Citation Nr: 21023371 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-29 849 DATE: April 20, 2021 ORDER New and material evidence has been received sufficient to reopen a previously-denied service connection claim for multiple sclerosis. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for multiple sclerosis is remanded. FINDINGS OF FACT 1. In a December 1994 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim to establish service connection for multiple sclerosis, and while the Veteran initiated an appeal, he did not perfect such to the Board of Veterans Appeals (Board) by filing a timely substantive appeal, and thus, the December 1994 rating decision is final. 2. Evidence associated with the record since the final December 1994 rating decision is not cumulative and redundant of the evidence of record at the time of the decision and does raise a reasonable possibility of substantiating the Veteran’s service connection claim for multiple sclerosis.  CONCLUSIONS OF LAW 1. The December 1994 rating decision is final with respect to the Veteran's claim to establish service connection for multiple sclerosis. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for multiple sclerosis.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1971 to August 1974. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lakewood, Colorado. The Board notes that the scope of a mental disorder claim is not limited to the claimed disability. When the medical evidence reflects multiple mental health diagnoses or mental health signs and symptoms without diagnosis, the issue may be recharacterized as an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Based on the evidence of record, the Board finds that such a recharacterization is warranted. The Board also notes that the Veteran reported being unable to attend his Board hearing and asked the Board to decide his case based on the evidence of record. See April 2019 Statement in Support of Claim. As such, the Board finds that the Veteran has waived his opportunity for a Board hearing. New and material evidence has been received to reopen a service connection claim for multiple sclerosis. To reopen a service connection claim, new and material evidence must be presented.  See 38 U.S.C. § 5108.  The Board determines whether it is proper to reopen a claim.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).   Evidence is new if it was not previously submitted to agency decision makers. Evidence is material if, alone or with previous evidence of record, it (1) relates to an unestablished fact necessary to substantiate the claim, or (2) would at least trigger VA’s duty to assist by providing a medical opinion.  See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  New and material evidence cannot be cumulative nor redundant of the evidence of record at the time of the last final denial and must raise a reasonable possibility of substantiating the claim.  See 38 C.F.R. § 3.156(a).   The Veteran’s previous service connection claim for multiple sclerosis was denied in a December 1994 rating decision.  The Veteran initiated an appeal and was provided a Statement of the Case in May 1995 which continued to deny the appealed issue. The Veteran was notified of the outcome and did not file a Form 9 within 60 days, nor was any additional evidence pertinent to the claim received within that time.  As such, the December 1994 rating decision became final based on the evidence then of record.  38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103.   The Veteran seeks to reopen the service connection claim for multiple sclerosis.  The December 1994 rating decision and May 1995 statement of the case denied the Veteran’s previous service connection claim, in part, because the Veteran’s multiple sclerosis did not manifest to a compensable degree within seven years following active duty service. The Board notes that the AOJ believed that the Veteran last left active duty service in 1974. See May 1995 SOC. Since that last final statement of the case, the evidence pertaining to multiple sclerosis includes the Veteran’s report that he served again on active duty while in the National Guard until 1987. Because he was diagnosed with multiple sclerosis in 1991 at the latest, the multiple sclerosis would have manifested to a compensable degree within seven years following active duty service and thus would entitle the Veteran to presumptive service connection under 38 C.F.R. § 3.309. See April 1995 Statement in Support of Claim; December 2015 CAPRI; 38 C.F.R. §§ 3.307, 3.309. Such evidence was not previously considered and relates to an unestablished fact necessary to prove the claim; namely, whether the Veteran’s multiple sclerosis manifested to a compensable degree within seven years following active duty service. This evidence raises a reasonable possibility of substantiating the claim.  As such, the evidence is both new and material, and the Board finds that the reopening of this claim is warranted.   