Citation Nr: 21068428 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 19-22 183 DATE: November 10, 2021 ORDER Entitlement to service connection for a neurological disorder, claimed as ataxia and multiple sclerosis, is denied. FINDING OF FACT The preponderance of the evidence is against the finding that the Veteran's diagnosed chronic neurological disorder began during service, manifested to a compensable degree during the applicable presumptive period following the discharge from service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a neurological disorder, claimed as ataxia and multiple sclerosis, have not been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 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 June 1967 to December 1978. This matter came before the Board of Veterans' Appeals ("Board") on appeal from an August 2017 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO"). In February 2020, the Board denied entitlement to service connection for a neurological disorder, claimed as ataxia and multiple sclerosis. The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims ("CAVC"). In a December 2020 order, CAVC granted a Joint Motion for Partial Remand ("JMPR") filed by the parties (the Veteran and Secretary to VA), and vacated and remanded the February 2020 decision for compliance with the instructions in the JMPR. The parties to the JMPR noted that in an April 2018 statement, the Veteran asserted that he began to experience dizziness during service, and that it should be documented in his medical records from the hospitals at Fort Sam Houston and Randolph Air Force Base. Therefore, the Board failed to consider whether the Veteran's complete service treatment records were obtained before rendering a decision. Pursuant to the JMPR, the Board remanded this matter in June 2021 to obtain outstanding service treatment records from Fort Sam Houston hospital and Randolph Air Force Base hospital. In case of unavailability of the records, the Board directed the RO to prepare a formal finding of unavailability. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the RO substantially complied with the directives set forth in the June 2021 remand. See Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall). Entitlement to service connection for a neurological disorder, claimed as ataxia and multiple sclerosis. The Veteran contends that he has a neurological disorder that is related to his active service. He argues that his ataxia is a form of multiple sclerosis. In a March 2018 correspondence, he asserted that he began experiencing dizziness while he was stationed in Alaska and it has become progressively worse. In an April 2018 correspondence, the Veteran asserted that he experienced dizziness in the military, and he believes this was the onset of his ataxia and multiple sclerosis ("MS"). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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). In determining whether service connection is warranted for a disability, VA must determine 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, 53-54 (1990); 38 C.F.R. § 3.102. If a veteran has a current, chronic disability listed in 38 C.F.R. § 3.309(a), a nexus can be presumed if there is evidence of chronic disease manifested as such during active service; or chronic disease manifested to a compensable degree within a specified period after active service (usually 1 year); or if there is competent, credible, and persuasive evidence of continuity of symptomatology since active service. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). For multiple sclerosis, the disease must manifest to a degree of 10 percent or more within 7 years from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Thus, the question for the Board is whether the Veteran has a current neurological disorder that began during service or manifested to compensable degree within specified presumptive period from the date of separation from service or is at least as likely as not related to an in-service injury, event, or disease. The existence of a current neurological disorder is not in question because the medical evidence of record has notation of vertigo and ataxia. The April 2016 private treatment records from Neurology Psychiatry clinic at TDCJ-Montford located in Lubbock, Texas and the September 2016 clinical note from Correctional Managed Care Clinic reflect diagnosis of ataxia and chronic vertigo. As far as in-service incurrence or aggravation of a neurological disorder is concerned, the Veteran's service treatment records do not reflect any complaints of muscle incoordination or notation of any neurological disorder. The May 1967 enlistment examination and July 1978 service separation examination reflect normal clinical evaluation of the neurologic and musculoskeletal systems. Also, the report of medical history accompanied with the July 1978 service separation examination reflects that the Veteran denied having frequent or severe headaches, dizziness or fainting spells, head injury, cramps in legs, and neuritis, or any other condition that has a plausible relationship with a neurological disorder. The Veteran was separated from service in December 1978, five months after the separation examination, however, in a December 1978 statement, the Veteran reported that there had been no change to his medical condition since his last July 1978 separation examination. As far manifestation of a neurological disorder within seven years from the date of separation from service is concerned, there is no indication of any neurological disorder within this time period after the service. Ataxia is first documented in an August 2001 VA treatment record. An August 2001 VA treatment note reflects that the Veteran presented with complaint of chronic dizziness with walking with a duration of four years. The Veteran reported a history of involvement in a wreck, but he thought he was dizzy before the wreck and noted ringing in ears and headaches. The assessment was "unspecified vertiginous syndromes and labyrinthine disorders" and chronic headache. An August 2002 correspondence from the Veteran's VA medical provider at Denton VA Clinic, indicated that the Veteran should not work and noted a diagnosis of ataxia with vertigo attacks (falls, headaches, and vomiting). The August 2002 VA treatment record noted that dizzy spell began in 1989 when chlorine