treatment for MS in service. There are no medical records demonstrating a diagnosis, symptoms, or findings for 28 years. As the March 2021 VA examiner explained, MS, if present, would not manifest 28 years after onset. This is too long a length of time without requiring intervention or evaluation had the onset occurred in service or even with the first seven years after separation. Reading the report as a whole, the Board interprets the VA examiner as reasoning that if the Veteran had MS that originated in service, or manifested by 1978 as he claims, it would have been noted in medical records at some point before 2003 or 2004 as described by the VA examiner. See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder). Thus, the Board also finds the March 2021 VA examiner took into consideration the Veteran's and his wife's testimony that he had gait and balance problems starting in 1978. Because the diagnosis occurred in 2003, the examiner thus determined the gait/balance problem is not an indication of or related to MS. The August 2021 VA examiner also concluded the service vaccines did not cause the Veteran's MS based upon medical literature finding no link between vaccines and MS. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran's testimony as well of the testimony of his wife, who is a registered nurse, to include his assertions that the disability is related to service because he exhibited gait and balance problems. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., balance problems; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. As for his wife, she only testified to her conclusion that in retrospect, what she had believed to be clumsiness actually represented a symptom of MS. A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Furthermore, the Board has weighed her training as a nurse and assigns it less probative value as she has not demonstrated expertise regarding MS. See Black v. Brown, 10 Vet. App. 279, 284 (Veteran's wife, though medically trained as a nurse, had no special knowledge, regarding cardiology, and she did not participate in treatment, so that her opinion regarding etiology of the veteran's disability was not probative evidence.). The Board acknowledges the Veteran's argument that the medical evidence indicates MS had its onset well before the 2003 diagnosis. Specifically, the Veteran observes that the first MRI in 2003 showed nearly two dozen lesions. Follow-up MRIs, however, demonstrated either a few new lesions or no new lesions. The Veteran argues that this demonstrates MS progressed at a slow rate and more than likely would have been present during the presumptive period. The VA examiners, however, have determined that the initial MRI findings occurred too long after separation for the MS to have its onset in service or within the seven year period after separation. As noted, the Board has assigned greater probative weight to the March and August 2021 VA examiners opinions than any lay opinion by the Veteran. The Veteran is asking the Board to do something it is not allowed to do, that is, to substitute its judgement for the medical judgment of the VA examiners. See Kahana, 24 Vet. App. at 434 (the Board must consider independent medical evidence to support its findings rather than provide its own medical judgment). In a related argument, the Veteran also argues that the seven- year limitation for MS to be presumed related to service is arbitrary. The Board is not free to ignore VA's duly promulgated regulations, which include the regulations regarding MS as a chronic disability. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by the March 2021 and August 2021 VA examiners, trained medical professional, based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claim and service connection for multiple sclerosis is denied. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.