REASONS FOR REMAND 1. Service connection for multiple sclerosis is remanded. The Veteran believes that service connection for multiple sclerosis is warranted. See October 2013 Form 9. An examination for multiple sclerosis took place in May 2013. See December 2015 CAPRI. The examination found that the Veteran was seen during service in 1973 for complaints of a several-year history of episodes of blurred vision, trembling, and hearing loss. The examination found that the Veteran’s multiple sclerosis was not related to service, among other reasons, because the Veteran had no symptoms of multiple sclerosis following service until his initial presentation of left-sided weakness in 1988 with different symptoms than those during service. The Board finds the May 2013 examination inadequate because it did not consider/was unable to consider all the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, among other evidence, the examination did not consider/was unable to consider a medical record from 1994 showing that from 1976 to 1986, the Veteran would spontaneously fall asleep at work and was unable to move quickly, and in 1987, the Veteran had a severe exacerbation and sought medical treatment for a walking irregularity, hand twitching, blurred vision, and weakness, among other things. See June 1994 VA Examination. The May 2013 examination also did not consider/was unable to consider the Veteran’s report that multiple sclerosis results in typically scattered symptoms like an unsteady gait, shaky movement of the limbs, and spastic weakness, among other things. See April 1995 Statement in Support of Claim. The Board notes that another examination for multiple sclerosis took place in June 1994 but did not opine as to whether the Veteran’s multiple sclerosis was related to service. See June 1994 VA Examination. Therefore, a remand is needed for a new examination. 2. Service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran believes that service connection for an acquired psychiatric disorder is warranted. See October 2013 Form 9. At this point in the appeal, the Veteran has not undergone a VA examination in relation to any acquired psychiatric disorders. Generally, a VA medical examination is required for a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service; but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In addition to PTSD, the Veteran has a diagnosis of depression, and potentially has an anxiety disorder. See December 2015 CAPRI. As such, the Board finds that the first prong is met. Service records show a diagnosis of an anxiety reaction; a history of anxiety, shaking, and nervousness; episodes of trembling; possible anxiety attacks; and that the Veteran may have been depressed. See March 1994 STR – Medical. As such, the Board finds the second and third prongs met. Given these facts, the Board finds that a remand is necessary to obtain an examination to determine the etiology of the Veteran’s acquired psychiatric disorders. See McLendon, 20 Vet. App. at 83. The matter is REMANDED for the following action: 1. Update VA and private treatment records.  VA treatment records appear current up to November 2015.  2. Contact all appropriate sources to determine whether the Veteran had any other periods of active duty service, including from February 1984 through July 1987 while in the National Guard. All efforts to obtain this information and any responses received should be documented in the claims file.   3. Contact all appropriate sources to obtain all outstanding Army National Guard and Army Reserve service treatment records and personnel records. All efforts to obtain these records should be documented, and if the records cannot be located, a formal finding of unavailability should be associated with the claims file. The record suggests that at some point following active duty service in 1974, the Veteran had three years of service in the Reserve and eight years of service in the National Guard. The Veteran also reported being on active duty while in the National Guard from February 1984 through July 1987.  4. Make a formal finding for all periods of active service, ACDUTRA, and/or INACDUTRA in terms of specific dates.  If this cannot be accomplished, provide an explanation.  5. Give the Veteran another opportunity to provide additional evidence concerning his in-service stressors. If any additional evidence is received, undertake all appropriate actions to attempt to verify the Veteran’s in-service stressors. 6. Schedule one or more appropriate VA examinations for the Veteran’s multiple sclerosis and acquired psychiatric disorders. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file, and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following:  (A) Identify all disabilities related to the Veteran’s multiple sclerosis and acquired psychiatric disorders existing at any point during the pendency of the appeal (i.e. since March 2011), even if they are currently asymptomatic or have resolved during the pendency of the appeal.  (B) For PTSD, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s PTSD was incurred as a result of any incidents/stressors during service? If yes, discuss the applicable incidents/stressors. This should at least include a discussion of the dud projectile explosion, the woman shooting herself with a gun, the problematic parachute causing a very hard landing with injuries, and the three deaths that the Veteran witnessed while in the military. (C) For each identified disability, other than PTSD, is it at least as likely as not (a 50 percent or greater probability) that the disability is related to the Veteran’s active duty, active duty for training, and/or inactive duty for training? If yes, which periods?  (D) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was caused by any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities)? (E) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was aggravated beyond its natural progression by any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities)? