Citation Nr: 21075317 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 19-18 327 DATE: December 20, 2021 ORDER New and material evidence has not been received to reopen service connection for multiple sclerosis. FINDINGS OF FACT 1. In the April 2014 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for multiple sclerosis on the basis that new and material evidence had not been received to reopen the previous claim, as no evidence tended to show an in-service incurrence of multiple sclerosis. 2. Evidence received since the April 2014 rating decision does not relate to the previously unestablished fact of in-service incurrence of multiple sclerosis or other causal link between multiple sclerosis and service. CONCLUSIONS OF LAW 1. The April 2014 rating decision denying service connection for multiple sclerosis became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has not been received to reopen service connection for multiple sclerosis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from May 1966 to January 1970 during the Vietnam Era. The basis of the current appeal is a June 2017 rating decision deciding that (a) new and material evidence was submitted to warrant reopening the claim and (b) service connection for multiple sclerosis is still denied on the merits. The Veteran filed a Notice of Disagreement in November 2017, and a Statement of the Case was issued in June 2019. The Board is not required to accept the AOJ's determination that new and material evidence was submitted to warrant reopening the claim. Accordingly, the Board will first determine whether new and material evidence was submitted to warrant reopening the claim. New and material evidence/reopening service connection for multiple sclerosis is denied. A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected. 38 C.F.R. § 20.1103 (2018). An appeal is perfected when a claimant, or his or her representative, files a Notice of Disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. 38 C.F.R. § 20.302 (2018). A decision by the Board is final once the decision is mailed. 38 C.F.R. § 20.1100. New and material evidence received prior to the expiration of the appeal period 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). Accordingly, if new and material evidence is submitted within the one-year appeal period, the decision is not final. New evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components: (1) that the new evidence pertains to the reason(s) for the prior final denial, and (2) that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id., at 118. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened. Accordingly, the Board must still consider whether new and material evidence was submitted to warrant reopening a claim, regardless of the AOJ's determination on that question. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The April 2014 final rating decision is the latest of final decisions. The Board will summarize the evidentiary record to explain the bases of prior decisions and provide a context for analyzing any new evidence. The Veteran initially claimed service connection for multiple sclerosis in September 1986. Multiple sclerosis is a disease involving loss of the layer around neurons in the brain. Symptoms of multiple sclerosis are varied, but include blurred or double vision; numbness, prickling, or pins and needles (paresthesia); coordination issues; fatigue; and speech problems. In March 1989 the Board denied service connection for multiple sclerosis, finding that there was no diagnosis of multiple sclerosis within the seven-year presumptive period and claimed evidence of multiple sclerosis symptoms prior to the initial diagnosis of multiple sclerosis in August 1979 were properly identified at the time as symptoms of spondylosis, rather than multiple sclerosis. The Board decision was final when issued. The service treatment records were searched for but not obtained in the 1980s. These records still have not been found. The remaining evidence established by the time of the March 1989 decision includes: private treatment records from January 1977 August 1985, a December 1986 VA examination report, statements made by the Veteran on the claim application and Notice of Disagreement, a lay statement provided by the Veteran's spouse, and a hearing before the Board, the transcript of which is in the record. The private treatment records include treatment in January and December 1977 for persistent numbing sensation of the leg and pain going down the left leg. These records include X-rays showing spondylosis and diagnoses of sciatic nerve involvement. Private treatment records from 1983 show the Veteran being treated for multiple sclerosis, with notes showing a diagnosis was made in August 1979. A March 1983 note stated the onset of multiple sclerosis was 3-4 years prior. The December 1986 VA examination confirmed the diagnosis of multiple sclerosis. The examiner noted that the previous medical history indicated a history of treatment for a sciatic nerve problem of the legs since 1970 and treatment for a pinched nerve in 1968 and 1969. The Veteran's statements indicate that he was treated for numbness and pain in the lower legs during service, and that the symptoms appeared recurrently until the diagnosis of multiple sclerosis in August 1979. The statement from the Veteran's spouse and the Board hearing transcript reflect the same information. The issue was not further pursued until April 2013, when the Veteran filed a claim to reopen service connection for multiple sclerosis. With the claim to reopen, the Veteran submitted a lay statement from his spouse and a statement from his private physician (the same physician who diagnosed multiple sclerosis. The content of the spouse's statement is the same as her previous statement, except for a mention that the Veteran would complain of his eyes getting blurry during service, a symptom not previously described in the evidentiary record. The statement from the personal physician, provided in December 2013, states that the Veteran was first treated by the physician in 1977 and had been experiencing multiple sclerosis symptoms at least five years prior (indicating an onset of 1972). The statement does not describe what those symptoms were. A rating decision was issued in March 2014, finding that new and material evidence had been received, so reopened the claim. The same decision then denied the claim on the merits, finding no in-service incurrence. A second rating decision was issued in April 2014, which found that a physician's statement of possible diagnosis of multiple sclerosis within the presumptive period was inconsistent with the contemporary medical and clinical records, to include the physician's contemporary statements in the treatment records. As no notice of disagreement or additional evidence was submitted within one year of this claim, the April 2014 rating decision became final. In August 2016, the Veteran filed a claim to reopen service connection for multiple sclerosis. The only new evidence submitted was a statement made by the Veteran in March 2017. The AOJ issued two rating decisions, in May and June 2017, both accepting the evidence as new and material and reopening the claim. Both rating decisions denied the claim on the merits, yet finding that the evidence still did not show an in-service incurrence. The Veteran appealed the June 2017 rating decision, which is the basis of the current Board decision. The Veteran's March 2017 statement describes treatment for numbness in the legs during service, and treatment for sciatica in the legs in the period immediately after discharge from service. The Veteran asserts the numbness and sciatica pain are due multiple sclerosis, claiming these symptoms as evidence of the disease in service and within seven years of separation. After reviewing the evidence received since the April 2014 rating decision, and even presuming the credibility of the evidence for the limited purpose of reopening, the Board finds that new and material evidence has not been received to reopen service connection for multiple sclerosis. The content of the statement is already in the record, so is not new, and the Veteran is not competent to assert that the reported symptoms show the presence of multiple sclerosis. These old and new assertions by the Veteran of in-service treatment for numbness and post-service treatment for sciatica as evidence of multiple sclerosis are the same assertions that the Veteran included on his initial claim application and Notice of Disagreement in September 1986 and September 1987, and which were rejected in prior final decisions. The content of the Veteran's statement is not new to the record. For these reasons, the Board finds that new and material evidence has not been received to reopen service connection for multiple sclerosis. 38 C.F.R. § 3.156(a). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Charles Plambeck 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.