poisoning happened, since then the Veteran had soreness, headache, dizziness, nausea, and vomiting. An accident in 1993 made the symptoms worse. The clinician noted a medical history of vertiginous syndrome and labyrinthine disorder, chronic headache, ataxia, and head injury in a motor vehicle accident. An October 2002 VA treatment note reflects a routine follow-up of vertiginous syndromes and labyrinthine disorders, headache, and ataxia. The Veteran complained of headache, ringing, and dizziness. A December 2002 VA treatment note reflects ataxia of undetermined etiology. A February 2004 VA treatment note reflects gait unsteadiness of unknown etiology and that a thorough workup for etiologies of ataxia and posterior column disease was unremarkable. The Veteran was told that 50% of cases of gait unsteadiness has no etiology that can be elucidated. A July 2006 VA treatment record reflects an assessment of ataxia with unknown etiology. It was noted that the Veteran was seen by neurology and they had done a workup and planned no further tests, and no diagnosis of MS were made. A September 2006 VA cognitive and psychological evaluation reflects a history of ataxia and vertigo, and that the Veteran mentioned a history of at least two head injuries that resulted in loss of consciousness (with a possible third), as well as chlorine poisoning. The Veteran denied any noticeable cognitive impairments, difficulties with walking and general dizziness since 1989. Cognitive test result indicated no evidence of neuropsychological impairment. The personality testing raised possibility that the Veteran's physical complaints might have a psychological etiology. The examiner stated that, "[w]hile the overall pattern supports a diagnosis of psychosomatic disorder, such a diagnosis cannot be given until all organic etiologies have been sufficiently ruled out." A December 2006 VA mental health examination noted complaints regarding ataxia and vertigo. It was also noted that the Veteran always worked in the air conditioning and heating business. He had not been able to work since year 2000 since his problems with ataxia began. An October 2013 private treatment note from Correctional Managed Care reflects MS (per report). The Veteran reported that VA had diagnosed him with MS. However, the VA treatment record does not show a diagnosis of MS. An April 2016 private treatment note from Neurology Psychiatry TDCJ-Montford reflects a history of dizziness starting in 1986-1987, diagnosed by VA as ataxia with subsequent development of weakness in the extremities, requiring cane to walk in 2000 and walker by 2002. It was also noted that the Veteran had a motor vehicle accident long time and hit his forehead on windshield and lost consciousness, dizziness started after couple of years. The assessment was ataxia and vertigo of unknown etiology. The September 2016 Correctional Managed Care Clinic note at Robertson facility reflects the Veteran has history of vertigo and ataxia since 1987. He was involved in a motor vehicle accident where he hit his forehead on the windshield and lost consciousness. The dizziness started about 2 years later. As noted above, pursuant to CAVC remand, the Board remanded the matter in June 2021 to obtain medical records from the hospitals at Fort Sam Houston and Randolph Air Force Base. Subsequently, the RO sent a letter to the Veteran in June 2021 and request him to provide relevant information regarding the dates of treatment. In a July 2021 correspondence, the Veteran reported that back in the 80s he was told that Fort Benjamin in Harrison had a fire and records were burned. The RO also obtained all the records from Fort Sam Houston and Randolph Air Force Base and associated the records with the claims file. However, the Board notes that these records do not reflect that the Veteran had any complaints, symptoms, or notation related to a neurological condition during his military service. In September 2021 correspondence, the RO prepared formal findings of receipt of all available records and determined that further attempts to obtain the records would be futile. The Board finds that the RO complied with the requirement under 38 C.F.R. § 3.159(c)(2), which dictates that VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency and will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. After reviewing the above described evidence of record, the Board finds that record does not establish that the Veteran's neurological disorder began in service, or within 7 years from the date of separation from service, or otherwise related to an in-service injury, event, or disease. The first documented complaints of dizziness, assessed as ataxia in 2001, are more than 2 decades after discharge from service, and well beyond any applicable presumptive period. Also, there is not a confirmed diagnosis of MS at any time prior to or during the appeal period. As far as the Veteran's assertions are concerned, he is competent to report the symptoms, and the Board acknowledges that he may sincerely believe that his neurological disorder is related to his service. However, in this case he is not competent to provide a nexus opinion regarding this issue. The diagnosis of a neurological disorder or its etiology is medically a complex issue, and the Veteran has not demonstrated that he has the medical education, training, or expertise to make such a conclusion. See Bostain v. West, 11 Vet. App. 124, 127 (1998) (finding that assertions, in the absence of evidence that a veteran has the expertise to render opinions about medical matters, are not probative). Regarding the Veteran's reports and statements that his symptoms of dizziness began in service (in Alaska), the Board finds these are less probative because of his denial of a history of dizziness on service separation examination in 1978, normal clinical evaluation of the neurologic system on service separation, the many years intervening service and the first documented complaints of dizziness, and the medical history provided when seeking medical help for his symptoms, during which he specifically stated that his dizziness began in 1986-87. As noted above, in the April 2016 private treatment note from Neurology Psychiatry at TDCJ-Montford located in Lubbock, Texas, reflects a history of dizziness beginning in 1986-1987. The earliest diagnosis of ataxia is noted in 2001 VA treatment record and based