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (F) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities) caused or aggravated the Veteran’s obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (G) If yes, is it at least as likely as not (a 50 percent or greater probability) that the obesity/being overweight caused or aggravated any or all of the Veteran’s disabilities related to the Veteran’s multiple sclerosis and/or acquired psychiatric disorders including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (H) Is it at least as likely as not (a 50 percent or greater probability) that any psychoses manifested to a compensable degree within one year following a period of active duty? (I) Is it at least as likely as not (a 50 percent or greater probability) that multiple sclerosis manifested to a compensable degree within seven years following a period of active duty? In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: Multiple sclerosis (1) A medical record from 2013 showing that multiple sclerosis was diagnosed in April 1991. The Veteran believed that he was initially diagnosed in September 1987 during an exacerbation of left-sided predominant weakness, blurred vision, numbness, dysesthesias, memory loss, and confusion. The Veteran reported that during service, he had problems with tremors and felt like his whole body was vibrating. The Veteran’s erectile dysfunction, which was related to multiple sclerosis, started gradually in the 1980s. Further information is provided. See December 2015 CAPRI. (2) Medical records from 1998 showing a body mass index of 29. Medical records from 2011 showed a diagnosis of multiple sclerosis in 1987. The Veteran reported that he had multiple sclerosis since 1987, that it had caused him problems with memory and balance, and that he had symptoms of multiple sclerosis during service. Medical records from 2012 showed that the Veteran’s multiple sclerosis had only occasional symptoms. The Veteran’s only knee problem was due to multiple sclerosis. The Veteran reported that his knee problems started during service with parachute jumps. An examination found that the Veteran’s back problems could not be readily differentiated from the effects of multiple sclerosis, although any effects from the back were minimal in comparison to the effects of multiple sclerosis. The back problems began during service with parachute jumps. The Veteran had had fairly constant low back pain since that time. The Veteran sometimes had difficulty separating the effects of multiple sclerosis from other things. Further information is provided. Id. (3) A service record showing that the Veteran had a parachute badge from active duty service. See May 2015 DD-214. (4) Service records from 1972 showing a laceration on top of the Veteran’s head, an impression of a nervous stomach, and complaints about a fiery pain on the back with tingling. See May 2015 STR – Medical – Photocopy. (5) Medical records from 1984 showing that the Veteran had difficulty remembering to take vitamins. Medical records from 1985 showed the Veteran’s report of difficulty understanding words and of having dizzy spells. Id. (6) The Veteran’s report that he was treated for multiple sclerosis symptoms while on active duty as early as July 1973. The symptoms appear to have been diagnosed as anxiety attacks. The Veteran had suffered with tingling in his hands since the 1970s. See October 2013 Form 9. (7) Medical records from 2013 showing obesity. See September 2013 CAPRI. (8) The Veteran’s report of neural fatigue from multiple sclerosis even before the first major exacerbation hit in the late 1980s. He could not work as long, had to take a severance package when he could not explain why he could not keep up, and often fell asleep at work. If he had to sustain significant effort for more than a couple of weeks, even just cognitive effort, fatigue would set in and take him out of action. Further information is provided. See May 2013 Medical Treatment Record. (9) A record showing that a 1985 MRI showed a diagnosis of idiopathic variant versus multiple sclerosis. See March 2013 Deferred Rating. (10) The Veteran’s report of having symptoms of multiple sclerosis during active duty service. He had trembling in his hands, blurred vision, and fatigue. He was diagnosed potentially with a familial tremor although no one has said anything about a familial tremor before or since because they were multiple sclerosis symptoms. This appears to have been one of the first diagnoses made before the multiple sclerosis diagnosis was made. He experienced multiple sclerosis symptoms during active duty service, and it would have taken years to get an actual diagnosis of multiple sclerosis. See July 2012 NOD. (11) A record showing that the Veteran is service connected for anterolisthesis at L5-S1 and tinnitus. See June 2012 Rating Decision – Codesheet. (12) A record showing that multiple sclerosis was diagnosed in 1987. See April 2011 CAPRI. (13) The Veteran’s report of tremors, tingling/numbness, fatigue, blurred vision, erectile dysfunction, balance problems, and cognitive impairment, among other multiple sclerosis symptoms. The Veteran was diagnosed with neurological conditions while stationed at Fort Bragg during active duty service. See March 2011 VA 21-526. (14) The Veteran’s report that service records show symptoms recognized as being related to multiple sclerosis. As early as July 1972, the Veteran began to have a few of these symptoms as shown in the service records. Multiple sclerosis results in typically scattered symptoms like an unsteady gait, shaky movements of the limbs, rapid involuntary movements of the eyes, defects in speech pronunciation, spastic weakness, and retrobulbar neuritis. See April 1995 Statement in Support of Claim. (15) A medical record from 1994 showing the Veteran’s report of multiple sclerosis symptoms for years before it was diagnosed. He worked from 1976 