Citation Nr: 21008747 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-00 767 DATE: February 17, 2021 ORDER Entitlement to service connection for multiple sclerosis is granted. FINDINGS OF FACT 1. The Veteran’s multiple sclerosis illness is a chronic condition under 38 C.F.R. §§ 3.303(b) and 3.309(a). 2. Resolving all reasonable doubt in the Veteran’s favor he had symptomatology consistent with a diagnosis of multiple sclerosis shortly after leaving service and the symptomatology has continued since that time. CONCLUSION OF LAW The criteria for service connection for multiple sclerosis have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to February 1970 including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision from the Department of Veterans (VA) Regional Office (RO). In May 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. In December 2020 the Veteran was notified that VA was unable to produce a complete transcript of the proceeding due to audio malfunctions in the Digital Audio Recording System. The Veteran was notified of the opportunity to have a new hearing as a result of the audio malfunction. 38 C.F.R. § 20.717. However, since the Veteran has not indicated he would like a new hearing, the Board will proceed with adjudication of his claim without the May 2019 hearing transcript in the record. Additionally, the Board notes the Veteran filed VA Form 21-22 (Appointment of Veterans Serv. Org. as Rep.) to change representation during the pendency of this claim. See VA Form 21-22 November 2016 (seeking to appoint Paralyzed Veterans of America). However, in November 2016 VA sent notice to the Veteran indicating his November 2016 election in favor of Paralyzed Veterans of America was invalid because it did not have a signature from the service organization on the form. Nonetheless, the Board will proceed with this appeal as the Veteran is currently represented by Disabled American Veterans. See VA Form 21-22 October 2012. The Board also notes VA notified the Veteran’s representative to file an appellate brief on January 11, 2017. No response was received from the representative and a VA Memorandum from January 2017 certified the appeal ready for review by the Board. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b)(1). Entitlement to service connection for multiple sclerosis The Veteran contends he developed multiple sclerosis due to exposure to Agent Orange while serving in Vietnam. See e.g., Veteran’s Statement in Support of Claim, August 2012. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection for certain chronic diseases, including multiple sclerosis, 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 from the date of separation from service (for Hansen's disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years). 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The term "chronic disease" refers to those diseases listed under 38 U.S.C § 1101(3) of the statute and section 38 C.F.R. § 3.309(a) of VA regulations. See 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 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." Walker, 708 F.3d at 1336; 38 C.F.R. § 3.303(b). The law also provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time, even if there is no record of evidence of such disease during the period of service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). For those Veterans who have been exposed to herbicide agents, certain diseases, not applicable to this claim, are acknowledged to be presumptively related to such exposure. See 38 C.F.R. § 3.309(e). In this case, it is not in dispute that the Veteran has a current diagnosis of a multiple sclerosis. See Letter from Dr. D.J., Neurology Associates, dated January 1994; Chattanooga Neurology Associates, Progress Notes, dated February 2015 (Veteran has moderate to severe secondary progressive multiple sclerosis that was diagnosed initially as relapsing remitting in 1991 due to symptoms of numbness from the waist down). Thus, the first element of a claim for service-connection, a current disability, has been met. As to the second and third elements of a claim for service-connection, the Veteran’s service treatment records (STR’s) do not contain complaints, treatment, or diagnosis for multiple sclerosis. The Veteran’s entrance and exit examinations do not contain complaints, treatment, or diagnosis of multiple sclerosis. The Veteran’s post-service treatment records do not show he was diagnosed with multiple sclerosis until April 1990, twenty years after leaving service. Thus, the record is against finding that the Veteran’s current multiple sclerosis manifested itself while in service. As to the contention the Veteran’s multiple sclerosis was caused by his Agent Orange exposure, the Board notes that the list of presumptive diseases for Agent Orange exposure does not include multiple sclerosis. