Citation Nr: 21013606 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-14 477A DATE: March 10, 2021 ORDER Entitlement to service connection for multiple sclerosis (MS) is granted. Entitlement to service connection for bladder disorder is granted. Entitlement to service connection for Wegener’s granulomatosis is denied REMANDED Entitlement to service connection for seizures is remanded. Entitlement to service connection for residuals of prostate cancer is remanded. Entitlement to Chapter 35 Dependents’ Educational Assistance (DEA) benefits is remanded. FINDINGS OF FACT 1. The weight of the evidence supports a finding that the Veteran’s MS manifested within seven years of his separation from service. 2. The Veteran’s bladder disorder is caused by his service-connected MS. 3. Wegener’s granulomatosis first developed many years after discharge from service and is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for multiple sclerosis are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307. 2. The criteria for service connection for a bladder disorder as secondary to MS are met. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.310. 3. The criteria for service connection for Wegener’s granulomatosis are not met. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1961 to November 1965. 1. Entitlement to service connection for MS. The Veteran reports that he developed weaknesses on his left side soon after discharge from service. He asserts that these were the first signs of his developing MS even though he did not receive a diagnosis of MS until a number of years later. He maintains that he is entitled to service connection for MS because it first manifested within seven years of his discharge from service. Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Certain chronic diseases will be considered incurred in service, even if there is no evidence of the disease in service, if manifest to a compensable degree within the statutory timeline. 38 C.F.R. § 3.307. Multiple sclerosis is a chronic disease enumerated in 38 C.F.R. § 3.309. Unlike many of the other chronic diseases, service connection for MS can be established if the disease manifested within seven years of separation from service. 38 C.F.R. § 3.307(a)(3). Here, the evidence is at least in equipoise as to whether the Veteran’s MS manifested within seven years of separation. He was diagnosed with MS in 1992. As noted above, the Veteran asserts that he first started having MS symptoms within seven years of discharge from service. The Veteran submitted an October 2010 statements from a VA physician. The VA physician reported that the Veteran’s first symptoms occurred in 1967 with a left foot drop. He noted that the Veteran’s left leg weakness began in 1967 and progressed over the next decade. By the early 1980s he had developed blurred vision in his left eye and diagnostic tests commenced which eventually resulted in a diagnosis of MS in 1992. The VA physician opined that the Veteran’s initial symptoms of MS began within two years of discharge from service. The Veteran underwent a VA examination in October 2019. The VA examiner examined the Veteran and reviewed his medical history. She indicated that it was her opinion that the Veteran’s MS developed shortly after discharge from service. She pointed out that it was not uncommon for people to have presenting symptoms decades before diagnosis because MS can be a slow progressive disease. The Board acknowledges that the record does not contain the Veteran’s medical records from the seven years immediately following service. Regardless, the fact remains that two VA physicians have examined the Veteran and reviewed his medical history and opined that the Veteran first developed MS within seven years of discharge from service. There are no medical opinions or other medical evidence indicating otherwise. The Board finds no reason the Veteran's reports of symptomology he reported. He is competent to do so. Based on the above, the Board finds that the weight of the evidence supports a finding that the Veteran’s MS first manifested within seven years of his discharge from service in November 1965. As such, service connection for MS is warranted based on the legal presumption of service connection when MS manifests within seven years of separation. See 38 C.F.R. §§ 3.303, 3.307. 2. Entitlement to service connection for a bladder disorder. The Veteran maintains that his bladder disorder is caused by his MS. Service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). A July 2012 VA treatment record notes that the Veteran had MS with secondary neurogenic bladder. On VA examination in October 2019 the VA physician opined that the Veteran’s neurogenic bladder is directly related to his advanced MS. There is no medical opinion or evidence to the contrary. Based on the above, the Board finds that the Veteran has a bladder disorder that is caused by his service-connected MS. Accordingly, the Veteran is entitled to service connection for his neurogenic bladder disability on a secondary basis. 38 C.F.R. § 3.310(a). 