to 1986 and would sleep spontaneously at work. He was also unable to move quickly. In 1987, he had a severe exacerbation and sought medical attention for a walking irregularity, twitching of the hands, blurred vision, dizziness, and weakness. The Veteran believed that the initial multiple sclerosis symptoms began during active duty service. He felt that he had sensory overload, shaking, tremors, and photosensitivity which led him to prefer working at night during active duty service. He had a hard landing during a parachute jump during service as a result of a parachute problem, and then had severe back pain. He also sustained concussions on two separate occasions during active duty service with a brief period of unconsciousness. During active duty service, his hands shook and the harder he tried to stop them, the more they shook. Stuff would fly out of his hands. He was prescribed valium. During service, the tremor was extreme but then would go away. The examiner found that the Veteran was given a diagnosis of multiple sclerosis in 1987. See June 1994 VA Examination. (16) Service records from 1973 showing episodes of blurred vision, hearing loss, and trembling; defects in vision and hearing periodically; and complaints of violent shaking while trying to concentrate. The Veteran reported episodes of trembling for years when anxious. The Veteran answered questions slowly after pondering the answers. The Veteran had a history of anxiety, shaking, and nervousness. See March 1994 STR – Medical. (17) All other relevant lay and medical evidence.  Acquired psychiatric disorder (1) Medical records from 1998 showing PTSD, depression, and a questionable history of sexual abuse. The Veteran reported that at one point, following his time in service, he underwent counseling for PTSD. At that time, he was questioned about a history of sexual abuse, and it was his belief in retrospect that it was more related to the power of suggestion than actual memory. There was a body mass index of 29. Medical records from 2011 showed a history of PTSD and a training accident during active duty service at Fort Bragg where a dud projectile blew off a soldier’s jaw and hit others with fragments. The Veteran was very disturbed by the event. The Veteran also reported witnessing three deaths while in the military. There were diagnoses of PTSD and depression. The goal was to decrease PTSD from service. Another active duty in-service stressor occurred when a female civilian shot herself and died in his arms. Medical records from 2012 showed major health problems of PTSD and obesity. Medical records from 2013 showed the Veteran’s report of depression during service. Also, during service, the Veteran had a hard landing due to a tear in his parachute and hurt his back. He had constant low back pain since then. Medical records from 2015 potentially showed a severe anxiety disorder. See December 2015 CAPRI. (2) Service records showing a nervous disorder, that the Veteran needed mental hygiene, and an impression of a nervous stomach. See May 2015 STR – Medical – Photocopy. (3) The Veteran’s further report of two in-service stressors during active duty service. See October 2013 Form 9. (4) Medical records from 2011 showing the Veteran’s report of seeing counselors at VA for PTSD for about 20 years. Medical records from 2013 showed that the Veteran was obese. See September 2013 CAPRI. (5) A record showing that the Veteran was seen from July to August 1973 during active duty service for problems which especially occurred when he was very anxious. There was a diagnosis that certain episodes sounded most like an anxiety attack. The Veteran’s fine tremor may have been related to anxiety. See March 2013 Deferred Rating. (6) The Veteran’s report that he was prescribed valium while in service for his stress after the incident with the woman shooting herself. See July 2012 Statement in Support of Claim. (7) A record showing that the Veteran is service connected for anterolisthesis at L5-S1 and tinnitus. See June 2012 Rating Decision – Codesheet. (8) A medical record from 1994 showing the Veteran’s report that during service, the Veteran’s tremor was noticeable with stress. See June 1994 VA Examination. (9) Medical records from 1991 showing problems with depression and obesity. See May 1994 Medical Treatment Record. (10) Service records from 1973 showing a diagnosis of an anxiety reaction. The Veteran may have had episodes of trembling, especially when anxious, for years. The Veteran may have had an anxious appearance. The Veteran may have been depressed. There was an assessment of episodes sounding most like an anxiety attack. The Veteran’s problems may have been due to anxiety. The Veteran was using valium. The Veteran had a history of anxiety, shaking, and nervousness. Further information is provided. See March 1994 STR – Medical. (11) Medical records from 1989 showing that the Veteran had mild tingling in the fingers when stressed. Id. (12) All other relevant lay and medical evidence.  A complete rationale for all opinions offered should be provided.  Address the Veteran’s documented history and assertions, including the Veteran’s report of continuity of symptomatology since active duty service.  All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community’s knowledge or due to the limits of the examiner’s medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran 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 provide a fully reasoned explanation. 7. Readjudicate the issues on appeal. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dougan, Associate 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.