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Nonetheless, the Veteran asserts that his multiple sclerosis is caused by his exposure to Agent Orange while inservice. In cases such as this, where the Veteran does not have one of the enumerated diseases listed under 38 C.F.R. § 3.309(e), service connection may still be established on a factual direct entitlement basis. In such cases, the evidence must show three things: (1) competent medical evidence of a current disease process; (2) competent medical evidence of a relationship between the currently diagnosed disease process and exposure to an herbicide while in service; and, (3) proof of in-service exposure to an herbicide agent. As stated, the Veteran has a competent medical diagnosis of multiple sclerosis, a current disease. In support of the second and third elements, the Veteran offers his own lay testimony, medical journal evidence and several private medical opinions from his treating neurologist. In January 2013, the Veteran’s treating neurologist opined that the Veteran’s exposure to Agent Orange “may well have contributed” to his eventual development of multiple sclerosis. See Opinion Letter from Dr. M.K., January 2013. In March 2014, the same examiner opined that it is at least as likely as not that his multiple sclerosis was triggered by exposure to Agent Orange based on the progression of symptoms that the Veteran reported. See Opinion Letter from Dr. M.K., March 2014. Importantly, the examiner did not support his medical conclusions with anything other than the statements made by the Veteran in the report. The Board finds both opinions offered by Dr. M.K. provide very little probative value in the analysis of the Veteran’s claim that Agent Orange directly caused his multiple sclerosis. Specifically, the March 2014 opinion offers only a bare conclusion that multiple sclerosis was “triggered” by exposure to Agent Orange, without any supporting data or the essential rationale for the opinion. See Nieves-Rodriguez, 22 Vet. App. at 301 (“[An adequate] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” (citing Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007)). Moreover, the January 2013 opinion used speculation to make a link between the Veteran’s multiple sclerosis and his exposure to Agent Orange. The use of the words “possible,” “may,” or “can be” make a doctor’s opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 12728 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (a medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus). Put simply, the January 2013 and March 2014 opinion letters do not address the facts in this particular case with any degree of medical certainty required for persuasive direct nexus evidence between multiple sclerosis and Agent Orange exposure. The Board further acknowledges the article the Veteran submitted regarding the dioxin contamination in Bien Hoa, in southern Vietnam. See Recent Dioxin Contamination from Agent Orange in Residents of a Southern Vietnam City, by Schecter, Arnold MD, et al., from the Journal of Occupational & Environmental Medicine, May 2001 – Volume 43 Issue 5, ppg 435 – 443. In this case, the article submitted by the Veteran provides only general information regarding the health effects of prolonged dioxin exposure over 32 years on residents of Bien Hoa, Vietnam. The Veteran reports he was stationed 7 kilometers from and traveled to this location during his time in Vietnam. Furthermore, the article is not accompanied by any corresponding clinical evidence specific to the Veteran, and does not suggest a relationship between the Veteran’s multiple sclerosis and his time in Southwest Asia with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts. As such, the Board places little probative weight on this evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Mattern v. West, 12 Vet. App. 222, 227 (1999) (generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive). Based on review of the lay and medical evidence submitted, as noted above, the preponderance of the evidence is against the claim that the Veteran’s multiple sclerosis was directly caused by his exposure to Agent Orange, or is otherwise etiologically related to his service on a direct or presumptive entitlement basis. Importantly, there is no competent or probative medical opinion of record that establishes a nexus directly between Agent Orange exposure and multiple sclerosis. Thus, direct service connection is not warranted in this case because there is no competent, credible and probative evidence establishing a direct link between multiple sclerosis and Agent Orange exposure. The Veteran, along with his spouse and children, have submitted competent and credible statements during the pendency of the appeal reporting on the symptoms the Veteran experienced beginning in early 1971 and continuing through the present. See e.g., Veteran’s Statement in Support of Claim, August 2012; Statements from K. J. (Daughter), S. W. (Daughter), M. Y. (Daughter), C. Y. (Spouse), from November 2012 and January 2013. The Board notes that the presumptive period for multiple sclerosis, as a chronic disease under 38 C.F.R. § 3.309(a) is seven years, which, for this Veteran, would have lasted until 1977. With respect to onset of the Veteran’s chronic illness and continuity of his symptoms, the most probative lay evidence of record indicates that in early 1971 the Veteran was struck with an unknown illness that caused him severe fatigue and excessive sleeping/exhaustion for approximately ten days. See Veteran’s Statement in Support of Claim, August 2012. His spouse recalls the Veteran tripping a lot for no reason in 1970 when she first met him. See Statement from C. Y. (Spouse), November 2012; January 2013. The Veteran later reported that he recalls being extremely fatigued and stumbling on occasion from dragging his (left) foot while stationed in Germany, from November 1968 to February 1970. See Statement in Support of Claim, April 2014. In early 1978, the Veteran reported that he went to Medical Associates in Clinton, Iowa due to back pain and numbness in his legs. See Veteran’s Statement in