Citation Nr: 21074504 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-53 105 DATE: December 15, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for multiple sclerosis is granted. Entitlement to service connection for multiple sclerosis is granted. FINDINGS OF FACT 1. The claim of entitlement to service connection for multiple sclerosis was previously denied in a June 2012 rating decision. The Veteran did not perfect an appeal nor submit new and material evidence within one year, and that decision became final. 2. Evidence received since the June 2012 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection. 3. The Veteran's multiple sclerosis manifested during service. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the issuance of the June 2012 final rating decision, the criteria for reopening the claim for service connection for multiple sclerosis are met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for multiple sclerosis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1984 to December 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole, and the Justus presumption of credibility no longer attaches. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, evidence that is sufficient to reopen a claim may not be sufficient to grant the benefit being sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a June 2012 rating decision, the RO denied service connection for multiple sclerosis because there was no evidence of the disability during military service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the June 2012 rating decision includes service treatment records (STRs), and private treatment records (PTRs). Evidence submitted after the June 2012 rating decision includes three positive private medical opinions, VA treatment records, lay statements asserting continuity of symptomatology since service, a VA examination, and a negative VA medical opinion. The Board finds that new and material evidence has been presented. The evidence is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's claims of entitlement to service connection for multiple sclerosis are reopened. Entitlement to service connection for multiple sclerosis 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, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Some chronic diseases to include organic diseases of the nervous system may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). However, multiple sclerosis has a seven (7) year presumption of service connection. 38 C.F.R. § 3.307(a)(3). A diagnosis of multiple sclerosis after the seven-year presumptive period can warrant service connection where there was evidence of symptoms within seven years after service and a subsequent medical opinion attributed these symptoms to multiple sclerosis. Traut v. Brown, 6 Vet. App. 495, 500 (1994); 38 C.F.R. § 3.307(c). The Veteran alleges that multiple sclerosis began during service. In a September 2016 statement, the Veteran asserted that during service they would frequently lose their balance during physical training, resulting in multiple ankle injuries. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). An August 2016 VA examination confirmed a diagnosis of multiple sclerosis. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Board notes that the Veteran's STRs are silent for any complaints of or treatment for multiple sclerosis. As noted above though, the Veteran has asserted that their in-service ankle injuries are related to the multiple sclerosis. Indeed, the STRs are replete with instances of numerous ankle injuries, and continued treatment for these injuries. September 1988 STRs indicate an ankle injury from playing basketball with a past history of mild ankle injury. Twisted ankles are noted again in April and October 1989. The Veteran had a left ankle inversion injury again while playing basketball in November 1990, and the Veteran sought regular treatment for this injury through at least February 1991. April 1992 STRs note another sprained ankle five days earlier, and August 1992 STRs note ankle pain for five days, with a history of pulled tendons. The Veteran also sought treatment for muscle spasms in November 1988 and December 1989. On the April 1992 report of medical history, the Veteran endorsed swollen or painful joints. The Board finds the Veteran's statements competent as they are capable of lay observation. 38 U.S.C. § 1154(a) (2012); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). The Board finds the statements credible as they are corroborated by the STRs. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, the second element of service connection is met. Third, the Board finds that the evidence of record does support a finding that the multiple sclerosis is related to active service. The Veteran submitted a June 2016 dated positive private medical opinion from Dr. J. D. P., MD., of Neuroscience consultants, who opined that within a reasonable degree of medical certainty and his best considered medical judgment, that initial multiple sclerosis signs and symptoms were evident while in service. He further explained that after reviewing the Veteran's history over time, it was apparent that these signs and symptoms occurred prior to 1992 while in service. The Veteran underwent a VA examination in August 2016. The examiner provided a negative nexus opinion and explained that there was no evidence in the STRs to suggest that the Veteran had a neurological condition suggestive of multiple sclerosis during service. Moreover, the Veteran left service in 1992, and that the initial presentation of multiple sclerosis was not until 2003, consisting of right sided sensory complaints and muscle spasms of the face, arm, and leg. The gait abnormalities were not noted until recently, and that private neurological examinations including gait were normal from 2004 to 2008. In support of his claim, the Veteran submitted two additional positive nexus opinions by his private clinician, Dr. J. D. P., dated in April 2018 and November 2018. In the April 2018 opinion, he opined that to a reasonable degree of medical certainty that the Veteran had multiple sclerosis during service, based on a review of the STRs. He noted the multiple references to ankle injuries and muscle spasms, and that while multiple sclerosis was first diagnosed in 2004, it had been symptomatic for a considerable period. Further, Dr. J. D. P. explained that retrospective studies of multiple sclerosis patients reveal the disease to have been present many years prior to the initial diagnosis. Similarly, in the November 2018 opinion, he again opined that to a reasonable degree of medical probability that the Veteran suffered from multiple sclerosis during service, based on a review of the STRs. He explained that noteworthy in retrospective studies, patients with multiple sclerosis are more likely than not to have diagnostic MRI findings as early as a decade or more before clinical presentation. The ankle injuries more likely than not to have arisen from neurologic gait disturbance, which could have resulted in the ankle injuries during service. The clinical course of the Veteran's multiple sclerosis has been characterized by fluctuating neurologic signs and symptoms, which is typical of patients with multiple sclerosis. Lastly, he note that times, neurologic deficits were more manifestly obvious to even a skilled observer than at other times, and that it is not surprising that in 2004 a gait disturbance was not obvious. The Board affords the April 2018 and November 2018 private medical opinions great probative value as they reflect a consideration of the Veteran's medical history and lay assertions, are supported by well-reasoned rationale and relevant medical literature. Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board also affords probative value to the August 2016 VA medical opinion, as it reflects a consideration of the Veteran's medical history, and is supported by well-reasoned rationale. See Prejean, 13 Vet. App. at 448-9; Nieves-Rodriguez, 22 Vet. App. at 301. As the preponderance of the evidence is in the Veteran's favor, service connection for multiple sclerosis is granted. N. Stevens Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.