3. Entitlement to service connection for Wegener’s granulomatosis The Veteran submitted a claim for service connection for Wegener’s granulomatosis in October 2010. The Veteran noted that this is an auto-immune disease and he asserted that something in his military service compromised or corrupted his immune system and caused him to develop this disease. To establish service connection a Veteran must generally 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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). The earliest medical record in the file noting that the Veteran had Wegener’s granulomatosis is a VA treatment record dated in September 2006. In October 2019 a VA physician examined the Veteran and the medical records in his file. She opined that it was less likely than not that the Veteran’s Wegener’s granulomatosis was incurred in or caused by an in-service injury, event or illness. She noted that Wegener’s is a rare autoimmune disorder of unknown etiology and that living in certain locations, farming, drug and environmental allergen exposure, and exposure to solvents or silica have been linked ot the development of Wegener’s. In support of her opinion that the Veteran’s Wegener’s was unrelated to service, the VA physician pointed out that the Veteran first developed Wegener’s granulomatosis decades after service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to this claim, whether the Veteran developed Wegener’s granulomatosis as a result of service, such falls outside the realm of common knowledge of a lay person as this is beyond the capability of a lay person to observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Consequently, the Veteran’s assertions are not competent evidence regarding whether he developed Wegener’s due to service. The Board notes that the Veteran has not claimed that his Wegener’s granulomatosis is secondary to his service-connected MS. Furthermore, there is no evidence in the claims file indicating that Wegener’s granulomatosis is caused or aggravated by MS. The Veteran’s STRs, the post service medical records and the VA medical opinion indicate that the Veteran did not experience Wegener’s granulomatosis during service, indicate that Wegener’s granulomatosis first developed decades after discharge from service, and indicate that the Wegener’s granulomatosis is unrelated to service. Accordingly, the preponderance of the evidence is against the Veteran’s claim and service connection for Wegener’s granulomatosis, is not warranted. See 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Entitlement to service connection for seizures is remanded. The Veteran’s claim for service connection for seizures was remanded by the Board in September 2019 to obtain a medical opinion regarding the etiology of the disorder. The Veteran was provided a VA seizure examination in October 2019. However, the VA examination report of record does not contain any opinion regarding the etiology. Accordingly, this claim must be again remanded for the requested opinion. See Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for residuals of prostate cancer is remanded. The Veteran’s claim for service connection for prostate cancer was remanded by the Board in September 2019 to obtain a medical opinion regarding the etiology of the disorder. In October 2019 a VA examiner opined that prostate cancer is not related to service on the basis that there was no documentation in the medical records that the Veteran ever had prostate cancer. The Board notes that the VA examiner was incorrect and that there is documentation in the medical records that the Veteran had prostate cancer. A separate VA examination report, also dated in October 2019, noted that the Veteran had radiation therapy for prostate cancer 10 years previously. Accordingly, the Veteran’s claim for service connection for residuals of prostate cancer must be remanded for a corrective medical opinion that recognizes that the Veteran has had prostate cancer. 3. Entitlement to Chapter 35 Dependents’ Educational Assistance (DEA) benefits is remanded. Eligibility for DEA benefits under 38 U.S.C. Chapter 35 is predicated on a finding of a total (100 percent) disability rating. Consequently, the claim for DEA benefits is inextricably intertwined with the remanded issues on appeal. Therefore, the claim for DEA benefits must be remanded pending the development and readjudication of the other claims on appeal. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Provide the claims file to an appropriate clinician, to obtain an opinion based on a review of the medical evidence of record. The VA clinician should provide an opinion regarding whether is at least as likely as not (50 percent or greater probability) the Veteran’s seizure disorder began in or is otherwise the result of the Veteran’s military service. The clinician should also provide an opinion as to whether it is at least as likely as not the Veteran’s seizure disorder is caused or aggravated by his service-connected multiple sclerosis. Reasons and bases for all opinions should be provided. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Provide the claims file to an appropriate clinician, to obtain an opinion based on a review of the medical evidence of record. The VA clinician should provide an opinion regarding whether is at least as likely as not (50 percent or greater probability) the Veteran’s residuals of prostate cancer began in or are otherwise the result of the Veteran’s military service. The clinician should also provide an opinion as to whether it is at least as likely as not the Veteran’s residuals of prostate cancer are caused or aggravated by his service-connected multiple sclerosis. Reasons and bases for all opinions should be provided. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.