Citation Nr: 21076902 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-08 544 DATE: December 28, 2021 ORDER 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 was 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, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the Army from December 1963 to December 1965. The Veteran died in December 2014, at which time his service connection claim was still pending. The appellant is his surviving spouse and is recognized as a properly substituted claimant for the Veteran in this matter. See September 2016 Substitution Determination. The appellant testified at a virtual hearing before the undersigned Veterans Law Judge in November 2021. A transcript is associated with the claims file. Service Connection 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 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of 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 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)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical, or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of the chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. at 1336; 38 C.F.R. § 3.303(b). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim; the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After reviewing the evidence of record, the Board concludes the preponderance of the evidence weighs against finding that the Veteran's multiple sclerosis began during service, within seven years of his separation from service, or was otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records (STRs) show that, during service, he had no complaints or manifestations of multiple sclerosis or of a neurologic disorder that may be considered manifestations of multiple sclerosis. The Veteran did not, and the appellant does not, contend otherwise. Post-service treatment records show multiple sclerosis was diagnosed by the Veteran's private physician in 1987. See April 1987 private treatment record. The post-service treatment records also only show the diagnosis of and treatment for multiple sclerosis and do not include any opinions concerning the etiologic relationship of this disability to the Veteran's service. The medical evidence does not show that the Veteran's symptoms started in service or that the disability was diagnosed within the seven-year presumptive period following the Veteran's separation from service in 1965, nor does the appellant contend otherwise. The Board acknowledges that no VA medical opinion has been obtained in this case. [Although a VA examination was provided in August 2013, it was conducted as part of the Veteran's claim for nonservice-connected pension benefits.] VA's obligation under 38 U.S.C. § 5103A(d) to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, VA's duty to assist is not triggered because neither the Veteran during his lifetime nor the appellant since has offered any specific contentions as to how they believe the Veteran's multiple sclerosis might be related to his service. In fact, during the November 2021 Board hearing, the appellant testified that following the Veteran's diagnosis of multiple sclerosis one of his treating VA physicians had suggested to them this was service-related. The physician then inquired after the Veteran's service locations, and when the Veteran responded he had served in Germany, the physician suggested the Veteran might have been exposed to Agent Orange through touching planes or individuals returning from the Republic of Vietnam. At the hearing, the appellant was asked if she could provide specific details about this exposure; however, she responded that neither she nor the Veteran had believed he was exposed to herbicide agents in service, including while he was stationed in Europe. The appellant also testified during the November 2021 Board hearing that she was led to believe the Veteran's multiple sclerosis was related to service because of the benefits they were receiving prior to Veteran's passing. However, the Board points out that she was misinformed as they were in receipt of nonservice-connected pension benefits, not service-connected compensation benefits. The Board acknowledges and appreciates the Veteran's honorable military service and is sympathetic to the loss the appellant has suffered. However, for the reasons noted above, this claim is denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.