on the Veteran's report to the treating clinician, the earliest dizziness episodes began in 1986, eight years after the service. However, there are no diagnosis of MS in VA records or in any private medical evidence of record. As noted above, during the October 2013 private treatment, the Veteran reported that VA had diagnosed him with MS. However, there is no diagnosis of MS in VA treatment records, and the Veteran is not competent to diagnose MS, which is medically a complex issue. Hence, the Board finds that there is no competent and probative evidence of record that establishes the diagnosis of a neurological disorder during the Veteran's military service or within seven years from the date of separation from service. As far as continuity of symptomatology is concerned, there are no symptoms of a neurological disorder noted during the Veteran's active service or continually since the separation from service. The earliest indication of dizziness is in 2001 VA treatment record and per the Veteran's report the earliest symptoms of dizziness began in 1986, eight years after the service. Therefore, the Board does not find continuity of symptomatology of a neurological disorder since service; hence, service connection is not warranted under the chronic diseases presumption under 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Board notes that the Veteran has not received a formal VA compensation and pension examination for his neurological disorder, claimed as ataxia and multiple sclerosis, as part of his claim for entitlement to service connection. However, for the following reasons the Board finds that a formal VA compensation and pension examination is not warranted. In McLendon v. Nicholson, CAVC held that an examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing an "in-service event, injury or disease," or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the current disability may be related to the in-service event, but (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). Here the Board finds the first McLendon element, the evidence of a current disability, is satisfied as the Veteran has been diagnosed with ataxia and vertigo. The second McLendon element requires evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation. McLendon, 20 Vet. App. at 82. The CAVC has found that the assessment of whether the evidence establishes the Veteran suffered an event, injury or disease in service is a "classic factual assessment, involving the weighing of facts." Id.; see Duenas v. Principi, 18 Vet. App. 512, 517 (Vet. App. 2004) (noting that a medical examination could not aid in substantiating a claim where the record does not already contain evidence of an in-service event, injury, or disease). Ordinarily, the Veteran's service treatment records are to be relied on for primary evidence that an in-service event, injury, or disease occurred. As discussed earlier, the Board notes that there is no mention of a neurological disorder or complaints of any neurological symptoms during the Veteran's service. Many years after the service, in a March 2018 statement, the Veteran asserted that his symptoms of dizziness began during service, however, during separation examination he denied any such symptoms. As such, the Board finds that that the Veteran has failed to establish "in-service event, injury or disease," and thus fails to fulfill the requirement of the second element of the McLendon analysis. See McLendon, 20 Vet. App. at 82. The third McLendon element requires an indication that the current disability may be related to the in-service event. The CAVC has held that the requirement that a disability "may be associated" with service is a "low threshold" standard. McLendon, 20 Vet. App. at 83. "The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon, 20 Vet. App. at 83. Here, the Veteran's claims file lacks competent evidence beyond the Veteran's filing of the claim and assertions and belief that his neurological disorder is related to his service. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). As discussed above, the earliest possible evidence of ataxia is from 2001, and earliest possible indication of dizziness is in 1986, eight years after the Veteran's separation from service. Furthermore, as noted above, the Board does not find a continuity of symptomatology since the service. Also, there is no competent medical evidence linking the Veteran's neurological disorder with his military service. The Board thus finds that the Veteran's claim fails to satisfy the requirements of McLendon, and thus a remand is not warranted to obtain a VA compensation and pension examination for a neurological disorder. 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 82-83; 38 C.F.R. § 3.159(c)(4). Also, the Board finds that the records associated with claims file contain sufficient medical evidence to decide on the claim. In sum, the Board assigns the greater probative value to the service treatment records and other medical evidence of record, coupled with many years between the separation from service and the first documented complaint or findings of ataxia. The Veteran's recent assertions of having dizziness during service, coupled with the contemporaneous medical and lay evidence reflecting no complaints of dizziness, are of less probative value. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Furthermore, as noted above the Veteran's reports to the treating physician plainly reflect that his dizziness began as early as in 1986-87, which is eight years after the date of separation from service. These reports are of greater probative value than the Veteran's statements in support of claim, in which he asserted that his dizziness began during service. Consequently, the Board finds that, while the Veteran has a diagnosis of a neurological condition, including ataxia and vertigo, the preponderance of the evidence is against the finding that it began during active service, or shown as chronic in service, or manifested to a compensable degree within the applicable presumptive period of seven years after separation from service; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. A preponderance of the evidence is against the claim, consequently, entitlement to service connection for a for a neurological disorder, claimed as ataxia and multiple sclerosis, is denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.