Citation Nr: 21023674 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 13-08 814 DATE: April 21, 2021 ORDER Entitlement to service connection for a chronic disability of the central nervous system, to include clinically isolated syndrome, demyelinating disease of the central nervous system (claimed as multiple sclerosis), to include as an undiagnosed illness with the symptom of numbness or tingling, is granted. FINDING OF FACT The Veteran’s symptoms of numbness and tingling, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. CONCLUSION OF LAW The criteria for entitlement to service connection for a chronic disability of the central nervous system, to include clinically isolated syndrome, demyelinating disease of the central nervous system (claimed as multiple sclerosis), to include as an undiagnosed illness with the symptom of numbness of tingling, have been met. 38 U.S.C. §§ 1110, 1117, 1118, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 2003 to May 2004, July 2006 to November 2007, and April 2011 to March 2012, to include service in Southwest Asia. She also had service in the Army National Guard, to include a period of active duty for training from June 2002 to August 2002. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from July 2015 and August 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office in Sioux Falls, South Dakota. The issue on appeal was previously before the Board in April 2020 and June 2018, with it was initially remanded for additional development, and then for non-compliance. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The Board finds that there has been substantial compliance with the Board’s previous remand directives and the matter is properly before the Board. Id. Service Connection Service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the disease entity is established, there is no requirement of an evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that as an alternative to the nexus requirement, service connection for a chronic disease listed under 3.309(a) may be established through a showing of continuity of symptomatology since service). In each case where a veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the veteran’s service as shown by the veteran’s service record, the official history of each organization in which the veteran served, the veteran’s treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term "chronic" means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). Objective indications of a qualifying chronic disability include both signs and symptoms, in the medical sense of objective evidence perceptible to an examining physician, and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for her symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). The term "MUCMI" refers to a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). There is no burden on a veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the veteran can be compensated for a disability stemming from an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. 38 C.F.R. § 3.159. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a chronic disability of the central nervous system, to include clinically isolated syndrome (CIS), demyelinating disease of the central nervous system (claimed as multiple sclerosis), to include as an undiagnosed illness with the symptom of numbness or tingling. The Veteran contends that service connection is warranted for a chronic disability of the central nervous system, to include clinically isolated syndrome, demyelinating disease of the central nervous system (claimed as multiple sclerosis), to include as an undiagnosed illness because it manifested as a result of serving in the Persian Gulf. In June 2018, the Board initially remanded the issue after observing that in an April 2015 VA treatment record, it was noted that the Veteran was seeing a private doctor, Dr. Simmons, for seizures and migraines with questionable multiple sclerosis. However, the records were not associated with the claims file. The Board reviewed the record, and it was unclear whether the Veteran had a current diagnosis of a neurological disability, such as multiple sclerosis or a disease of the central nervous system. The available medical evidence in the record indicated that she has neurological symptoms, such as numbness and tingling of the hands and feet, which were not clinically diagnosed. The Board found that the record did not contain sufficient medical evidence regarding the nature and etiology of the Veteran’s clinically isolated syndrome, demyelinating disease of the central nervous system (claimed as multiple sclerosis), and requested that that Gulf War examination must be conducted upon remand. The April 2020 Board decision noted that the AOJ obtained updated VA treatment records, and in May 2019 it sent the Veteran a letter asking her to provide authorization forms for any private treating providers, or to provide the records herself. However, the Veteran did not respond to that request. The Board remanded the issue once again because the VA examination that was conducted in October 2019 was found to be inadequate as the entire evidence of record was not reviewed before the examiner issued a negative opinion. A post-remand VA examination was afforded to the Veteran in January 2021 to assess the nature and etiology of her clinically isolated syndrome, demyelinating disease of the central nervous system (claimed as multiple sclerosis), to include as an undiagnosed illness with the symptom of numbness or tingling. The January 2021 examiner opined that the Veteran’s clinically isolated syndrome was a previously diagnosed condition that resolved without residuals, and was less likely than not (less than 50 percent probability) had its onset in, or is otherwise attributable to the Veteran’s periods of active service. The examiner also found that there was no diagnosis of multiple sclerosis or any symptoms of demyelinating disease of the central nervous system and that it was not a chronic condition. The examiner added that the numbness or tingling would be a sensory loss, and is a symptom with several potential etiologies such as metabolic condition or nerve compression. The examiner added that numbness and tingling was not medically assessed, it did not progress over hours to days and then remit over weeks to months as seen in CIS and would not occur as an isolative symptom, or as the only symptom if it was a chronic neurologic condition. The Board observes that the Veteran’s numbness and tingling is a chronic qualifying undiagnosed illness as there are objective indications without any medical diagnosis to account for the symptoms. See Joyner, supra. In the absence of proof of a present disability, there can be no valid claim for CIS and multiple sclerosis, or symptoms of demyelinating. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no diagnosis of a current disability for CIS and multiple sclerosis, or symptoms of demyelinating. Thus, direct service connection is not warranted. In Gutierrez v. Principi, the Court held that objective medical evidence is not required for an award of service connection under 38 U.S.C. § 1117. Veterans are competent to report signs or symptoms without the need for any medical verification or etiological opinion. Veterans, spouses, family members, and friends are all competent to report objective signs and symptoms that are capable of lay observation. The Court held that symptoms that are capable of lay observation are presumed to be related to service. Lay testimony is competent to establish the presence of observable symptomatology such as feeling numbness or tingling. See Barr v. Nicholson, 21 Vet. App. 303 (2007). If there is a clear diagnosis of record that fully accounts for the Veteran’s identified signs and symptoms, then the Veteran’s claim for service connection for undiagnosed illness must be denied. However, consideration must be given to granting service connection on a direct basis for that diagnosis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, there is no clear diagnosis for this Veteran’s symptoms of tingling or numbness. Based on the foregoing, entitlement to service connection for a chronic undiagnosed illness with symptoms of tingling or numbness is warranted. The claim is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.