Support of Claim, August 2012. Also, he reported it was sometimes difficult to pick up his left foot because it seemed to drag instead of lift when he walked. Id. In 1982 complaints of pain in the Veteran’s hand/arm led him to undergo carpel tunnel and right elbow surgery that did not alleviate the problem. Id. In 1988 the Veteran reported that he went to Neurology Consultants, Davenport Iowa about unexplained leg numbness. See Statement from C. Y. (Spouse), November 2012. The Veteran was diagnosed initially with relapsing remitting multiple sclerosis in 1990 – 1991. However, as noted above, there are clear indications in this record of the problem being “noted” well before this time. The Veteran further contends that multiple sclerosis in general was difficult for doctors to diagnose in the 1970’s and 1980’s, which is why he could not have been properly diagnosed prior to 1990. See Statement from S. R. (Daughter), September 2015. This statement is at least partially supported by the fact that doctors never found an adequate medical explanation for his multi-faceted symptomatology during the time period prior to 1990 and that he was eventually diagnosed with multiple sclerosis thereafter following treatment for other issues that appear clearly connected to this problem well before this time. The Board notes that competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). As to the timeline and symptomatology reported by the Veteran and his family, the Board finds the lay evidence is competent, credible and probative evidence as to the chronicity of the Veteran’s symptoms since leaving service. Nothing provides evidence against these statements, and the post-service treatment records would tend to support the statements that the Veteran was having problems well before the problem was cited. It is important to note that while the Veteran is competent to report symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the nature, etiology, and severity of a medical condition as complex as multiple sclerosis. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Put simply, even while the Veteran is competent to report on the symptoms he experienced throughout the progression of the illness since 1971, he is not competent to provide a nexus opinion on whether the undiagnosed symptoms at that time, were actually symptoms of multiple sclerosis. In this regard, the Veteran offers a private medical opinion from his treating neurologist in support that his symptoms that began in 1970, were symptoms of multiple sclerosis. The neurologist opined, in pertinent part, that the Veteran began having noticeable symptoms consistent with multiple sclerosis in 1970. See Opinion Letter from Dr. M.K., November 2017. The Veteran was a patient of the Dr. M.K. for over a decade and he reported having witnessed the progression of the Veteran’s multiple sclerosis, which was consistent with the history, symptoms and timeline provided by Veteran. Id. Moreover, using symptoms cited from the record, Dr. M.K. opined that the symptoms reported by the Veteran were attacks consistent with relapsing/remitting multiple sclerosis. Id. Dr. M.K. further opined that the Veteran experienced exacerbations of the disease until he was finally diagnosed with secondary progressive multiple sclerosis [in 1990]. Id. The Board finds the November 2017 private medical opinion is the most probative evidence of record because it is provided by a long-term primary care physician for the Veteran who was well aware of the Veteran’s prior medical history, as well as because it is supported by the evidence found in the record including the Veteran’s lay statements and controlling medical principles. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (“An opinion is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s ‘evaluation will be a fully informed one.’” (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). While there is little factual evidence that this problem started in 1970, there is some probative value to the contention that this problem started within the seven year presumptive period. Therefore, the Board finds that it is the most probative evidence of record as to the issue whether the Veteran’s symptoms since 1970 and 1971 were actually symptoms of multiple sclerosis during the applicable presumptive period for chronic diseases under 38 C.F.R. § 3.307 and § 3.309(a). Importantly, at this time, the November 2017 opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Giving the Veteran the benefit of the doubt, the Board finds service connection is warranted as a continuity of symptomatology of a chronic disease. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran’s undiagnosed symptoms began in 1970 or 1971 and progressed thereafter, the applicable presumptive period for multiple sclerosis as a chronic condition ended in 1977 and, the November 2017 private medical opinion provides competent, credible and probative nexus evidence to show the Veteran’s particular symptoms were symptoms of a progressing illness leading to a diagnosis of multiple sclerosis in 1990. (Continued on the next page)   As the evidence is in relative equipoise, the claim must be decided in the Veteran’s favor. Under such circumstances and with granting the Veteran the benefit of any doubt in this matter, the Board concludes that entitlement to service connection for multiple sclerosis is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Davidson 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.